Recent Articles The American Prospect - articles by author en A New Era for the Supreme Court <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><em>This article appears in the Fall 2016 issue of </em>The American Prospect <em>magazine. <a href="**EF1">Subscribe here.</a></em></p> <p><span class="dropcap">T</span>he 2016 term of the Supreme Court beginning in October marks its 48th year in a row under the leadership of a conservative chief justice appointed by a Republican president. That is more than one-fifth of the Court’s history. Saying that the Court is a political institution is now like saying there is a global economy: It is simply a fact.</p> <p>The Court has gotten increasingly more conservative with each of the Republican-appointed chief justices—Warren E. Burger (1969–1986), William H. Rehnquist (1986–2005), and John G. Roberts Jr. (2005–present). All told, Republican presidents have appointed 12 of the 16 most recent justices, including the chiefs. During Roberts’s first decade as chief, the Court was the most conservative in more than a half-century and likely the most conservative since the 1930s.</p> <p>In the five terms before Justice Antonin G. Scalia’s death in February, for the first time in American history the Court issued the majority of its ideological 5–4 rulings along party lines. The five conservative justices, appointed by Republicans, were Roberts plus Justices Anthony M. Kennedy, Scalia, Clarence Thomas, and Samuel A. Alito Jr. They regularly made up the majority. The four liberals, appointed by Democrats, were Justices Ruth Bader Ginsburg, Steven G. Breyer, Sonia M. Sotomayor, and Elena Kagan. They were regularly in dissent. Politics in some major cases appeared indistinguishable from law and threatened the Court’s legitimacy.</p> <p>It’s no exaggeration to say that the Court has been at least as influential in the rightward shift of American law and policy as elections and the presidents and legislatures they elected. Often, interactions between Court decisions and executive and legislative politics result in constraints on government’s ability to address pressing problems and increase government’s perceived ineptitude.</p> <p>Conservative decisions since the 1970s have undermined American democracy. They have turned an often unfair election system into a rigged one by elevating the role of money in politics, allowing state and local governments to make it harder for citizens to vote, permitting flagrant gerrymandering, and striking down the heart of the Voting Rights Act. In those ways and in others, they have also deepened American inequality. They have made it more difficult for individuals to bring civil-rights claims against government agencies as well as corporate officers and corporations. They have changed the meaning of equal protection as it applies to race under the Constitution, from anti-segregation, anti-stigma, and anti-subordination to anti-classification, so it is not easy for government to help a disadvantaged minority by taking race even modestly into account.</p> <p><span class="pullquote">Key Court decisions have favored the interests of corporations over individuals and gutted the power of labor unions.</span> They have amplified corporate power by narrowing the reach of antitrust remedies and by expanding the rights of corporate “persons” under the First Amendment, and have shielded corporations, banks, and their executives from criminal prosecution. They have weakened the rights of ordinary criminal suspects by using cramped readings of constitutional protections and expansive readings of law-and-order statutes, like the 20-year-old Antiterrorism and Effective Death Penalty Act, one of America’s worst laws.</p> <p>The Court has given new life to states’ rights doctrines used to kill reforms in multiple areas. Many key rulings have been opportunistic, favoring federal preemption when it served substantively conservative or corporate goals, and states’ rights when that view was convenient. The Court has narrowed reproductive rights, other rights of women, and affirmative action. The Court overturned or gutted settled law in countless areas, including with a reinterpretation of the Second Amendment that undercut gun control by all levels of government.</p> <p>In an important study, the scholars Lee Epstein, William M. Landes, and Judge Richard A. Posner analyzed about 2,000 Supreme Court decisions from 1946 to 2011. They found that the five conservatives of the Roberts Court until Scalia’s death were among the ten most conservative of the 36 justices who served in that span. The two justices in those 65 years most likely to favor business were Alito and Roberts, in that order. The Roberts Court was the most pro-business Court since World War II—and, by the reckoning of Court-watchers, the most pro-business since the pre-1937 Court.</p> <div class="right-margin"> <div class="image image-large"> <div class="field-image"><img src="" alt="" title="" /></div> <div class="field field-name-field-credit field-type-text field-label-hidden"> <div class="field-items"> <div class="field-item even">(Source: Calculated by Lee Epstein from the U.S. Supreme Court Database)</div> </div> </div> </div> </div> <p>There have been critical exceptions to the Court’s overall conservatism, of course. The most dramatic recent one was the 5–4 ruling in 2012 when Chief Justice Roberts joined the Court’s four liberal members to uphold the heart of the Affordable Care Act, the individual mandate requiring almost all Americans to obtain health insurance or pay a penalty. In its most recent term, the Court swung back toward the center in important areas of law.</p> <p>Yet with President Barack Obama’s two relatively liberal appointees, Justices Sotomayor and Kagan, a possible third new justice in Judge Merrick B. Garland, and the prospect of one or more other appointments in a Hillary Clinton administration, the Court could be on the verge of a new liberal era, one that could put key areas of law and policy on a different path from what the conservative Court did.</p> <p>Court reversals on many issues, from the meaning of equal protection under the Constitution and the measurement of racial discrimination under federal statutes, to the scope of the First Amendment’s protection for corporations and the breadth of its ban on government favoring a particular religion, could significantly change policy without congressional action.