Direct democracy

Sandy Levinson

A fundamental debate, both in theory and practice, concerns the relative merits of "representative democracy" as against some form of "direct democracy," seen most vividly in the United States in the practices of many American states that allow some versions of public referenda (or initiatives and referenda) even with regard to amending the state constitution. My own view, with appropriate ambivalence, is that our own system is too Madisonian in its exclusive embrace of only representative democracy and that some infusion of direct democracy would be helpful. I do, of course, recognize that some--how many is, of course, a central question--execises of direct democracy are scarcely encouraging. The most recent example in the United States is the overturning by a slender majority of Maine voters of a law passed by the state legislature (and signed by the governor) permitting same-sex marriage, which, of course, followed on the passage in California of Proposition 8, overturning a California Supreme Court decision to that affect.

So I was not happy to read this afternoon of a new constitutional amendment added to the Swiss Constitution by popular referendum that bans the further building of minarets. This presumably overrides the guarantee of freedom of religion in the present Swiss Constitution. I note, incidentally, that Switzerland is probably the most important example of "direct democracy" in the world today, given the frequency of referenda. And, generally at least, one rarely places Switzerland and California in the same cohort of "reckless" polities.

Obviously, many countries and states have managed to pass egregious legislation (or constitutional amendments) without going through the procedures of direct democracy. That being said, this doesn't bode well for those of us who identify more with Jefferson (and Lincoln) than with Madison regarding the willingness to put ultimate trust in government by the people.

Posted 4:02 PM by Sandy Levinson [link] (25) comments

Same-Day Service: Editorializing on Argument Days

Eugene R. Fidell

A Stanford Law Review Note by Rachel C. Lee--Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era, 61 Stanford L. Rev. 1535 (2008)--perceptively examines the ethical dimension of blogging targeted at the Supreme Court ("shadow-briefing"). Although the blogosphere is certainly more in vogue than hard-copy newspapers, Ms. Lee rightly notes the potential for abuse by members of the bar who write op-eds and stimulate well-timed news articles. Even in this era of declining newspaper readership, it is still worth asking whether conventional, internally-prepared editorials that urge the Supreme Court to rule a particular way on pending cases are also problematic, and if so, when? The practice is surprisingly common at The New York Times, but also occurs at The Washington Post, among others. A good thing? A bad thing? Does it matter?

Earlier this semester, I noticed an editorial urging the Justices to take a particular action in a case that was to be argued that very day. The case concerned management fees for mutual funds. The editorial concluded with the suggestion that the Court "rule that fund advisers have a responsibility to set fees that are comparable to those they charge other customers, and what would be negotiated in a fair, arm's-length deal. It should then order the District Court to reconsider the case." I am not sure what it was about the editorial that most caught my attention--that it ran on the very day of oral argument or that it went so far as to comment not only on the merits, as one would expect, but on the precise procedural order the Court should enter. Despite my esteem for The Times, this editorial struck me as regrettable.

Some online research revealed that the mutual funds editorial was by no means unique. Times editorial advice to the Supreme Court has, in fact, flowed very freely--increasingly, I believe, on argument days. For example, on October 6, 2009, in Animal Cruelty and Free Speech, the editorial page advised the Court to affirm in United States v. Stevens (No. 08-769), a case that was to be argued that same day. The following day, in The Constitution and the Cross, an editorial gave the Court advice on how to decide a case to be heard that day involving a cross that had been erected on federal land by the Veterans of Foreign Wars. The same thing happened on February 23 and 25 and March 2 and 24, when editorials titled Justice for American Indians, And Unequal Justice for Some, The Right to DNA Evidence, and Corporate Money and Campaigns ran. On January 9, November 4, 12 and 25, and December 10, 2008, editorials on The Court and Voter ID's, The Court and 'Fleeting Expletives,' A Case of Religious Discrimination, Indefinite Detention, and Accountability and the Court all appeared on the day of oral argument.

A newspaper, as Ms. Lee observes (at 1553), "will have its own priorities as to when it wishes to run an editorial," and, to be sure, the Times editorial page does not confine itself to commenting on the very day of argument. Its editorial advice to the Court may also come in curtain-raisers at the beginning of the Term, before certiorari has been sought or after it has been sought or granted or a case has been argued. Still, the spate of day-of-argument editorials stands out: because of their timing they are most clearly addressed to the Justices themselves, rather than to ordinary readers. It is as if the editorial board were submitting an amicus brief--shorter than the real thing, of course, but much later in time--indeed, so late (long after briefing has concluded) that the parties cannot respond unless perchance the editorial's perspective happened to come up in the course of the argument or in the rare case of post-argument supplemental briefing.

In United States v. Grace, 461 U.S. 171 (1983), the Supreme Court held unconstitutional an Act of Congress that prohibited the "display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the Court's building or on its grounds, including the sidewalks. The Court rejected a government effort to defend the statute on the notion that it should not appear to the public that the Court "is subject to outside influence." According to the Court's paraphrase of the government's position, '[c]ourt decisions are made on the record before them, and in accordance with the applicable law. The views of the parties and of others are to be presented by briefs and oral argument. Courts are not subject to lobbying . . ." (emphasis added). But isn't that what a day-of-argument editorial does, liberated from the constraints of the adversary system? Obviously, no Justice has to read The Times, but let us assume that most of them do so. (Justice Thomas has said he does not.) Is it to be further assumed that those who do read it pointedly avoid the editorial page on argument days? This seems unlikely.

Does it matter that The Times and other newspapers engage in same-day editorializing on pending cases? To the extent that members of the bar are not involved, no legal ethics issue is presented. Even if a lawyer were involved, as Comment [3] to Rule 3.6 of the ABA Model Rules of Professional conduct notes, "the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small. . . ." But even without lawyer participation, the practice implies that the newspaper has influence over the disposition of particular cases and not merely in the court of public opinion. This implication, however subtle and whether or not justified, does not foster public confidence in the administration of justice.

Happily, we live in a society (mostly) committed to free speech. The Times need have no fear of being prosecuted for contempt because cases on which it chooses to editorialize are still sub judice when the paper arrives on readers' doorsteps or computer screens. But that is not the sole criterion. As a friendly observer, my vote would be that newspapers resist the temptation to editorialize on pending appeals on the very day of argument. If a newspaper or other news outlet wishes to influence the outcome, let it do so the old-fashioned way: by hiring counsel and filing a brief like a true amicus curiae. And if it disagrees with the outcome of a case, let it editorialize about the need for corrective legislation or the importance of selecting Justices of a particular bent. But let's allow the Justices a modest and journalistically self-imposed cone of editorial silence on argument days. Journalism and public understanding won't be harmed a bit, and we'll have taken a small step toward underscoring the integrity of the adversary system and what distinguishes the judicial process from other important forms of public decision making in our society.

