Legal Mistakes in Reporting on the International Anti-Terrorism Campaign

Kim Lane Scheppele

The bombs that exploded through London on Thursday heralded unseemly gloating in the American press about America’s current legal superiority in the war on terrorism. Europe has been portrayed as too attached to the “crime model” for dealing with terrorism, and too attached to its civil liberties to be effective in preventing terrorist attacks. Now Europe has seen what it’s like – the American press says – they will surely come to the same conclusion that America has: it is necessary to trade-off liberty for security. Europeans now have to get tough on terrorism, because they have not been before now.

That might be persuasive if it were true. But it is not. Let me illustrate the problems in American press coverage with two examples from the New York Times, though there are plenty of other examples around.

Exhibit A: Today’s New York Times featured a story by Elaine Sciolino and Don van Natta that reported:

For example, when the [British] Parliament considered a bill in March that would have allowed the government to impose tough controls on terror suspects - like house arrests, curfews and electronic tagging - some legislators objected, saying it would erode civil liberties. "It does not secure the nation," William Cash, of the House of Commons, said of the bill. "It is liable to create further trouble and dissension among those whom we are seeking to control - the terrorists." The measure is still pending.

Wrong. The bill – called the Prevention of Terrorism Bill 2005 -- not only passed, but it fixed a “problem” referred to elsewhere in the Sciolino and van Natta article. As they reported:

After Sept. 11, the government passed legislation that allowed indefinite detention of terrorism suspects. But last year, it was overturned by Britain's highest court, the Law Lords, as a violation of human rights law.

True, as far as it goes. But it leaves the wrong impression. The Law Lords did declare part of the 2001 anti-terrorism law to be incompatible with a part of the European Convention on Human Rights from which Britain did not derogate after 9/11. But the Prevention of Terrorism Bill 2005 was rushed through the Parliament precisely to allow the British government to keep in indefinite detention all the suspected terrorists who had been detained under the impugned law. As a result, the Law Lords decision resulted in not a single suspected terrorist actually being released. And it was clear from Law Lords’ judgment that that would be the case because the decision gave the British government numerous ways to fix the law without actually letting any of the suspected terrorists go free. Far from being irresponsible civil libertarians who didn’t seem to realize that there was a war going on, the Law Lords upheld Britain’s declaration of a state of emergency and Britain’s derogation from the right to liberty under the European Convention. Britain can still detain suspected terrorists indefinitely – it just cannot detain aliens indefinitely while leaving equally dangerous citizens to roam free.

Britain was not being soft on terrorists before 7/7. Britain had some of the most draconian anti-terrorism policies in place of any democracy in the world.

Exhibit B: In a July 8 New York Times article headlined “Despite Terror, Europeans Seem Determined to Maintain Civil Liberties,” Richard Bernstein made another elementary legal mistake. He wrote,

From the 9/11 attacks through the Madrid bombings, Europeans have refused to sacrifice civil liberties in the fight against terrorism, sharply criticizing the United States for restricting its citizens' rights for the sake of security. Even with the London attacks, there is little indication that this philosophical divide is narrowing. . . .

European countries have passed no equivalents of the Patriot Act. . .

Wrong. In fact, most countries in the world did pass something like a USA Patriot Act after 9/11, if one looks narrowly at what the Patriot Act actually does. While the US debate over the Patriot Act never mentioned this, the Patriot Act brought the US into compliance with UN Security Council Resolution 1373, a resolution that required all UN member states to change their laws to a) criminalize terrorism, b) stop the flow of money to terrorists, c) prevent terrorist attacks from occurring, 4) share information with other countries about terrorism suspects and 5) prevent the immigration, asylum and refugee system from being used by terrorists.

Actually, the UN Security Council Resolution was probably drafted to look like the legislation America was preparing right after 9/11, rather than the other way around. But because the general shape of the USA Patriot Act corresponds to the contours of Resolution 1373, most other countries in fact do have something like it. In fact, any country bringing itself into compliance with Resolution 1373 will necessarily have a law that looks a lot like the Patriot Act.

Britain’s own Anti-terrorism, Crime and Security Bill 2001 in fact tracks the USA Patriot Act in many particulars, including detailed provisions to prevent financial flows from going to terrorists. Britain already had strong anti-terrorism legislation on the books, legislation far more draconian than anything the US had contemplated before 9/11. Germany passed two security law packages in fall 2001 as part of their compliance with Resolution 1373, giving German law many features in common with the USA Patriot Act. France already had strong anti-terrorism legislation in place before 9/11. Nonetheless, even France modified its laws to comply with the UN Security Council Resolution, down to the point of creating a rather vaguely defined crime of “pimping for terrorism” in a law passed on 18 March 2003. Someone can be convicted of “pimping for terrorism” if they are proven to know suspected terrorists and are in possession of large amounts of cash that they cannot explain. Even the US doesn’t go that far in criminalizing terrorism.

The examples could be multiplied, and anyone curious about the multiplicity of laws passed after 9/11 that look like the Patriot Act can find them in the state reports submitted to the UN Security Council’s Counter-Terrorism Committee which has been keeping track of such things since it was created in September 2001. Virtually all governments in world passed laws that bear similarities to the Patriot Act after 9/11. Even Vanuatu!


From these two examples in the New York Times, however (and, as I have said, the examples could be multiplied from other news outlets), one can start to see that the general narrative taken for granted in some of America’s press – that the US is willing to trade liberty for security while the Europeans are not – is simply not true. In many cases, strict European anti-terrorism laws were already in place before 9/11 so that they did not have to be newly enacted after 9/11, as many of America’s laws were. In cases where European countries did not have aggressive anti-terrorism laws in place before 9/11, they changed their laws to comply with UN Security Council Resolution 1373.

Yes, there is still a difference between Europe and America in the way that they are waging the anti-terrorism campaign. But it is not the case that Europe has failed to enact tough domestic anti-terrorism laws. Much of Europe, however, believes that international law binds them too.
Posted 7:45 PM by Kim Lane Scheppele [link] (74) comments

The Reverse Litmus Test

JB

President Bush and his advisors have a litmus test for the next Supreme Court nominee.

But it's not the litmus test you are thinking of.

Liberals and Democrats alike are worried that the President will nominate someone who will vote to overturn Roe v. Wade. They needn't worry. That's not likely to happen. In fact, the only litmus test the President is likely to employ is whether a candidate promises *not* to overturn Roe. Here's why.

Bush must decide if he wants to overturn Roe or preserve the Republicans as the majority party. With Roe gone, the pro-choice movement will be energized and Republican politicians will have to state on the record whether they want to criminalize abortion. Women, libertarians, and moderates may bolt the party, destroying Bush's winning coalition. Republicans may dislike Roe, but they may dislike losing elections even more.

A far more prudent strategy, and the one the President and his advisors will likely adopt, would be to appoint Justices who will preserve Roe but chip away at it slowly, for example, by devising new procedural rules that make it difficult to challenge abortion regulations in federal court, by upholding restrictions on particular medical procedures like partial birth abortion, and by further limiting abortions for minors and poor women. Moderates and independents may not like these changes, but such rulings will be much less likely to induce wholesale defections from the Republican coalition than wiping Roe v. Wade off the books. The latter is a simple, easy to understand result that people can get angry about and rally around. Procedural limitations on abortion, by contrast, are hard to explain to voters and therefore risk less political danger for the Republicans.

Chipping away at Roe slowly not only allows the party to keep moderates and independents from bolting, it also preserves a hated symbol for the party's base of religious conservatives to struggle against. As long as Roe remains law, religious conservatives can point to it as a example of what is wrong with America and with a liberal activist judiciary (which is, of course, increasingly staffed by conservative Republican Presidents!). Thus, the reverse litmus test not only holds the party's winning coalition together, it's also good practical politics.

Ayotte v. Planned Parenthood of Northern New England, a case that will be decided in the coming Supreme Court Term, is a perfect example of how the Justices might preserve Roe as a precedent while effectively wiping out much of its practical effect. The case is nominally about whether New Hampshire must include a health exception to its parental notification law, but it also involves a technical question of procedure: When challenging a newly passed abortion restriction, is it enough for plaintiffs to show that it imposes an undue burden on some class of women, or must plaintiffs show that the language of the law on its face has virtually no constitutional applications? If the latter rule applies, then almost no new abortion regulations can be halted before they take effect; instead, plaintiffs must make a series of individual challenges to specific aspects of the law that affect them personally. These as-applied challenges will take months or even years before they are finally resolved, and the remainder of the new abortion regulations will be enforceable in the interim. That means that states could pass very stringent restrictions on abortion and as long as they had some constitutional applications, they would remain on the books for years until a series of successful as-applied challenges eventually knocked away their most blatantly unconstitutional features. That is not the same thing as overturning Roe v. Wade in these states, but its practical effect is very similar.

And that brings me back to the coming Supreme Court nomination fight. A Bush nominee could easily state under oath that he or she respects precedent and will not overturn Roe and then turn around and vote for this new procedural rule, which would make Roe practically unenforceable in many states.

Indeed, one suspects that Bush's advisors know all of this, and that they may send signals that the next nominee will not directly overturn Roe.

