The House (Further) Militarizes U.S. Detention Policy

Jonathan Hafetz

In what has become an all too familiar pattern, lawmakers are again seeking to exploit the National Defense Authorization Act (NDAA), which establishes Pentagon policy and spending levels, to enact senseless measures aimed at demonstrating how tough they are on terrorism. On Friday, the House approved two amendments to the House Armed Services Committee (HASC) version of the FY 2013 NDAA. Both amendments threaten to entrench and expand military detention.  One amendment, proposed by Rep. Louis Gohmert (R-Tex.), significantly dilutes habeas corpus and appears to authorize the indefinite military detention of individuals seized in the United States.  The other amendment, proposed by Rep. Tom Rooney (R-Fl.), would bar civilian trials for individuals who fall within the broad jurisdiction of military commissions.

The Gohmert amendment's purported aim was to protect the rights of all persons lawfully in the United States by ensuring their access to habeas corpus.   But this protection was already clearly established under both federal statute and the Constitution--not only for those lawfully in the United States, but for all persons in the country, whose statutory rights the Gohmert amendment now calls into question with its lawful-unlawful distinction.  The Gohmert amendment's real purpose, however, was to deflect and defeat a bi-partisan amendment proposed by Adam Smith (D-Wash.) and Justin Amash (R-Mich.) that would have actually done something to protect individual rights: by clarifying that existing law does not authorize the military detention of individuals arrested in the United States.    Not only was the Smith-Amash amendment voted down, but also the Gohmert amendment now threatens the status quo by suggesting that military detention is authorized.  Additionally, the Gohmert amendment could allow domestic military detention without habeas corpus for up to thirty days, thus undermining the current statutory regime, under which the writ is immediately available to anyone detained without trial.  In fact, the Gohmert amendment would help lay the foundation for secret imprisonment and enforced disappearance  (The only "protection" it provides is that the President notify Congress within 48 hours after subjecting a person to military detention).  Steve Vladeck has an excellent post at Lawfare on the amendment's flaws.

The Rooney amendment, meanwhile, picks up where opponents of Article III courts left previously off.  The amendment seeks not merely to preserve military commissions as an option (the Obama administration position), but to expand them by mandating their use in lieu of federal criminal prosecutions. (For the amendment's text and a further discussion of its problems, see Bobby Chesney's post here).  Every top counter-terrorism official in the government opposed attempts to enact a far less draconian mandatory military detention provision in the 2012 NDAA, and the Rooney amendment will no doubt face similar opposition.  The amendment underscores, nevertheless, the extent to which the military detention and trial of terrorism suspects has become normalized and how each legislative cycle or thwarted terrorist plot prompts new calls to expand military jurisdiction at the expense of federal courts.

The attention and support garnered by the Smith-Amash amendment, to be sure, reflects an increasing concern among both conservatives and liberals about the risks of domestic military detention.  Yet, this bi-partisan groundswell remains insufficient to affect a change in the direction of U.S. national security policy. Proponents of further militarizing U.S. detention practice engaged in election-year fear mongering not only to defeat the Smith-Amash amendment but to approve a measure that further erodes constitutional protections.  The House vote suggests that until a tipping point is reached, the roots of military detention will only grow deeper with each attempt to legislate in this area.
Posted 10:08 AM by Jonathan Hafetz [link]

Brown v. Brown: The Equal Protection Clause at a Crossroads

David Gans

Today marks the 58th anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education, the unanimous ruling that struck down racial segregation and restored the Fourteenth Amendment’s promise of equality. While Brown is still widely celebrated as the “crown jewel of the U.S. Reports,” the sad truth is that, on the Supreme Court these days, Brown is hardly recognizable as the landmark ruling that ended Jim Crow and struck down state-sponsored discrimination treating African Americans as inferiors. In the hands of Chief Justice Roberts and other conservatives, Brown stands as a barrier against race-conscious efforts to promote equality and foster the effective participation by all persons in the civic life of nation that was at the core of Brown. In conservative hands, Brown freezes in place, not ends, continuing racial inequality.

