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Convictions: Slate's blog on legal issues
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As Dahlia noted a couple of weeks ago, Chief Justice Roberts used his dissent in Sprint v. APCC [pdf] as an occasion to quote (or, perhaps, misquote) Bob Dylan. As Alex Long previously explained, however, quoting Bob Dylan in a judicial opinion is hardly novel: Dylan's lyrics have been invoked in dozens of legal opinions and articles.
D.C. Circuit Judge Janice Rogers Brown has taken this trend to a whole new level: Today she opened the court's opinion in K&R Limited Partnership v. Massachusetts Housing Finance Agency [pdf] with a line from ... Jimi Hendrix:
Forty years ago Jimi Hendrix trilled his plaintive query: “Is this love, baby, or is it … [just] confusion?” JIMI HENDRIX, Love or Confusion, on ARE YOU EXPERIENCED (Reprise Records 1967). In this False Claims Act case, we face a similar question involving a mortgage subsidy program initiated in that era: Is this fraud, or is it … just confusion?
I find it hard to believe that any other judge, boomer or otherwise, will be able to top this. So let's hope that good folks of the federal and state benches all have the good sense to stop trying, before this gets out of hand.
Do we really want to head down a road where, forty years from now, we'll see today's music showing up in opinions? Will judges someday quote New Found Glory in tort suits ("slightly bruised and broken from our head on collision")? Maybe a future judge (appointed by President Obama, no doubt) will employ Jay-Z's "99 Problems" to help define to contours of permissible car searches under the Fourth Amendment.
Thanks, but no thanks. In the words of Waylon Jennings, let's hope that "this time will be the last time."
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Jack Balkin and Sandy Levinson are right to probe with hypothetical the dimensions of the newly-minted, or perhaps ancient, right of self-defense, or right to own handguns, in one's home, or maybe outside it, or maybe also to own other weaponry, or maybe not, so firmly established in District of Columbia v. Heller (2008) per those clarifying originalist sources understood by Justice Scalia 5-4.
The Candidates Debate -- well, maybe not
My question relates to this indeterminacy and the politics of discussing this case, and the ultimate effect on political and human liberty. Specifically, is the manifold uncertainty raised by the opinion (and its consequent unsettling of state and local law and disregard of federalism that we conservative types used to care about) going to be challenged (condemned) by John McCain as an invitation to legislate from the bench? Critiqued by Barack Obama? Or, as is more likely not to be talked about by either since McCain's complaints about judicial activism are as meaninglessly one-sided as most everyone else's, and Obama is just happy to not have the NRA energized in his direction - and who could blame him?
No Originalism Left Behind -- well, maybe not
As an under-interpreted provision in the Constitution, the Second Amendment provided an opportunity to test the integrity and utility of the original understanding method of interpretation. It failed. The language to be construed: "a well regulated militia being necessary to the security of a Free State, the right of the people to keep and bear arms shall not be infringed." Prior to the Heller, many thought that the second half of the text was to be construed in reference to its preamble. Justice Scalia concludes instead that the first 13 words of the amendment are "a purpose," but not the purpose.
It's only Natural (Law) to Disagree
Dean John Eastman (a first-rate originalist scholar and the co-editor of our casebook) and I have been batting about the originalist legitimacy of this move by Justice Scalia. I'm skeptical given how the preoccupation with state and private militia by the founders as a counterpoint to government tyranny had fit both the history and the text. It also fit structure as an answer to the threat of abuse of Congress' Article I militia organizing authority. Dean Eastman believes Justice Scalia is informing the text with an appreciation of a natural law right of self-defense perhaps a la the thoughts of Professor Akhil Amar here on Slate some months back.
As for "the right of the people" language, both majority and dissent agreed that this suggests an individually enforceable right, but that tells us nothing about its scope -- specifically whether that scope must have a militia-nexus. Of course, sometimes text, history, context and structure are contradicted by longstanding precedent which, by reason of reliance, merits adherence. But here the interpretation in U.S. v. Miller in 1939 arguably saw the Second Amendment as militia-related, and it was a precedent followed by virtually every lower federal court since it had been decided. Justice Scalia argues that Miller holds only that a short-barreled shotgun was not "ordinary military equipment" because it was not the type men bearing arms would be expected to bring when called to militia service, but so what? How does that free the "right" from the militia nexus?
The dissent saw the opinion as legislating from the bench. Wrote Justice Stevens for the four dissenters quoting Miller, "the signification attributed to the term Militia appears from the debates in the convention, the history and legislation of colonies and states, and the writings of approved commentators.'" In light of that, Justice Stevens concluded: "Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well regulated militia. The court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations."
But can it be plausibly argued, as Dean Eastman and perhaps Akhil Amar suggest, that there is another view of originalism in play as well? One which heretofore has been championed largely by Justice Thomas but to which Justice Scalia's opinion in Heller now appears to give credence. That view holds, with substantial evidentiary basis in the founding-era debates, that the Bill of Rights merely recognizes (rather than creates) pre-existing natural rights. I concede natural law originalism has always been my preferred view, but given Justice Scalia's past denunciations of it, is it plausible to see him now as among the converted? He does make reference to 19th century case law approving of the perspective. In this regard, the Court makes several references to this "natural law" view of the Second Amendment right, concluding that the Second Amendment necessarily codifies its more expansive right to self-defense, against both private thugs and government tyrants.