</p> <p>With Justices Ruth Bader Ginsburg at 83, Anthony Kennedy at 80, and Stephen Breyer at 78—all possible retirees in the next four years—the Court should be among the most important issues in this year’s presidential and senatorial elections. If Donald Trump is elected and chooses one of the conservative judges he included on his short list of possible Supreme Court nominees, the Court majority could shift further to the right for another generation. But Democrats have a historic opportunity to change the balance of power on the Court. When Hillary Clinton campaigns with Democratic candidates for the Senate this fall, she is likely to stress that the Supreme Court and the future direction of American justice are at stake and that, to get liberal justices appointed, it is as important for the Democrats to retake the Senate as it is to hold the White House.</p> <p> </p> <p><strong>WHEN RICHARD M. NIXON CAMPAIGNED</strong> for president in 1968, he made the Supreme Court a major issue. His main TV ad portrayed the country as out of control, with crime on the rise. The Republican platform promised law and order in place of lawlessness, which Nixon blamed in part on Court decisions providing constitutional safeguards to criminal defendants, in his view at the expense of public safety.</p> <p>Nixon practiced dog-whistle politics, as Michael Graetz and Linda Greenhouse recount in their new book <em>The Burger Court and the Rise of the Judicial Right</em>. He told a Southern audience, “I think some of our judges have gone too far in assuming unto themselves a mandate which is not there, and that is, to put their social and economic ideas into their decisions.” He linked crime with race and race with the judges who had gone too far. He pledged to appoint “strict constructionists” who would tighten up criminal law in particular.</p> <p>In his first term as president, Nixon got the opportunity to appoint four justices: Warren E. Burger as Chief Justice in 1969; Harry A. Blackmun in 1970; and Lewis F. Powell Jr. and William Rehnquist in 1972. Burger was chief until 1986. A prevailing view of the Burger Court is that, as a result of the influence of moderate justices—Potter Stewart, Byron White, and Sandra Day O’Connor, plus Blackmun and John Paul Stevens, who drifted left and became moderate liberals in key cases—it did not reverse the direction of Supreme Court law in the Warren era. The legal scholar Vincent Blasi called this period “the counter-revolution that wasn’t.”</p> <p>But as Graetz and Greenhouse show, the Burger Court began to move Supreme Court law to the right in prominent areas—with some weighty exceptions. <span class="pullquote">The Court started to become a conservative institution again, as it had mainly been before the Warren Court.</span></p> <p>Two of the most profound shifts came in civil rights and criminal justice. After <em>Brown v. Board of Education</em>, in which the Court ruled that segregated public schools were unconstitutional, two cases vie for place as the second-most important civil-rights case affecting schools: <em>San Antonio Independent School District v. Rodriguez</em> in 1973 and <em>Milliken v. Bradley</em> in 1974. Both addressed the issue of remedies for inadequate schools and, by 5–4 votes, both rejected <em>Brown</em>’s deep commitment to equality.</p> <p>The first, brought by mostly Mexican American parents from a poor school district in Texas, was about the large discrepancy between the funding for and quality of public schools in poor and rich districts in the state, because of the reliance on local property taxes for about half the funding for public education. Spending per student by the poor district was three-fifths the amount of spending by the rich one: The property tax rate in the poor district was 24 percent higher, but the average value of property per student was 88 percent lower.</p> <p>A special panel of three federal judges found the Texas financing system unconstitutional and ordered Texas to change its system so the amount spent on a child’s education did not depend on the neighborhood’s wealth. With Powell writing for the majority, the Court rejected the lower court’s main holdings. It found that the system provided every student with public education, while fostering local involvement through local determination of tax rates and education quality.</p> <p>The 49 other states used the same system, so the ruling “momentously influenced the future of public education in America,” Graetz and Greenhouse write. “<em>Rodriguez</em> guaranteed that the resources of public schools would remain grossly unequal throughout the land” unless a ruling in state court prohibited that. The highest courts in many states called for funding increases, but no state ruling achieved what <em>Rodriguez</em> would have if decided the other way. The Supreme Court ruling “eviscerated the most promising alternative avenue for claims based on racial discrimination.”</p> <p>The second contender, <em>Milliken</em>, with Burger writing for the majority, rejected the remedy of busing students across the line between a segregated urban school district and an integrated suburban district. In Detroit, a federal district judge had found that the school board segregated the city’s schools—by where it located them and how it drew school boundaries and attendance zones, among other ways. He ordered that the Detroit school district consolidate with some suburban districts and that they bus students between city and suburban schools. The U.S. Court of Appeals for the Sixth Circuit upheld the order.</p> <p>The gist of the Supreme Court’s decision overturning those rulings was that the remedy to address Detroit’s segregation had to match the extent of the violation to the Constitution. Coming only 20 years after <em>Brown</em>, it marked the end of the startlingly brief period in which the Court, because of basic principles of fairness, promoted integrated schools.</p> <p>In criminal justice, the Warren Court established and extended rules for police to follow: the ban on unreasonable searches and seizures under the Fourth Amendment, the privilege against self-incrimination under the Fifth Amendment, the right to counsel, and others. The Burger Court retained these rights and, in some cases, strengthened them. But as Harvard Law School’s Carol Steiker has explained, while the Court maintained these rules of conduct and reassured the public about the judiciary’s commitment to these rights, it significantly cut back on the consequences when police violate the rights—rules of decision for courts to use in enforcing the law.