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.

Sunday, August 7, 2016

On Voting, Courts Stepping Up to Responsibilities

      Eight decades ago, the Supreme Court declared in its now famous Footnote Four in United States v. Carolene Products Co. (1938) that three types of laws warrant special scrutiny when challenged in court. Courts should look more carefully than usual, the footnote instructs, at laws that run afoul of specific constitutional prohibitions, laws that distort the political process, or laws that disadvantage “discrete and insular” minorities.
      Three years ago, the North Carolina legislature passed a broad overhaul of election procedures that fit into two of those three categories. Newly freed from the requirement to preclear any election law changes with federal authorities, the Republican-controlled legislature passed a law to make it harder for African Americans to vote and thus to hurt Democrats in a state with racially polarized voting.
      A federal appeals court has now struck down major provision of the North Carolina law after finding that the legislature intentionally discriminated against minority voters in violation of the federal Voting Rights Act. Given the specific language of that law, Footnote Four’s admonitions were not essential to the decision. But the footnote is worth recalling now to emphasize that courts play an essential role in safeguarding democracy even when they may appear to be undermining it.
      The ruling by the Fourth U.S. Circuit Court of Appeals in North Carolina State Conference of the NAACP v. McCrory (July 29) details the damning evidence that North Carolina legislators were deliberately trying to suppress the black vote when they overhauled voting procedures in 2013. Writing for a unanimous panel of three Democratic appointees, Judge Diana Motz acknowledged that the GOP-controlled legislature and Republican governor Pat McCrory had the right to reconsider election law changes approved under previous Democratic administrations.
      “Elections have consequences,” Motz wrote, but “winning an election does not empower anyone in any party to engage in purposeful racial discrimination.” She and her colleagues saw through the state’s argument that legislators were acting only to eliminate some administrative problems resulting from the earlier changes.
      Tellingly, the North Carolina began its review of voting procedures by asking for racial data about the use of some of the voting practices that they were considering revising. In an earlier time, the legislature had made voting easier by approving such procedures as early voting, same-day registration, provisional out-of-precinct voting, and preregistration for 16- and 17-year olds.
      To no one’s surprise surely, the legislature learned that the state’s African Americans made more use of these voting procedures than the state’s white voters. Most concretely, the data showed that somewhat more than 60 percent of African Americans used early voting in 2008 and 2012 (60 percent and 64 percent respectively)  but fewer than half of white voters (44 percent and 49 percent respectively).
      The data also showed that African Americans were more likely to take advantage of same-day registration and more likely to cast provisional ballots based on voting at the wrong precinct. Black teenagers were more likely than white teenagers to preregister to vote at age 18 when applying for driver’s licenses after reaching age 16. And African Americans were disproportionately less likely than whites to have the kind of photo ID that the legislators decided to require for voting.
      Besides the new photo ID requirement, the law reduced early voting from 17 days to 10 days and completely eliminated three other practices: same-day registration, out-of-precinct voting, and preregistration. The change in early voting significantly eliminated one of the two Sundays that black churches had used in so-called “souls to the polls” voting drives. Black churches have long been the center of voter mobilization efforts in African American communities throughout the South.
      The changes in the law target African Americans “with almost surgical precision,” Motz wrote. The evidence of discriminatory intent, she said, was “as close to a smoking gun as we are likely to see in modern times.”
      The Fourth Circuit’s ruling came four days after the Fifth Circuit appeals court had ruled somewhat similarly against a strict voter ID law that Texas had enacted in the same year as North Carolina’s law. In an en banc ruling, the generally conservative appeals court voted 9-6 to find that the Texas law violated the Voting Rights Act because it had disproportionate effects on black and Latino voters.
      By coincidental timing, a federal judge in Wisconsin struck down voting law changes on the same day as the Fourth Circuit’s ruling in the North Carolina case. In a 119-page decision, Judge James Peterson said that provisions limiting early voting, eliminating weekend voting, and limiting absentee ballot voting to one location were unconstitutional because they intentionally discriminated on the basis of race.
      One weekend later, a federal judge in North Dakota also struck down parts of that state’s voter ID law. Judge Daniel Hovland ruled on Aug. 2 that the law unfairly burdened Native Americans by requiring a photo ID with a street address because many Indians on tribal reservations use post office boxes to get their mail.
      The seeming rush of rulings resembles the sudden spate of federal court decisions two years ago rejecting bans on same-sex marriages. The weak and unsubstantiated arguments about voting fraud and administrative burdens fall apart under the kind of scrutiny the Supreme Court instructed in Footnote Four. The integrity of the political process, it turns out, is too important to be left to politicians. Courts are now stepping up to their role in safeguarding that most precious of rights: the right to vote.