But assuming Justice Scalia is in fact now willing to judicially enforce the text of the Constitution only as informed by the natural law, how exactly does he know that the natural law includes a right to possess a handgun for self-defense? As he himself might have been given to point out in other contexts, when the right was linked to "the militia," he could define it in relation to an historical purpose originally understood. If natural law is the new lodestar, then Justice Scalia needs a defensible conception of human nature. And far from the right being new support for abortion as Jack hypothesizes, would not any serious conception of human nature contest, not affirm, that practice? But staying with just born persons, isn't it possible to see more widespread handgun possession as contrary to any natural law basis for the "right" insofar as gun usage has its own inherent dangers or just simply in light of the number of handgun deaths each year in urban areas, including DC?
Go to Hell(er), Federalism!
Does the new gun right apply against the states? Within a week of the ruling in Heller, five lawsuits were filed seeking to apply the newly designed Second Amendment to nullify gun control laws adopted by local governments in California and Illinois. Each of the cases makes the argument that the Second Amendment is applicable to the state and local governments through the Fourteenth Amendment - an issue the Supreme Court has not considered since 1894, when it said the Amendment applied only to the federal government. In note 23 in Heller, the Court declined to reach the incorporation issue.
The Chicago case, NRA, et al., v. City of Chicago, et al. challenges a restriction very much like the DC ban that had been invalidated - namely, a city code provision that requires registration of firearms, but bars registering handguns. Chicago is within the Seventh Circuit which last found that the Second Amendment applied only to the federal government in 1982 relying upon the Presser v. Illinois (1894). The Circuit Court specifically declined to find that Presser had been superseded by the Fourteenth Amendment and its incorporation of most of the Bill of Rights.
Raising the Standard (of Review)
Beyond applicability to the states or not, the standard of review is uncertain for laws that differ from the District of Columbia handgun ban that was nullified. Justice Scalia seems to eliminate rational basis as an insufficient standard, but not much else.
Depending on the standard of review to be named later, it is supposed that we will learn the answers to the questions that bedevil us now, including why carrying a concealed weapon beyond the home and hearth is not protected and also why licensing laws do seem - so long as they are not disguised as prohibitions - not to offend the "right." Similarly, we will know whether switchblades or mace or tazers are beyond "weapons typically possessed by law-abiding citizens for lawful purposes."
Come, Learn from the Master -- or Go Directly to Jail
Finally, the ever dutiful citizenry will be instructed by its judicial masters as to how far, if at all, the right can be taken outside one's home? The front stoop? One's car parked at the curb? The RV parked out back? In the meantime, I suspect it won't be long before a law-abiding Dick Heller-type fella is charged by a local prosecutor for a crime because he used a gun or other weapon beyond the home, in claimed self-defense, only to find upon posting bond that he did not successfully discern the constitutionally acceptable geographic location.
My friend, Bob Levy at CATO brought this case to enhance human liberty. As I see it, only judicial liberty is being advanced. Indeed, to borrow some florid prose from the one-time author of the opinion itself: "The Imperial Judiciary Lives!" Don't expect it to be talked about in those terms by either of the candidates, however, who in one way or the other will have been silenced, well, at the point of a gun.
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continue reading at Balkinization . . .
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Right at this moment, the Supreme Court is not an issue in the campaign, although partisans on both sides will no doubt keep trying to make it one as we get closer to November.
One reason the court is not an issue right now is that the chief justice has done a superb job of lowering the court's profile. It's hard to get the nation worked up over disputed interpretations of the Employment Retirement Income Security Act, for example. The intensity of the gun battle should not obscure the winning Roberts combination of taking fewer cases overall, taking fewer controversial cases in particular, and encouraging the issue of narrowly drawn opinions. That is all to the good, even if it makes it more difficult for Sen. McCain to stoke up an intellectually tired conservative base by raising the hoary specter of judicial activism. He hasn't been successful thus far, in part because activism is not nearly the problem that he describes it to be.
Sen. Obama is both more perplexing and intriguing on the judicial nomination front. Perplexing, because he voted against (mistakenly, in my judgment) two of the most talented jurists on the bench, John Roberts and Sam Alito, even as he conceded they had the intelligence, capability, and proper judicial temperament. Intriguing, because Obama's stated basis of opposition was a suspicion that these nominees were not sufficiently empathetic with the needs of the average person. Sen. Obama himself, of course, has great empathy for those who are often overlooked by the political process, and it will be fascinating to see how that attractive quality can be translated into identifiable and appropriate selection criteria for the men and women he would want serving on the bench.
It is widely speculated that the next nominee of either party will be a female, and that is likely, given the persistent reminders of Justice O'Connor (not to mention speculations about Sen. Clinton). But the inescapable consequences of the actuarial tables—as well as the personal desires of some of the senior members of the court—will probably result in a two or more vacancies in the next presidential term.