</p> <div class="right-margin"> <div class="image image-large"> <div class="field-image"><img src="" alt="" title="" /></div> <div class="field field-name-field-credit field-type-text field-label-hidden"> <div class="field-items"> <div class="field-item even">(Photo: AP/Dennis Cook)</div> </div> </div> <div class="field field-name-body field-type-text-with-summary field-label-hidden"> <div class="field-items"> <div class="field-item even"> <p>President Ronald Reagan announces the resignation of Chief Justice Warren E. Burger, far right, and nominates Justice William Rehnquist, second from right, to the post of Chief Justice and Antonin Scalia, left, as a member of the Supreme Court, during a briefing at the White House on June 17, 1986.</p> </div> </div> </div> </div> </div> <p>The Burger Court made dog-whistle rulings, Steiker found, with the public hearing the reassuring message about the affirmation of rights, while police heard the consequential message that sometimes there is no penalty for a violation of them because, for example, it is judged harmless. There was no counter-revolution about rights for criminal defendants, but there was, Steiker wrote, a “counter-revolutionary war against the Warren Court’s constitutional ‘remedies.’”</p> <p>Under landmark rulings of the Warren Court, a key result was the exclusion of evidence obtained in violation of a right: The exclusionary rule became a staple of cop shows on TV. Steiker calls the results of some later Burger Court decisions “inclusionary rules”—“radical” cutbacks of Warren Court holdings that “permit the use at trial of admittedly unconstitutionally obtained evidence or that let stand criminal convictions based on such evidence” and brought retrenchment in criminal justice. The Court became, Steiker wrote, “less sympathetic to claims of individual rights and more accommodating to assertions of the need for public order.”</p> <p> </p> <p><strong>THE REHNQUIST COURT</strong> continued to maintain rights for criminal defendants while hollowing out remedies, in further retrenchment. With Rehnquist’s ascension to be chief justice, Scalia’s appointment to fill Rehnquist’s seat, and Thomas’s replacement of Thurgood Marshall, by 1991 the Court was more conservative than it had been under Burger. With Sandra Day O’Connor and Anthony Kennedy, there was a conservative majority of five that brought about what the legal scholars Jack M. Balkin and Sanford V. Levinson called “a fundamental shift in constitutional thought and constitutional doctrine.”</p> <p>The new conservative majority ruled that states violating certain federal rights were immune from federal court judgments ordering them to pay money to compensate the victims of those violations, if the federal statute authorizing those lawsuits was based on the constitutional power to regulate commerce. They extended that logic to state court judgments, saying that private parties could not sue states for violations of the same federal laws there either—that would be an affront to states’ dignity. Previously, citizens could sue states when they violated the citizens’ constitutional rights. The Supreme Court had ruled in earlier decisions that, to reach significant national goals, Congress could waive the immunity of states in those kinds of suits.</p> <p>The same five justices limited the power of Congress to pass civil-rights legislation: It could do so only if remedies matched the violations being corrected or prevented. <span class="pullquote">In fact, the premise that race-specific remedies were warranted only when racial segregation was the result of state action overlooked a good deal of state action in the North that had produced segregated housing and thus schooling patterns.</span></p> <p>The conservative majority extended this states’-rights logic to patents, when it struck down laws making a state liable for the intentional infringement of patents; to women who were victims of rape and related violence, when it struck down a law allowing them to sue the people who attacked them; to people who were victims of age discrimination, when it struck down a law allowing state employees to sue the state they worked for; and, eventually, to people who were victims of discrimination because of a disability, when it held that states were immune from lawsuits under the Americans with Disabilities Act. Balkin and Levinson observed that this was part of a “transformation in constitutional doctrine,” which involved “a fairly consistent application of a core set of ideological premises”—limits on federal power, promotion of states’ rights, and very narrow construction of federal civil-rights laws, among other emphases.</p> <p>In most of the 5–4 rulings that restricted the power of Congress and strengthened the sovereignty of states, the majority included three justices whom Reagan appointed (O’Connor, Scalia, and Kennedy) and one he elevated (Rehnquist), with the fifth vote supplied by a justice appointed by George H.W. Bush (Thomas). Major changes in the law of federalism came after Reagan left office, but they followed the Reagan administration blueprint. They resulted from the administration’s emphasis on ideology as an essential criterion for federal judicial appointees, especially to the Supreme Court.</p> <p>The Rehnquist Court’s 2000 ruling by 5–4 in <em>Bush v. Gore</em> was “not dictated by the law in any sense,” the University of Chicago’s David A. Strauss later wrote: The five conservatives flouted judicial restraint and states’ rights, by stopping the Florida Supreme Court from interpreting Florida law and halting the recount of the presidential election before it was finished. After determining that George W. Bush would be elected president, they declared their handiwork a non-precedent. (“Our consideration is limited to the present circumstances.”) That outcome led to the Roberts Court.</p> <p>When Bush appointed Samuel Alito to replace Sandra Day O’Connor, the Supreme Court immediately shifted further to the right. O’Connor had been a member of the Rehnquist Court’s federalism five, but she was a moderate conservative. Alito was a movement conservative, as the Reagan administration called its young lawyers. At a discussion last February at the Center for American Progress, William Yeomans of American University’s Washington College of Law, speaking ironically, described Alito’s jurisprudence as pragmatic and flexible—so that he could use doctrines as necessary to arrive at the set of ideologically driven conclusions reflecting the conservative legal agenda.