Friday, July 29, 2016

Democrats Offer 'Progressive' Vision in Platform

      Democrats nominated a committed feminist as their candidate to be president of the United States. Republicans chose an unrepentant misogynist instead. The Democratic nominee began her professional life as a lawyer working for child and family welfare. The Republican nominee began his professional life in real estate, with a stake from his millionaire father, and moved on into casino gambling and name-brand entrepreneurialism.
      The Democratic ticket includes as the vice presidential candidate a devout Roman Catholic who worked as a missionary and as a lawyer sued to enforce fair housing laws. The Republican presidential nominee is a three-times married philanderer who was sued for housing discrimination early in his career and settled the case by paying a penalty.
      Apart from their different life stories, Hillary Rodham Clinton and Donald J. Trump present the starkest choice in political views and policy recommendations that the United States has seen since the Johnson-Goldwater race in 1964. And the party platforms are as different as night and day: dark and dystopian for the Republicans, bright and optimistic for the Democrats.
      The GOP platform was rightly called “the most extreme” in the party’s history; the Democrats’ is accurately described as the “most progressive” in their history. Both are written in policy-speak prose, but the Democrats’ platform is as densely wonkish and detailed as a Hillary Clinton speech in contrast to the mostly negative recommendations — repeal, overturn, and so forth — that Republicans offer.
      Supreme Court watchers will note that the Democrats applaud the same-sex marriage equality decision that Republicans vow to overturn through new appointments to the court. Democrats double down on LGBT rights by supporting efforts to interpret existing sex discrimination laws to prohibit anti-LGBT discrimination as well. Democrats promise to defend abortion rights, while Republicans want to overturn Roe v. Wade. Democrats double down again by promising to work to repeal the Hyde Amendment, the federal law from the 1970s that prohibits Medicaid funding of abortions.
      Democrats have targeted one example of Supreme Court activism to overturn: the 2010 decision in Citizens United that freed corporations, and unions, to spend money on federal campaigns from their own treasuries instead of through political action committees. The decision is a bĂȘte noire for the party’s progressive base, especially the Bernie supporters, but the impact of the ruling has been exaggerated and the odds for overturning it even with one or more Democratic-appointed justices are no better than 50/50.
      In her acceptance speech, Clinton promised to appoint justices who “will get money out of politics,” apparently forgetting the sage wisdom of the great Democratic politico Jesse Unruh that money is “the mother’s milk of politics.” More realistically, Clinton also promised to appoint justices who want to “extend” voting rights rather than “restrict” them. The court’s future course on those issues is up for grabs, more so than its future stance on campaign finance laws.
      The party platforms take opposite approaches on voting. The Republicans promise to strengthen the voter ID laws aimed at preventing the imaginary problem of polling place impersonation fraud. The Democratic platform sneers at voter ID laws and counters with a detailed laundry list of measures to combat voter suppression and enlarge the franchise.
      The platform calls for restoring the Voting Rights Act—a tacit reference to overturning the Roberts Court decision in Shelby County v. Holder that eliminated preclearance, the act’s most powerful enforcement weapon. It favors universal automatic voter registration, early voting, voting by mail, and so forth. And it doubles down by calling for restoring voting rights for ex-felons. Republicans offered no positive steps to make voting easier.
      The Democrats open the platform by self-identifying as “the party of inclusion.” Today’s immigrants, the platform reminds us, are tomorrow’s “teachers, doctors, lawyers, government leaders, soldiers, entrepreneurs, activists, PTA members, and pillars of our communities.” The platform vows to work for “comprehensive immigration reform” and promises “no religious test for immigrants.” No elaboration was needed to draw the explicit contrast with the anti-Muslim rhetoric of the Republicans’ standard-bearer.
      Trump may be ignoring the party’s Chamber of Commerce base, but the GOP platform includes several items from the business community’s wish list. Democrats went the other way. Republicans want to abolish, the Democrats want to strengthen, the Dodd-Frank Wall Street reform law. Democrats want to strengthen the Consumer Finance Protection Bureau and re-enforce its power to prevent the predatory lending practices that added to the pain of the housing crisis. Republicans want to abolish the agency.
      Trump may view himself as a friend of the blue-collar worker, but the Democrats endorse union rights while the Republicans say nothing. Democrats also want to limit the use of forced arbitration to limit legal remedies for workers and consumers; again, the GOP platform is blank. And the Democrats touch on other progressive causes unfound in the GOP charter: environmental justice for one, tribal sovereignty for another.
      Above all, credit the Democrats for discovering political courage that they too often have kept in the closet unless needed after an election. The platform calls for enacting sensible gun safety laws, now a popular cause, and abolishing the death penalty, not yet a politically winning issue. It is perhaps audacious to offer a progressive vision to counter the divisive rhetoric and policies that proved so useful in Trump’s rise. Voters get to decide in November.