One of John Roberts’ first landmark opinions as Chief Justice announced this new understanding of Brown and of the Equal Protection Clause. In 2007 decision in Parents Involved v. Seattle School District, Chief Justice John Roberts, speaking for four Justices, opined that Brown’s command is “to stop discriminating on the basis of race.” In a bitter dissent, Justice Stephen Breyer, also speaking for four Justices, accused the Chief Justice of undermining “Brown’s promise of integrated primary and secondary education” and turning its back on the Constitution’s guarantee of “true racial equality – not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools.” Justice Anthony Kennedy provided the fifth vote to strike down local efforts to prevent racial isolation in schools, but rejected the Chief Justice’s rule of absolute colorblindness and agreed with the dissent that governments have the authority to act “to reach Brown’s objective of equal educational opportunity.” This fight over Brown is sure to continue next Term, when the Justices consider Fisher v. University of Texas at Austin, a constitutional challenge to the race-conscious admission process at Texas’ flagship public university. In Fisher, Justice Kennedy has the opportunity to set matters rights and demonstrate to the Chief Justice that Brown is at the core of what Justice Kennedy has called our “historic commitment to creating an integrated society that ensures equal opportunity for all its children.”

Today, corresponding with Brown’s anniversary, Constitutional Accountability Center is releasing Brown v. Brown: Will the Supreme Court Interpret the Equal Protection Clause to Invalidate Measures Designed to Promote Equal Opportunity and Redress Our Nation’s Long History of Racial Discrimination?, the newest chapter in the CAC series, The Constitution at a Crossroads: The Ideological Battle Over the Meaning of the Constitution. As we explain in the introduction to the series, focusing on a dozen or more of the most ideologically charged areas of constitutional law, Crossroads attempts to map out and describe the ideological battle on the Supreme Court over the meaning of the Constitution. (Prior chapters of Crossroads, available here, tackle the ideological division on the Court over the powers of the federal government to regulate commerce among the states, to spend money to promote the general welfare, and to enforce the guarantees of the Civil War Amendments, and over the limits the First Amendment imposes on campaign finance reform designed to ensure the integrity of our democracy.)

In just a little more than half a decade, the Roberts Court has begun to reshape basic, fundamental principles of constitutional law. From Citizens United v. FEC, in which the Court expanded the case on its own motion, scheduled a second argument, and then issued a sweeping ruling discarding prior case law, to the Affordable Care Act (ACA) cases argued in March, in which the Court decided to hear just about every claim presented to it – including claims unanimously rejected by the lower courts – and scheduled six hours of argument time over three days, the Court under Chief Justice John Roberts has put itself at the center of some of the most important controversies over the meaning of the Constitution. Decisions like the Court’s 5-4 ruling in Citizens United illustrate that the Roberts Court is not only taking big cases and issuing sweeping rulings, but it is also splitting sharply along ideological lines on important questions about the meaning of our founding document. Crossroads explains what is at stake in these battles over the Constitution.

Brown v. Brown, the first of a number of Crossroads chapters on the Constitution’s protection of equality for all persons, tells the story of how conservatives on the Rehnquist and Roberts Courts have transformed Brown and the Equal Protection Clause into a powerful weapon to limit what federal, state, and local governments can do to redress our nation’s long history of racial discrimination and ensure that the Constitution’s promise of equal opportunity is a reality for all Americans regardless of race. Insisting that an identical form of strict scrutiny applies whenever the government uses race – whether to oppress racial minorities or to assist them – the Court’s rulings since the late 1980s have limited the power of government to redress racial isolation in schools, enact affirmative action programs to assist racial minorities in overcoming the lingering effects of racial discrimination, and draw legislative districts in which racial minorities have a fair chance of electing their candidate of choice. This conservative reading turns Brown on its head and threatens to limit iconic civil rights statutes, such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965, enacted by Congress to build out and enforce Brown’s understanding of constitutional principles of equality.

The Court’s conservatives have not made any serious effort to justify this dramatic transformation of the law in the name of the text and history of the Fourteenth Amendment. Nor could they. The text of the Fourteenth Amendment provides that “no State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The Framers chose this language, providing universal coverage that protected every person residing in the United States, rejecting proposals that would have prohibited all forms of racial discrimination by the state. Indeed, the Framers recognized a basic difference between oppression and assistance. During debates over the Fourteenth Amendment, the Framers explained that the Equal Protection Clause “abolishes all class legislation” and “establishes equality before the law,” but they did not believe that laws designed to assist minorities overcome the legacy of slavery and racial discrimination were in any way legally equivalent to Southern Black Codes that oppressed the newly freed slaves.

Rather than answer this history, Chief Justice Roberts and others have turned to Brown, claiming that Brown’s lesson is that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” In Chief Justice Roberts’ hand, Brown is a potent weapon against a long list of statutes that use race-conscious measures in order to realize the Constitution’s promise of equal opportunity. That is not fulfilling Brown’s promise of true racial equality, but burying it.

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.