</p> <p>Yeomans focused on Alito favoring restrictions to the exclusionary rule and defendants’ rights more generally; opposing privacy and the right of women to choose to have an abortion; opposing affirmative action in particular and race-consciousness in government programs in general; supporting a restrictive reading of the commerce power; favoring much more skeptical review of federal regulation; and enthusing about expansion of gun rights, among other positions.</p> <p>By some measures, Rehnquist was the most conservative member of the Court since 1937. But in 5–4 cases where the split was based on ideology, Roberts was the fourth-most conservative justice between 1937 and 2012—and only the 22nd-most conservative in cases where there were three or fewer dissenting votes. Epstein, Landes, and Posner, who did the study leading to these conclusions, wrote about the chief justice: “Thus he is a reliable conservative in the most closely contested cases but moderate when his vote can’t change the outcome. This is consistent with a chief justice’s interest in being on the winning side in most cases; otherwise it looks as if he can’t control his Court.”</p> <p>Roberts’s vote with the Court’s liberals in June of 2012 to uphold most of the Affordable Care Act was a momentous exception to his usual conservative voting, but on the grounds that the law was authorized under Congress’s power to levy taxes and was not valid under the Constitution’s Commerce Clause. Some commentators saw in Roberts’s vote his concern for the legitimacy of the Court, which he has stressed since his first year as essential to maintain so it is seen as a court rather than a political institution. The Court would have trashed its legitimacy if it had intervened in such an intensely political issue and, in the extreme opposite of judicial restraint, had overturned the act. <span class="pullquote">But in Roberts’s opinion in the case, critics also saw a sly and sinister expansion of conservative doctrine on the question of what sort of laws violate the Commerce Clause, which might be invoked in the future to strike down statutes passed to protect the general welfare.</span> A more liberal Court would almost certainly reject Roberts’s effort to resurrect a pre-1937 view of the Commerce Clause.</p> <p> </p> <p><strong>THE SIGNATURE RULING OF THE</strong> Roberts Court is the 5–4 decision in 2010 in <em>Citizens United v. Federal Election Commission</em>, where the conservative majority ruled that money equals speech and that limits on the independent spending of corporations, unions, and other organizations in political campaigns infringed on their right to free speech under the First Amendment.</p> <p>A federal district court had ruled that the main federal law regulating campaign finance applied to a 90-minute campaign film, defining it as “a broadcast communication,” so corporate funds could not pay $1.2 million to a cable operator to let subscribers stream the film for free. The group, called Citizens United, made the film attacking Hillary Clinton as a candidate for president in 2008.</p> <p>The questions the case framed for the Supreme Court were: Did the statute’s curb on broadcasts funded by corporations apply to video on demand? Did an exemption for some nonprofits from the statute’s rule limiting corporate spending cover ideological nonprofits like Citizens United?</p> <div class="right-margin"> <div class="image image-large"> <div class="field-image"><img src="" alt="" title="" /></div> <div class="field field-name-field-credit field-type-text field-label-hidden"> <div class="field-items"> <div class="field-item even">(Photo: White House/Pete Souza)</div> </div> </div> <div class="field field-name-body field-type-text-with-summary field-label-hidden"> <div class="field-items"> <div class="field-item even"> <p>President Obama and Vice President Biden pose for a photo prior to the investiture ceremony for Justice Sonia Sotomayor on September 8, 2009. From left: Associate Justices Samuel Alito, Ruth Bader Ginsburg, Anthony M. Kenney, John Paul Stevens, Chief Justice John Roberts, Obama, Sotomayor, Biden, Associate Justices Antonin Scalia, Clarence Thomas, Stephen Breyer, and retired Justice David Souter.</p> </div> </div> </div> </div> </div> <p>Rather than address those questions about the meaning of the statute, however, the Court decided to address whether, to prevent corruption in politics, the Constitution allows limits on independent spending by corporations and other organizations.</p> <p><em>Citizens United</em> represents judicial activism in the service of judicial supremacy of an extreme kind, swinging for the fences: The Court’s conservatives reached the constitutional issue they wanted to—upending a well-established principle of election law and unleashing a huge new avalanche of so-called independent expenditures by corporations in American politics.</p> <p><em>Citizens United</em>’s protection of the moneyed class in public life can be linked to a series of other decisions the Roberts Court has made protecting that class in the marketplace. For instance, the Court has taken an expansive view of the Federal Arbitration Act to permit clauses in contracts written by corporations that require their employees or customers to pursue any grievances they have in private arbitration rather than a public court. These also undermine class-action remedies.</p> <p>But one in this line of cases, in 2013, called <em>American Express v. Italian Colors</em>, was an antitrust case, making it easier to see the broader importance of this area of law. American Express required merchants that wanted to accept its corporate and premium charge cards to accept as well basic American Express credit cards, at a fee 30 percent higher than fees of other credit cards.</p> <p>The merchants each sought damages of about $5,000, but it would cost each merchant hundreds of thousands of dollars to try to prove an antitrust claim. The arbitration provision in their contracts kept them from sharing the cost or from consolidating their claims, so each was left with no way to press a claim. Italian Colors Restaurant and others argued that, by using its power in the market for the corporate and premium cards to require merchants to accept the third card’s higher costs, the company was subjecting them to a “tying arrangement,” violating federal antitrust law. The plaintiffs argued that, because of the strength of this claim, they should be allowed to proceed as a group. The Supreme Court, by 5–3, ruled that the merchants could not bring a class action against the company even on antitrust grounds: Each had signed a contract that required them to bring complaints through individual arbitration.