So if gender were not a consideration, is there a standout judicial candidate who could reorient the confirmation process away from real or imagined concerns with "activism"—and be acknowledged as superior in quality, temperament, and personal ethic of concern?
Yes: Carter G. Phillips, the managing partner of the Sidley Austin law firm in Washington, D.C., who argued a remarkable five cases this term, bringing his total before the court to 50 in private practice with an additional nine during his service in the SG's office. There is not another advocate in the country who is as respected for his impartial legal judgment, personal integrity, and genuine friendship and assistance to his fellow members of the bar and to his community. There is also not an advocate before the court who wouldn't desire to have work product be so well thought as to merit colloquial reference by the Justices from the bench, as occurred during the Grutter oral argument with their frequent reference to the "Carter Phillips brief." Phillips is also the right age, 56, and with the circumspect demeanor of his mentor, the late Rex Lee, Phillips is one of those rare individuals of stature who could rather remarkably be seen as a nominee of either party.
There are other men and women who could (and should) be thought of: for McCain, Judge Diane Sykes of the 7th Circuit and former SG Paul Clement come readily to mind; for Obama, Kathleen Sullivan or Judge Merrick Garland of the D.C. Circuit would surely be contenders; and I suppose there are even people with gun racks who would appeal to Bob Barr. But if the objective is to transcend political division, there is no one better than Carter Phillips.
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Most of you have probably already seen Linda Greenhouse's articles yesterday and today, reporting that in last week's Kennedy case involving the death penalty for child rape, the court, its clerks, the parties, the several amici, and the solicitor general all somehow overlooked the fact that Congress enacted a statute two years ago that provides a possible penalty of death for U.S. service members convicted of that crime. Apparently the only person who knew anything about it was ... a lowly blogger, civilian Air Force lawyer Dwight Sullivan! (Kudos to Mr. Sullivan.)
We're having a bit of a discussion about it over at the Federalist Society Supreme Court roundup blogfest. Chuck Cooper commented that the omission is "powerful evidence that undercuts, to say the least, the majority's intuitively implausible finding that there is a national consensus against capital punishment for the crime of child rape, no matter how brutal the assault, how young the victim, etc., etc." Mark Tushnet followed up:
I was struck by something a bit different -- a truly stunning failure of advocacy on the part of what has come to be described as an increasingly professional Supreme Court bar. The approach the Court was going to take was clear, and indeed the briefs focused on the kind of survey of legislation that one would expect. How the lawyers (particularly for the state, but also for amici supporting the state) failed to locate an obviously relevant statute -- it's an act of Congress after all, they're not that hard to find -- is truly astonishing. Were this private litigation, I'd advise a client to have a serious discussion with the lawyers about their fees.
I agree with Mark, to this extent: The failure of any of the parties and amici to flag the new statute is rather remarkable, especially since there were very experienced SCOTUS lawyers representing amici on the respondents' side, including Ted Cruz and Chris Landau. Nor is the statute listed on this Web site, which evidently was a principal source that several of the amici relied upon.
More remarkable still: As Linda Greenhouse reports today, no one in the SG's office discovered the law, either. The DoJ Statement is as follows:
We regret that the Department didn't catch the 2006 law when the case of Kennedy v. Louisiana was briefed. It's true that the parties to the case missed it, but it's our responsibility. Yesterday, shortly after learning of the law, we advised the Clerk's office at the Supreme Court. Only parties to a case may petition for rehearing. If a petition for rehearing is filed, the Department will review the petition and consider what steps are appropriate, including possibly seeking leave of the Court to provide our views on the petition for rehearing. Although no one has been sentenced to death for child rape under the law, we note with regard to the continued constitutionality of the law that the Supreme Court has not resolved the question whether its Eighth Amendment jurisprudence applies with equal force in the context of military capital punishment. Cf. Loving v. United States, 517 U.S. 748, 755 (1996).
Presumably none of the memos to the SG from the components and interested agencies mentioned it—because if they had done so, the SG would undoubtedly have appeared as amicus on behalf of Louisiana. (I suspect no one in the Criminal Division knew about it, and it probably did not occur to the SG's Office to ask DoD for a recommendation. On the other hand, if folks in DoD were aware of the law, presumably they would have sua sponte flagged it for the SG. Hmmm ...)
So, let's assume that the states were unaware of it. And so was the SG's office and the rest of DoJ. And possibly even most or all of the relevant authorities at DoD. And all of the amici. And the court and its numerous clerks. And that this provision was included on the 129th page (in Statutes at Large) of a 420-page omnibus authorization bill. And that the provision was not discussed in the Conference Report (except where the bill language was set out). And that it was not so much as mentioned, let alone debated, by any legislator on the floor of the House or Senate. (My own cursory Westlaw search confirms this!) If all that is true—if virtually none of the legislators who voted for the bill knew about this amendment to the UCMJ, and it received no public attention whatsoever, for almost three years after its appearance in the bill and more than two years since the president approved it, and it was never implemented, and none of the very fine lawyers working on the case in the government or outside it discovered it in their legal research, then is it really the case, in any meaningful sense, that its enactment "undercuts, to say the least," the court's assumption that there is a "national consensus against capital punishment for the crime of child rape," as Chuck suggests?