When and if that happens, don't be fooled. Don't pay attention to pundits blathering on about a litmus test for overruling or preserving Roe v. Wade. Keep your eye on the reverse litmus test, the one that really counts.

Posted 1:07 AM by JB [link] (147) comments

Justice O'Connor's Farewell Address

JB

My op-ed on Justice O'Connor's final thoughts on religion and the Constitution appears in today's Hartford Courant here.

Posted 3:49 AM by JB [link] (30) comments

Britain's State of Emergency

Kim Lane Scheppele

Americans awoke Thursday morning to the horrific news of another mass terror attack – this time in London. Like the terrorist attack in Madrid in March 2004, timed for the eve of the Spanish election, this attack also seems designed to create a political backlash by shaking the G8 summit in Edinburgh.

For those caught up and injured or for the families and friends of those killed by the bombs that ripped through the city during morning rush hour, 7/7 will become a very personal marker of tragedy. For those watching from afar, 7/7 has already become another dreadful reminder that terrorism remains a constant threat in many parts of the world. 7/7 should remind us, if we ever needed reminding, that targeting civilians can never be tolerated, justified or excused.

Given the horrific nature of terrorist attacks, it may not be surprising that Britain has done the following things:

1. The United Kingdom declared a state of emergency.

2. The UK derogated from Article 5 of the European Convention on Human Rights, allowing it to indefinitely detain suspected international terrorists without charges or trial.

3. The London Metropolitan Police has used its newly granted cordon power to claim authority to search without a warrant any person or vehicle in Metropolitan London.

But none of those things were done today.

Instead, Britain declared a state of emergency on 13 November 2001 through The Human Rights Act 1998 (Designated Derogation) Order 2001. The emergency permitted the UK to derogate from its obligations under the European Convention on Human Rights in order to pass the Anti-terrorism, Crime and Security Bill 2001. This law gave the Home Secretary power to declare that he suspected particular aliens resident in Britain to be international terrorists (Art. 21 of the law) and to detain them indefinitely without charges or trial (Art. 23 of the law). Seventeen persons were so detained before the Law Lords (Britain’s highest court) declared in December 2004 that these sections of the anti-terrorism act were incompatible with the Human Rights Act. To fix the incompatibility, the British Parliament passed The Prevention of Terrorism Bill 2005 that allowed all those who had been detained to go on being detained without charges or trial under another legal rubric that superficially met the Law Lords’ objections. The new law now permits citizens as well as aliens to be held indefinitely without charges or trial if the Home Secretary suspects them to be terrorists.

Oh yes, and the London Metropolitan Police cordoned off the its entire jurisdiction from 13 August – 10 September 2003, giving itself the power to inspect any person or vehicle in Metropolitan London without a warrant for nearly a month. And this practice was upheld by R (on the application of Gillan and another) v Metropolitan Police Commissioner and another, [2005] 1 All ER 970.

Why bring up Britain’s post-9/11 anti-terrorism policies on a tragic day like this? Because Britain has already reacted in a legally extreme way to fight terrorism. It has consistently adopted domestic policies even harsher than those in the United States after 9/11. It has consistently decided to compromise basic civil liberties to fight terrorism – and with some of the most draconian laws available in any democracy to ward off terrorist attacks, a major terrorist attack still occurred.

A shattered and shocked country may demand even harsher laws after it has been attacked. But the lesson of Britain’s compromise of civil liberties so far is that we should all be wary of the deal we are promised in such compromises – that we will win safety in exchange for our rights. Sadly, such a deal tends to result in neither the guarantee of safety nor the preservation of rights.

My heart goes out to all of those who have been devastated by the London attacks. We are all in this together - and we must find less constitutionally destructive ways to address the threats we face.
Posted 1:01 AM by Kim Lane Scheppele [link] (35) comments

Justice O'Connor and the Equal Citizenship Principle

JB

The Constitution, Justice Oliver Wendell Holmes, Jr. once said, was "made for people of fundamentally differing views." He was thinking about economics. Today, we live in a country with fundamentally different views about religion. In the past thirty years, the most important social movement in America has been led by conservative Christians who seek to bring public policy in line with their values. At the same time the country itself has become increasingly diverse, with new immigrants from all over the world bringing a multitude of different religious beliefs and experiences.

The problem for a democracy like ours is accommodating these clashing views about morals, religion and politics, when they are made so fervently by people of such different prespectives. Some believe the country is falling into moral decay and can only be redeemed by their values; while others think government should impose their beliefs instead.

In Justice Sandra Day O'Connor's view, the key question was not whose values were right. It was how to preserve a deeper value in our constitutional tradition: equal citizenship. In a democracy, people may fight in the public square about the values government should uphold. But government must always treat its citizens as equal participants; it cannot favor one set over another because of their religious beliefs.

The principle of equal citizenship is often confused with separation of church and state, but the two are distinct. To secure equal citizenship, government need not cut itself off from religion or banish religious expression from the public square; what it must do is treat both the religious and the non-religious with an even hand.

The principle of equal citizenship led Justice O'Connor in directions that liberals and conservatives sometimes applauded and sometimes abhorred. On the one hand, she rejected the simplistic shibboleth of no aid to religion. The government, she contended, could support religious organizations in general programs that included the religious and secular alike, respected private choice, and did not foster religious indoctrination. Moreover, she emphasized that government could actively accommodate religion when general laws unfairly burdened the practices of particular religious groups. These decisions endeared her to religious conservatives.

On the other hand, she insisted that government may not endorse one religion over another, or religion in general over nonbelief. The Constitution, she argued "prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community." Endorsing a religious viewpoint "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." This principle led her to conclude that many state mandated religious displays and most state mandated prayers were unconstitutional, much to the delight of liberals.

Many people viewed Justice O'Connor as a fact- sensitive compromiser who lacked deep convictions. Her views on religion belie this reputation. She operated from a deep, powerful, and consistent principle: the principle of equal citizenship. It was simply a principle that others did not fully recognize or honor.

President Bush will soon nominate a new Justice to replace Justice O'Connor. The President is likely to choose someone who will please his political base of religious conservatives. But he would do the country a far greater service if he chose someone who respected Justice O' Connor's deepest insight: because we are a country of fundamentally differing views, the government's first obligation is not to save the country by instilling particular religious values. It is to treat all of its citizens, religious and secular, with equal respect.

Posted 8:53 AM by JB [link] (38) comments

Leaks from the Iraqi constitutional drafting process

Kim Lane Scheppele

Iraq is supposed to have a constitutional draft ready by 15 August, a bit over a month from now. Subcommittees have been meeting to draft different parts of the document, which will be eventually pulled together into a larger whole.

But perhaps it says something very good about the process that those who are proud of their handiwork so far are leaking their drafts to the press (perhaps to leverage public opinion in their favor?) and the Iraqi press is starting to publish these leaks. Even though the English-language press isn’t covering the constitutional drafting process, the Iraqi press is.

Now Nathan Brown (author of the path-breaking Constitutions in a Non-Constitutional World: Arab Basic Laws and the Prospects for Accountable Government) has provided a translation of the biggest leak so far – the draft bill of rights for the Iraqi constitution. He has also provided a wonderful commentary on the text.

The highlights? Strongly stated protections for speech, religious liberty, equality under the law, science. Relatively robust protections for women, though more in their capacities as mothers than anything else. A strong prohibition on torture, including an absolute ban on using confessions acquired by torture in court. Many social rights. Very little mention of Shari’a. All in all, this is a very interesting document and shows that the Iraqis are not just copying other countries’ constitutions – but also that they are not just copying international human rights agreements either.
Posted 12:41 AM by Kim Lane Scheppele [link] (93) comments

Beware the Grand Jury

Daniel Solove

My colleague and friend Orin Kerr (law, GW) pronounced yesterday “Federal Grand Jury Enforcement Day” because of the imprisonment of journalist Judith Miller for failing to comply with a grand jury subpoena for the sources who leaked Valerie Plame’s name and because of the imprisonment of rapper Lil’ Kim for giving false testimony to a grand jury. So I thought I’d take this opportunity to talk about the grand jury. I don’t plan to celebrate the grand jury; instead, I aim to attack it. My comments in this post will focus on the grand jury in general, not the Miller or Lil’ Kim cases.

Look more closely at a grand jury and you see quite an unusual feature of the criminal justice system. Grand juries operate in secret. They work with the prosecutor; they hear witnesses; and there is no judge in the room. Normal rules of evidence don’t apply. Grand juries wield enormous power. They can issue subpoenas (which are written by prosecutors) to require witnesses to come forward and testify or to produce books, papers, documents, or other things. Shrouded in secrecy and fortified with enormous power, the grand jury a kind of American version of the Star Chamber, or perhaps more aptly put, a Starr Chamber.

Ironically, grand juries are provided for in the Bill of Rights. Pursuant to Amendment V: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” It is ironic that grand juries are contained in provisions about rights, because today grand juries are largely the tool of prosecutors. There’s the famous quip that a “prosecutor can get a grand jury to indict a ham sandwich.” And that might be putting it too mildly – it applies to any sandwich, not just ham. A grand jury is one of the shiniest tools in the prosecutor’s tool shed. With rights like these who needs an Ashcroft?