</p> <p>The University of Texas Law School’s Joseph R. Fishkin and William E. Forbath, in their work in progress called <em>The Constitution of Opportunity</em>, write, “What drives the Court’s view of arbitration and the [Federal Arbitration Act], in the end, is not a deeply considered understanding of congressional intent but a deeply rooted view about the place of private contract ordering in relation to public law.” The Court should have seen that the merchants were challenging a monopolist’s use of its power to get around anti-monopoly law. Instead, the conservative majority did not see the monopoly, treating American Express and each merchant as equal parties who had willingly entered into the contract with the arbitration clause, rather than as unequals, with Amex dictating the terms.</p> <p> </p> <p><strong>SOME OF THE COURT'S SWING BACK</strong> toward the center in important areas of law during its most recent term reflects the death of Justice Scalia, but also was the result of Justice Kennedy marking lines he was unwilling to cross and continuing his role as the occasional but crucial swing vote on the side of the Court’s liberals.</p> <p>The most important ruling of the term was about abortion. By 5–3 in <em>Whole Woman’s Health v. Hellerstedt</em>, on the term’s last day, the Supreme Court struck down two provisions of a Texas statute that made it much more difficult for many women to have an abortion, without any medical benefits for them from these so-called health-and-safety provisions. Kennedy cast the critical vote. As the most senior of the justices in the majority, he chose Stephen Breyer to write for it. Breyer wrote the Court’s most significant statement about abortion in 24 years.</p> <p><span class="pullquote">The ruling was widely greeted as strong evidence of a turn to the left by the Court, because it protected the right of abortion from the state provisions.</span> But it was really a decision not to turn further to the right, a signal that the Court was satisfied with the restriction-favoring balance it struck a generation ago, which allowed states to enact all but the most extreme restrictions on women’s access to abortion. Texas had taken full advantage. From 1992 until 2011, the rate of abortion in the state dropped by 43 percent (in the same period, the rate throughout the U.S. dropped by 34 percent).</p> <p>A key question was how the Court would apply the legal standard of that generation-old case, <em>Planned Parenthood v. Casey</em>: Would it retain respect for a woman’s right to choose an abortion or to carry her pregnancy to term, along with deference to a state that wanted to protect life throughout a pregnancy? Or would it let Texas’s anti-abortion politics further change American law, by restricting the Court’s protection of a woman’s right to choose and the dignity that represents?</p> <p>With the replacement of the liberal Marshall by the conservative Thomas at the beginning of the 1991–1992 term, it had seemed quite possible in <em>Casey</em> that the Court led by the conservative Rehnquist would overturn <em>Roe v. Wade</em> and declare that there was no constitutional right for a woman to choose an abortion. The papers of Blackmun showed that Rehnquist drafted an opinion that would have overturned Roe.</p> <p>Instead, Kennedy joined O’Connor and Souter, to make a moderate plurality of three. Out of respect for <em>stare decisis</em>—standing by a decision made—they reaffirmed “the essential holding” in Roe: Women retained the constitutional right to choose. With abortion, they wrote, “the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law.”</p> <p>But the justices employed a different way of analyzing statutes regulating abortion. <em>Roe</em> had strongly protected the right to choose by requiring a state to meet a high standard in justifying any abortion-related regulation. Casey shifted the responsibility of proving a law was unconstitutional to supporters of abortion, with a test about “undue burden”—a legal restriction with “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Breyer’s 2016 opinion clarified that test, by focusing on how to calibrate the effect. He introduced a balancing of burdens and benefits.</p> <p>One of the Texas provisions required that a doctor performing, or inducing, an abortion must have admitting privileges at a hospital within 30 miles. The other required that an “abortion facility” meet the “minimum standards” for ambulatory surgical centers under Texas law—specifications about the size of the nursing staff, the dimensions of the building, and so on.</p> <p>Neither requirement conferred any benefit, Breyer wrote. Doctors providing abortions were already required to have admitting privileges at a local hospital or a working arrangement with a doctor who did, “to ensure the necessary back up for medical complications.” And, as the factual record in the case showed, “abortion in Texas was extremely safe with particularly low rates of serious complications and virtually no deaths occurring on account of the procedure.”</p> <p>In addition, the factual record showed, ambulatory surgical centers would not significantly lower the already low risks of abortion. Between 2001 and 2012 in Texas, five deaths occurred as a result of abortions—“or about one every two years,” Breyer wrote. The risk of death during childbirth nationally was 14 times as great. On the other hand, the record was full of evidence about substantial burdens. When Texas began to enforce the admitting-privileges requirement, the number of clinics in the state providing abortions was cut in half, from about 40 to about 20.</p> <p>Breyer concluded: “In the face of no threat to women’s health, Texas seeks to force women to travel long distances to get abortions in crammed-to-capacity superfacilities. Patients seeking these services are less likely to get the kind of individualized attention, serious conversation, and emotional support that doctors at less taxed facilities may have offered.” All of this was likely to be “harmful to, not supportive of, women’s health.”</p> <p>Before a second central 2016 end-of-term decision, <em>Fisher v. University of Texas</em>, proponents of affirmative action were braced for the worst, given previous rulings signaling its end. But the Court decided that a Texas admissions plan that took race into account was constitutional. Kennedy was the author of the 4–3 decision. In 2003, he had dissented in the most recent previous case upholding the use of racial criteria in higher-education admissions. In 28 years on the Court, he had never voted for an affirmative-action program. This time, he wrote that universities deserve some leeway in pursuing multiple goals in assembling a student body—like ending racial stereotypes and preparing students for a diverse society—as long as a university’s goals are “sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.”