Posted 12:28 PM by David Gans [link] (18) comments

"Secondary" Consumer Boycotts: Breakdown of Civil Society or Pillar of First Amendment Values

Guest Blogger

Theresa J. Lee

Bradley Smith and Jonathan Adler both recently raised the hue and cry that secondary consumer boycotts are leading to the demise of civil society. As with boycotts, the political and the economic regularly overlap in our current political climate. And in many cases, that interaction is lauded as a vindication of the First Amendment.

In that vein, there is already a highly regulated area of law dealing with the interaction of the political and the economic: campaign finance. In Citizens United, the Court rejected the idea that resources from the economic marketplace should not be deployed in the political marketplace—a position Smith evidently supports. This latest argument against the use of the political consumer boycott wants to have it both ways—it would allow the economic to affect the political when corporations or wealthy individuals do so but bemoans the loss of civil society when consumers take action. While there are differences in the way each set of resources is deployed, these are inevitable ones that stem from the different economic power possessed by corporations versus the average consumer.

If corporations can use their market clout to influence the political process, it's only fair that consumers can too. Boycotts allow those whose main economic resource is their participation in the market as consumers to join with other like-minded consumers to influence the political marketplace. Although Smith notes that people “have a right not to do business with companies or individuals,” he becomes concerned at exactly the point that such decisions may have an impact—when individuals aim to aggregate that right so their otherwise limited economic clout can impact the political marketplace.
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Posted 2:02 PM by Guest Blogger [link]

Tenure and the Law School

Jason Mazzone

Law schools face increasing pressures to reduce the costs of legal education. While few people like to talk about it, tenure must be a key component of any cost assessment. In many law schools, salaries comprise a large portion of the annual budget. Tenure is especially expensive because it means an institution grants a (virtually) lifetime appointment without any guarantee that the individual who is tenured will continue to produce at a rate that justifies the salary paid. Tenure is also costly because it reduces an institution’s flexibility: the institution cannot (easily) move somebody out to make room for somebody who would add greater value.

Tenure is ripe for reassessment because law schools have an unusual and often extravagant view of it. While most academic departments are staffed with hordes of non-tenured lecturers, research associates, instructors, and others, in the law school, there is a strong sense that if you are there full-time, tenure is an entitlement.

The traditional reason for granting tenure in a university is straightforward. Tenure provides the security that encourages researchers to explore all questions without fear of being fired. Tenure therefore helps grow the stock of knowledge. Yet tenure in the law school is only loosely related to this goal.

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Posted 7:20 PM by Jason Mazzone [link] (7) comments

Con Law in the Round

Ken Kersch

A few weeks back, I (along with Anna Law and Tom Keck) joined Howard Gillman, Mark Graber, and Keith Whittington for a panel at the Midwest Political Science Association meeting on their new constitutional law casebook, American Constitutionalism: Vol. 1 – Structures of Government (Oxford, 2013)(Vol. 1 out now; Vol. 2 – Rights and Liberties, will be available soon).

These books are primarily aimed at undergraduate courses in Constitutional Law and Civil Rights and Liberties (known in political science departments as “the sequence”: structure and powers in the fall; rights and liberties in the spring). There are, of course, plenty of casebooks out there for law students and for undergraduates. The publication of this particular text, however, is unusually significant for teachers and scholars at all levels. On the panel, I joked that it is possible that, after taking the course using this text, our undergraduate students will know more about American constitutionalism than the professors teaching their con law courses in law school.

I exaggerate, of course. But there was a point. Conceptually, at least, GGW is significant in the way that a handful of major casebooks have been in the history of case-law instruction in America (e.g. Christopher Columbus Langdell’s Selection of Cases on the Law of Contracts (1871); Leon Green’s The Judicial Process in Tort Cases (1931); Henry Hart Jr. and Albert Sacks’s The Legal Process: Basic Problems in the Making and Application of Law (c. 1958)). Gillman, Graber, and Whittington, of course, are leading historical institutionalist/American Political Development (APD) scholars. Their innovation is their insistence on treating constitutional law in the round – as part of a world in which the constitutional doctrine expounded by the Supreme Court is just one part of a broader multifaceted constitutional system, built over time, in which durable norms and rules of government are made not just by the High Court, but elsewhere: by the people, by politicians, by state judges, congressmen, bureaucrats, and administrators, each interacting to shape and structure the ways of doing things we know as American constitutional government.

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Posted 8:58 AM by Ken Kersch [link]

Party Discipline and Congressional Rules

Gerard N. Magliocca

I'll be part of a Symposium at Notre Dame on Gridlock this Fall, which gives me an opportunity to revisit my interest in the internal procedures of Congress. If you start with the premise that gridlock is a problem that should be fixed (not an assumption everyone shares, of course), then there are a couple of options. The first would be a reform of the Senate filibuster, which I've written about before. Another involves weakening party discipline in Congress to make bipartisanship easier. This is the issue that I want to explore as part of the Constitution-in-practice.