Grand jury subpoena power, in the words of Orin Kerr, is “tremendously broad.” Grand juries may subpoena documents or evidence without a showing of probable cause. United States v. R Enterprises, Inc., 498 U.S. 292 (1991) provides the standard, which is really not much of a standard at all: “[W]e concluded that where, as here, a subpoena is challenged on relevancy grounds, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” Id. at 301. If a prosecutor can’t satisfy this standard, she might as well hang it up.

Failure to comply with a grand jury subpoena finally gets a judge involved – to find people in contempt and imprison them for up to 18 months. For an excellent article on subpoenas in general, including grand jury ones, see Christopher Slobogin, Subpoenas and Privacy, 54 De Paul L. Rev. 805 (2005).

I find the grand jury’s subpoena powers to be very troubling. Although the grand jury was envisioned as a check on the prosecutor, this is not how these juries function today. They are allies. And that’s the problem. With the grand jury’s subpoena power, prosecutors can obtain a treasure chest of private information from numerous witnesses, including testimony and documents. Why conduct a search or seizure when you can just use a subpoena?

In United States v. Dionisio, 410 U.S. 1 (1973), the Court rejected a Fourth Amendment challenge to a grand jury subpoena:

It is clear that a subpoena to appear before a grand jury is not a 'seizure' in the Fourth Amendment sense, even though that summons may be inconvenient or burdensome. . . .

The compulsion exerted by a grand jury subpoena differs from the seizure effected by an arrest or even an investigative 'stop' in more than civic obligation. For, as Judge Friendly wrote for the Court of Appeals for the Second Circuit: “The latter is abrupt, is effected with force or the threat of it and often in demeaning circumstances, and, in the case of arrest, results in a record involving social stigma. A subpoena is served in the same manner as other legal process; it involves no stigma whatever; if the time for appearance is inconvenient, this can generally be altered; and it remains at all times under the control and supervision of a court.”

Thus the Court of Appeals for the Seventh Circuit correctly recognized in a case subsequent to the one now before us, that a 'grand jury subpoena to testify is not that kind of governmental intrusion on privacy against which the Fourth Amendment affords protection once the Fifth Amendment is satisfied.'

Dionisio is a very problematic case. It has allowed the grand jury subpoena to be an end-run around the Fourth Amendment. If the government wants to obtain papers and documents in my home, it must usually first get a search warrant. That requires probable cause. Search warrants come with a lot of protection. But with a grand jury, the prosecutor can just use it to subpoena the papers and documents. There’s no probable cause, just that ridiculously broad relevancy test of R Enterprises.

The fact that a grand jury subpoena “involves no stigma whatever” and is not “inconvenient” doesn’t get to the real nub of the issue. And there’s little “control and supervision of a court.” Given the fact that grand juries have become but a tool of the prosecutor, they should not be given the power to subpoena outside of ordinary Fourth Amendment standards. Grand juries are far too powerful; it is time that their power be reined in.
Posted 12:02 AM by Daniel Solove [link] (47) comments

Judicial Activism? You Ain't Seen Nothing Yet . . .

Kim Lane Scheppele

The debate that has emerged among Dan Solove, Mark Graber and Jack Balkin on this blog shows that calling a practice “judicial activism” implies a violation of some background understanding of what “normal” judicial decision-making is. So – having promised some comparative blogs along the way -- I’d like to add an additional comparative twist to Mark’s invocation of Ran Hirschl’s book. (If anyone reading this has not already read Hirschl’s book, it is much recommended!)

A stroll through the garden of comparative law is a quick way to disorient one’s sense of normal.

By international comparison, the US Supreme Court – even in its “federalism revolution” days – is still well behind many other national high courts in striking down national laws enacted by elected legislators. Let me give a few examples:

• the French Constitutional Tribunal found constitutional objections to be valid with regard to roughly half of all laws presented to it for review between 1981-1993. Such constitutional objections blocked promulgation of these laws. (Source: Martin Shapiro and Alec Stone Sweet, On Law, Politics and Judicialization. Oxford UP, 2002 at 89).
• the Hungarian Constitutional Court struck down nearly one-third of all laws (31%) presented to it for review between 1990-1993. In 1994-1995, the rate of declaration of unconstitutionality of statutes fell to a “mere” 24%. (Source: The Constitutional Court of Hungary, booklet published by the Court in 1996.)
• the Colombian Constitutional Court struck down 27% of all of the laws presented to it for “abstract review” between 1991-2002 and sided with individuals in complaints against the government in 58% of the “tutela” cases (complaints that particular decisions of state bodies violated the constitution). (Source: Justice Manuel José Cepeda-Espinoza, “Judicial Activism in a Violent Context,” 3 Wash. U. Global Stud. L. Rev. 529 (2004) at 559.)

And these sorts of comparisons could be multiplied. In many parts of the world, judicial intervention to decide whether legislation is constitutional and to determine whether the concrete decisions of state bodies meet constitutional standards is widespread, commonplace and highly aggressive by American standards. In fact, the high regard in which these high courts are held throughout the world can be attributed to the fact that they take their roles as constitutional guardians seriously. Judicial engagement with the enterprise of ensuring the constitutional nature of state action is understood as a sign of real constitutional government. It would be alarming if courts did not perform these roles.

American complaints of judicial activism assume that judges should, in the main, do very little. Why is this? I think that fear of judicial activism comes from two sources, both of which are not nearly as toxically present in these other systems that have aggressive judicial review:

1. The design of systems of judicial selection in many other countries guarantees that no one political faction dominates the courts while, in the US, party-political dominance of the courts can be an actual electoral goal. Courts elsewhere, as a result, often have a greater independence from rough-and-tumble politics than has historically been true in the US.

2. Perhaps most crucially, the constitution is easier to amend in most constitutional systems that provide for very aggressive judicial review than is the case with the US constitution. If there is supermajority political disagreement with the decisions of these aggressive courts, then, the elected branches have a way to fight back short of declaring war on the courts.
Posted 5:42 PM by Kim Lane Scheppele [link] (85) comments

Melville’s Billy Budd and Security in Times of Crisis

Daniel Solove

This is a shameless self-plug, but I feel guilty about it, so that makes it okay. My essay, Melville’s Billy Budd and Security in Times of Crisis, 26 Cardozo L. Rev. 2443 (2005), written for a law and literature symposium at Cardozo Law School, was recently published. I’ve placed a final version on SSRN. Here’s the abstract:

During times of crisis, our leaders have made profound sacrifices in the name of security, ones that we later realized need not have been made. Examples include the Palmer Raids, the McCarthy Era anti-Communist movement, and the Japanese-American Internment. After September 11th, this tragic history repeated itself. The Bush Administration has curtailed civil liberties in many ways, including detaining people indefinitely without hearings or counsel. These events give Herman Melville's Billy Budd renewed relevance to our times. Billy Budd is a moving depiction of a profound sacrifice made in the name of security. This essay diverges from conventional readings that view Billy Budd as critiquing the rule of law. Instead, Billy Budd supplies us with a radical and unsettling set of insights about why our leaders often fail to do justice in times of crisis. The novella suggests that by manipulating procedure under the guise of law, Vere gives the appearance of following the rule of law, when, in fact, he is not. This is particularly illuminating, as the Supreme Court in Hamdi v. Rumsfeld has held that normal procedures required by the Due Process Clause can be modified and watered-down for enemy combatants.

This essay is a quick light read for anybody interested in thinking about how Billy Budd relates to security and civil liberties.
Posted 2:40 PM by Daniel Solove [link] (52) comments

The Political Foundations of Judicial Power

Mark Graber

Daniel Solove's recent comment on this blog that if judicial review did not exist, elected officials would invent it, expresses what is rapidly becoming conventional wisdom among political scientists and many law professors. Judicial review, we are coming to understand, is politically constructed. Adjudication is one of many means politicians and political movements employ when seeking to make their constitutional visions the law of the land. Elected officials provide vital political foundations for judicial power by creating constitutional courts, vesting those courts with jurisdiction over constitutional questions, staffing those courts with judges prone to exercising judicial power, assisting or initiating litigation aimed at having those courts declare laws unconstitutional, and passing legislation that encourages justices to make public policy in the guise of statutory or constitutional interpretation. Rather than thwart or legitimate popular majorities, judicial review is better conceptualized as a practice that alters the balance of power between the numerous political movements that struggle for power in a pluralist democracy.