Sunday, July 24, 2016

Liberty, Justice Missing From GOP Platform

      Donald Trump painted a truly terrifying picture of the United States in accepting the Republican presidential nomination on Thursday night [July 21]. The United States he depicted is a country beset by rampant crime at home and invincible adversaries abroad. In its own way, the official Republican Party platform for 2016 is equally scary even as the drafters claimed to be “optimistic” because “the American people are optimistic.”
      The 66-page platform is written in policy-speak prose instead of Trump’s staccato alarmism, but it paints a country in similar dystopian terms. And the various policy positions add up to what the New York Times aptly called in an editorial “the most extreme Republican platform in memory.” Understand that the Times’s memory extends at least back to 1964 when the party’s nominee, Barry Goldwater, embraced “extremism in the defense of liberty” and the platform saw individual freedom in retreat under “the mounting assault of expanding centralized power.”
      The threats to freedom and democracy in 2016 come from an “activist” judiciary that undermines self-rule and regulatory agencies that impose “quiet tyranny.” The platform lists individual liberty as a core American value but would actually make Americans less free in some respects. It claims to favor equal treatment for all but disrespects gay and lesbian families and would restore legal discrimination against same-sex couples seeking the respect and protection of marriage.
      The platform calls for appointment of judges “who respect the rule of law” and therefore would vote to reverse the landmark abortion rights decision Roe v. Wade, the marriage equality decision Obergefell v. Hodges, and the Obamacare cases. On abortion, the platform calls for adoption of the Human Life Amendment to extend constitutional protection to “unborn children.” This seemingly benign language would make abortion illegal in all circumstances — with no exceptions for rape, incest, or life of the mother — and possibly pave the way for prosecuting women who have abortions, whatever Trump’s view on the issue may turn out to be. 
      The platform would not merely overturn Obergefell, leaving the same-sex marriage issue to individual states, but would constitutionalize the definition of marriage as “one man and one woman.” For the Republican platform writers, family values translate to a mom and a dad for all children: single parents and same-sex couples to the curb. The platform backs adoption, but ignores the thousands of gay and lesbian parents raising adoptive children in loving homes from sea to shining sea. The party backs anti-discrimination legislation, but not for sexual orientation or gender identity. And for good measure the platform endorses asylum for victims of ethnic or religious persecution but with no mention of the many LGBT refugees fleeing persecution in their homelands.
      The platform runs through the Bill of Rights from the first to the tenth, but puts a curious spin on the First Amendment’s religion clauses. The Establishment Clause to the contrary notwithstanding, the platform calls for the teaching of the Bible “as literature” in school curricula throughout the country with no mention of the scriptures of other faiths. It also calls for Congress to pass the First Amendment Defense Act, which would create a precedent-setting, faith-based exemption from LGBT-inclusive civil rights laws.
      In an election season, the platform naturally extols the right to vote, but perpetuates the Republican myth of widespread voter fraud by supporting proof of citizenship and “secure photo ID” as prerequisites for casting ballots. By unfortunate coincidence for Republicans, the platform was adopted in the same week that a generally conservative federal appeals court found that Texas’s voter ID law, strictest in the nation, discriminates against black and Latino would-be voters.
      Unsurprisingly, the platform does not criticize the activist Roberts Court decision in 2013 that struck down the preclearance provision of the federal Voting Rights Act. It also speaks approvingly of court decisions that have struck down campaign finance regulations and, for good measure, calls for “raising or repealing” contribution limits so that big-money donors can have that much more political speech.
      The platform bows to the Second Amendment in opposing “ill-conceived laws” to limit magazine capacity or prohibit assault weapons — or, as the platform calls them, “the most popular and common modern rifle.” And a states rights-minded party unembarrassedly calls for “firearm reciprocity legislation to recognize the right of law-abiding Americans to carry firearms to protect themselves and their families in all 50 states.”
      Naturally, the platform backs Trump’s signature policy position of building a wall “to cover the entirety of the southern border” and “sufficient to stop vehicular and pedestrian traffic.” The platform includes no details, including the likely cost, but Trump of course plans to have Mexico pay for it. 
      Outside these hot-button issues, the platform pays obeisance to the party’s Chamber of Commerce base by decrying high corporate tax rates, urging the repeal of the Dodd-Frank Wall Street reform law, and calling for the abolition of the Consumer Finance Protection Bureau. It also favors a nationwide cap on non-economic damages in medical malpractice lawsuits, states’ rights again be damned.
      The reading-challenged presidential nominee is unlikely to have read the entire platform, but the document represents what GOP candidates are ostensibly committed to support if elected in November. A Republican victory based on this platform would make a mockery of the uplifting words of the Pledge: “with liberty and justice for all.”