There are two ways to think about party discipline. One is that it is enforced by voters. If an elected official reaches across the aisle too often or on the wrong things, then she loses in a primary or in a general election due to lack of enthusiasm from her political base. Electoral rules shape this force (primaries could be open to all voters, for example), but on this issue public opinion must largely be convinced that cooperation is worthwhile. The strength of the party whip, though, is also a product of congressional rules. How easy is to punish members who stray from the party line? That depends on a couple of factors. First, how transparent are the actions of members? If the party leadership does not know that someone is working with the other side, then only carrots can be used to induce loyalty from those who visibly cooperate. Second, who has the power to dole out rewards or punishments? For decades, the answer was committee chairmen, not the party leadership, and their goals were often different.

Right now we are in a period where the party leadership is quite powerful. This occurred because the parties became more ideologically homogenous, but also because of rule changes that diminished the committees and strengthened the leadership. Are we better off because of this development? I'm not sure. Moreover, rules changes can reverse this process if we think that the answer is no. Consider that until 1845 Senate Committee Chairs were elected by a secret ballot of the entire Senate. This meant that party discipline could not be enforced and members of the minority party could be chairs. Congress rarely votes by secret ballot today, even though it can so long as more than 4/5 of a House agrees to do so (Article I, Section 5, Clause 3)). There are a slew of other practices that could be examined along these lines (why should party leaders get to appoint members of the conference committee, should the prerogatives of the Senate majority leader or the Speaker be curtailed?). I hope to expand on these themes in other posts.
Posted 9:55 AM by Gerard N. Magliocca [link] (7) comments

The Roots of the Living Constitution

JB

My latest article, The Roots of the Living Constitution, is now available on SSRN. It discusses David Strauss's theory of common law constitutionalism as developed in his important 2010 book, The Living Constitution (Oxford University Press) and compares it with the theory of constitutional change in my recent book, Living Originalism (Harvard University Press 2011).

Last fall, Jim Fleming held a conference at B.U. Law School on our two books, and each of us was asked to write about the other's book. These essays will appear in a symposium in B.U. Law Review later this year. This is my essay about David's work.

I had already discussed part of David's theory in chapter 3 of Living Originalism--in particular, his view that the constitutional text is less important than Supreme Court precedent and that it largely serves as a focal point to coordinate political action.
Posted 5:59 AM by JB [link]

Two Civil Union Debates and Presidential Politics

Linda McClain

The combination this week of President Obama's affirmation that "I think same-sex couples should be able to get married" and Republican presidential candidate Mitt Romney's reaffirmation of his opposition to same-sex marriage and to civil unions usefully highlights two distinct debates about the relationship between marriage and civil unions. Both debates are likely to feature in the presidential campaign and in local politics.

One debate is whether civil unions provide same-sex couples a sufficient alternative to civil marriage by providing the benefits and obligations available to spouses under state law, but not the name "marriage." There are two issues here: the symbolic or expressive value of marriage and its tangible legal consequences. The civil union, people will recall, was the creation of the Vermont legislature when Vermont's high court ruled, in 1999, that the Vermont constitution's "common benefits" clause required that same-sex couples have access to the "common benefits" (and obligations) of marriage, but left the question of remedy to the legislature. It was also the path taken in New Jersey when its high court ruled that, under its constitution, same-sex couples were entitled to the rights "of" marriage, but whether they were entitled to the name "marriage" itself should be resolved through the democratic process. And some states have enacted civil union laws without the spur of a judicial ruling, seeing this remedy as a way to advance equality while also preserving the tradition definition of marriage.

Until recently, the idea that civil unions did accord equality to same-sex couples was President Obama's evident position, although he had more than once described his views as "evolving." In 2009, the Vermont legislature concluded that civil unions did not accord same-sex couples full equality. Testimony persuaded lawmakers that civil unions did not actually provide "equal access, benefits, and privileges under the law," but created a separate status for same-sex  partners and their children, who often were "discriminated against, stigmatized, and marginalized."

In New Jersey, the legislature reached a similar conclusion earlier this year, when it passed the Marriage Equality and Religious Exemption Act (vetoed by Governor Christie). The findings in that law mention "testimony and overwhelming evidence" that partners to civil unions in New Jersey experienced denial of equal benefits in employment, hospitals, and other arenas. Both at the tangible and expressive level, civil unions, the lawmakers concluded, do not end discriminiation against same-sex couples, but invite unequal treatment.