Posted 1:36 PM by Eugene R. Fidell [link] (8) comments

The Laws of Change (Second Edition)

JB

My translation of and commentary on the ancient Chinese Book of Changes, or I Ching, has been published in paperback by Sybil Creek Press and is now available at Barnes and Noble and Amazon.com. You can learn more about the book here.

My interest in Chinese philosophy began about twenty years ago, and eventually led me back to the study of the Book of Changes. After reading most of the commentaries in English it occurred to me that there was no really thorough discussion of the I Ching's ethical teachings in English. Although there were important exceptions (for example, the great Wilhelm/Baynes translation of 1924 and 1950) most popular versions of the I Ching were more mystical than informative. So I set out to write an accessible, easy to understand set of commentaries that focused on the book's ethical teachings, and I also produced a basic translation of the core text to go along with it.

This version of the I Ching treats it as a secular book of wisdom rather than as a mystical object. It is designed for study, reflection and self-cultivation rather than for fortune telling. One would think it obvious-- although many people still seem to believe otherwise-- that you cannot predict the future by flipping coins or counting yarrow stalks. On the other hand, by asking questions of the book and coming to understand its philosophy over many years, you can get to know yourself better and gain some wisdom in the process. The book began as a Bronze Age diviner's manual, but generations of commentary eventually turned it into what it is today, a book of wisdom.




Posted 8:00 AM by JB [link]

More on the Constitutionality of the Individual Mandate for Health Insurance

JB

The second half of my debate with David Rivkin and Lee Casey on the constitutionality of the individual mandate has just been published by PENNumbra. Rivkin and Casey's closing statement is here and you can find mine here. If you missed the first round of arguments, you can find them here (Rivkin and Casey) and here (me).

In the first round, Rivkin and Casey tried to resurrect the The Child Labor Tax Case (Bailey v. Drexel Furniture Co. , 259 U.S. 20 (1922) from the Lochner Era. In the second installment, they dredge up Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601 (1895), a case that held that the income tax was unconstitutional and that was overturned by the Sixteenth Amendment. Their argument is that the individual mandate is a direct tax. Text, history, structure and precedent are all against them, as I show in my rebuttal. The debate on the commerce power also continues, with Rivkin and Casey trying (unsuccessfully) to distinguish Gonzales v. Raich -- and pretty much the entire New Deal.

What is remarkable about this exchange is that Rivkin and Casey have to reach back to the Lochner Era (and even earlier, in the case of Pollock) to find legal authority for their claims. Despite this, they make their arguments with an entirely straight face. This suggests that what they are really advocating is a return to pre-1937 understandings.

Except, that is, where Presidential power is concerned. Orin Kerr joked that Rivkin and Casey would probably argue that the individual mandate was constitutional if it was justified by the President's powers as commander-in-chief. Obama's problem, it seems, is that he didn't package health care as an anti-terrorism measure.




Posted 12:59 PM by JB [link]

The Privileges or Immunities Clause & the Constitutional Rights of Aliens

David Gans

Yesterday, Constitutional Accountability Center filed an amicus curiae brief in McDonald v. City of Chicago urging the Supreme Court to breathe new life into the Privileges or Immunities Clause and correct the monumental error it made in the Slaughter-Houses Cases when it drained the Clause of any real meaning or force. (The brief is available here, and discussed here.) Filed on behalf of a remarkable and diverse group of constitutional scholars – Richard Aynes, Jack Balkin, Randy Barnett, Steven Calabresi , Michael Kent Curtis, Michael Lawrence, William Van Alstyne, and Adam Winkler – the brief makes the overwhelming case for restoring to the Constitution the Fourteenth Amendment’s explicit textual protection for substantive liberty.

The text and history the brief recounts show that the Privileges or Immunities Clause was meant to protect substantive fundamental rights, including rights set out in the Bill of Rights and elsewhere in the Constitution, as well as other unenumerated fundamental rights. As the brief demonstrates, there is a remarkable left-right-center scholarly consensus that the Court should finally honor this text and history, and restore the Privileges or Immunities Clause to its proper constitutional place.

A leading objection to the scholarly consensus is not that it is wrong, but that breathing new life into the Privileges or Immunities Clause would exclude noncitizens from constitutional protection. This is a serious objection, and it deserves careful consideration, but upon such consideration, it falls wide of the mark. Recognizing the Privileges or Immunities Clause as the constitutional text protecting the substantive fundamental rights of American citizens should not undercut the constitutional protections provided to aliens, assuming we are sensitive to the fact that two other provisions of the Fourteenth Amendment protect aliens as well as citizens.

Those two provisions – the Equal Protection Clause and the Due Process Clause – apply by their express terms to “any person” and were designed to include aliens within their protections. During debates on an early version of the Amendment, Rep. John Bingham – the Amendment’s primary draftsperson –explained that “no man, no matter what his color, no matter beneath what sky he may have been born . . . shall be deprived of life or liberty or property without due process of law . . . .” He demanded that “all persons, whether citizens or strangers, within this the land, . . . have equal protection in every State of this Union in the rights of life and liberty and property.”

Indeed, the very first statute passed to enforce the Fourteenth Amendment protected the rights of aliens to equality under the law. In 1870, within a few years of the ratification of the Fourteenth Amendment, Congress used its newly granted power to enforce the Fourteenth Amendment to protect the rights of resident aliens, primarily Chinese immigrants in California who faced pervasive racial discrimination. As one Senator explained, “we will protect Chinese aliens or any other aliens whom we allow to come here, and give them a hearing in our courts; let them sue and be sued; let them be protected by all the laws and the same laws that other men are.” During the debates, Bingham emphasized that “immigrants” were “persons within the express words” of the Fourteenth Amendment “entitled to the equal protection of the laws.”

This text and history support taking seriously the Fourteenth Amendment’s protections, and reading the Due Process Clause to ensure that states provide aliens with the full range of procedural protections, and reading the Equal Protection Clause to outlaw all invidious discrimination against aliens.

This last protection is extremely important because virtually all of aliens’ constitutional victories at the Supreme Court have come through the Equal Protection Clause, including Yick Wo v. Hopkins, Graham v. Richardson, and Plyler v. Doe. Each vindicated the rights of aliens to be free from discrimination under the Equal Protection Clause.

Taking the text and history of the Fourteenth Amendment seriously – both by rejuvenating the Privileges or Immunities Clause and putting more teeth into the protections for aliens’ rights to legal equality and fair procedures – should result in a gain in legal protections for aliens, and not a loss of rights.