I should add that, as the DoJ statement suggests and as Orin Kerr stresses, it's also not at all clear how statutes governing the U.S. military bear on, and are governed by, the court's "evolving standards of decency" doctrine.
The court almost certainly will not grant the (expected) petition for rehearing—but I wouldn't be surprised to see a dissent from denial of rehearing in which Justice Scalia pounces on this oversight.
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Marty says, echoing Phil:
That is to say—and as Eric's closing swipe at Congress suggests—Eric believes that war should not be governed by legal standards at all. Which is fine, I suppose. But as Phil has stressed, that's not the view of history and of all Western nations engaged in armed conflicts for centuries; ....
It's not really worthwhile, I think, to debate whether war and law are fundamentally incompatible, because that question was definitively resolved eons ago, and there's no constituency at all for reviving it (outside the academy, that is).
I agree that this debate is not worthwhile, which is why I am not a party to it. I never said that the war should not be governed by legal standards. I said that civilian judges should not administer those standards, at least not for routine decisions such as targeting and detention of enemy soldiers overseas. The debate is about the role of civilian courts in ensuring that the military complies with domestic law and the laws of war, not whether "the war should be governed by legal standards at all." That's why I keep trying to get Phil to tell us how far he wants the courts to go. If they should evaluate detention decisions, what other decisions should they evaluate, and so forth. What are the criteria for determining when civilian courts should be involved or not? What's so different about detention and targeting? My small point here, which has been blown out of proportion in the responses, is just the D.C. Circuit's disagreement with the military doesn't help answer these questions, so lends support to neither side's views with respect to the real, as opposed to nonexistent, debate.
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OK, so perhaps I went a bit overboard with the Ouija board metaphor. No, I do not think that the military's detention of the Uighurs was just random, or whimsical, or the product of consultations with the Easter bunny.
More to the point, I, too, accept Eric's assumption—for how could anyone deny it?—that "the U.S. military is more interested in advancing the security of the United States than that of its geopolitical rivals," and that such considerations are what drive its detention decisions. Of course that is the case. The Chinese haven't "conned" our military. We're doing the Chinese a favor—presumably because the administration believes that will redound to our national interests in the long term. And on top of that, we are incapacitating radicalized folks who just might present a danger to us one day, and/or who just might have some intelligence of value that we could extract if only we can use "enhanced" interrogation techniques on them during incommunicado detention over a long period of time.
From the military's perspective, if there is reasonable supposition that the Uighurs might be dangerous—say, a 1 percent chance—and further suspicion that they might, just might, have some intelligence value (say, another 1 percent chance), and if our favor for the Chinese here might result in a reciprocal favor on our behalf from Beijing ... well, then, why not detain them for six years? If that's all the executive branch had to consider—and if its views would never be subject to any review by any other entity (which was the administration's objective in choosing Guantanamo)—well, then, of course it would err on the side of suppressing virtually every possible threat, no matter how minor or how speculative.
And, if that were the relevant question here, then yes, it would be fairly unnerving to have the federal courts "make an all-things-considered judgment about the wisdom" of the military's decision.
So, it's a good thing that's not what the D.C. Circuit has been instructed to do.
Instead, the judges have been assigned to evaluate whether a preponderance of the evidence demonstrates that these are persons whom Congress has given the president the lawful authority to detain. The judges did not decide that it would not be "wise" to continue the detention—they determined that it would be illegal. If Parhat has not "supported" the ETIM; or if the ETIM is not functionally a part of the Taliban; or if the ETIM has not engaged in hostile action against the United States and its coalition partners; or if (as I've argued) the ETIM and Parhat would have to have a much closer and more direct connection with al-Qaida in order to bring this detention within the authority the AUMF grants ... well, then, in that case the president would not have the legal authority to detain Parhat—indeed, in my view, he'd be acting contrary to an implied limitation that Congress has established.
It was not very difficult, or outside their ordinary judicial function, for this panel of judges to determine that the Pentagon had failed to present any credible evidence on even the two easiest prongs of the Pentagon's own theory of why Parhat was detainable-that the ETIM is functionally a part of the Taliban, and that the ETIM has engaged in hostilities against the United States and its coalition partners.
Eric's view appears to be that such questions, while relevant, should hardly be determinative—that the only pertinent question ought to be whether the United States is better off with the Uighurs in captivity, or better off if we release them, "all things considered." And because judges can't possibly evaluate all the myriad considerations of national security in the way that military officials can, they should reflexively defer, unless they sniff the Easter Bunny lurking. That is to say—and as Eric's closing swipe at Congress suggests—Eric believes that war should not be governed by legal standards at all. Which is fine, I suppose. But as Phil has stressed, that's not the view of history and of all Western nations engaged in armed conflicts for centuries; it's not the considered judgment of virtually every president, military commander, and public official we've ever had, from Washington on down; it's not the view of the courts; it's not Congress's view; hell, it's not even the view of the Bush administration, which conceded to the court that it was legally required, at a minimum, to have sufficient grounds for concluding that the ETIM is functionally a part of the Taliban, and that the ETIM has engaged in hostilities against the United States and its coalition partners.
