The Efficient Skies Are Not So Friendly

The view from an airplane.

There was an outpouring of justifiable outrage at last week’s United Airlines debacle, when private security guards acting on behalf of the airline forcibly dragged an otherwise compliant passenger from his seat on a flight from Chicago to Louisville because of the airline’s self-created, over-booked flight. The event was a veritable YouTube Rorschach Test upon which the viewing public could project its perceptions of social dysfunction. The sordid episode held meaning on any number of fronts­— privatization, corporate privilege, police brutality, and systemic racism among them (the mistreated passenger, Dr. David Dao, is Asian-American). Yet for all the hand-wringing and finger-wagging, the very practice of airline overbooking that caused this mess went unchallenged. A spate of utilitarian articles defended United’s policy, taking issue only with its manner of enforcement. They argued that United failed only by refusing to offer its passengers more money to woo voluntary compliance. But the issue with United’s policy is one of values not mechanics. Airline overbooking replaces respect with the corrupting amorality of efficient breach. Continue reading

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If It’s Already Broke…

Donald Trump’s selection of Judge Neil Gorsuch to fill the current Supreme Court vacancy has left Democrats in a difficult position. On one hand, Judge Gorsuch is a qualified and conventional nominee on the conservative end of mainstream legal thought. Under a traditional understanding of the Senate’s constitutional role of providing “advice and consent,” qualified nominees without extreme ideological records should receive a prompt hearing and handy confirmation. Obstruction of Judge Gorsuch under these standards would upend the smooth functioning of the judiciary and politicize the Court, thus undermining public faith in a bedrock American institution.

On the other hand, these aren’t traditional circumstances. Continue reading

Presidency is About Much More Than the Future of the Supreme Court

This story was originally published in The Hill on August 29, 2016.

After mostly ignoring the Supreme Court for the past four years, we are once again engaged in the quadrennial exercise of pretending its members are the most important issue in the presidential election. Desperate to rationalize their increasingly unprincipled support for the Republican nominee, conservatives have taken a leading role in spreading the idea that nothing is more important than the Supreme Court. This is nonsense. While certainly significant, the Court only touches on a narrow band of matters among all those within the public sphere (and only a small slice of possible issues, at that). The United States Presidency—the most powerful position in the country, indeed in the world—is not all about appointing justices to the Supreme Court. Continue reading

Abortion Procedures

The United States Supreme Court from afar.The Supreme Court’s decision last week in Whole Woman’s Health v. Hellerstedt was, at first glance, about what you might expect. In striking down Texas’s admitting privileges and surgical-center requirements for abortion provider facilities as placing an “undue burden” on the constitutional right to abortion, the majority opinion tacked closely to the principles of Roe v. Wade and the prevailing legal standard of Planned Parenthood of Southeastern Pennsylvania v. Casey. Those cases held that a woman has a general constitutional right to a pre-viability abortion, subject to reasonable regulation by the states that does not place a “substantial obstacle” in the way of her exercising that right. The Hellerstedt majority’s major innovation was the unremarkable conclusion that Casey “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer…the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.” The lineup, too, was relatively unsurprising. Justice Stephen Breyer wrote the majority opinion, joined by four justices who had voted to protect abortion rights in the past, and the three dissenters were justices who previously endorsed abortion restrictions. True, Justice Anthony Kennedy’s conclusion was somewhat in doubt and ultimately determinative—he has previously voted on either side depending on the abortion regulation at issue. But given the truly drastic effect of the laws at issue on the availability of abortion providers in Texas and other states, it was hard to square Kennedy’s prior support for the undue burden standard with a nod in their favor.

Upon closer review, however, there was something rather striking about the written opinions in Hellerstedt. Continue reading

Fostering Injustice

Late last month the Supreme Court issued a decision that was unremarkable in its obviousness. A black defendant in a capital murder case was convicted by an all-white jury that had been molded by a prosecution hell-bent on preventing participation by any person of color. The Constitution (as interpreted by the Supreme Court) forbids racial discrimination in jury selection, rightly viewing the Fourteenth Amendment’s guarantee of “equal protection of the laws” as protecting citizens’ rights of public service and defendants’ right to a trial free from racial gameplay. And so, in a 7-1 opinion written with unmistakable clarity and without equivocation, the Supreme Court vacated the Georgia Supreme Court’s decision upholding Foster’s conviction. Usually nothing is this simple when it comes to race and the death penalty at the high court. So it’s no surprise that many have applauded the ruling as the triumph of reason over knee-jerk ideology. Indeed, cases just as clear as this one sadly often come out differently, especially in the lower courts. But make no mistake, though every word composed within is true, the Supreme Court’s opinion does not rectify injustice. The methodical reasoning and incremental progression of our legal system and constitutional doctrine, although comforting to a lawyer’s sense of order, leaves Foster a hollow victory—a success in disposition, not reality. Continue reading