Aliens, to be sure, might lose the ability to challenge generally applicable state laws on the grounds that they violate substantive fundamental rights – assuming all protection of substantive fundamental rights were shifted away from the Due Process Clause in favor of the Privileges or Immunities Clause. But what aliens might lose under the Privileges or Immunities Clause, they should more than get back under a stronger reading of the Equal Protection Clause, which as noted has been the source of most of their Fourteenth Amendment victories. The text and history of the Equal Protection Clause, and the specific inclusion of aliens as a protected class, would support strengthening the Court’s reading of anti-discrimination protections. Those protections were once quite strong – Graham v. Richardson held that aliens were a suspect class, and that state discrimination against aliens demanded strict scrutiny – but a number of decisions in the 1980s created an amorphous “political function” exception and used that exception to justify a whole host of discriminatory laws preventing aliens from serving as school teachers and police officers, and in other professions as well. Taking the text and history seriously here provides strong arguments for recapturing some of this lost ground.

Finally, a shift to the Privileges or Immunities Clause could even inure to the benefit of aliens in other ways. Take the right of protection – unquestionably one of the Privileges or Immunities that the framers of the Fourteenth Amendment considered a fundamental right of all citizens protected by the Privileges or Immunities Clause, as well as a right of all persons secured by the Equal Protection Clause. The Court has ignored this text and history in cases like Deshaney v. Winnebago County and Castle Rock v. Gonzales, holding that the Due Process Clause does not require state and local governments to protect anyone against threats of harm, even when the government turns a blind eye to known violence. Taking text and history seriously would not only require overruling DeShaney, it would also demand that all persons, citizens as well as aliens, be afforded the right to protection.

In short, protection of the rights of both citizens and aliens was central to the framers of the Fourteenth Amendment in ways the Supreme Court has yet to fully recognize. All Americans – whether birth-right citizens or aliens – should cheer a ruling in McDonald that takes the text and history of the Fourteenth Amendment seriously.


David H. Gans is Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center. He is the lead author of the report, The Gem of the Constitution: the Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, and co-author of CAC's brief in McDonald. This article is cross-posted at CAC's blog, Text & History.
Posted 12:08 PM by David Gans [link]

If only Tom Friedman had had a smarter grandma (or perhaps he did, and he simply didn't listen closely enough)

Sandy Levinson

NYTimes columnist Tom Friedman had one of his folksy columns in yesterday's Times about lessons his grandma (allegedly) taught him about what the United States needs to do to maintain its world supremacy. The key part of the column is as follows:

.... [A]t least six things have come together to fracture our public space and paralyze our ability to forge optimal solutions: 1) Money in politics has become so pervasive that lawmakers have to spend most of their time raising it, selling their souls to those who have it or defending themselves from the smallest interest groups with deep pockets that can trump the national interest.

2) The gerrymandering of political districts means politicians of each party can now choose their own voters and never have to appeal to the center.

3) The cable TV culture encourages shouting and segregating people into their own
political echo chambers.

4) A permanent presidential campaign leaves little time for governing.

5) The Internet, which, at its best, provides a check on elites and establishments and opens the way for new voices and, which, at its worst provides a home for every extreme view and spawns digital lynch mobs from across the political spectrum that attack anyone who departs from their specific orthodoxy.

6) A U.S. business community that has become so globalized that it only comes to Washington to lobby for its own narrow interests; it rarely speaks out anymore in defense of national issues like health care, education and open markets.
These six factors are pushing our system, which was designed to have divided powers and to force compromises, into the realm of paralysis.

It is easy enough to agree with all of Friedman's critique, but much of it is vitiated by the almost willful obtuseness of the last sentence about "our system." Will he never recognize that we are in our present "paralysis" BECAUSE OF, and not IN SPITE OF, "our system"? And what, precisely, does he mean by "forcing compromises"? After all, one might see the present system as forcing all sorts of untenable and stupid compromises in order to get Olympia Snowe's or Ben Nelson's or some other holdout's vote, just as some of the earlier "great compromises" involved all sorts of payoffs to slaveowners. Friedman can travel all over the world, and consult frequently with his favorite political theorists, but he seems incapable of asking whether we are well served by the system designed in 1787. Why does he not even bother to mention the idiotic Senate and its idiotic rules? No one can argue that the Senate is "gerrymandered" in the sense he is using. It simply gives grotequely undeserved amounts of power to people like Max Baucus, Ben Nelson, Olympia Snowe, and other denizens of states whose total population is a pathetic (and unrepresentative) fraction of "we the people." Argh....



Posted 10:43 PM by Sandy Levinson [link] (23) comments

Should Sotomayor be a Neutral Umpire?

Barry Friedman

During her confirmation hearings Justice Sonia Sotmayor insisted that the law decides cases, not a justice’s background or ideology. Linda Greenhouse recently expressed hope that Sotomayor will abandon that line on the Court. But why? What could be more instructive than watching Supreme Court justices reaching opposing results while claiming to apply the same law neutrally?

Writing this weekend in The Opinionator, the New York Times’ on-line adjunct, Linda Greenhouse noted the superficial affinity between Sotomayor’s and Chief Justice John Roberts’ views of the law. Roberts in his confirmation hearings hewed to the neutral law and neutral judge line, famously saying that “Judges are like umpires. Umpires don’t make the rules; they apply them.” After the flap about her prior remarks that a judge’s background influenced decisions, in her confirmation hearings Sotomayor also took the neutrality line on law and judging. She appeared to disavow the very characteristic President Obama identified as important to a good justice: empathy.


But Greenhouse looks at a recent ruling of Sotomayor’s, and expresses the hope that “she does understand, after all, that something beyond an abstraction called “the law” determines how judges behave.” The basis for Greenhouse’s hope was that Sotomayor signed on to a “statement” Justice John Paul Stevens wrote in the decision to deny a stay of execution to John Allen Muhammed, the D.C. area sniper recently executed by the State of Virginia. In that statement, Stevens complained about the practice of setting execution dates for inmates before their appeals to the Supreme Court had run their course.

I’m not sure why Greenhouse wants Sotomayor to acknowledge that “something beyond an abstraction called ‘the law’ determines how judges behave.” Perhaps Greenhouse believes this is true – and if so then she is surely right, at least with regard to salient tightly-balanced Supreme Court cases. (On the other hand, one might hope for the sake of the rule of law that Greenhouse is not right in countless cases faced by lower court judges.) But wanting Sotomayor to acknowledge the fact is an entirely different matter. It is less clear why Greenhouse wants this.

From the baloney fed the public by Supreme Court nominees at their confirmation hearings, one can only assume that the public itself wants to believe “an abstraction called ‘the law’” decides Supreme Court cases. If not, why would the nominees take this line so devoutly? Perhaps Senators who must do the confirming believe it, and don’t care what their constituents think, but this story is a little hard to buy. One must assume nominees say this because it resonates with the public.

At the same time, one is wise to recall Robert Bork’s defeat in just such circumstances. As I make clear in my chapter 7 of my book, The Will of the People, Bork’s nomination faltered on the fact that the public cares about the results of Supreme Court decisions, not the methodology by which they are reached.