It's not really worthwhile, I think, to debate whether war and law are fundamentally incompatible, because that question was definitively resolved eons ago, and there's no constituency at all for reviving it (outside the academy, that is).
Once one acknowledges that there is a legal standard that the Bush administration must satisfy in order to detain someone incommunicado for more than six years, it makes perfect sense for Congress (or the Constitution) to authorize federal courts to ask the executive to make at least a plausible showing that it has satisfied that legal test. In the case of the Uighurs, the Bush administration has failed that test miserably—which is "all" that Judges Sentelle, Garland, and Griffith quite understandably concluded.
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David, you're right that the solution of my logic puzzle does not imply that courts should defer to the military; it's equally consistent with the proposition that the courts should make detention decisions and the military should defer to the courts. It's also consistent with the idea that you get to decide whom to detain, and I should defer to you (fine with me)—and vice versa. So, I was making an extremely narrow point, which is that until one can show that one institution is more likely to be superior to another, the mere fact of their disagreement does not tell us which is which. That's the problem with Phil's claim that the D.C. Circuit panel's disagreement with the military in the Parhat case tells us anything new. You're right that Phil has other reasons for thinking that judicial review of military detentions is wise policy, but it wasn't my intention in that post to address those other reasons. My logic puzzle doesn't do much work—you're right!—but it does enough to refute a claim that is very common these days.
Marty does make a good point, however, which I will rephrase as follows. Suppose we learn from judicial review of military detention decisions that military officials rely on theories that are truly alarming. Perhaps they pray to the Easter Bunny for guidance and consult the entrails of slaughtered pigeons for indications of the Bunny's divine will. If this is what is going on, we are in big trouble, and not even the wisdom of the federal judiciary can save us. If the military is guided by the Easter Bunny in its detention decisions, then no doubt the Bunny also determines its targeting decisions, the movement of troops from place to place, the acquisition of new weapons systems, and everything else. So what next? We could place the entire military in receivership under the authority of judges, the way that poorly run prisons are, but so far not even Marty seems to want to do this. (Of course, if the judges tremblingly invoke the sacred name of Punxsutawney Pete, who rages at the military's devotion to a lesser deity, then we are back at square one.)
I can't tell whether Marty thinks that the military is idiotic in the Easter Bunny vein. Perhaps I misinterpret him, but he implies that the Chinese have conned the U.S. military into detaining the Chinese government's political opponents. Until I've heard more, I will continue to assume that the U.S. military is more interested in advancing the security of the United States than that of its geopolitical rivals. If my assumption is accepted, we just can't tell whether the military's reasons for detaining Parhat were too weak or the court's standard for detention was too strong—it all depends on how dangerous a person should be in order for the military to detain him and how much confidence the military should have about this person's dangerousness.
In the end, Marty doesn't rely on the court's view at all, which is why I didn't initially link to his post along with Phil's. He would think the same thing if the court had gone the other way (except he would rage against the judges as well as against the military for their Easter Bunny thinking). Marty thinks he can make an all-things-considered judgment about the wisdom of the military's detention of Parhat based on the facts that have been disclosed. I'm not so sure. Who are we to say whether the Chinese can be trusted in this instance? That said, the question whether judicial review of the operations of the military will improve or worsen decision-making from the perspective of national security and civil liberties can be answered only with—and here, David, I will cite your post contra Marty's—experience, albeit experience that has not yet occurred.
PS: I read the court to be saying that if it were just to accept the military's say-so, then it wouldn't have any role in evaluating detention decisions, which would conflict with Congress's intention to give it a role. That's unobjectionable as far as legal reasoning goes, to which I reply: so much the worse for Congress!
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Eric—I just played your logic game. It's fun. But here's my question: Why do you prefer the M-Box? After all, nothing in logic makes it any better than a C-Box. Both could be accurate, and both could be inaccurate. And yet, I see from your earlier posts that deference to the executive (the M-Box!) is one of your guiding principles. You must have not thought up the C-Box/M-Box game at the time. Or maybe you reached that conclusion because you think there's actually more than logic to this game, and that experience makes the M-Box better than the C-Box. But if that's so, then the M-Box/C-Box game isn't doing much work. There are those, like Phil (and now a majority of the court), who think, when it comes to detention practices, experience indicates there's a value in having courts look over the judgments of executives. And there are, of course, those who draw a different lesson from history. But I don't think it's a confusion over logic that explains the divide.