Ran Hirschl's Towards Juristocracy is a particularly fascinating examination of the political foundations of judicial power. Hirschl's "hegemonic preservation thesis" details how the rise of judicial review in Israel, South Africa, Canada, New Zealand, and many other countries resulted from actions taken by elected officials and interest groups fearful of losing political power. His Toward Juristocracy describes how in recent years "constitutional reform" has served as a vehicle for "tranferr(ing) an unprecedented amount of power from representative institutions to judiciaries." "When their policy preferences have been, or are likely to be, increasingly challenged in majoritarian decision-making arenas," Hirschl observes, "elites that possess disproportionate access to, and influence over, the legal arena may initiate a constitutional entrenchment of rights and judicial review in order to transfer power to supreme courts." Fulfilling this constitutional mission, courts throughout the world are more likely to declare unconstitutional legislation that limits liberties exercised by the politically powerful than protect powerless minorities. The right to make unlimited campaign contributions is presently gaining more judicial solicitude worldwide than rights to basic necessities. Hirschl’s study of comparative constitutional law in action "contrast(s) the limited impact of constitutionalization on enhancing the life conditions of the have-nots with its significant contribution to the removal of so-called market rigidities and the promotion of economic liberties." Needless to say, Hirschl's thinking may help explain why conservative justices have been far more willing to cut back on Warren Court decisions that protected the poor and persons of color, and willing to expand decisions consistent with the socially liberal values held by most elites.

Persons interested in the best recent domestic account of the political foundations of judicial power should read Howard Gillman, "How Political Parties Can Use the Courts To Advance Their Agendas: Federal Courts in the United States, 1875-1891," 96 American Political Science Review 511 (2002) (Keith Whittington has an excellent forthcoming piece on a similar subject).
Posted 11:42 AM by Mark Graber [link] (1) comments

Activism and Federalism

JB

Paul Gewirtz and Chad Golder's op-ed in today's New York Times points out that if one measures judicial activism by how often judges strike down acts of Congress since 1994, the Supreme Court's liberals have been least activist and the Court's more conservative members, particularly Justice Thomas, have been the most activist.

This should come as no surprise, since the majority of these statutes fell as a result of the Rehnquist Court's federalism revolution. In the past decade or so a 5-4 majority went through the federal statute books and pointed out what, in their opinion, undermined the dignity of the states. One suspects that if one looks only at constitutional challenges to statutes that don't involve the Tenth and Eleventh Amendments, the divisions between the Justices are far smaller, but I don't have the statistics.

Gewirtz and Golder don't talk about judicial decisions that strike down state laws. That is because they argue that Congress, as the national legislature, has the greatest democratic legitimacy. But that begs the key question that still separates many liberals from many conservatives: federalism. For many conservatives, state decisionmaking is an independent constitutional good, and they prefer to have lots of issues decided differently in different states. So the fact that the more conservative Justices strike down lots of laws at the national level that impinge on the states does not suggest that they lack respect for democracy. Rather, it bespeaks a disagreement about what democracy means. It's not about the activism. It's the federalism, stupid.

That sounds like a pretty good rejoinder until you realize that the conservative judges on the U.S. Supreme Court tend to be fair weather federalists, and when an issue comes around that they really care about, they don't defer to state legislatures much either these days. The recent Kelo case is a good example; The liberal Justices preached judicial deference to local authorities and argued that legislatures could provide the best solution to the problem of overreaching by business interests. The more conservative Justices argued that courts should not defer and that there should be a single, nationwide rule prohibiting taking private property for economic development. So much for laboratories of state government. And don't get me started on Bush v. Gore.

Indeed, it would be well worth running the numbers on state cases since 1994. My guess is that you would find a more complicated story, with liberals striking down their share of laws, but with conservatives getting in their licks too. For example, liberals have voted to strike down laws involving regulation of abortion and homosexuality. On the other hand, they consistently voted to uphold state affirmative action programs and, as the recent Kelo case demonstrates, they have been quite reluctant to use judicial review in takings clause challenges. Conservatives have been on the other side; while decrying the use of the Due Process clause to protect abortion and homosexuality, they have wielded the Takings Clause with a vengeance, and used the Free Exercise Clause and the Free Speech Clauses-- liberally, we might say-- to protect religious groups, advertisers and campaign contributors. Conservatives also discovered how truly useful the Equal Protection Clause could be in attacking affirmative action programs and minority-majority districting.

This is another way of saying that following the liberal rights revolution of the 1960's and 1970's, conservatives created their own rights revolution, with a different set of rights. In the liberal heyday of the middle of the twentieth century, conservatives generally preached judicial restraint, and accused liberal jurists of activism. But once conservative social movements arose and began to dominate American politics, they learned that they could use many of the same tools that liberals had. Conservative interest groups created their own public interest firms, conservative think tanks came up with creative constitutional arguments, and a judiciary staffed increasingly with conservative judges found that judicial restraint made much less sense when you actually had power. So, naturally, we find that conservative judges have been willing to use the power of judicial review early and often. The public association of conservativism and judicial restraint and liberalism and activism that came out of the 1960's may linger on, propelled in part by conservative talking points, but it makes little sense today. Justice Thomas, to take only one example, would gladly take a cleaver to wide swaths of United States Statutes and most of the Federal Register.

At the end of the day, Gewirtz and Golder have shown only what everyone should already have known: that depending on how you define activism, different judges turn out to be activists or apostles of judicial restraint. All this suggests that we should focus on who has the better interpretation of the Constitution, rather than on who is an "activist."

Posted 8:57 AM by JB [link] (110) comments

The Supreme Court: Where’s All the Power?

Daniel Solove

I’m growing weary of all the talk of the Supreme Court’s magnificent power. Consider this quote by Hanno Kaiser of Law & Society Weblog: “The root of the problem is that the Supreme Court is simply too powerful an institution. The court overpowers the law.” Really? I beg to differ. In reality, the Supreme Court doesn’t wield a lot of power. It’s bark is far louder than its bite has ever been. My co-blogger Mark Tushnet has related thoughts on the limited power of the Court in his book, A Court Divided: The Rehnquist Court and the Future of Constitutional Law.

The Supreme Court receives such attention because it is a dramatic symbol. In this regard, it is much like the jury trial, which is quite a rarity these days. We love to speak about these legal institutions because they’re sexy, but they are really exceptions to the rule. If one were a Vegas odds-maker, in any given case, without knowing more, one would certainly put very good money on (1) no jury trial; and (2) no Supreme Court decision. Just try to get your case to the Supreme Court – your chances are as good as winning Powerball.

Much of the view of the Court’s extreme power stems from imagining what might happen if the Court were to decide thousands of cases each year and strike down hundreds of laws. But this is far from the case. State courts and federal district and circuit courts decide the vast body of cases and establish most of the precedent in this country. The Court decides fewer than 100 cases per year, a miniscule fraction of all cases in a given year. Of that small number, maybe five to ten decisions garner major attention.

In many cases, folks complain about what the Court doesn’t do. Thus, there’s a big debate about Kelo and the Court’s refusal to invalidate eminent domain practices of localities. Or Raich, where the Court held that Congress’s drug statutes trumped state law. But in both cases, Congress can step in and change things. The Court did nothing to limit Congress. Congress could change its laws to allow state laws for medical marijuana. And as Hillel Levin at PrawfsBlawg has pointed out, Congress could readily pass a law to rectify the Kelo situation. Thus, those decrying the Court might look to Congress for some action. Why hasn’t Congress resolved these problems? Where has Congress been? The Court shoulders the blame for not striking down the law in Kelo, but why does Congress get a free pass? Maybe Congress should be placed under the same intense and nasty microscope as the Court has been put under.

There are, of course, those few decisions where the Court has exercised its power in bold strokes, such as Roe v. Wade and Brown v. Board of Education. But these cases are far from the norm; they are relative rarities. Only a handful of big cases such as these have been decided over the past century. Contrast that to how much major legislation gets discussed and passed. In short, Congress and the President do far more than the Supreme Court ever can do, and they have powers that far outpace those of the Court, which only occasionally intervenes to limit their power.

Many of the gripes about the Court are in cases where it chooses not to strike down laws as unconstitutional. In other words, the Court gets criticized even when it does not exercise its power. Apparently, the Supreme Court just can’t win.

The Supreme Court’s power is quite a useful myth for politicians who love to attack the Court rather than blame themselves. They love to punt the ball to the Court and then blame the Court regardless of whatever it does. It’s so nice to have a scapegoat. If politicians didn’t have a Supreme Court, they’d surely have to invent one.
Posted 6:10 PM by Daniel Solove [link] (24) comments

Remembering Brown

Mark Graber

Several months ago, I had the honor of helping West Baltimore Middle School celebrate Brown v. Board of Education. A fascinating experience. Much wonderful revisionist scholarship, most notably Gerry Rosenberg's, The Hollow Hope, and Michael Klarman's, From Jim Crow to Civil Rights, questions the deification of Brown in the American civil religion. West Baltimore, was very much into holy worship for reasons more elite academics may forgot. The central struggle West Baltimore teachers face is convincing kids that they want to go to college. The message of Brown day is clear, get an education and help your people. In this environment, it didn't seem quite right to note that on the 50th anniversary of Brown II, I didn't see either a white student or a computer in any classroom.

As we debate the next Supreme Court nominee, I hope we keep West Baltimore Middle in mind. The too easy answer as to what has happened is that the Rehnquist Court lost interest in racial equality, but as I read the elite law reviews, it seems that a good many liberals seem more concerned with privacy and related rights than with the constitutional problems of the non-white poor. My daughters have bright futures ahead of them, however they may encounter gender discrimination. Most of my gay friends lead good lives, even if they are subject to discrimination and cannot yet legally marry. Too many of the children and West Baltimore lack such a future or promise, unless our politics makes their concerns far more central than they have been in either left or right wing politics.
Posted 12:44 PM by Mark Graber [link] (54) comments

Journalist Privilege and the Valerie Plame Case

Daniel Solove

Almost lost amid the Supreme Court fireworks last week was its decision to deny certiorari on a challenge by two reporters to a grand jury subpoena for the identity of White House sources.