Given the fact that so many conservative results lately are rendered under the supposed neutrality of the law, what Greenhouse really might have hoped is that Sotomayor would hew to the neutrality line while regularly voting the opposite way of the Chief Justice. Imagine that: Two Justices, each claiming fidelity to the same neutral and dispositive law, reaching wildly-differing outcomes. How could that be?

Now, that would be something to think about.


Posted 2:19 PM by Barry Friedman [link] (79) comments

Our Dysfunctional Senate

JB

After much drama and compromise, the Senate has voted to begin to debate health care reform. Not to pass an actual bill, mind you, just to agree to talk about passing a bill. It has taken so long to get to this point because it requires 60 votes even to proceed with debate. Next will come several weeks of amendments on the floor, most of which will require 60 votes. Then there will be a struggle over 60 votes to end debate. Only at that point will there be an up or down vote on the bill requiring a simple majority.

There is nothing in the Constitution that requires that the Senate must have 60 votes to pass anything. This is purely a feature of internal Senate rules, which, in turn, depend for their application on a series of customary practices of cooperation. Those rules and the customary practices that surround them have morphed in the past two decades so that it now takes 60 votes for any significant legislation even to be debated. In addition, the practice of holds has metastasized so that holds are routinely invoked to prevent nominations from reaching the floor, where, of course, it still takes 60 votes to confirm them.

These changes have arisen relatively slowly but their effect by now is clear. They have made the Senate into a place where serious, public spirited government goes to die.

We need a reform of the Senate rules immediately. Even though these rules are not constitutional, they have in effect changed the Constitution, and reforming them is perhaps the most seriously needed change in our governmental system today.

During 2004-2005, Democrats filibustered a handful of President Bush's judicial nominees for the circuit courts. Republicans responded by demanding an end to filibusters of judicial appointments and even contemplated the so-called "nuclear option" that would change the Senate rules by a simple majority vote. Eventually the Republicans backed away and a compromise was reached among the so-called Gang of 14 senators.

In hindsight, it is clear that Democrats should have responded to the Republican threat by seeing the demand for an end to the filibuster and raising it: Both sides should have voted to end all filibusters and reform the practice of holds: first, to abolish anonymous holds and second, to return them to their original purpose of giving Senators a short period of time, say one or two weeks, to think over a particular nomination.

It was an opportunity missed: If the Democrats has been willing to do this, the Republicans might have gotten Miguel Estrada on the D.C. Circuit (and perhaps even the Supreme Court instead of Samuel Alito). But this is a very small price to pay for a procedural reform that makes government possible once again.

Both the Republicans and the Democrats have recognized that the current system is dysfunctional, just at different times.

As it now stands, neither party can get much done, or get many of the Administration's nominees appointed, in part because of the combination of the Senate rules, and in part because both parties now are so deeply polarized that the most elementary forms of cooperation are now out of the question. (Not all, of course: Senators can still bring all business to a halt whenever they choose, but we have not gotten to that point yet.) Congress complains about the proliferation of White House officials who do not require Senate confirmation; but the Senate's own practices encourage this. Why should President's rely on the Senate's confirmation processes when a single dyspeptic Senator can hold up a nomination indefinitely and for any reason?

The change in the Senate's customary rules is not independent of increased polarization and noncooperation. The two feed off of each other. Individual Senators can make themselves politically important by threatening not to cooperate; as a result, they have incentives to push the envelope on customary practices that formally allow individual Senators to block action but in practice have relied on cooperation. As Senators push the envelope on obstructionist tactics, warping custom, they create a desire for payback that further polarizes the Senate, creating a climate in which forms of noncooperation that would have seemed completely inappropriate only a few decades ago now have become routine.

The Senate's rules don't simply hurt the majority party, or the President; they hurt the Senate itself. And by making one branch of government an mindless, arbitrary impediment to government, they hurt democracy itself.


Posted 7:35 AM by JB [link]

"Just Compensation" Can Lead to More Government Takings

Ian Ayres

Posted 11:23 AM by Ian Ayres [link]

Originalism in the American Mind

Nate Persily

(coauthored with Stephen Ansolabehere and crossposted)

Upon the initiative of my colleague Jamal Greene who has been writing about the popularity of originalism, our July survey included several questions concerning judicial methodology. As cautious as we might be generally about measuring opinion on constitutional questions, our concerns about question wording, issue complexity, and non-salience are heightened in this context. Nevertheless, recognizing those limitations, we sought to examine attitudes on several questions concerning interpretive methodology that other polling firms and scholars have asked, as well as some new ones, such as the appropriateness of empathy in Supreme Court decisionmaking.

We began with the following question that has been asked by the Quinnipiac poll for the last six years:

Which comes closer to your point of view?
1) In making decisions, the Supreme Court should only consider the original intentions of the authors of the Constitution.
2) In making decisions, the Supreme Court should consider changing times and current realities in applying the principles of the Constitution.

To be sure, the question framing is unfair to the originalist position, presents a false dichotomy, and has a host of other problems. Nevertheless, the results have been remarkably consistent, the split shows that there is not lopsided support for either option even given the phrasing, and very few people refuse to express an opinion on the question. On average, 42% identify with the “original intentions” option, 51% identify with the “current realities” option, and only 8 percent “don’t know.” (Since 2003, the share supporting the “original intentions” option has ranged from 39% to 44%. Our survey from July found 40% supporting that option.)

Our survey decided to delve further and asked a battery of questions developed by Jim Gibson at Wash. U., and added a question about “empathy” as well, given its salience to the Sotomayor nomination.

The survey asked: “How important would you say it is for a good Supreme Court judge to…..”

The numbers following each response correspond to the share who say Very important, Somewhat important, Not very important and Not important at all

Strictly follow the law no matter what people in the country may want? 39 42 14 4
Feel empathy for the people involved in a case? 17 41 26 14
Protect people without power from people and groups with power? 52 34 8 5
Respect the will of the majority of people in the U.S.? 34 40 17 9
Stay entirely independent of the President and Congress? 57 31 8 3
Follow his or her conscience or sense of morality? 31 43 15 9
Respect existing Supreme Court decisions by changing the law as little as possible? 30 47 16 5
Uphold the values of those who wrote our constitution two hundred years ago? 53 37 7 2

Apologies for my inability to figure out how to insert a table. As seen in this battery, which does not force respondents to choose among the options, every option finds majority support deeming that criterion to be “very” or “somewhat important.” The response patterns range from 90 percent who consider it very (53%) or somewhat (37%) important to “uphold the values of those who wrote our constitution two hundred years ago,” to 58 percent who consider it very (17%) or somewhat (41%) important for a judge “to feel empathy for the people involved in a case.” The only options that a majority considers very important are “stay entirely independent of the President and Congress” (57%), which is no surprise given the relatively low ratings the political branches, rather than the courts, tend to receive from the mass public; “uphold the values of those who wrote our constitution” (53%); and “protect people without power from people and groups with power” (52%), which surprised me a bit given the patterns on the other options.