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Hi, Orin, the Supreme Court's role is modest on some fronts, yes—I agree that deciding that child rapists can't be executed is not of the same order as upholding the death penalty in the first place. Or that outlawing one method of late-term abortion isn't up there with Roe. But in other areas, the court looks bigger to me, and the disagreements worthy. Boumediene is my best recent example: Whether the Guantanamo detainees have the right to go to federal court matters enormously to them, and quite a lot to America's legal tradition and world image, I think. Heller is harder to tell, since it's like an opening bid that invites more challenges to gun restrictions, but it's not every day that a new constitutional right appears in our midst. And the knocking back of the punitive damages award against Exxon seems significant to me, for its own sake and because of the signal Justice Souter's opinion sends about potential limits to state punitive-damages laws. I often wonder if to write about the court is inevitably to hype its importance, and I like your impulse to knock it (and many of us) down a peg. But I'm glad the justices see more than small beans to fight over—Justice Scalia's rhetoric, as usual, being the best evidence of passion stirred.
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It's not a logic game, Eric—it's simply good, old-fashioned judicial review. The role of the "C-Box"—the court—is not to determine whether the detainee (not a "criminal suspect," by the way) is in fact telling the truth, but instead to determine (i) whether the "M-Box" is relying on a valid legal theory to detain the prisoner; and (ii) if so, whether there is any reason to credit the M-Box's conclusion that the detention satisfies that legal standard, even after giving quite a bit of deference to the M-Box-that is to say, to determine whether the M-Box decision is supported by a preponderance of relevant evidence.
You might recognize this—it's what courts do all the time in reviewing executive conduct and what habeas courts have done for time immemorial.
In this case, Phil is right: When there was no prospect of judicial review, the government could detain Uighur prisoners for more than six years, based on a shockingly broad theory of what Congress has authorized, and on flimsy supposition about the facts of the case. But as soon as a court is in the picture—even a court that included David Sentelle and Tom Griffith—and puts the government to the modest burden of, gosh, explaining its decision, it becomes clear very quickly not only that the administration is acting on the highly implausible view that Congress has authorized the indefinite detention of all the world's suspected terrorists (even those whose target might be China), and not only that the military assumes that attending a Uighur training camp makes one a member or supporter of the ETIM, but also that the government's conclusions that the ETIM is part of the Taliban and has engaged in hostilities against the United States are based almost entirely on the government's own say-so (which in turn is likely based on unsupported representations offered by the Chinese, who are more than happy to have the United Statesimprisoning the critics of that government).
I can't do better here than quoting from "the C-Box":
The principal evidence against Parhat regarding the second and third elements of DOD's definition of enemy combatant consists of four government intelligence documents. The documents make assertions-often in haec verba-about activities undertaken by ETIM, and about that organization's relationship to al Qaida and the Taliban. The documents repeatedly describe those activities and relationships as having "reportedly" occurred, as being "said to" or "reported to" have happened, and as things that "may" be true or are "suspected of" having taken place. But in virtually every instance, the documents do not say who "reported" or "said" or "suspected" those things. Nor do they provide any of the underlying reporting upon which the documents' bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions, the [CSRT] could not and this court cannot assess the reliability of the assertions in the documents. And because of this deficiency, those bare assertions cannot sustain the determination that Parhat is an enemy combatant.
The [M-Box] insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the [M-Box] says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the [M-Box] regards the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are "reported" or "said" or "suspected" to have occurred suggests at least some skepticism. Nor do we know whether the [M-Box] relies on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.
That is to say, the C-Box asked the M-Box to explain its methods, and, after taking a look, concluded that the M-Box is, well, a Ouija board. Now, remind me: Why on earth should we credit the M-Box's conclusions, especially where the liberty of persons detained for more than half a decade is at stake?
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continue reading at Balkinization ...
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Can the president indefinitely detain someone who has no connection to al-Qaida and who has not engaged in any belligerent acts against the United States?
Last week, an ideologically diverse panel (Judges Sentelle, Garland and Griffith) of the United States Court of Appeals for the District of Columbia Circuit ruled that the Bush administration had not established a sufficient foundation for its indefinite military detention of Huzaifa Parhat, who has been imprisoned at Guantanamo for more than six years. Much of the evidence that the court considered is classified, and therefore the court decided that it would publicly release only a redacted version of its opinion. The court released that redacted version on Monday.
Even in its redacted form, this extraordinarily careful and detailed opinion, authored by Judge Garland and joined in full by both of his more conservative colleagues, offers a stark depiction of the most significant problems with the Bush administration's detention policy-namely, that the military has relied upon a breathtakingly broad standard of who can be detained, and then has made particular detention decisions based on very speculative and thin evidence, even under that broad standard. The detention policy in practice, in other words, has been much more indiscriminate than any authority Congress afforded the president in the conflict against al-Qaida.
Within a week after the attacks of Sept. 11, Congress authorized the president to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
The administration argues that this Authorization for Use of Military Force authorizes the indefinite detention of Parhat, and several similarly situated detainees, at Guantanamo.