The imbroglio began back in 2003, when former Ambassador Joseph Wilson disputed White House claims about weapons of mass destruction in Iraq. How outrageous! To retaliate, some White House officials leaked to several reporters the fact that his wife, Valerie Plame, was a CIA agent, blowing her cover. Among the journalists receiving the information was the conservative pundit Robert Novak as well as Time Magazine reporter Matthew Cooper and New York Times reporter Judith Miller.

Leaking the identity of a CIA agent is a crime, and a grand jury was convened to investigate. It subpoenaed from the reporters the identities of their sources.

Cooper and Miller refused to comply with the subpoenas. District Court Judge Thomas Hogan ordered that the reporters comply or else face jail time for contempt. (It is unclear what happened regarding Novak – either he divulged his sources or for some reason he’s not being pressed for the information.)

When the Supreme Court denied cert. on the case, Time Magazine announced that against the wishes of Cooper, it would turn over his notes. Time was criticized by the media for caving in.

Should the journalists be required hand over the notes? Doctrinally, the issue appears to be yes. In Branzburg v. Hayes, 408 U.S. 665 (1972), the Supreme Court held that there is no First Amendment journalist privilege against grand jury requests for evidence. In spite of the Court’s ruling, the journalist privilege has still thrived. Lower courts have adopted a qualified privilege, one that is balanced out on a case-by-case basis. Despite this, however, with grand jury subpoenas, most courts require journalists to disclose.

As a policy matter, the question is more complicated in my opinion. First Amendment scholar and Chicago law professor Geoffrey Stone argues although that Congress should pass a statute providing for a journalistic privilege, it shouldn’t apply in this case:

But even if Congress did this, such legislation would afford no succor to Judith Miller and Matt Cooper. . . .

The purpose of the reporter-source privilege is to encourage sources to disclose information of legitimate public concern to reporters so they can then inform the public. There is no public policy of encouraging sources to leak information when the leak itself is a crime and when the purpose and effect of the leak are to use the reporter to facilitate a criminal act.

The disclosure of Valerie Plame's identity as a CIA operative by White House offcials violated federal law. In "leaking" this information, those officials were attempting to enlist reporters in a criminal act. Even under the most expansive conception of the journalist-source privilege, those sources have no privilege to do that, and thus Miller and Cooper are protecting no one but themselves. They are not Woodward and Bernstein.

I agree with a lot of what Stone says, but diverge on one point. His law would not apply “when the leak itself is a crime and when the purpose and effect of the leak are to use the reporter to facilitate a criminal act.” I believe that this approach is too broad. Many valuable leaks by government officials are criminal acts . . . the Pentagon Papers, for example.

Stone speaks favorably of the Pentagon Papers case in his book Perilous Times. He writes: “The publication of the Pentagon Papers was a major event in the history of American journalism.” (p.512). The Pentagon Papers Supreme Court decision is not really relevant here, as it involved a prior restraint on a newspaper printing the information; in contrast, the Plame case involves an after-the-fact probe into the sources. But the Pentagon Papers case provides a good example of the kinds of leaks we want to promote.

In the Pentagon Papers case, Daniel Ellsberg was indicted on felony charges. Stone agrees that Ellsberg should be punished: “The law against theft can constitutionally be applied to the person who steals a camera to make a movie. If the would-be moviemaker can be punished, shouldn’t Ellsberg and Russo be punishable as well?” (p.515).

I believe that if an Ellsberg leaks Pentagon Papers anonymously, journalists should not be forced to divulge his identity – even though Ellsberg is committing a crime. The test should be whether disclosure is in the public interest. Applying the “criminal act” test gives the government too much power to chill whistleblowers. After all, the government can just criminalize leaking or enhance the penalties and then ferret out the leakers by forcing journalists to reveal the names. The better approach, in my opinion, is a public interest test not tied to whether the leaking is a crime.

A public interest approach can best separate the Pentagon Papers from the Plame disclosure. The leaking of the Pentagon Papers was in the public interest. But the Plame disclosure was not. It had no redeeming social value – instead, the leak was just a retaliatory act. Therefore, the sources should not be protected.
Posted 12:45 AM by Daniel Solove [link] (59) comments

The Creative Ambiguity of the Declaration of Independence

Kim Lane Scheppele

It is the 4^th of July and I live in Philadelphia where the Declaration of Independence is front and center in city celebrations today. So, it seems appropriate today to ponder the role of the Declaration in the creation of constitutional consciousness in the United States.

Apart from its immediate historical effect of declaring independence, the Declaration has also been crucial in portraying through time what evils American government is designed to prevent. As readers of my work know, I have long been an advocate of the view that constitutional history is shaped at least as much by negative models that a country wants to avoid (“aversive constitutionalism”) as it is by positive models that a country might aspire to (“aspirational constitutionalism”). In order to understand any country’s constitutional conceptions, it is important to understand what constitutionally crucial actors have thought were the evils that they were supposed to avoid in the construction of a new government.

But even the meaning of negative models changes over time – and this is what happened to the Declaration of Independence. While it was understood at first to be an indictment against the British form of government in general when state constitutions were drafted in its wake, the meaning of the Declaration changed by the time of the Philadelphia Convention so that it was understood to be an indictment against a particular king and not against the British constitutional system. Hence the creative ambiguity of the Declaration’s critique.

As I wrote in an article a few years back:

America’s first stage of aversive constitutionalism in the founding period is more evident in the text of the Declaration of Independence than in the text of the Constitution, and it is precisely the carefully sharpened aversion expressed by the Declaration that carved out both the political and intellectual space that allowed the Philadelphia framers to borrow as heavily as they did from the English model later on. While most contemporary Americans typically know only the short positive part of the Declaration (e.g. “We hold these truths to be self-evident . . .”), most of the Declaration “declare[s] the causes which impel [us] to the Separation.” The first main paragraph of the Declaration declares that “all Men are created equal, that they are endowed by their creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness” and goes on to create a positive image of what government should be (“Governments . . . deriv[e] their just powers from the Consent of the Governed”). But the bulk of the document is a bill of particulars against the King of England.

“The History of the present King of Great Britain,” declares the Declaration, “is a History of Repeated Injuries and Usurpations, all having in direct Object, the Establishment of an absolute Tyranny over these States.” And the list is specific. The King refused assent to the laws necessary for the public good. The King obstructed the administration of justice by making judges dependent on his will alone. The King quartered large bodies of armed troops in private homes, cut off trade between the American colonies and the rest of the world, imposed taxes without consent, deprived colonists of the right to trial by jury, and excited domestic insurrections among the colonists. Etc. Etc. This not only justified the rebellion, but it also provided a clear negative model against which to define the fragile new state(s).

The American state constitutions and the Articles of Confederation, written early in the processes of separation from Britain, drew a strong and negative constitutional lesson from the abuses of Britain, not surprising given the sentiments when they were written. This strong lesson was that the British constitution itself was fundamentally unworkable because it placed too much power in an unaccountable executive. During and immediately after the Revolutionary War, the view was not that there was a specific, abusive king against whom the Declaration was directed, but instead that kings in general were a problem – and so were any constitutional executives modeled after them. The Articles, therefore, created a national government with no executive and no judiciary; it simply set up a Congress in which the representatives of states could fix the burdens of taxation and create policies for the common good.

The government under the Articles failed for a variety of reasons, not least of which was the inability of the Continental Congress to execute or enforce its decisions. Perhaps the drafters of the Articles overreacted against the king by failing to have any executive at all (or at least so many thought when the constitutional convention of 1787 was called to rewrite the Articles). If so, this was a problem shared by many of the state constitutions which were also written in the period between the Declaration and the Constitution. Most states had weak governors; Pennsylvania had a plural executive designed to limit the ability of any one of the collective executive to act alone. Only New York had a strong governor, and it was the relative success of New York that was one strong positive model for the framers in Philadelphia.

But by the time of the Philadelphia convention, Britain was no longer the enemy anymore, constitutionally speaking. By 1787, the state constitutions and the Articles themselves were the leading negative models. Strong, unchecked legislatures in a number of the states had lead to a sort of undesirable populism, at least in the view of the propertied classes who wanted a safe buffer from populist excess. Democracy could go too far; parliaments could be too responsive to the masses and a national constitution needed mechanisms to ensure that change would not be excessive. Many of those who came to Philadelphia to write a new constitution did so in part because they were convinced that not only had the Articles failed, but so had many state constitutions. . . .