Saturday, July 16, 2016

On Trump, ACLU Hits Target That Ginsburg Missed

      Credit the American Civil Liberties Union for taking the debate about Donald Trump in the direction that Supreme Court Justice Ruth Bader Ginsburg might have been able to if she had gone beyond off-hand comments to a succession of three reporters. In a comprehensive, 27-page report released on Thursday [July 11], the ACLU makes the case that Trump’s stated policies in six major areas would violate the U.S. Constitution, U.S. law, or international law, or all three. Coincidentally, the report came just as Ginsburg was saying in a written statement that her comments were “ill-advised.”
      The ACLU report stresses at the outset that the organization does not endorse, and never has endorsed, candidates for public office. The ACLU does law, not politics. The report is thus heavy with legal citations and essentially void of political analysis and gains in credibility thereby. No one will be surprised that Trump’s views on abortion, immigration, libel, and torture run afoul of law, but the ACLU does a great service by proving it, point by point by point by point.
      As a justice, Ginsburg does law, not politics, but her comments about Trump were strictly political and void of legal analysis. In her most extended remarks, to CNN’s Joan Biskupic, she called Trump a “faker,” faulted him for “ego,” and accused him of “no consistency.” Only once did she touch on the issue of Trump’s lack of respect for judicial independence. “For the country, it could be four years,” she told the New York Times’s Adam Liptak. “For the court, it could be — I don’t even want to contemplate that.”
      The comments predictably provoked Trump, who tweeted that Ginsburg was “a disgrace to the court” and suggested that she had “lost it.” In nonpolitical vein, many in political and legal worlds argued that Ginsburg had breached the ethical rule that judges should steer clear of politics. Two liberal newspapers, theNew York Times itself and the Washington Post, editorially criticized her. The Times aptly described her remarks as “political punditry” and “time-calling.”
      Some on the legal left, however, suggested that Ginsburg had the right and even the duty to speak out. Ginsburg was entitled to her surely well known opinions, they said, and it was good to unmask the fiction of judges as political ciphers. Trump’s candidacy poses a danger that demands speaking out and condemns silence. One writer, Slate’s Mark Joseph Stern argued that Ginsburg was justified because of the “menace” that Trump poses for the country.
      Some continued to defend her even after the justice herself voiced her regrets. “Judges should avoid commenting on a candidate for public office,” she said. “In the future, I will be more circumspect.”