We are just beginning to delve into the more interesting and important questions as to who identifies with which option – that is, what demographic characteristics and responses to other questions in the survey are associated with attitudes toward interpretive methodology. Here is one finding that seems particularly robust: even when controlling for all the usual demographic characteristics and a range of measures for political conservatism, moral traditionalism, libertarianism, religiosity etc., attitudes toward Roe v. Wade and attitudes toward federal recognition of same sex marriages where it is legal are powerful predictors of the choice of “original intentions” in the Quinnipiac question.

Posted 4:32 PM by Nate Persily [link]

Why Jack Balkin is Disgusting

Andrew Koppelman

Here.



Posted 3:01 PM by Andrew Koppelman [link]

Assessing Algorithmic Authority

Frank Pasquale

Clay Shirky has recently written "A Speculative Post on the Idea of Algorithmic Authority," based on a talk at Yale's recent conference on Journalism & The New Media Ecology. Shirky notes that "people trust new classes of aggregators and filters, whether Google or Twitter or Wikipedia (in its ‘breaking news’ mode)," and calls this trend "algorithmic authority."

Shirky's ideas about authority have many interesting implications for legal scholars. They also lead me to worry that the same types of opacity that infected our financial system may increasingly influence our public sphere.



Shirky characterizes "algorithmic authority" as "the decision to regard as authoritative an unmanaged process of extracting value from diverse, untrustworthy sources, without any human standing beside the result saying 'Trust this because you trust me.'" For Shirky, "authority is a social agreement, not a culturally independent fact." He mentions the poor performance of certain "sources everyone accepts"--for example, "the ratings agencies Moodys, Standard & Poor’s, and Fitch"--and an error in Encyclopedia Brittanica. He implicitly contrasts these older, traditional authorities with "Google’s PageRank algorithm, Twitscoop’s zeitgeist measurement, and Wikipedia’s post hoc peer review," which are examples of algorithmic authority.

Both traditional and algorithmic sources face the problem of unreliable inputs. For algorithmic authorities,

[T]he “Garbage In, Garbage Out” problem [is handled] by accepting the garbage as an input, rather than trying to clean the data first; it provides the output to the end user without any human supervisor checking it at the penultimate step; and these processes are eroding the previous institutional monopoly on the kind of authority we are used to in a number of public spheres, including the sphere of news.

Here are some reasons to worry about that process:

a) Shirky notes in the piece that there are several kinds of knowledge out there unsusceptible to assessments of accuracy. He cleverly calls these "epistemological potholes." My worry is that the potholes are in fact larger than the road itself, and that we should be particularly concerned about the accumulation of algorithmic authority in news. If we merely relied on journalists for facts, perhaps a wikipedian directive of objectivity and neutrality could permit algorithmic authorities to separate the wheat from the chaff. But the media is more an engine than a camera, the font of ultimate political reality it pretends merely to mirror.

b) Now the question becomes: are these algorithmic authorities any worse than the corporate goliaths they are displacing? I'm not going to argue that they are, because of a deeper problem: at least one of them (Google) utilizes trade secret protected algorithms that aren't open to public inspection (and are likely so dynamic that a snapshot of them would give us little chance of assessing their biases). I can't imagine how a modern-day Herbert Gans could write an account of "Deciding What's Google News" (though I'm deeply impressed by Dawn Nunziato's incisive account of some problems in the service). I've earlier worried that algorithmic sorting could allow prejudices to enter spheres of life where once people had to “launder preferences” by giving some explicit reason for action.

c) Algorithmic authority probably has Hayekian and democratic foundations--an idea that the uncoordinated preferences of the mass can coalesce into the "wisdom of crowds" once old elites step out of the way. A power law distribution of attention on the web, like ever-more-extreme polarization of wealth and poverty, has to be legitimated by markets, democracy, or some combination of the two. Such forms of spontaneous coordination are perceived as fair because they are governed by knowable rules: a majority or plurality of votes wins, as does the highest bidder. Yet our markets, elections, and life online are increasingly mediated by institutions that suffer a serious transparency deficit. Black box voting continues to compromise election results. The Fed asserts extraordinary emergency powers to deflect journalistic inquiries about its balance sheets. Compared to these examples, the obscurity at the heart of our "cultural voting machines" (as I call dominant intermediaries) may seem trivial. But when a private entity grows important enough, its own secret laws deserve at least some scrutiny.

I have little faith that such scrutiny will come any time soon. But until it does, we should not forget that the success of algorithmic authorities depends in large part on their owners' ability to convince us of the importance--not merely the accuracy--of their results. A society that obsesses over the top Google News results has made those results important, and we are ill-advised to assume the reverse (that the results are obsessed over because they are important) without some narrative account of why the algorithm is superior to, say, the “news judgment” of editors at traditional media. (Algorithmic authority may simply be a way of rewarding engineers (rather than media personalities) for amusing ourselves to death.)

Moreover, if personalized search ever evolves to the point where someone can type into their gmail “what job should I look for,” and receives many relevant results, new media literacy demands that the searcher reflect on the fact that his or her very idea of relevance has probably been affected by repeated interactions with the interface and the results themselves. As Nicholas Carr and Jaron Lanier have pointed out (recalling Sherry Turkle and Sven Birkerts), tools aren’t just adapting to better serve us-–we are adapting in order to better compete in the environment created by tools. Algorithmic authority can be just as disciplinary as the old forms of cognitive coordination it's displacing. To paraphrase Foucault: "Responding precisely to the revolt of the [netizens,], we find a new mode of investment which presents itself no longer in the form of control by repression but that of control by stimulation". . . and search engine optimization.

X-Posted: Madisonian.


Posted 11:51 AM by Frank Pasquale [link]

Should Obama Care About Judges?

Barry Friedman

The Obama Administration has been slow to fill federal judicial vacancies. This may be in keeping with the President’s view that social change should occur through the democratic process. But he should bear in mind that the long-term fate of social change often rests in the courts, which can step on – or ratify – the work of political movements.

The New York Times reported this weekend on the Obama Administration’s lethargic rate of judicial nominations. (Brian Tamanaha weighed in as well here on Balkinization.) In addition, key personnel in the White House counsel’s office responsible for such appointments are departing. And the Senate has yet to confirm Christopher Schroeder, the nominee for the head of the Office of Legal Policy, which also bears a large part of the burden of vetting judicial nominees.

One suspects that among the many issues this Administration must juggle, the judiciary is not a top priority. The Administration’s response to criticism about the pace of judicial appointments is that it is focusing on the confirmation rate, not the appointment rate. But it is no secret the President places his higher hopes on politics and the power of democratic change, rather than the sort of legal liberalism of the Warren Court years.

Still, the President would be wise to recognize – as I do in The Will of the People – that courts and social movements have a symbiotic relationship. To state the obvious, judges can use their power of judicial review, and their role as statutory interpreters, to wreck havoc with the handiwork of politics. Consider, for example, what the Supreme Court has done to the entire Guantanamo policy.