Thus, this first debate over civil unions concerns whether they provide a just and principled resolution of the controversy over whether same-sex couples should be able to marry. One assumes that part of President Obama's evolving stance on this issue has been evidence of this sort -- indicators that having two parallel legal structures for opposite-sex and same-sex relationships just can't afford equality.

The second debate, however, higlighted by candidate Romney's remarks and the recent vote in North Carolina, is whether same-sex couples should even be offered civil unions at all because they are too much like marriage. Romney thinks not. As quoted in the New York Times on May 10, he said: "If a  civil union is identical to marriage other than with the name, why, I don't support that."  While some opponents of same-sex marriage have indicated support for civil unions precisely because they are not called "marriage," for Romney, this is a distinction without a difference. Same-sex couples should not be provided a legal status that gives them everything spouses get under state law except the name "marriage." By contrast, he has indicated that some kind of benefits for same-sex couples might be appropriate, like hospital visitation. Which benefits? On that, he has been less specific.

In 2004, when Romney testified before the Senate Judiciary Committee in favor of the proposed Federal Marriage Amendment to the U.S. Constitution,  which would have defined marriage in the U.S. as only "the union of a man and a woman," he spoke of a possible "middle ground." Interestingly, he suggested that such a middle grould would recognize the "inalienable rights of all our citizens to make their own choices to join in partnerships or unions of some kind and to have relationships between one another, perhaps even to raise children." That final reference seemed remarkable at the time, given his firm insistence (in the rest of his testimony) that marriage is the optimal setting for childrearing because, by exposing children to "the contrasting features of both genders," children benefit from having a father who can model masculinity and a mother who can model femininity.

The developments of this past week in North Carolina and in presidential politics put on the table these two ongoing debates about the relationship between civil unions and marriage.

  
Posted 5:27 PM by Linda McClain [link]

Prison Brutality: Order Trumps Law

Frank Pasquale

Christopher Glazek's article "Raise the Crime Rate" challenges recent estimates of crime levels in the US. According to Glazek, crime "has not fallen in the United States;" rather, "it’s been shifted. . . .away from urban centers" and into "a proliferating web of hyperhells." If you think that last, Dantean flourish is overstated, I highly recommend two recent articles on prisons. The Southern Poverty Law Center has observed the "unbelievable brutality unleashed on kids in for-profit prisons." Many public facilities are also failing. Graham Rayman reports on institutionalized violence on Rikers Island in New York:

Under a practice known as "the Program," guards were deputizing inmates, often in the teen jail, and pitting them against one another in fights as a way to keep order and extort them for phone, food, and television privileges.

These revelations are among many that vindicate Mike Konczal's important essay "Against Law, For Order." Konczal argues that the latter half of the "law and order" slogan has proven far more important in recent decades than the former:
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Posted 10:40 AM by Frank Pasquale [link]

The Three Parties to Every (Civil) Marriage in North Carolina: One Man, One Woman, and God

Linda McClain

Yesterday, North Carolinians approved a constitutional amendment declaring: "Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state." In the words of Tami Fitzgerald, chairwoman of the executive committe for the pro-amendment Vote for Marriage NC, "the whole point is simply that you don't rewrite the nature of God's design for marriage based on the demands of a group of adults." A sign by a local United Methodist Church (featured in a story in today's New York Times) made the point even more vividly: "A True Marriage -- Male and Female and God."

Posted 10:28 AM by Linda McClain [link]

How Justice Kennedy’s ACA Decision Could Roll Back Congress’ Power to Regulate Commerce…But Uphold the Act in its Entirety

Guest Blogger

Brian Galle

Most readers of this blog know that the second day of oral argument over the Affordable Care Act brought the government a basketful of bad news. All of the conservative justices who spoke, including Justice Kennedy, seemed fairly hostile to the government’s framing of the case. Kennedy pressed repeatedly the plaintiffs’ claim that the Act forces purchasers into a new market, a market for insurance, which they wouldn’t necessarily have chosen to enter on their own. Though later in the argument he mused that perhaps two markets could be so closely related that compelled entry into one could be necessary for regulation of the other, things still looked bleak for the Government. Kennedy seems to have a fairly strong sense that the Commerce power doesn’t reach as far the Government suggests, and assuming his fellow conservatives reach the merits he certainly has four other votes for that proposition.