      The ACLU report has no name-calling, no punditry, only legal analysis, issue by issue. It begins by noting Trump’s call for “a complete and total ban” on Muslims entering the country, as immigrants or tourists. The report infers that Trump has in mind the federal law authorizing the president to suspend entry of a “class of aliens.” But it argues that the law probably does not go that far and would violate the Constitution —  the Establishment Clause among other provisions — if a president tried to stretch it that far.
      In like vein, the report argues that Trump’s proposal for blanket surveillance and registration of Muslims in the United States would be unconstitutional, a violation of equal protection as well as the First Amendment’s free exercise and free speech clauses. Apart from the Constitution, the Muslim “database” would surely violate federal privacy statutes, the report adds.
      The report notes Trump’s endorsement in May 2015, before his presidential campaign, of legislation to allow the National Security Agency to collect “bulk metadata” of telephone calls by Americans. Congress changed the law less than two weeks later to prohibit collecting Americans’ call records in bulk, but Trump appears not to have changed his views. In an interview on MSNBC in November, Trump said in regard to telephone surveillance that he would “err on the side of security.” The report repeats the ACLU’s position that such surveillance is both unconstitutional and illegal.
      Trump has advocated waterboarding and other forms of torture, the report notes, seemingly reveling in the practice. He has said that he “love[s] waterboarding” and approves of the practice because “they deserve it anyway, for what they’re doing.” The Bush administration authorized waterboarding and other “enhanced interrogation techniques” under a Justice Department memorandum that was later repudiated. As the ACLU report states bluntly, torture and “other forms of cruel, inhuman, or degrading treatment” are “banned” by the U.S. Constitution, domestic law, and international law--with no “deviations” permitted.
      On domestic issues, Trump has called for revising libel laws “so that we can sue [media outlets] and win money.” But there is no federal libel law — nor can the president write one without Congress — and any change would run into the Supreme Court’s famous New York Times v. Sullivan ruling and subsequent line of decisions.
      Trump stirred controversy in March by suggesting that women need to be “punished” for abortions. He tried to walk back from the stance while still calling for punishing doctors. Whatever his position, the ACLU report correctly notes that the Constitution “squarely prohibits” either the federal or state governments from prohibiting abortion.
      Unfortunately, the ACLU report got little attention in a week dominated by political events at home and terrorism abroad. Had Ginsburg given a formal speech or interview to question the legal basis of some of Trump’s proposals, it would have made a contribution worthy of and possibly within the ethical rules of a Supreme Court justice. She didn’t. Credit the ACLU for doing it instead.