More important still, courts can ratify the work of political movements. The New Deal’s shift to national control of the economy took lasting hold because judges changed their entire interpretive approach to accommodate it. When judges buy into political change, such change becomes part of the very tissue of the law. In this way, political accomplishments persist long after their proponents have departed their elective offices.

When a President’s agenda is primarily domestic, as is Barack Obama’s, judicial allies are essential. Be it health care or the regulation of financial institutions, these regulatory changes ultimately will depend upon judges for their interpretation and implementation. A hostile judiciary can tear a regulatory regime to pieces; a favorable one can enshrine it.

Simply put, it is not an either-or proposition: judicial or political change. The two work in tandem. It’s both fine and appropriate to focus on the political. That’s where one’s legacy is made. But whether that legacy endures often depends, in the final analysis, on the courts.


Posted 4:16 PM by Barry Friedman [link] (7) comments

Public Attitudes Toward Election Law Controversies Past and Present

Nate Persily

(coauthored with Stephen Ansolabehere and crossposted)

As part of our national survey of attitudes toward courts and the Constitution performed by Knowledge Networks this past July, we included several items related to election law and voting rights. We wanted to assess public opinion on some contemporary controversies, such as photo ID laws and election-day registration, while also examining classic controversies, such as literacy tests, poll taxes and one person, one vote.

The survey included (among others) the following questions regarding voting rights:

"Below are a list of voting procedures that are or have been used in the United States.
We’d like to know whether you would approve of each of the following in your state.

Require that all people show that they can read in order to vote
55% approve; 44% disapprove

Require that all people show photo identification when they vote
84% approve, 14% disapprove

Require that all voters pay a $5 fee
3% approve; 95% disapprove

Allow people to register on Election Day if they can prove their residency and citizenship
62% approve; 37% disapprove”


On the classic controversies: our poll shows majority support (55%) for literacy tests. This might seem surprising, but this figure is consistent with results from two polls conducted by CNN in June 2006 and October 2007, which asked “Do you think people who cannot read or write English should be permitted to vote, or not?” One concern about those earlier polls might have been that using the word English might have primed respondents to think about this issue in the context of the contemporaneous debate over immigration, but our poll, which gets the same results, simply says “Require that all people show that they can read in order to vote."

The same cannot be said for poll taxes, which seem to be almost universally opposed. Only 3 percent support paying a fee in order to vote. Perhaps if the survey had said the fee would be used to pay for elections or public schools (as classic poll taxes did) the figure might be higher, since it seems reasonable to assume that people are generally against abstract fees unconnected to any purpose.

With respect to contemporary controversies, our survey asked about photo ID requirements and Election Day registration. As with most surveys, we found overwhelming support (84%) for photo ID requirements. To be sure, the question did not limit itself to “government issued photo ID,” as many of the challenged laws do, but surveys on photo ID generally find substantial support. Unlike some other surveys that ask about Election Day registration (EDR), we added the qualification “if they can prove their residency and citizenship” and 62 percent of respondents supported EDR when so phrased. Adding that qualification might alter the share supporting EDR (as was our unfounded suspicion with the CNN literacy test questions) by capturing some respondents who focus, in particular, on the citizenship requirement and think the question is asking about raising the barriers to voting rather than lowering them.

It has been a while since surveys have asked about one-person one-vote, and redistricting is a topic most respondents might have difficulty understanding. Recognizing these challenges, we sought to gauge general acceptance of one-person one-vote today. In 1966, a Harris Poll asked: “Another decision of the U.S. (United States) Supreme Court was to... rule all Congressional Districts had to have an equal number of people in them so each person's vote would count equally. Do you personally think that decision of the U.S. Supreme Court was right or wrong?” 76% said “right” and 24% said “wrong”. In 1969, a Gallup Poll asked: “The U.S. Supreme Court has required states to change their legislative districts so that each member of the lower house and each member of the upper house represents the same number of people. Some people would like to return to the earlier method of electing members of the upper house according to counties or other units regardless of population. Would you favor continuing the present equal districting plan or returning to the earlier plan? 52% said continue present plan; 23% said earlier plan; and 25% had no opinion.

Our survey asked:
“Do you think all legislative districts in your state should have the same number of people per district or is it okay for some to have more people than others?”
Districts should have equal populations – 32%
It’s okay for district populations to differ somewhat – 53%
It’s okay for some districts to have many more people than other districts. – 12%

“Currently all state legislative districts have equal numbers of people. An alternative is to have districts with equal numbers of people in one house of the state legislature but give each county one representative in the other chamber, even though counties have different numbers of people.”
Which way do you think is better?
It is better to have districts with equal populations in both chambers. 54%
It is better to have one seat for each county in one chamber and equal population districts in the other chamber. 40%

The results suggest majority support for something like the current rule of rough population equality for state legislative districts (as opposed to the strict equality rule for congressional districts), but with a substantial share supporting the “federal model” allowing for county representation in one house of a legislature.
Posted 2:46 PM by Nate Persily [link]

Guantánamo: Justice as Paradox

Guest Blogger

Jonathan Hafetz

Attorney General Eric Holder’s announcement Friday that Khaled Sheikh Mohammed and four other individuals allegedly responsible for the 9/11 attacks would be brought to trial in federal court takes an important—if long overdue—step towards restoring the rule of law. No longer are these men “high value detainees,” a label invented out of whole cloth to sanction their previous disappearance into a secret CIA prison and torture. After resurfacing at Guantánamo in September 2006, they are now, finally, defendants in the U.S. criminal justice system, which has shown repeatedly that it is well-equipped to handle terrorism cases while protecting legitimate national security concerns. This was the result advocated by the ACLU’s John Adams Project, and it is a welcome one.

But at Guantánamo, the road to justice remains the road less traveled. Holder also announced that five other Guantánamo detainees would be referred back to military commissions, including Abd al-Rahim al-Nashiri, the alleged mastermind of the 2000 bombing of the USS Cole. So, those accused of the 9/11 attacks go to civilian court, while those accused of other crimes are diverted to military commissions. Yes, al-Nishiri is accused of attacking a military target. But the attack occurred before the United States was engaged in any armed conflict and before the passage of the Authorization for Use of Military Force that the U.S. has relied on for the claimed armed conflict against al Qaeda. (In Hamdan, Justice Stevens described such retroactive use of military commissions as “insupportable”). As Deborah Pearlstein points out , the administration has failed to provide a consistent, let alone valid, legal theory why one case goes to a military commission and another to federal court—why one prisoner gets full due process in a federal trial while another receives due process lite in a refurbished commission. Military commissions may have a place in the limited circumstances of true necessity—where the civilian courts are not open, functioning, and capable of dispensing justice. But military “necessity” is not an excuse for the government to deviate from its regularly constituted courts because it lacks the evidence to convict. And even if that were not the reason (or the only reason) for using military commissions, it will be the enduring perception of America’s two-tiered system of justice.