</p> <p>This came on the heels of <em>Obergefell v. Hodges</em>, the celebrated case at the close of the 2015 term, with Justice Kennedy writing for a 5–4 majority, in which the Court ruled that the fundamental right to marry under the Constitution applies to people of the same sex. But Kennedy’s votes in the same-sex marriage, affirmative action, and abortion cases, while welcome and, in my view, correct, should not be taken as signs of a shift to the left by the Court as a whole. Last term, the Court’s decisions in general were measurably more conservative than they were the term before. And the decisions of that term in general, while seemingly more liberal than in any term of the Republican Court going back five decades, were also strikingly narrow and, in critical cases, notably less liberal than they were reported as being.</p> <p>In 2015, in <em>Texas Department of Housing and Community Affairs v. The Inclusive Communities Project</em>, Kennedy joined the liberals in upholding a key part of the Fair Housing Act, which protects against discrimination in renting, buying, or getting financing for housing. The relevant part prohibits policies adopted for an ostensibly neutral reason that have a “disparate impact,” or discriminatory effect, on housing opportunities for minorities. Texas’s extreme goal was to get the Court to narrow the statute by saying a plaintiff would have to prove that the discrimination was intentional. To keep that from happening, it was very likely that the liberals who joined Kennedy in the housing decision had to agree to a weak endorsement of disparate-impact lawsuits and to new limitations on them, which Kennedy spelled out. As in his affirmative-action opinion this past June, Kennedy’s strongest language in the housing opinion warned against overuse of the race-conscious remedy and encouraged vigilance against policies that reduce citizens to “nothing more than their race.”</p> <p> </p> <p><strong>THE JUSTICES COMPRISING THE MAJORITY</strong> on the most conservative Court in 80 years did not move to the left during the last two terms. But when Justice Scalia died in the middle of last term, leaving the Court with equal numbers of conservatives and liberals, the Court and its dynamics changed instantly. It entered a zone of uncertainty—for the justices, about the Court’s center of power; for the country, about the Court’s political character. One of the most significant decisions of the term was its 4–4 tie in the major case about Obama’s 2014 executive order on immigration. The tie illustrated how uncertain the Court’s near-term future is.</p> <p>The central question of the immigration case was whether, by giving immigration officers the option of deferring the deportations of some immigrants in this country illegally, the Obama program gave them legal immigration status and a path to citizenship. In immigration law, “legal status” refers to the status of being accepted in the U.S. under federal law—as a documented immigrant, a non-immigrant with a temporary visa, or someone on parole in the immigration system. The Obama executive order, the government said explicitly, did “not confer any form of legal status in this country” and the deferred deportation policy could “be terminated at any time at the agency’s discretion.”</p> <div class="right-margin"> <div class="image image-large"> <div class="field-image"><img src="" alt="" title="" /></div> <div class="field field-name-field-credit field-type-text field-label-hidden"> <div class="field-items"> <div class="field-item even">(Photo: Flickr/MitchellShapiroPhotography)</div> </div> </div> </div> </div> <p>“Unlawful presence” is the status of immigrants who have not been formally admitted to the country or granted parole, or who have stayed longer than the time they were granted. “Lawful presence” describes the circumstance of an immigrant lacking legal status, when the government chooses not to enforce the law against him or her—as the government put it, “to countenance that person’s continued presence in the United States” until it decides not to. Lawful presence does not mean legal presence. It is not a synonym for legal status.</p> <p>But in the lawsuit brought by Texas and eventually 25 other red states, a federal district judge in Texas accepted the bumper-sticker argument that lawful presence equals legal status and barred the program from going into effect throughout the United States. The U.S. Court of Appeals for the Fifth Circuit upheld that decision twice by 2 to 1. The Supreme Court upheld it as a result of its 4–4 split. At every step of the way, the judges appointed by Republicans voted the way Republicans favored and the judges appointed by Democrats voted the way Democrats favored. A case about the most ideologically charged subject in American life turned into one in which politics and law could not be differentiated, making law seem another venue of politics and the judges who made the legal decisions seem like politicians in robes.</p> <p> </p> <p><strong>A LIBERAL FANTASY IS THAT A COURT</strong> with a new liberal majority would reverse what the old conservative majority did in the <em>Shelby County</em> case of 2013, when it struck down the heart of the Voting Rights Act. The 1965 law required preclearance of changes in voting systems by states, or parts of states, with histories of discriminating against black and other minority voters. Chief Justice Roberts, writing for the majority, contended that preclearance was no longer necessary, because voting practices had changed. But as soon as the <em>Shelby County</em> decision came down, states and localities began reverting to discriminatory tactics.</p> <p>Even so, it would be extremely unusual for the Court to reinstate a provision of law that had been struck down as unconstitutional by a prior Court—and impossible for the Court to do that in this case, unless the Justice Department tries to force the issue by insisting on preclearance from designated jurisdictions, in defiance of the <em>Shelby County</em> ruling. That has not happened and is highly unlikely to. Otherwise, there is no way for the Court to reach the issue. And unless Democrats take back both houses, Congress is not going to revise the Voting Rights Act anytime soon.