The Grassley is Always Greener

IMG_1150What a difference a decade makes. It was not so long ago that a new era of conservative jurisprudence was supposedly underway, as President George W. Bush struck a fatal blow to judicial activists everywhere through his appointment of Judges John Roberts and Samuel Alito to the Supreme Court. Initially tapped to replace the swing justice Sandra Day O’Connor, Roberts in particular was supposed to provide the intellectual heft and unquestioned conservative credentials necessary to shift the nation’s legal landscape. Upon reappointing Roberts to serve as Chief Justice six weeks later following William Rehnquist’s death, President Bush proclaimed: “It is fitting that a great chief justice be followed in office by a person who shared his deep reverence for the Constitution, his profound respect for the Supreme Court and his complete devotion to the cause of justice.” What little paper trail that existed suggested that Roberts was reliably conservative. For the most part, Republicans were pleased.

Times have changed. Starting in 2012 (and beginning again in earnest in 2015), conservatives abandoned Roberts entirely. Once a staunch defender of the Chief Justice, Ted Cruz has denounced him. Donald Trump has excoriated Roberts on the campaign trail, saying that “Obamacare was dead, totally dead, then Roberts, in order to be popular in the Beltway, who knows, came in with a shocking decision,” while his campaign has gone so far as to argue that “Justice John Roberts’ so-called jurisprudence has done tremendous damage to America.” Even Jeb Bush claimed during his aborted presidential campaign that he, unlike his brother, would not have appointed Roberts because he lacked “a proven, extensive record.” The Judicial Crisis Network’s Carrie Severino said in 2015 about Roberts’s majority opinion upholding the national applicability of health exchange subsidies as part of the Affordable Care Act: “If the chief justice is willing to join the court’s liberals in this linguistic farce, it’s time we admitted that our national ‘umpire’ is now playing for one of the teams.” Her organization recently ran ads warning Republican voters to size up their party’s presidential candidates and avoid those who would appoint stealth liberals such as Roberts. The attacks are largely related to Roberts’s twin votes to uphold the Affordable Care Act, although there have been other supposed apostasies as well, such as splitting the baby on Arizona’s restrictive immigration law by striking down some parts while upholding others. And yet, by most measures, Roberts has been one of the most conservative justices in the country’s history. Clearly, conservatives have come down with a severe case of Roberts derangement syndrome. Continue reading

Making a Pro-Prosecutor Supreme Court

“Potential Supreme Court Candidate Defended Pipe Bomber, Child Murderer,” screamed a March 14th headline from the Washington Free Beacon. The article’s subject was Judge Jane Kelly of the U.S. Court of Appeals for the 8th Circuit, then rumored to be on President Obama’s shortlist of potential replacements for Justice Antonin Scalia on the United States Supreme Court. As mentioned here last month in discussing Kelly as among the candidates likely to be chosen by Obama, her legal career includes a lengthy stint as a federal public defender prior to joining the regional appeals court covering Arkansas, Missouri, Minnesota, and her home state of Iowa. The Free Beacon detailed, hysterically and without context, that as part of her work as a federal defender, Judge Kelly represented defendants accused of domestic terrorism and child pornography, the latter of whom subsequently sexually assaulted and murdered a child. In doing so, the article tracked reporting originating from former Supreme Court clerk Carrie Severino. In a post on the National Review’s website, Severino wrote about Obama’s apparent interest in the Iowan for the High Court:

As the White House’s vetting process unfolds, they will probably find other facts that are significantly less convenient. For example, when Kelly worked as a public defender she helped secure a plea deal for one Casey Frederiksen, a convicted child predator.

Insinuated but left unsaid in this account (by a lawyer who should know better) is that there is something unusual or untoward about Kelly’s work. Indeed, the undertone of this press coverage suggests equivalence between defending a criminal and abetting a criminal, when the difference could not be starker. Indeed, the reaction to news that Kelly represented clients accused of heinous crimes by anyone with a small amount of knowledge about the role of a public defender in our criminal justice system would likely be: Well of course she did. And the reaction of a trial lawyer with a slightly greater understanding might very well be: Wow, that must have been terrific trial experience. Severino’s distortion, however, is more than a simple misunderstanding. It is part of a longstanding imbalance in the scales of justice exacerbated by the intrusion of rank politics into judicial selection. The rise and fall of Judge Kelly’s prospects are a blow to the rights of anyone accused of a crime in this country, and part of a disturbing trend in the politicization of judicial nominations. Continue reading