Holder’s announcement, moreover, deals only with one slice of Guantánamo. In the eight years since President Bush first created military commissions, only three men have been tried by these supposed “war courts.” By contrast, more than 750 have been detained without trial and more than 200 remain in legal limbo. Military commissions have helped mask a much larger system of prolonged and indefinite detention without charge. This open-ended detention system has been one of the most brutal, arbitrary, and lawless aspects of Guantánamo. (More than a hundred lawyers for detainees have now described its inside workings in a collection I’ve co-edited with Mark Denbeaux, “The Guantánamo Lawyers: Inside a Prison, Outside the Law (NYU Press). The Obama administration, however, has suggested that this system of indefinite detention will continue even after Guantánamo is closed and its remaining prisoners moved to another facility.

Under Boumediene¸ Guantánamo detainees now have a constitutional right to habeas corpus. But habeas hearings are not criminal trials, and those whose military detention is approved by a habeas judge face the prospect of confinement without end. Indeed, under current law even those who win their habeas hearings will remain imprisoned if the United States cannot repatriate them since judges are powerless to order their release into the United States. (This is the question the Supreme Court will hear this term in Kiyemba).

As long as the present menu of options for dealing with terrorism suspects remains in place, U.S. detention policy will remain essentially lawless. The government will be free to use federal courts when it is confident it can convict; employ military commissions if it has doubts about the strength of its evidence or faces other obstacles; and dispense with a trial altogether where its case is weakest. Welcome to Guantánamo 2.0.


Posted 9:14 AM by Guest Blogger [link]

The Liberal Dilemma on Judicial Appointments

Brian Tamanaha

According to a recent New York Times article, liberal organizations that monitor judicial appointments are unhappy that the Obama Administration is going slow in its judicial nominations. Their real concern, however, is not the leisurely pace but the moderate profile of his nominees: “Liberals…complain that the Obama team’s selections have been too moderate to counterbalance the strongly conservative appointees of Republican presidents, echoing an accusation they made during the Clinton administration.”

Liberals critics believe that Clinton was foolish to downplay ideology in favor of diversity in his judicial appointments, and they fear that Obama will make the same mistake. “Of Mr. Obama’s 12 appellate nominees, six are women, four are black, one is Asian and one is Hispanic. By contrast, about two-thirds of Mr. Bush’s nominees were white men.” Obama’s diverse nominees do not all conform to standard liberal ideological profiles.

It is foolish to take this approach, liberal critics assert, because Republican Administrations have for three decades rigorously screened all federal judicial nominees for extremely conservative values, and have pointedly sought young nominees, many in their thirties and forties, to insure a lasting conservative influence on the bench. (Prior to this period, only Supreme Court nominees were screened for political views; lower court appointees were mostly matters of patronage.) Democratic presidents who fail to follow the same strategy are, in the eyes of liberal critics, unilaterally disarming against their political adversaries, thereby insuring conservative domination of the federal bench.

The argument makes sense—unless one is concerned about the growing politicization of courts. Screening nominees for liberal ideology will increase politicization, not reduce it, exacerbating the problem rather than solving it.

Liberals who believe that judges should strive to render decisions based upon the law in a non-political fashion (even if this cannot be perfectly achieved) are faced with a gut-wrenching dilemma. Consistent with this principle, they should always oppose rigid ideological screening of lower court nominees. (This does not mean a nominee’s political views are irrelevant, but that conformity to liberal ideology is not the overriding consideration.) But liberals know that conservatives stand ready to exploit this naïve idealism.

So what is a liberal to do?

Unilateral disarmament is the right choice (as I have argued here). There is no other way. We must trust principled conservatives in the next Republican presidency to stand up and oppose rigid ideological screening on their end. Then, perhaps, this destructive pattern of politicization can be broken.

This act of good faith, regrettably, will likely fail unless the Republican Party undergoes a radical internal change. Nonetheless, if it is indeed eschewing vigorous ideological screening, the Obama Administration is doing the right thing.
Posted 5:53 PM by Brian Tamanaha [link] (37) comments

Presidential Salutes and Presidential Precedents

Eugene R. Fidell

On November 1, 2009, Carey Winfrey, who edits Smithsonian Magazine and previously served as a Marine Corps junior officer, had an op-ed in The New York Times offering A Final Verdict on the Presidential Salute. His essay was occasioned by President Obama's rendering of a fine military salute the night he flew to Dover Air Force Base to pay tribute to 15 soldiers and three DEA agents who had died in Afghanistan. The essay observed that President Reagan was "thought to be the first" President to have returned a military salute (in 1981). Mr. Winfrey reported that he had long been ambivalent about the practice, but that President Obama's Dover salute, smartly executed, had brought his ambivalence to an end. "His salute," Mr. Winfrey wrote, "it struck me, was impeccable in every way." Having also served in the military, I at once dashed off an email to the editor, respectfully disagreeing, and suggesting that "[p]residential salutes are an unfortunate innovation and should be abandoned." The Times was kind enough to publish it a few days later, leading to a number of phone calls and emails from both friends and people I'd never met. Some agreed with me, others did not, but all were quite civil. Taken together, they led me to continue to ponder this episode. Was the presidential salute really a Reagan innovation, and was there something deeper at stake?

First, the history. President Reagan was indeed pretty good with his hand-salute, both during his presidency and when leaving office, and encouraged President George H.W. Bush "to keep up the tradition." I have not found evidence that Mr. Bush, a naval hero, took the advice while in office, although he did from time to time return salutes after his term expired. President Clinton regularly offered hand-salutes, but at other times--saluting the flag or at the Tomb of the Unknowns--placed his hand over his heart. President George W. Bush was often photographed rendering a hand-salute, although he too at times would put his hand across his heart, sometimes uncertainly.

Research reveals, however, that, whether he knew it or not, President Reagan did not invent the tradition of presidential hand salutes. Photographs exist of Presidents Eisenhower, Truman, Franklin D. Roosevelt, and (seated, inappropriately) Coolidge executing hand-salutes, although there are also many examples of hand- and hat-over-heart salutes as well. Can you spot President Taft in the crowd?

I'm certain readers will continue to be divided over whether civilian commanders-in-chief should render military-style hand-salutes. Hat-wearing having become less fashionable than it once was, tipping the hat or holding it over the heart is not much of an option. So what is a President to do? My letter to the editor suggested that a simple nod of the head would suffice. Another alternative, when responding to, rather than offering, a salute, is to utter a conventional word of greeting, or, if militarily inclined, quite simply, "carry on" or "as you were."