Now, it is undisputed that Parhat had nothing to do with the attacks of 9/11. Indeed, there is no contention that Parhat has ever participated in, or planned, or even supported, any hostile action against the United States or its allies. It is also undisputed that Parhat is not part of any nation or organization that "planned, authorized, committed, or aided" those attacks. In particular, it is undisputed that he is not a member of al-Qaida or of the Taliban. Indeed, the Pentagon's Combatant Status Review Tribunal did not even find him to be "an individual who was part of or supporting Taliban or al Qaida forces." And the CSRT expressly found that he did not engage in hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).
So, who is Parhat, then, and what did he do to warrant indefinite detention at GTMO? He is a Chinese citizen of Uighur heritage (pronounced weegur). The Uighurs hail from the far-western Chinese province of Xinjiang, or East Turkistan, and they claim to have been systematically subjected to "oppression and torture" by the Chinese Government, including "harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas." In response to this treatment, Parhat fled China in early 2001, arriving at a Uighur camp in Afghanistan in June 2001. Parhat claims that he went to Afghanistan solely to join the resistance against China, and that he regarded China alone-not the United States-as his enemy.
In mid-October 2001, U.S. aerial strikes destroyed the Afghan camp, after which Parhat and 17 other unarmed Uighurs traveled to Pakistan. Two months later, local villagers handed the Uighurs over to Pakistani officials, who in turn delivered them to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained imprisoned for more than six years.
In light of all this-and the utter lack of any connection between Parhat and any hostilities against the United States (let alone the 9/11 attacks)-what is the possible theory under which the Pentagon has purported to detain Parhat for the better half of a decade (with no end in sight)?
Find out at Balkinization.
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An inventor has invented what he calls the M-Box. The M-Box is a lie detector and can be used to determine whether criminal suspects are lying or telling the truth. Unfortunately, the M-Box occasionally errs. Another inventor comes up with what he calls the C-Box. The C-Box is also a lie detector, and everyone understands that the C-Box could err as well. Suppose that someone makes a statement and the M-Box says "lie." Then a recording of that statement is played before the C-Box and the C-Box says "truth." Do we know that the M-Box is inaccurate because the C-Box disagrees with it?
Of course not. All we know is that the two contraptions disagree. We don't know which is correct in this instance, nor do we know which is more accurate in general. This is why Phil is wrong to say the D.C. Circuit opinion reversing the detention decision of a combatant status review tribunal proves that the tribunal is inferior to a court. All we learn from this incident is that the Military-Box and the Court-Box disagree.
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Like all good conspiracy theorists, Jack posits that a complex outcome must be the result of either "dumb luck" or ingenious strategizing by an all-powerful and all-knowing single actor. Here, the complex outcome is that Republican presidents—despite having numerous chances to fill Supreme Court seats—have not been able to do what the GOP platform claims to want to do: overturn Roe. And the non-dumb-luck explanation for that is that the right wing is brilliant—carefully choosing justices with an eye to keeping the Roe issue just alive enough to retain credibility as the pro-life party without engendering a pro-choice backlash. But as the comments to Jack's latest post show, there's an alternative to the dumb-luck/conspiracy choice, and it's called ordinary politics. The Republican Party was for a long time—and perhaps still is—internally divided on the merits of Roe. Liberal Republican, pro-choice northeasterners are not hard to find even still. And so there has been infighting and intrigue within the party itself when it comes to judicial selection—and it's that internal fight that I think probably best accounts for the Souter nomination, not a sneaky desire by the president to pick someone who would uphold a right that he actually opposed because doing so would help the Republicans win elections. There was also Democratic Party resistance to some proposed Republican appointees—Bork being the most notable. And finally, there were other political factors, such as constituent outreach as in the case of appointing women (O'Connor). In short, a whole range of messy political factors—many of which involved the effective mobilization by pro-choice forces within both parties—explain why the effort to overturn Roe has (thus far) come up short. And so, it seems to me, the least likely explanation is that a vast right-wing conspiracy was afoot in which Republican presidents cleverly and consciously planned everything to come out just this way, appointing just enough justices who would oppose Roe in their dissents to make it look good while never quite going all the way. So, in rejecting Jack's theory, I am not casting my lot with dumb luck. I am just skeptical about a familiar left tendency: to attribute to the right wing a kind of omniscience and absolute control over political dynamics that just does not exist.
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Emily, apart from what you think of Chief Justice Roberts, what do you think of the current role of the Supreme Court in American society as a whole?
It seems to me that the Supreme Court today has a smaller role in shaping the public policy agenda of the United States than it has had in recent memory. The court takes very few cases. For the most part, it takes cases only when lower courts disagree on the preexisting state of the law. And its decisions have tended to be really narrow: Even opinions that play out rhetorical battles have tended to have relatively small stakes. The court clearly has a role—no one disagrees with that—and of course there is disagreement as to what that role should be in hotly contested cases. But in general that role is a modest one, and the level of disagreement is small beans.