</p> <p>Nonetheless, a federal judge can require preclearance under another section of the Voting Rights Act that remains good law, if the judge finds that voting discrimination was intentional. This issue is coming up in cases about “voter denial,” the number of which has surged, among other reasons, because <em>Shelby County</em> struck down the means of blocking denials. A liberal majority would likely uphold that requirement. A conservative majority would be unlikely to find intentional discrimination often, but it would also be unlikely to strike down that part of the law. Stanford Law School’s Pamela S. Karlan, who worked on voting-rights cases in the Obama Justice Department, argues in a forthcoming law-review article that “a nascent revival of judicial concern with poverty” is strengthening the tools judges have for rooting out and rejecting manipulations of voting rules that exclude poor minority voters. A liberal majority would likely uphold this use of such tools. A conservative majority would be unlikely to.</p> <p>The summer decision by the U.S. Court of Appeals for the Fourth Circuit that struck down key parts of a North Carolina voting law was a reminder that the Voting Rights Act, coupled with the Constitution, contains provisions that need no strengthening to keep states from imposing requirements that would make it difficult for people to vote who are poor or members of a minority group. Based on a “massive record,” the Fourth Circuit held that the state’s legislature, “with almost surgical precision” and “with discriminatory intent,” enacted five restrictions designed to deny African Americans the right to vote. The Supreme Court’s 4–4 decision not to stay the circuit’s ruling so some of the restrictions could go into effect made explicit the difference that Justice Scalia’s death made in this area of civil rights. While there was a point of disagreement among the Court’s remaining conservatives, the four voted in favor of the state’s request. But none of the four liberals—all of them dissenters in <em>Shelby County</em>—provided the fifth vote needed to grant the stay.</p> <p><span class="pullquote">A liberal majority on the Supreme Court would likely make a profound difference in cases about the relationships between money and power in commerce and in politics.</span> It is unlikely that the Court will reconsider its ruling about forced arbitration in <em>Italian Colors</em> anytime soon, but it will have opportunities to consider the logic of that decision applied to employment contracts, because there is a fundamental split in the federal circuits about that.</p> <p>Until this year, the uniform view among four federal circuit courts was that employers, like credit-card issuers, banks, cellphone-service providers, and many other companies selling to consumers, could make individuals give up legal remedies, like the option of taking the company to court. But in May, in an important opinion written by Chief Judge Diane P. Wood, the Seventh Circuit held that an employer couldn’t force an employee to give up the remedy of a class action. The opinion said that doing so violates a section of the National Labor Relations Act guaranteeing employees the right to form unions, bargain collectively, and “engage in other concerted activities” for their “mutual aid or protection,” like bringing class-action lawsuits. The labor law doesn’t conflict with the Federal Arbitration Act, the judge wrote, since the arbitration law has a clause saying that it cannot violate contract law. Since the labor law makes the arbitration agreement illegal, that part of the contract is unenforceable. The issue is important enough, and the circuit split serious enough, that the Supreme Court is likely to consider the matter. A liberal majority is likely to uphold the view of the Seventh Circuit. A conservative majority is not.</p> <p>Also in May, the Consumer Financial Protection Bureau proposed rules that would prohibit mandatory arbitration clauses denying consumers their day in court. The rules are based on a comprehensive report the agency released in 2015, which found that credit cards accounting for more than half of card debt and banks holding almost half of insured deposits included clauses in their contracts with consumers requiring the use of arbitration to resolve problems with the companies—and reducing consumers’ likelihood of getting financial redress. This is the most prominent example of a federal agency restricting forced arbitration, and each of the restrictions will almost certainly be challenged in court. Soon enough, the Supreme Court will likely review the bureau’s rules. A liberal majority is likely to uphold the CFPB’s view. A conservative majority is not.</p> <p>It is unlikely that, anytime soon, the Court will reverse what the conservative majority did in <em>Citizens United </em>and reinstate the limits on independent spending by corporations, unions, and other organizations in political campaigns. But liberal groups are talking about how to limit the influence of super PACs, which, as Fred Wertheimer of Democracy 21 commented, are “the biggest single problem” to come out of that case. In 2010, two months after <em>Citizens United</em>, the U.S. Court of Appeals for the District of Columbia Circuit struck down the $5,000 limit for contributions from individuals to independent political groups. The court said that the only interest that could justify the limit is “preventing corruption or the appearance of corruption” and, in <em>Citizens United</em>, “the Court held that the government has no anti-corruption interest in limiting independent expenditures.” That was because the Court narrowed the definition of corruption to mean only quid-pro-quo corruption—a direct exchange of an official act for money. But the Supreme Court did not review the appeals court decision, and what the country has learned in the past six years about the consequences of <em>Citizens United</em> could lead a Court with a liberal majority to take a case about, say, a state ballot initiative calling for a $5,000 limit for contributions from individuals to independent political groups.</p> <p>In 2014, in <em>McCutcheon v. Federal Election Commission</em>, the Court applied its narrow definition of corruption to aggregate limits on contributions from individuals to political candidates, political parties, and political action committees and struck down those limits on the grounds that they did little to nothing to combat that form of corruption, “while seriously restricting participation in the democratic process.” In dissent, however, Justice Breyer wrote about his view of the Court’s decision: “Its conclusion rests upon its own, not a record-based, view of the facts. Its legal analysis is faulty: It misconstrues the nature of the competing constitutional interests at stake. It understates the importance of protecting the political integrity of our governmental institutions. It creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.”