Is this all a tempest in a teapot? I don't think so and neither, I believe, does Congress. According to 36 U.S.C. 301(b)(1), as amended by section 595 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, when the flag is displayed during the playing of the Star-Spangled Banner, persons in uniform should and members of the armed forces and veterans not in uniform may render the military (hand) salute. Others who are present should merely "face the flag and stand at attention with their right hand over the heart, and men [sic] not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart." Presidents who have never served fall in the "others" category: no hand salute. I am indebted to Prof. Robert F. Turner of the University of Virginia for calling this legislation to my attention, along with then Secretary of Veterans Affairs James B. Peake's statement at the time of enactment that "[t]he military salute is a unique gesture of respect that marks those who have served in our nation's armed forces." Other legislation permits active duty personnel in civilian clothes and all veterans to render the hand salute when the flag is raised, lowered or passes in parade or review. (I hasten to add that Bob and I nonetheless disagree on the presidential salute issue.)

The armed forces play a critical and honored role in our country, but it is important to maintain the distinction between that which is military and that which is civilian. The President is commander in chief of the armed forces, but is not a member of them, is not paid according to the military pay table, is not subject to military justice, and does not wear a uniform. Other democracies may at times blur this line, e.g., when Churchill affected a military or naval uniform in World War II, but we have not done so, even when the president has been a retired officer, as in the cases of Generals Grant and Eisenhower. But see President Charles De Gaulle. Will presidential military salutes standing alone threaten the Republic? Of course not. But as President Reagan once quipped about the fact that no president ever died of overwork, "why take a chance?"

This brings me to my second point, which concerns the role of precedent in executive administration. Certainly in the early days of the Republic, presidents had to be aware that things they did or did not do would become precedents, either expanding or contracting their own power and that of their successors. Familiar examples include deciding whether to testify before Congress or to deliver the required "information of the State of the Union" in person. Less familiar ones which also help set the tone for the institution of the presidency are means of address and the playing of "Hail to the Chief" by the United States Marine Band ("The President's Own"). Those who followed the Nixon Administration will recall his unfortunate and short-lived decision in 1970 to dress White House guards from the Secret Service's Uniformed Division in silly hats and tunics reminiscent of a Franz Lehar operetta. (Eighty of the 150 uniforms, which had been worn only once, were later acquired by Southern Utah State College for its marching band.) Does a president bow to a foreign head of state or appoint a "personal representative" to the Vatican, as FDR did in 1939? Does a president wear a flag lapel pin? Add "So help me God" to the Oath of Office? Walk part of the way during the Inaugural Parade? Should individuals be recognized from the Gallery when a president delivers the State of the Union address? Should a president dispense with wearing a jacket in the Oval Office, introduce a Supreme Court nominee at the White House or meet with the sitting Justices?

Similar matters of practice arise in the other Branches as well. Should Justices attend the Red Mass or the State of the Union? Robes? Robes with stripes? Jabot vel non? Mr. Justice Wilgarten or just plain Justice Wilgarten? Should members of Congress argue before the Supreme Court? Who should be invited to address Joint Sessions of Congress? These may not present legal issues so much as issues of tone and, ultimately, taste.

The saluting business should be considered from this broader perspective. Viewed in isolation, the diverse aspects of the presidency I've noted may seem trivial. Taken as a whole, however, they play a role in setting the tone both for a specific administration and for the institution. Personally, I hope President Obama drops the salute (as well as the flag lapel pin). If not, then I will hope his successor does so.

Posted 12:35 PM by Eugene R. Fidell [link] (24) comments

Holder Speaks

Deborah Pearlstein

Cross-posted at Opinio Juris

Nothing like Friday afternoon with the President overseas for a little news: The men accused of conspiring to commit the 9/11 attacks will be tried in federal court in New York City. Five other men, including a man accused of involvement in the USS Cole bombing in 2000, will face trial before new and improved (if not perfect) military commissions. White House Counsel Greg Craig resigns, over many, rightly disputed accusations that he should have resolved the 8-years-in-the-making Gitmo mess in his first 365 days.

In case those stories don’t give you enough to digest, you might have also done well to catch a series of administration officials (among others) talking about military commissions and the like on panels yesterday and today at the ABA’s Annual Review of the Field of National Security Law in Washington, D.C. (Full disclosure: I did a military commissions panel with Robin Jacobsohn, Deputy General Counsel at DOD; Col. Mary Perry, Director of the Operations and Int’l Law Division at the Air Force TJAG’s office; Scott Silliman of Duke and Jonathan Hafetz of the ACLU. ) You should also probably read yesterday’s white paper from the Center for American Progress think tank (CAP) in D.C. arguing, inter alia, that the remaining Gitmo detainees who may lawfully continue to be held under the AUMF and laws of war should be transferred for continued detention to Bagram Air Base in Afghanistan. And if you want to know how the Afghans are doing in preparation for taking over detention and trial operations themselves one of these days, two new Human Rights First reports on U.S. detention operations in Afghanistan are certainly worth reading, available here and here. Hint: Not so well.

For now, let's stick with today’s blockbuster prosecutions announcement. The decision to pursue the highest profile prosecutions of the 9/11 co-conspirators like Khalid Sheik Mohammed in federal criminal court in New York is wise, welcome and long overdue. We have prosecuted the likes of KSM in federal court before, we can do it again. The decision to use military commissions – improved though they may be – is, as I’ve written here before, a greater gamble.

As the Supreme Court has consistently recognized, our constitutional structure reflects a strong preference that determinations of guilt and innocence be carried out by independent courts created under Article III. In keeping with this constitutional presumption, the extent to which the Court has approved the use of Article I military courts, even with congressional authorization, has been strictly limited. As the Hamdan Court itself noted, military commissions are courts of necessity, whose use must be incident to the conduct of a particular war. So in each case to come before the commissions, we must ask (1) What is the necessity that makes this forum appropriate? What jurisdictional gap exists that would foreclose prosecution of Al Nashiri (the accused USS Cole bomber) in federal criminal courts? What relevant principle distinguishes his crime (accused of attacking a military target) from KSMs (accused of attacking civilians)? And (2) To what armed conflict are these offenses incident? In this respect KSM’s case is easier; the Administration is hardly alone in viewing the attacks of 9/11 as the initiation of a war against the United States. But as far as one can tell from government allegations to date, Al Nashiri is accused of involvement in a conspiracy dating to 1998. See, e.g., here (scroll down). Whether or not one can make the case under international humanitarian law (IHL) that there was a de facto non-international armed conflict already under way between the United States and Al Qaeda in the 1990’s (and the case under IHL is far from clear), our own Congress didn’t pass the Authorization for the Use of Military Force against Al Qaeda until after September 11, 2001.

There may be an available legal theory that explains the decision making here. But I didn’t quite get an answer to any of this from my thoughtful co-panelists from the Administration today (whose job it was, to be fair, not to make news). In all events, for these, among many other reasons, the Administration will have a long road ahead of it as it pursues commissions, hoping the third time is the charm.

Posted 5:48 PM by Deborah Pearlstein [link]