So – where to look for a positive model? After the military victory over Britain was secure and this first experience with rejecting British government failed, the constitutional structure of Britain was reconsidered by the writers of the constitution who met in the summer of 1787 in Independence Hall in Philadelphia. Though it had originally served as the leading negative model in drafting state constitutions and the Articles, the British Constitution served as a positive model for many at the Philadelphia convention. Though a number of the delegates in Philadelphia had signed the Declaration that had attacked the King and by extension the British government, by 1787, quite a few in the convention held the view that the fight had been against a particular king and not against the whole British constitutional structure. The Declaration, of course, on its face limited its criticism to the king. The great ambiguity of the Declaration was that the text could mean the king as a constitutional entity, or it could mean the specific King, George III. (Blackstone was good on the difference, and also on how they could be confused.) If one could read the criticisms laid out by the Declaration as being limited to the specific king and not to a strong executive in general, British constitutional history in general was ripe for the picking in 1787 precisely because the attack in 1776 had been ambiguous.

Only a few of the delegates to the Philadelphia Convention had much bad to say about the government of Great Britain, and then the criticisms were mostly limited to saying that the British Constitution was fine for Britain but it would not work in a different social context like America. Instead, a number of the delegates piled on praise for the English constitution, even though they had somewhat different versions of it in their minds. John Dickenson of Delaware, the primary architect of the Articles of Confederation, had nothing but compliments for the form of the British government by the time the constitution was drafted. Alexander Hamilton . . . thought that “the British Government was the best in the world and he doubted much whether any thing short of it would do in America.” Even Charles Pinckney of South Carolina said, “I will confess that I believe [the constitution of Great Britain] to be the best in existence” though he was pessimistic about transferring it to the very different social context of America. And James Madison, while skeptical about some aspects of British government, tended to attribute its faults to particular mistakes of particular kings rather than to general design.

In the American context, then, the primary negative model at the time of the Declaration turned into a positive model by the time of the convention. In the interim, the state constitutions and the structure of the national government under the Articles of Confederation, all of which had concluded from the demonization of the British model that a strong executive was a mistake, had shown that weak executives could be worse. Those who would construct a new government to govern the new world by 1787 had largely come around to believing the British constitutional design was basically solid, but safeguards had to be built against potentially abusive executives becoming too strong. The American solution for curbing executive abuse in the end shares much with the British solution, forcing the executive to govern with a parliament in tandem. But this move from the revolutionary
attack on Britain to using Britain as a model for the American constitution is hard to understand without seeing the revolutionary and founding period as two separate steps with two different and prominent negative models. The positive goal remained the same throughout – to construct a new nation based on a fundamental commitment to liberty. Only the negative examples explain the huge difference in structure between the early state constitutions and the Articles of Confederation on the one hand and the 1787 federal Constitution on the other.

footnotes omitted). From Kim Lane Scheppele, “Aspirational and Aversive Constitutionalism: The Case for Studying Cross-Constitutional Influence through Negative Models.” 1(2) I-CON (International Journal of Constitutional Law) 296-324 (2003). Unfortunately, the full electronic version of this (much longer) article is behind a high subscription barrier at
http://icon.oxfordjournals.org/cgi/reprint/1/2/296 .

Posted 1:58 PM by Kim Lane Scheppele [link] (71) comments

Orin Kerr on the Impact of Justice O’Connor’s Retirement

Daniel Solove

In today’s LA Times, my colleague Orin Kerr (law, GW) surmises that Justice O’Connor’s retirement will not have as dramatic an impact on the Supreme Court as many might believe. One of his arguments is that Justices Kennedy and O’Connor are both swing votes, so O’Connor’s retirement just eliminates one swing vote. Another argument is that the Court will respect stare decisis:

. . . [T]he legal principle of stare decisis will limit the changes. By institutional tradition, the Supreme Court overturns prior decisions only rarely. The justices routinely decline to overrule old cases even if they would have reached a different result the first time.

In other words, once a case is decided, it tends to stick around. This practice helps explain why most of the major decisions of the liberal Warren Court from the 1960s remain on the books today. It also suggests that most of the decisions shaped by O'Connor will remain the law in the future.

He concludes, in a blog post on the same topic, that “the stakes for the battle to replace O'Connor are somewhat lower than many people assume.”

As always, Kerr is interesting and thoughtful, but I think he overlooks a few points. First, the impact of a Supreme Court Justice is not just in her votes, but in how she might influence decisions behind the scenes. I don’t have the inside scoop on what effect Justice O’Connor had, but my guess is that she helped moderate decisions, narrow them, and build compromise positions. Even when not overtly doing so, the need to procure O’Connor’s vote must have influenced some justices in crafting majority opinions.

Regarding precedent, Kerr is right that stare decisis will limit how much of a radical shift one appointment can make, but we are not too far away from an "activist" conservative Supreme Court. (I use the term "activist" to mean a Court more inclined to depart from settled precedent. I have many problems with the way that the term "activist" is generally used, but I want to avoid getting into that debate now.) Not all justices respect precedent equally. The most activist is Justice Scalia who has these thoughts on precedent in his dissent in South Carolina v. Gathers, 490 U.S. 95 (1989), where he called for overturning Booth v. Maryland, 482 U.S. 496 (1987):

"It has been argued that we should not overrule so recent a decision, lest our action 'appear to be . . . occasioned by nothing more than a change in the Court's personnel,' and the rules we announce no more than 'opinions of a small group of men who temporarily occupy high office.' I doubt that overruling Booth will so shake the citizenry's faith in the Court. Overrulings of precedent rarely occur without a change in the Court's personnel. The only distinctive feature here is that the overruling would follow not long after the original decision.

. . . Indeed, I had thought that the respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity. The freshness of error not only deprives it of the respect to which long established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it . . .

. . . In any case, I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion upon the democratic process in order that the Court might save face. . . I agree with Justice Douglas: 'A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it." Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949).

If President Bush appoints a justice in the mold of Justice Scalia, Justice O’Connor’s retirement will lead to a Court that is not only more conservative, but more activist as well.
Posted 12:20 PM by Daniel Solove [link] (67) comments

Pop Quiz on Justice O'Connor and the Religion Clauses

Marty Lederman

QUESTION ONE

Those of you who have previously glanced over at Howard Friedman's blog will already know the answer to this first question and thus are disqualified from answering it. If you haven't looked over there yet, don't peek.

It certainly is fair to say -- as many of us have, in fact, repeatedly said -- that Justice O'Connor has written the Law of the Religion Clauses over the past generation, and that as her retirement approaches, the governing law in the area consists predominantly of the collected writings of SOC. Believe it or not, however, in her 24 Terms on the Court Justice O'Connor has written only one majority opinion of the Court dealing with the Religion Clauses. [UPDATE: My bad: There is actually a second SOC majority opinion. A silly, if not inexcusable, mistake on my part -- but the general point still holds: Justice O'Connor's profound influence on Religion Clause doctrine has been effected almost entirely by opinions that are not those of the Court.] (Note: Justice O'Connor also was assigned to write in one other case, but wrote for a majority of the Court in that case only on a statutory question; her constitutional opinion in that case weas only for a plurality.)

Name Justice O'Connor's single [uh, that is to say: her only two] majority Religion Clause opinion[s]. (How long did it take you to figure out the answer?)


QUESTION TWO

According to the Washington Post, the Becket Fund for Religious Liberty yesterday issued a statement in which it said "thank God she's retiring." Presumably this sentiment is a function of the view that Justice O'Connor's jurisprudence has harmed religious liberty. (I welcome any corrections or qualifications from the Becket Fund -- I haven't been able to find its full statement online.) [UPDATE: The Post's quotation is not taken out of context. The Becket statement includes the following: "When it came to religious liberty, every case was in doubt until the moment Justice O’Connor voted because even her own precedents could not predict the outcome of new cases. That’s amazingly counterproductive for a nation that believes in the rule of law. Her approach to religion law questions made everything turn on what an imaginary “objective observer” would think. But there was no way to know what this imaginary person would think until Justice O’Connor imagined it. . . . Her approach made everything a matter of her subjective judgment and that’s not why we have a Constitution. Although she was well-intentioned, she was slowly but surely reinventing monarchy."]

Rick Garnett, on the other hand, writes on the Mirror of Justice blog that "In my view, [Justice O'Connor] was -- among other things -- a consistent and important defender of religious freedom, and of the constitutional principle that our First Amendment does not require discrimination against religious believers or the exclusion of religion from the public square."

Who's right? How does the answer to Question One affect your answer to Question Two?
Posted 10:52 AM by Marty Lederman [link] (2) comments

Reciprocity, the Religion Clauses and Equal Citizenship

JB

There are many wise things in this post from Bill Stuntz. I'll quote one of them:

Take the people who want symbols of their faith on government property, and put them in a society where passionate atheism is the majority view. Suppose all those passionate atheists want to put up monuments in every courthouse and state capitol saying that there is no God, that all good law consists of human wisdom and nothing more. Would my fellow believers like that state of affairs? I don't think so. I know I wouldn't like it. It would make me feel, just a little, like a stranger in my own home, someone who doesn't belong. It would be a tiny reminder that other people with beliefs hostile to mine own this country, and that I'm here at their sufferance. I wouldn't like that at all.

If that's right, then turning around and doing the same thing to people who don't believe what I do when my crowd is in the majority is wrong. Not wrong by the measure of the First Amendment or some legal theory or secular philosophy, but wrong by the measure of "do as you would be done by."