Sunday, July 10, 2016

Police Reforms Needed to Make Black Lives Matter

      The saturation coverage of the horror of Dallas has understandably taken precedence over follow-ups of the week’s earlier tragedies: the “police-involved” shootings of young African American men in Baton Rouge and a Minneapolis suburb. The bigger story is the unnecessary killing of young black men at the hands of police and the significant racial disparity in police use of force against African Americans.
      By the numbers, police use force in a tiny fraction of encounters with civilians, roughly 1 percent to 2 percent. But a new study by a racial justice-oriented think tank provides some confirmation of the racial disparity in police use of force that black Americans experience as a daily fact of life and that too many white Americans refuse to acknowledge.
      The study by the Center for Police Equity found that police use force against African Americans more than three times as often as they do against whites. Specifically, the mean rate for black residents is 273 instances per 100,000 residents in the 19 communities included in the two-year study: 3.6 times greater than the mean rate of 76 instances per 100,000 white residents. The mean rates for Hispanics were just below those for whites and the mean rates for Asians were very low: 15 instances per 100,000 residents.
      The disparity is significant but somewhat smaller for use of force in arrests. The study calculated 46 instances of use of force per 1,000 arrests of African Americans, about 30 percent higher than the average for whites: 36 instances per 1,000 arrests. Paradoxically, however, the study found the disparity reversed for arrests of violent offenses: force was 40 percent more likely to be used when arresting a white than a black for a so-called Category I offense.
      Arguably, that paradox substantiates rather than contradicts the suggestion of an implicit racial bias on the part of police forces nationwide. The disparity emerges not when dealing with serious criminals, but with less serious law violators such as Alton Sterling, killed Tuesday for selling loose CDs on a Baton Rouge, La., street corner, and Philando Castile, killed Wednesday for driving with a broken tail light in St. Anthony, Minn.
      Both deaths are officially under investigation, even after the cellphone videos have gone viral. Whatever the results of those investigations, however, Minnesota’s white governor, Mark Dayton, was undoubtedly right when he said that Castile would not have been killed as he reached for his ID, not his gun, if he had been white.
      In another seemingly paradoxical result, the study found police more likely to use lethal force against whites than against blacks, but nonlethal force — hands and body, pepper spray, tasers, canines — was more likely to be employed against blacks than against whites. Overall, the study calculated a comparison based on the count and the severity that found use of force 3.8 times greater for blacks than for whites.
      By the numbers, police-civilian encounters are far more likely to be fatal for civilians than for cops. The Washington Post’s comprehensive compilation counted 491 civilian deaths for the first six months of 2016, up 6 percent from the 465 in the same period in 2015. The Post’s numbers apparently do not include Sterling or Castile.
      Add one more: Micah Xavier Johnson, the black assassin who killed five officers and wounded seven others in downtown Dallas, before being taken out by a police-guided robot-bomb. Johnson, a 25-year-old Army veteran, was motivated, according to his words as reported by Dallas police, by hatred of whites, and especially white police officers.
      The five deaths were reported in the Post on Friday [July 8] on the front page, just above the previously planned, long takeout headlined, “Deadly shootings by police on the rise in 2016.” In the web version, the Post also included a table showing 20 police officers shot and killed in the first six months of 2016, up 25 percent from the 16 counted in the same period in 2015.
      The deaths in Dallas bring that number to 25 for 2016. The calculated nature of Johnson’s killings, and his explicit racial motivation, make the officers’ deaths more than a tragedy but an outrage. But assassinations cannot be anticipated nor assuredly prevented. No policy recommendations emerge from the horror in Dallas beyond Sgt. Phil Esterhaus’s daily roll-call admonition on Hill Street Blues: “Be careful out there.”
      There are policies, however, to deal with the problem of police use of force and the racial disparities. The Dallas police department is taking credit for training officers in “de-escalation” well before other cities, training that might have averted the deaths in Baton Rouge and St. Anthon and perhaps many others. Police forces also need to be more diverse, more representative of the communities they serve, and more sensitive to the cultural and social traditions of the people they serve.
      After Dallas, the dominant theme in news stories and commentary was, “Nation on edge.” Police feel beleaguered, but so do many, many black Americans. Like the Dallas officers’ deaths, Sterling’s and Castile’s death are more than a tragedy but an outrage. Perhaps these black lives can matter if they help build pressure for police to make meaningful changes in their policies and practices to protect and serve all, without regard to race. So far, as the Washington Post observed editorially, the moves in that direction have been “grievously inadequate.”