A Short List for Obama’s Supreme Court Shortlist

IMG_0844President Obama now faces a critically important choice as he decides whom to nominate to replace Justice Antonin Scalia. Despite the wishes of Senate Majority Leader Mitch McConnell, who proclaimed mere hours after Scalia’s death was reported that the “vacancy should not be filled until we have a new president,” Obama will certainly make a nomination and invest significant time and effort in pushing for his or her confirmation. No doubt, successfully placing a new justice on the Court will be a tall order. The Republicans hold a solid majority in the Senate and face enormous political pressure from their conservative constituents to preserve an appointment for a future Republican president. As Alec MacGillis recently described, McConnell “felt compelled to get out in front of the base’s ire over the Scalia replacement to avoid a later challenge to his leadership perch.” Now, in an open letter to McConnell, Republicans on the Senate Judiciary Committee have vowed to deny the new nominee so much as a hearing.

Nevertheless, Obama’s choice is consequential. To begin with, there remains a small chance his pick will actually assume a place on the nation’s highest court. But perhaps more importantly given the uphill battle to achieve that result, Obama’s nominee has the potential to secure significant political gain for the Democrats in this highly contentious election year. Republican intransigence is a given, but the unprecedented opposition to any nominee could significantly aid a Democratic presidential nominee this fall and enhance the chances of confirming a liberal nominee in the next administration. Thus, the politics of Obama’s choice dictate a nominee who is objectively unobjectionable and demographically aligned with the Democratic base with an eye to boosting turnout in November. To this end, it is highly likely the nominee will be a circuit court judge confirmed by an overwhelming vote, who holds sterling academic credentials and moderately liberal views, who is without any perceived controversial past, who is young (but not too young), and who is either a woman or a racial minority. Continue reading

A Matter of Attitude More Than Ideology

IMG_0838The death of Justice Antonin Scalia on February 13th removed an outsized personality and committed conservative from the Supreme Court. Regardless of one’s opinion about his judicial philosophy, there can be no doubt that Scalia had a tremendous presence on the Court, in writing as well as on the bench. Not surprisingly, much of the immediate commentary on Scalia’s passing focused on the past and the future. Discussing the former, many reflected on Scalia’s legal legacy and reminisced about his personal touch on their lives. Considering the latter, others (including certain members of the United States Senate) have rushed to assess the coming nomination fight for its political implications and potential for President Obama to reshape the Court. But let’s take a moment also to consider the present, a present where eight current justices must set aside their current quarrels and decide what kind of place their Court will now be. This question is important not only for the legal questions now pending—where the Court faces a potentially crippling series of 4 to 4 affirmances without precedential effect (or perhaps the prospect of a host of re-arguments)—but also for resolving the ongoing battle among the justices over the Court’s institutional temperament.

Make no mistake, prior to Scalia’s sudden death there was indeed a battle raging within the walls of One First Street, NE over how the Court presents itself to the public. In contrast to the usual coverage of the left versus right, five to four divisions plaguing the Court’s most controversial cases, this one has played out within the so-called conservative bloc. Chief Justice John Roberts and Scalia, so often aligned on issued opinions, have quite clearly diverged in the role and rhetoric of their court. It remains an open question whether Scalia’s legacy on attitude, more than ideology, will be a lasting one. Continue reading

Upon Further Review

“Judges are like umpires. Umpires don’t make the rules, they apply them.” So said John G. Roberts at his confirmation hearing to be Chief Justice of the United States a decade ago. “I will remember,” he promised, “that it’s my job to call balls and strikes, and not to pitch or bat.” With these memorable words, an enduring metaphor for our judicial system was born, one that would hang over each subsequent Supreme Court confirmation hearing. In his statement, Roberts was channeling the prevailing political sentiment and the President who appointed him. Introducing Roberts, George W. Bush asserted that the “American people made clear they want judges who will faithfully interpret the law, not legislate from the bench.” For the most part, Americans have accepted the analogy. Judges, after all, attain their positions because of their training in, and knowledge of, the law—a seemingly fixed and clearly defined set of instructions. Jerry Seinfeld captured this prevalent belief about the law when he observed: “What are lawyers really? To me, a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there’s a problem, the lawyer is the only person that has actually read the inside of the top of the box.”

Strangely, nowhere has society’s zeal for turning judges into umpires been more acute than in the area of, well, umpiring. The decade following the Roberts hearing has coincided with an explosion of instant replay in sports, replete with procedures and terminology more appropriate in a courtroom than on a basketball court. There are objections (“challenges”), decisions below (“calls on the field”), standards of review, questions of jurisdiction (the official responsible for the call) and reviewability, conferences, and appeals. The box top of our national pastime is increasingly crammed with tiny print dictating formalistic rules each step of the way, making sure that the men in blue—like their brethren in black robes—merely apply the law as written. Not content with turning judges into umpires, we’ve become committed to removing judgment from our umpires. Continue reading