Bill makes his argument from morality, not from law. I will make an argument about the law. Bill's argument about morality and reciprocity also articulates a basic principle of equality.

In a previous post, I criticized Justice Scalia's views about the Establishment Clause as justifying second class citizenship for religious minorities. I speak in this way because I have always believed that at the heart of the jurisprudence of the religion clauses is the problem of securing equal citizenship in a country whose citizens have very different and sometimes contradictory beliefs about religion. The goal of the religion clauses is twofold-- first, to preserve religious conscience, and second, to ensure equal citizenship for all persons regardless of their religious beliefs.

There is something else worth quoting in Bill's post:

Twenty-first century America is a land full of legal rights, and lawyers to make the most of them. The most Christian thing to do in a place like that is to make the least of them. Somewhere, sometime I'd like to hear that my fellow believers, when given the opportunity to erect some watered-down monument or display, said: "Thank you, but no. I don't want to exercise my rights." That would communicate more Christian faith than all the monuments and plaques and graduation prayers put together.

Then the Supreme Court could quit wasting its time on these cases (and, given the way the Supreme Court works, start wasting its time on something else). There are plenty of issues worth fighting about in America's courtrooms and legislative hallways. This isn't one of them.

Bill argues that religious believers should not demand all the legal rights that they might have. I think the same reasoning applies to secularists. Even if secularists are within their rights in preventing some religiously motivated displays, they should forebear from challenging some of them. In many cases, if not most, they should let sleeping dogs lie. That is not because there is nothing inappropriate about these displays. That's Justice Scalia's answer. It is because even if there is something inappropriate, litigation is not always the best solution. Bill is right: some battles are not worth fighting.

Frankly, I'm disturbed by litigation about creches and public displays of religion. I think most of these displays violate the Establishment Clause, but I also think that every such victory by secularists in these cases divides and polarizes the country further, and gives a platform to demagoguery.

Commitment to equal citizenship is not simply about demanding your rights; it is also about not demanding your rights sometimes and learning to get along with other people and make compromises. Being committed to equal citizenship requires that you recognize that people who disagree with you are equal citizens too, and that no matter how differently you see things, and how strongly you disagree, you are working toward a common enterprise.

Posted 10:30 PM by JB [link] (54) comments

Guest Bloggers: Kim Scheppele and Daniel Solove

JB

I want to welcome Kim Scheppele and offer a belated welcome to Dan Solove, both of whom will be guest blogging on Balkinization. Kim, who has just moved to Princeton to become the Laurance S. Rockefeller Professor of Public Affairs and the University Center for Human Values, is one of the country's leading comparative constitutionalists. Dan, who teaches at George Washington University Law Center, is a rising star in the legal academy, and already one of the country's foremost scholars on the law of electronic privacy.

Please give them a warm welcome.

Posted 10:27 PM by JB [link] (54) comments

Liberals Should Want Rehnquist to Retire Too

Kim Lane Scheppele

First – thanks to Jack for asking me to guest-blog on Balkinization. For those who don’t know me, I tend to focus on constitutional law in the rest of the world, and more recently on international developments in the anti-terrorism campaign. I have been teaching at the University of Pennsylvania Law School for most of the last decade, but today I officially start in my new position as Director of the Law and Public Affairs Program at Princeton, and as Professor of Public Affairs and the University Center for Human Values there.

While my posts will largely be on comparative constitutional law and the global part of the war on terrorism, the news of the day is irresistible and of course talk of Sandra Day O’Connor’s retirement is first on everyone’s lips.

Of course, most commentators predict a bloodbath to come. Speculation about Rehnquist’s retirement spurred such discussions, even though replacing him with a conservative appointment would have far less impact on the Court than replacing O’Connor with someone more steadfastly conservative in outlook. We can all imagine that the confirmation battle won’t be pretty.

What should liberals wish for under these circumstances? At this point, I think that liberals should wish for Rehnquist to step down too.

Why? We can learn something here from a comparative approach. Many high courts around the world have fixed terms of office for Supreme Court or Constitutional Court judges. Such fixed terms (generally with mandatory retirement ages as well) tend to make the replacement of high court judges very predictable. When it is clear what the replacement schedule of judges will be so that one can see over the horizon to the next judicial appointment, politics can insert itself into the process in a more constructive way than it presently does in the US system.

How? It’s called log-rolling. If a parliament has to vote for multiple judges in predictable succession, then one logical thing to do is to give the various factions with blocking power appointments of their own in exchange for agreement not to gum up the works for the others. In Germany (see here) and in Hungary (see here), two countries with such systems, it is quite common in practice (though not required by law) for sets of judges to be appointed at once. When that happens, different political factions jockey to have their preferred candidates put forward, and the winning set of judges is achieved by various political side-deals across different parts of the political spectrum. This has the salutary effect of making the group of judges more representative of the underlying political map than they would be if they were chosen one by one. Of course, it helps to have more than two parties in working out what the relevant political factions are and in carrying out the bargaining. But even in a two-party system with diverse coalitions of the left and right organized into single parties, it may be possible for factions to form to ensure that two appointments to the Supreme Court made at the same time do not reflect the same constituencies.

This has already happened in the deal struck by Senate moderates to avoid the nuclear option several weeks back. Their deal involved just such a log-rolling bargain. Some of Bush’s candidates got through and others were blocked. Had the candidates come up individually (in “an up-or-down vote” on each), then the majority would have voted them all through. Taking them as a package and making a political deal about that shape of the package moderated the outcome away from the extremes.

So – liberals should want Rehnquist to step down now. If there were two justices instead of just one to replace this summer, then it might be possible to strike a moderating deal even around the too-hot-to-handle topic of Supreme Court nominees. But if the rest of Bush’s term features only one Supreme Court replacement at a time, then it is far more likely that the Court will take an even sharper turn to the right than it would if justices were appointed in package deals.

Posted 10:22 PM by Kim Lane Scheppele [link] (4) comments

Are We Facing The Mutually Assured Destruction of the Legal System?

Brian Tamanaha

As everyone knows, we are looking at a huge battle over O’Connor’s replacement. To take seriously the idea that we might be collectively striding toward the Mutually Assured Destruction (MAD) of the legal system, it is important to first be reminded of how committed the combatants are, and to understand how far they are willing go.

Consider the implications of the fact that Christian conservatives were actually pleased by the Court’s rulings against the Ten Commandment displays, as David Kirkpatrick’s report makes clear. “I’m almost glad [the decision to remove the Commandments] is so outrageous,” said born again Christian evangelist Charles Colson.

"People in churches across America had better get busy and demand the right kind of appointments to this court," [Colson] said. He added, "There is no bigger issue on the Christian agenda."

Representative Tom DeLay of Texas, the House majority leader, called the ruling against the display in Kentucky hypocritical, given the depiction of Moses and the Commandments in the Supreme Court.

Mr. DeLay promised that Congress would "look at all avenues" in oversight of the courts.

Representative Ernest Istook, Republican of Oklahoma, said he planned to try to revive a proposed constitutional amendment to permit government displays of the Commandments as well as school prayer and the recitation of the phrase "under God" in the Pledge of Allegiance.

Republican Party strategists were gleeful:

Ed Goeas, a pollster who worked for President Bush's campaign last year, said the court decisions would help Republicans bring out their base next year for the midterm elections when the dominant party is often vulnerable.

"Normally in politics, the incumbent party has less intensity because those on the outside tend to scream more loudly and more intensely than those on the inside point with pride," Mr. Goeas said.

But in the last election, he said, court decisions like support in Massachusetts for single-sex marriage helped incumbent Republicans rally conservative Christians.

"Certainly what we saw in the last election," he said, "is that the courts, to some extent, became for those voters kind of the incumbent, if you will. The action of the courts, whether in gay marriage or the Ten Commandments, seemingly put them in control. So in a sense the courts were saying, 'We are the incumbents.' "

Thank you very much Supreme Court, said the right, for to striking the Ten Commandments displays, providing more ammunition in the bigger battle to take over the Court itself, and the entire judiciary along with it, as well as to consolidate the right’s hold on Congress.

Sticking with a successful strategy, Christian groups plan to petition local officials to put up more religious displays, knowing that courts will likely order that they be removed. This will get the Christian soldiers even more riled up for the impending battles over Court appointments.

Steven R. Shapiro, legal director of the American Civil Liberties Union, said that it would continue to sue to remove such displays "to try to enforce the principles that I think the Supreme Court reaffirmed, that government should not be in the position of supporting religion."

Soon Republicans will be sending checks (anonymously) to the ACLU, as it continues to aggressively press this issue in court.

Left groups are responsible for starting many of these fights:

…Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said his group had four pending suits to remove other displays of the Commandments.

But perhaps they are beginning to realize that successfully removing more Ten Commandments displays is not worth adding to the risk of losing the Congress for another term and the courts for a generation.

Mr. Lynn said his group would hold off further legal challenges to focus on battles in Congress and over the courts."I think our hand was strengthened significantly yesterday, but we are not planning to go and launch a vast new set of lawsuits," Mr. Lynn said. "Because we do need to fight these efforts in Congress, which will be more immediate and have a greater potential for doing damage."

There is no question, as the rhetoric makes clear, that all sides see this as a war.