As Jack suggested a few days ago, that does leave the possibility that the Court could still uphold the Act as an exercise of the taxing power. I’ve said elsewhere why I think the taxing power argument is persuasive; what I want to add here is that I think it could be an appealing way for the Court to have its Commerce cake and eat it, too.

In brief, upholding the statute under the taxing power would allow the Court to issue a genuine holding---not just dictum---narrowing the scope of the Commerce power, while at the same time avoiding the unpredictable mess that invalidating the statute would bring. In addition to potentially flammable political blowback, tossing the Act in whole or part could throw the health sector --- 1/6 of the economy, and even larger share of many state budgets--- into total chaos. At argument, Justice Kennedy sounded ready to reap that whirlwind if that was what it took to make his point about the limits of federal power, but maybe he doesn’t have to.
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Posted 3:35 PM by Guest Blogger [link]

Tomasi's Free Market Fairness

Andrew Koppelman

Posted 2:28 PM by Andrew Koppelman [link]

The tax power theory as a compromise position in the ACA litigation

JB

I participated in an amicus brief on the taxing power issues in the health care litigation. I go through some of the basic arguments for the individual mandate as a tax here.

One of the most interesting features of the ACA litigation is that although many law professors thought the tax power arguments for the mandate were straightfoward, the tax power theory didn't get very much traction in the lower courts. The reasons are a combination of political calculation and legal strategy. The Tax Anti-Injunction Act also gave both sides a reason not to call the mandate a tax. But at the Supreme Court level, the tax power argument may be an attractive way for Chief Justice Roberts and Justice Kennedy to uphold the mandate without taking a position on what principles limit Congress's powers under the Commerce Clause.
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Posted 8:59 AM by JB [link]

AALS Listing of Minority Members

Mark Tushnet

My only suggestion is that people who have access to AALS Directories (they're in Hein OnLine) go to one (I picked the 1995-96 Directory), and eyeball the list. An entry on page 1268 of that Directory is particularly interesting these days. [Modified from original.]
Posted 2:33 PM by Mark Tushnet [link]

House-breaking Law Professors: Michael Klarman’s Backlash Thesis

Ken Kersch

As a political scientist interested in public policy, considered from an historical institutionalist and developmental perspective, I’ve long found Mike Klarman’s work integrating constitutional law and politics across time especially engaging. A week or so ago, the Boston Area Public Law Colloquium – run by my political science department colleague Shep Melnick, and Wellesley College political scientist Tom Burke – hosted a discussion of Klarman’s work-in-progress on same-sex marriage cases and political backlash. Mike joined the interdisciplinary gathering at Tom’s Cambridge apartment for a spirited discussion of drafts of four chapters from this book project. The book on same-sex marriage will be pulled out of an even more ambitious project that, in addition to same-sex marriage, looks at the dynamics of backlash against court decisions in the areas of abortion, the death penalty, school desegregation, and criminal procedure.

These days, empirical legal scholarship is all the rage. Few of the ragers, I would imagine, are reading Mike Klarman, whose empiricism is derived from the old-fashioned fact-chasing known as “history.” But the sorts of empirical questions Klarman is currently addressing are about as consequential as any being asked today. Traditionally, most discussions of constitutional law – by those in the legal academy and in political science alike -- are court and judge focused. The decision issued by the judge is the end point of the inquiry. For political scientists, the question is often ‘what made the judge vote this way rather than that way?’ Was it his or her ideology? His or her “attitude? Policy preferences? Race/class/gender? Political party membership? Regime membership? Social movement norms? The law (as properly read, or misread)? Oral argument? There are some variants. Why did he or she write the opinion in the way he or she wrote it? Was the judge acting strategically to win over the votes of colleagues? For law professors, the question is often what does the law say about how a conscientious, law-following judge should vote in a case (and, in doing so, explain his or her decision in writing a judicial opinion). What did the law command? Did the judge follow the law or not? If not (politics aside – that’s for political scientists, and their law professor fellow-travelers – the feminists, (old school) crits, law-and types, and, most recently, born-again crits who now take their politics from mainstream political science instead of Marx), why? Where did his or her understanding of law/factual assumptions/logic go wrong? A variant is normative legal scholarship, which, rather than just critiquing an opinion, makes the case, in advance, about how a judge who gets the law right should vote in deciding a particular case, and, for good measure, write the judicial opinion justifying the vote.