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Over at Slate's "Breakfast Table," Walter Dellinger and Jack Goldsmith have credited the composition of the docket for explaining why, for a time this term, the court looked like it had gone moderate on us and forgotten its 5-4 habits. (Give Tom Goldstein points for predicting much of this back in September.) Now that the term is over, of course, we know that it ended in familiar 5-4 fashion in the big-bang cases (Gitmo, child rape, guns). We know from the stat masters at Scotusblog that 17 percent of cases split 5-4 this year—a lot less than last year, which is the outlier at 33 percent, and between somewhat and a bit less than the previous several terms. After Scotusblog factored in the rarity of 9-0 decisions, it called this term "the most divided in recent history.”
That may not be how most of us will remember it, but in the NYT, Linda Greenhouse makes the same point in singling out as the term’s main theme the enduring influence of Justice Kennedy. Jeffrey Rosen, on the other hand, in TNR sees the term as a lesson in division minimized and writes another love letter to Chief Justice John Roberts in which he calls my much more skeptical judgment of Roberts “premature.” I do give Roberts props for a vote this term—he was in the majority in the 7-2 decision that found a right to sue for retaliation in the Reconstruction-era law written to give former slaves equal rights to make contracts. In that case, Roberts went with precedent over textualist upheaval. But one vote doesn’t a uniter make; in the biggest rulings of the term, Roberts was on his usual side of the ideological split. My feeling about the chief justice continues to be that he’s powerful precisely because he’s smoother than Scalia and Thomas. He doesn’t alienate his colleagues with inflammatory rhetoric like Scalia or bulldoze precedent like Scalia and Thomas. He is more careful. That means he’ll need more time to bring about major shifts in the law, on some fronts, but his votes continue to suggest that he will move the court to the right when he can. I still don’t see the case for supporting Roberts’ nomination and opposing Alito’s, or simply for heralding Roberts as a bullet that liberals dodged, as Rosen puts it. He sees Roberts’ narrow opinion writing as “the only thing standing between them and a Court eager to roll back progressive reforms.” Isn’t there more evidence, again this term, for that thing being Justice Kennedy?
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Revolutionary ideologies always look good until they prevail; then their latent seeds of destruction sprout and conflagrate. Such is the case with originalism, and Heller provides an opportunity to see this process in action. To see why, imagine that, to the surprise of everyone, Clarence Thomas retires from the court next year and President Obama replaces him with a moderately liberal lawyer whom I will call X. In X's first term, another Second Amendment case reaches the Supreme Court. X reads the majority and dissenting opinions of Heller and decides that Justice Stevens' dissent makes the better originalist case. He writes a new majority opinion that adopts Stevens' dissent and overturns Heller.
What is the Heller-supporting originalist to say about this behavior? He can argue until blue in his face that Scalia was right and Stevens was wrong, but Stevens' account was plausible enough to obtain the support of three other justices and various knowledgeable commentators. What he can't plausibly argue is that X should have respected the Heller precedent. After all, if originalism means anything, it must be that precedents should be given no, or little, weight. This idea is the source of originalism's power and radical nature, but it also ensures that originalist opinions will, as precedents themselves, be short-lived. And because the constitutional text is ambiguous and the contemporary setting is remote from our understanding, it will always be as easy for liberals as for conservatives to generate whatever results they want in the originalist idiom, which guarantees that the triumph of originalism, if that is what Heller represents, will have no particular political implications for American government that cannot be traced to the ideological leanings of whoever happens to sit on the Supreme Court. Policy and political judgments will continue as before muffled underneath a new blanket of rhetoric. That faint sound you hear is laughter echoing in the tombs of the legal realists.
Justice Scalia, aware of this problem, calls himself a "faint-hearted" originalist and acknowledges that certain precedents must be obeyed. But which? Why should his Heller opinion constrain a future liberal justice who thinks that its originalist interpretation is wrong? If the answer is that this justice should follow it just because Scalia was there first, then it is inevitable that, as precedents reflecting good-faith but erroneous interpretations of original sources or bad-faith manipulations of them pile up, doctrine will eventually diverge from origin, and originalism will become moot. If the answer is that he shouldn't, then precedents will last only as long as the current majority on the Supreme Court, and the Heller precedent, too. Either way, originalism cannot last.
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Justice Samuel Alito, for example, who blew a cool $500 million for his fellow Exxon shareholders—at least, if conventional wisdom is correct that Alito would have broken a 4-4 tie and deprived the Exxon plaintiffs of punitive damages if he had not recused himself because of his Exxon stock holdings. You would think there would be room for a bargain here. Exxon should have paid Alito a small sum of money—say, $1 million—to sell his stock, so that Alito could have cast a vote for Exxon without violating the code of judicial ethics. After all, Exxon would not be paying Alito to vote for Exxon; it would be paying Alito to cast an impartial vote after shedding his Exxon stock and thus his pecuniary interest in an Exxon victory. The plaintiffs would lose their punitive damages, of course, but they cannot reasonably argue that their case be heard by eight impartial justices rather than nine. Aside from the plaintiffs, there would be gains all around. Alito's paltry salary would be supplemented, Exxon's shareholders would be up $499 million, and the public's interest in the impartial adjudication of legal disputes by the nation's highest court would be served.
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continue reading at Balkinization ...
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