My broader point is not to urge the left to be more strategically savvy, but to encourage reflection on the battles that have erupted through and over the law, on the systematic and comprehensive efforts to seize the law and to use it against opposing groups. We have become so inured to this seemingly growing frenzy that it is hardly reflected upon any more. All sides, liberal and conservative, groups of every stripe, are eagerly engaged in and equally responsible for these fights. All sides show a single-minded pursuit of their objectives in and through the law with nary a thought of the harmful consequences that might follow to society or the legal system.

Multiplied a thousand fold, this is the setting for the fight over O’Connor’s replacement.

Already, groups on the left and right are preparing for what they anticipate will be the worst ever fight over a judicial appointment--focused squarely on the ideology of the appointee. Indeed a right group spent $700,000 in preemptive ads before O'Connor's retirement was announced. And of course there’s the looming possibility of a second vacancy…

How many battles of this sort can the legal system absorb before everyone simply takes for granted that the judge’s ideology is everything—that the law doesn’t matter? Or have we already passed that point?

At least in theory, law is a system that maintains social order, and courts are forums that resolve disputes. We are witnessing, instead, that courts attract disputes, and their rulings generate further disputes. These groups want to fight. And now the worst disputes are over who will be the judges, with each group reasoning that if the judges share their ideology, they will prevail in future fights.

During the decades long nuclear standoff between the US and the USSR, when Mutually Assured Destruction (MAD) kept the peace, I occasionally contemplated what I would do if I were the President and the other side had launched all of their weapons, assuring our obliteration. Each time I decided that I would not retaliate, reasoning that we were dead anyway, and humanity must continue. Of course, I would not have told the other side that in advance. Call me a weak liberal, but it made sense.

Please pardon the gross stretch, but go with the analogy for a moment. As the various parties ready themselves to launch their arsenals in the battle over O’Connor’s replacement, consider whether we are collectively risking the Mutually Assured Destruction of the legal system.

MAD worked because all sides knew that certain destruction awaited them. The problem here is that few among the combatants of left or the right seem to recognize, or care, that the very integrity of the legal system is threatened by the overwhelming politicization of the judicial appointments process (not to mention by the battles they incite in and through the law).

There is another problem: a severe imbalance of power—the right clearly has the upper hand and knows it. They have reasonable grounds for thinking they can prevail.

Given that the right plausibly thinks it can win, and that it fails to recognize (or care) that the integrity of law might be at risk, it is all but inevitable that they will fight the war over O’Connor’s replacement with everything they have. Besides, many Christian conservatives seem so committed to their cause that nothing can dissuade them (though there are other conservatives who might be persuaded about the risks).

Assume the worst case scenario: say Bush nominates an extreme ideologue.

Let’s consider the unthinkable for the left: Hold back. Don’t politicize the process in response. Talk about judicial qualifications. Talk about judicial temperament. Talk about the candidate’s commitment to follow the law. Let a Bork go through. Take the high road. Stand down.

Call me a weak liberal, but it is the right thing to do to for the legal system. The left survived the Rehnquist Court. Judges come and go. Majorities come and go. Justices regularly surprise. But even if the appointee proves to be a hard core conservative as a judge, the destruction of the belief that law matters would be worse for all of us than a conservative Supreme Court.

Of course, the left can’t tell the right in advance that it might do this, and the right will not appreciate the sacrifice the left committed for the greater good. I raise it now because it must be contemplated before things get so ugly that the damage to the legal system is done.

If it is already too late, then, by all means, engage in the fight, as there is nothing to lose. We will have collectively gone MAD.
Posted 7:08 PM by Brian Tamanaha [link] (186) comments

Winning Elections

Mark Graber

The primary goal of the political left at this point in time has to be winning elections, not figuring out how much of the New Deal/Warren Court judicial legacy can be salvaged. O'Connor in many ways was a greater gift to far right conservatives than many publicly acknowledge (though private acknowledgment may be common). By assuring "moderates" the court would not do anything really Neaderthal on social issues, she and Kennedy (who may have told clerks that his votes in abortion cases were designed to save Republicans) enable suburbanites to vote their pocketbook without risking their bedrooms (or conscience). This suggests that rhetoric ought to focus on the 2006 Senate elections and in forcing Republican moderates to choose. In particular, Democrats should recognize that a filibuster may be serve vital Republican interests. Bush and company get full credit with the right for appointing a very conservative justice (does anyone really think our frat boy president has any real concern with abortion), Olympia Snowe and company do not have to actually decide whether to vote on the justice. If Bush goes to the far right, the better approach is for Democrats to insist this is what the Republicans stand for, rather than adopt tactics that enable the Republican coalition to hold together.
Posted 3:29 PM by Mark Graber [link] (3) comments

O'Connor Resigns-- Le Merde Has Hit Le Fan

JB

There is no doubt that O'Connor's retirement will produce a much more bitter battle than Chief Justice Rehnquist's would. (He may still retire this summer, we do not know). O'Connor was a key swing vote in dozens of cases over the past two decades, in areas ranging from affirmative action to federalism to religion to abortion. Both liberals and conservatives understand that the occupant of her seat will have enormous influence over the direction of constitutional law in the near future-- until further appointments are made-- and possibly for many years to come.

This crucial event makes me worry about how terribly polarized and bitter our national politics has become. How well or badly will people behave in the upcoming confirmation fight? Right now I fear the worst, and hope for the best.

Posted 10:56 AM by JB [link] (47) comments

O'Connor Resigns

Mark Graber

Justice O'Connor's resignation today raises interesting questions about her political identification. If one reads many far-right wing sites, O'Connor was a liberal, barely distinguishable from Justice Ginsburg, if not Jesse Jackson. Yet, if the rumors of her comments when Gore was thought the victor of the 2000 election are correct, and there is some truth to claims that Justices try to time resignations, Justice O'Connor clearly preferred that Bush appoint her successor than Gore. Apparently, her efforts to push the court to the right on such matters as federalism and takings were far more important to her than the occasional vote to overturn a particularly eggregious death sentence and the privacy cases.

The most interesting question now is whether the Bush administration will try to defend its version of judicial activism or, more typically, deny that the administration has any agenda other than vague strict construction. At least Democrats openly admit the forms of judicial activism they favor.
Posted 10:38 AM by Mark Graber [link] (3) comments

President Bush Lashes Out at His Administration's Conduct at Gitmo and Secret CIA Detention Centers

JB

From the White House website:

President's Statement on United Nations International Day in Support of Victims of Torture

On United Nations International Day in Support of Victims of Torture, the United States reaffirms its commitment to the worldwide elimination of torture. Freedom from torture is an inalienable human right, and we are committed to building a world where human rights are respected and protected by the rule of law.

The United States is continuing to work to expand freedom and democracy throughout the world. We will seek and support the growth of democratic movements and institutions in every nation and culture, and we will help others find their own voice, attain their own freedom, and make their own way. Throughout the world, there are many who have been seeking to have their voices heard, to stand up for their right to freedom, and to break the chains of tyranny. Too many of those courageous women and men are paying a terrible price for their brave acts of dissent. Many have been detained, arrested, thrown in prison, and subjected to torture by regimes that fail to understand that their habits of control will not serve them well in the long-term. America will not pretend that jailed dissidents prefer their chains, or that women welcome humiliation and servitude, or that any human being aspires to live at the mercy of bullies. All who live in tyranny and hopelessness can know: The United States will not ignore your oppression or excuse your oppressors. When you stand for your liberty, we will stand with you.

What is the best interpretation of the above press release?

(1) President Bush is to be commended. He has finally seen the light and is committed to ending prisoner abuse and cruel, inhuman and degrading treatment in American detention centers around the world. He does not call attention to American practices because everybody knows about them, but it is quite clear that following this official statement, he will get to the bottom of what has been happening in American detention centers, including the secret ones run by the CIA, and he will make sure that everyone responsible is appropriately punished. His critics have been wrong about the President. He is a good man who wants to do good, and he is now on the path to his and his country's moral redemption.

(2) President Bush thinks that nobody will get the connection between what he is denouncing in this press release and what is happening in American detention centers. His statement on United Nations International Day in Support of Victims of Torture is the height of cynicism and chutzpah. President Bush's defense of democracy and human rights has become truly Orwellian.

(3) President Bush is being perfectly consistent. He is only denouncing torture by countries other than the United States. Although other regimes' "habits of control will not serve them well in the long-term," he believes that America's "habits of control" will serve its long term interests well. It is regretable but necessary to abuse and torture some detainees to protect American interests; however, it is not necessary for any other country to do this. Hence their practices, unlike our own, are morally reprehensible and inconsistent with human rights and the rule of law.

(4) President Bush is being perfectly consistent. He is only denouncing torture as that term has been narrowly defined by the Office of Legal Counsel as opposed to merely cruel, inhuman and degrading treatment as that term is defined in various international agreements. Read carefully, his remarks do not not denounce cruel, inhuman and degrading treatment and his statement leaves open its continued use by the CIA in secret detention centers as well as by American military interrogators at Guantanamo Bay and elsewhere.

Posted 8:54 AM by JB [link] (105) comments