Klarman’s approach to constitutional law in his backlash work is different. The court decision is not Klarman’s end point, but his starting point -- his independent variable, if you will. Klarman’s dependent variable is what actually happens in the end on the issue on which the court has spoken. Put otherwise, his dependent variable is the public policy ultimately adopted by the government on same-sex marriage, abortion, the death penalty, school desegregation, criminal procedure, etc., in the wake of a (controversial) court pronouncement on the issue. He asks us to consider what effect the fact that a court acted as it did, when it did, had on the ultimate adoption of governing public policy in the area (and other areas that we also care about that might be affected by the court’s action). As it happens, Klarman is pretty skeptical about the ability of court pronouncements to dictate public policy to the polity – at least in these highly contentious areas. And he seems to enjoy saying so, especially given what he sees as the inordinate faith that his fellow law professors and lawyers seem to have in landmark court rulings, and their attendant ringing declarations of constitutional principle. It is not just that lawyers and law professors have inordinate faith in judicial pronouncements. It is that, in their unwillingness to look beyond the uncorking of the champagne after the court victory itself, they are actually helping thwart the achievement of very policy objectives they seek to achieve. Often, they make things worse than they would have been if the court had never issued the ruling at all. The culprit is the dynamic Klarman calls backlash: once the court takes up the question, and rules, other members of the polity will, in turn, react against the ruling. These reactions, he instructs, are well worth noting, and assessing.
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Posted 11:51 AM by Ken Kersch [link]

Politics By Other Means

Guest Blogger

Rob Weiner

Much ink has been spilled, or electrons rearranged, debating whether the Supreme Court’s decision on the Affordable Care Act will be restrained or activist, principled or political, injurious or harmful. The discourse, by and large, has focused on the arguments presented to the Court and the predilections of the Justices in assessing them. But that dialogue begins with the second act, the proceedings before the Supreme Court. It misses the plot development of the first, where a partisan legislative battle spawned an extravaganza of political law-fare in the lower courts.
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Posted 6:13 AM by Guest Blogger [link]

Please Make Room for the Stateless Superrich

Frank Pasquale

A recent panel at the Milken Institute decried a grave injustice. Jeff Greene, a billionaire real estate investor, noted that a single mother who weighed “over 300 lbs” received welfare of about $600 a month. “She could barely take care of herself, much less her kids,” lamented Greene. The redoubtable Niall Ferguson swiftly summed up the problem:

Why, he wondered, was Greene letting this lady off the hook? Why doesn’t she get up off her fat lazy butt and get a job?!, he demanded, with his Scottish brogue in full Braveheart mode. “Taking from the successful and giving from the unsuccessful.”. . . Loud applause ensued from the Wall Street-friendly crowd, most of whom paid several thousand dollars for a conference ticket.

Contrast the target of Ferguson's wrath with the "stateless superrich," whose "second, third, or fourth homes" are often vacant as they "spend a few months in St Moritz, before moving to their trophy mansion in London, and then on to their luxury villa in Sardinia for the summer months." Some worry that "their children will become indolent spongers, who will blow their inheritance 'recklessly and lose their ambition or even their health.'" But they tend to employ "legions of charge-by-the-hour gurus" who can help make crucial decisions about, say, "how to divvy-up seven properties between three" heirs. That is job creation par excellence.*
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Posted 3:49 PM by Frank Pasquale [link]

The Ninth Circuit’s Dismissal in Padilla: The Accountability Gap Widens

Jonathan Hafetz

The Ninth Circuit today reversed the district court’s ruling in Padilla v. Yoo, ordering that former “enemy combatant” Jose Padilla’s civil damages suit against John Yoo be dismissed on qualified immunity grounds. The dismissal represents the latest refusal of a federal court to provide a remedy for abuses committed during the war on terrorism.

First, the panel ruled that because it was not clearly established that an enemy combatant possessed the same rights as a convicted prisoner, Yoo cannot be held liable for the systematic program of abusive interrogation to which Padilla was subjected--a program designed to render Padilla helpless through interrogation under threat of torture, stress positions, sleep and sensory deprivation, extreme isolation, and incommunicado detention for almost two years.

Second, the panel ruled that, even though the unconstitutionality of torturing a U.S. citizen was “beyond debate” during the period in question (from 2001-2003), it was not clearly established that the treatment Padilla was subject to amounted to torture.Both rulings are suspect. On the first point, the thrust of Padilla’s complaint is that the government designated Padilla an enemy combatant precisely to avoid the constitutional protections he would have been afforded as a criminal defendant. But, even putting this motive aside, the Convention against Torture (CAT) clearly prohibited cruel, inhuman, and degrading treatment (CIDT) at the time of Padilla’s interrogations. In ratifying CAT, the United States equated CIDT with the “shocks the conscience” standard under the Due Process Clause of the Fifth Amendment. Padilla, a U.S. citizen held in the United States, was indisputably protected by the Fifth Amendment. Yet, the Ninth Circuit failed to recognize how Padilla’s harsh treatment--even if it did not cross the line into torture--could constitute cruel, inhuman, or degrading treatment that was clearly prohibited at the time. (See Steve Vladeck’s discussion of this issue here).On the second point, the Ninth Circuit’s ruling suffers from a troubling circularity.

The “debate” over torture, such as it was at the time, was largely manufactured by John Yoo and others precisely to engage in conduct that the law prohibited. The court thus takes what might be described as part of a conspiracy to commit torture as the reason to insulate those responsible from liability. The appeals court, at least, observes that recent judicial decisions suggest that the treatment to which Padilla was subject does constitute torture (One of the cases it cites—Vance v. Rumsfeld—is being reheard by the Seventh Circuit en banc.).

But the opinion also fails to make clear that protection from abusive interrogation methods does not depend on whether a terrorism suspect is classified as an enemy combatant (or an unprivileged enemy belligerent in current nomenclature) or a civilian criminal defendant. The panel states: “Even after Hamdi [v. Rumsfeld], it remains murky whether an enemy combatant detainee may be subjected to conditions of confinement and methods of interrogation that would be unconstitutional if applied in the ordinary prison and criminal settings.” The court fails to acknowledge Hamdan v. Rumsfeld, the Supreme Court decision holding that, however the conflict with al Qaeda is defined, detainees are covered by protections against mistreatment contained in Common Article 3 of the Geneva Conventions— protections that are in some ways are more robust than those provided by the Constitution.

If there is silver lining, it is that in disposing of the case on qualified immunity grounds, the court does not reach the government’s argument that “special factors counseling hesitation” preclude Bivens liability. This argument—adopted by the en banc Second Circuit in Arar v. Ashcfroft (a case involving the rendition of a Canadian citizen to Syria for torture) and the Fourth Circuit in Padilla v. Rumsfeld (Padilla’s suit against different defendants)—is more sweeping. A dismissal on “special factors” grounds would preclude civil liability even if a court believed that the conduct in question clearly constituted torture.
Posted 1:33 AM by Jonathan Hafetz [link]

For the Public Good

Jason Mazzone

New York's Chief Judge has announced that individuals seeking admission to the New York State Bar will be required to demonstrate they have performed 50 hours of pro bono work. The goal is to extend legal services to New Yorkers who cannot afford to pay for lawyers. Chief Judge Lippman estimates that the requirement will generate an impressive half million hours of legal work per year. In formulating regulations for this pro bono requirement, the Chief Judge would do well to think carefully and creatively about what kind of work counts towards the 50 hours. So far, the focus seems to be on traditional and predictable areas of pro bono activity such as domestic violence, employment problems, foreclosures, and issues of criminal law. A better approach would be to set aside assumptions and ask: if we have 500,000 hours of free legal work, what assignment of those hours will maximize the public good? Some uses of the 500,000 hours will produce mostly individual benefits. Other uses will produce larger public benefits. For example, most of the benefits that would come from assigning newbie lawyers to unemployment benefits cases or domestic violence issues will be captured by the individual clients who receive the free services--with little in the way of benefits to the public as a whole. By contrast, time spent counseling a technology start-up company (that cannot afford lawyers) benefits the company but it also also generates jobs for New Yorkers and tax revenues for the state. Likewise, helping a criminal defendant avoid conviction confers a large private benefit on the defendant. But given that virtually all criminal defendants committed the crimes with which they are charged, such an allocation of resources does not obviously benefit the public as a whole. On the other hand, working for a resource-strapped prosecutor's office to get dangerous people of the streets produces a public rather than a private good. Perhaps there will be plenty of hours to go around. Perhaps also some mix of allocations for private benefits and for public benefits is a desirable approach. The point is that in imposing the 50-hour requirement, the Chief Judge should weigh the costs and advantages of these choices because not all are equally for the public good.            
Posted 11:20 AM by Jason Mazzone [link] (28) comments

Broccoli and the Conservative Imagination

Guest Blogger

Jared A. Goldstein

More than anything else, it was the “broccoli argument” that succeeded in shifting the constitutional case against the Affordable Care Act from off-the-wall to mainstream. It’s a very straightforward version of the slippery slope: if the government can make us get health insurance, it could make us do anything; it could make us buy broccoli; it could even make us eat broccoli. Putting aside the merits of the argument, it is worth examining why the broccoli argument is a rhetorical tour de force that so powerfully captures the ideology and anxieties of opponents of Obamacare.
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Posted 6:57 PM by Guest Blogger [link]