</p> <p>Breyer’s prediction about the loophole and the millions from single individuals that are gushing through it has come true, with the effect he explained in his dissent: “Where enough money calls the tune, the general public will not be heard.” He elaborated, “Corruption breaks the constitutionally necessary ‘chain of communication’ between the people and their representatives.” He explained why “the kinds of corruption that can destroy the link between public opinion and governmental action extend well beyond” what the old conservative majority set out in <em>Citizens United</em>: They include what Breyer called “privileged access to and pernicious influence upon elected representatives.”</p> <p>A test of contribution limits before a liberal majority would provide the opportunity for the Court to define corruption again as it was defined for 34 years until <em>Citizens United</em>. It would provide the opportunity for the Supreme Court to begin redefining itself as a safeguard, not of the moneyed class and its prerogatives, but of popular self-government and American democracy.</p> <p> </p> <p><strong>THE COURT IS ATTUNED</strong> to the verdicts of politics and to efforts of citizens to move public opinion and change the law. The Court’s 2015 ruling in the same-sex marriage case was the product of a 20-year citizen campaign, in politics and law. The Court’s 2008 ruling that guarantees a right of individuals to own guns for personal use was the product of a 30-year citizen campaign.</p> <p>Citizens have the power to determine what the Constitution stands for today. They can do that through extended efforts, like the successful same-sex marriage movement or the growing movement to overturn <em>Citizens United</em> by constitutional amendment. They can do that with their vote for president.</p> <p>If she is elected, Hillary Clinton will have the chance to transform the Court and its application of the Constitution. She would likely appoint justices who believe that the Court must protect the rights of employees and consumers as well as those of corporations, and must protect the rights of individuals as well as the security of the state. She would likely look for justices who favor equality as well as liberty, real pragmatism over ersatz originalism, and law as a fair process rather than a raw assertion of power. Her election would give the Court a progressive majority, for the first time in half a century.</p> </div></div></div> Mon, 10 Oct 2016 09:00:09 +0000 226000 at Lincoln Caplan The Junior Justice <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><em>This article appears in the Spring 2015 issue of </em>The American Prospect <em>magazine. <a href="**EF1"><strong>Subscribe here</strong></a>.</em></p> <p><em>Celebrate our 25th Anniversary with us by <strong><a href="">clicking here</a></strong> for a free download of this special issue</em>.</p> <p> </p> <p><span class="dropcap">O</span>n the last day of Elena Kagan’s first term as a justice, in 2011, the Supreme Court announced an important decision about government limits on money in politics. The Court struck down the Arizona Citizens Clean Elections Act, which provided public funding for candidates who agreed to limit their overall spending in state campaigns. When a privately funded candidate spent money on advertising, for example, the state gave publicly funded candidates roughly the same amount up to specific limits.</p> <p>The Court majority held that the matching funds that these candidates received “penalized” opposing candidates as well as groups making independent expenditures, and, as a result, “burdened their ability to fully exercise their First Amendment rights.” No interest of the state, not even ending an epidemic of corruption, the Court ruled, was vital enough to justify the burdens. The vote was 5–4, reflecting the Court’s general polarization along party lines for the first time in American history: The five conservatives in the majority were appointed by Republican presidents, the four moderate liberals in dissent, by Democrats.</p> <p>Kagan wrote the dissenting opinion, a dissent that helps define her as a justice. The Court’s decision was the fifth in five years striking down a restriction on campaign finance, but the first since the momentous ruling in <em>Citizens United</em> a year and a half before, in which the Court held that the government could not limit independent spending by corporations in elections. Justice Anthony Kennedy wrote the majority opinion that released billions of dollars into American politics.</p> <p>In the Arizona clean elections case, <em>Arizona Free Enterprise Club v. Bennett</em>, Chief Justice John G. Roberts Jr. assigned himself the majority opinion. It had the single-mindedness of a first-rate legal brief. Suppose a “privately funded candidate spent $1,000 of his own money to conduct a direct mailing,” Roberts hypothesized. “Each of his publicly funded opponents would receive $940 ($1,000 less the 6 percent offset).” The prospect of that matching money burdened the privately funded candidate, whether or not he did the mailing and his publicly funded opponents actually received the match.</p> <p>By Roberts’s Alice-in-Wonderland logic, if a candidate decided not to do a mailing so as to keep opponents from getting the matching funds, it was the fault of those undisbursed funds that he was deprived of the speech he would have expressed through the mailing. Or if he went ahead with the mailing and opponents got the funds, the funds reduced the impact of his mailing and therefore of his speech. In other words, a law intended to increase speech would paradoxically retard it.</p> <div class="right-margin"> <div class="image image-large"> <div class="field-image"><img src="" alt="" title="" /></div> <div class="field field-name-field-credit field-type-text field-label-hidden"> <div class="field-items"> <div class="field-item even">Steve Petteway, Collection of the Supreme Court of the United States</div> </div> </div> <div class="field field-name-body field-type-text-with-summary field-label-hidden"> <div class="field-items"> <div class="field-item even"> <p>With Sonia Sotomayor, Ruth Bader Ginsburg, and Kagan, the Court has three female justices for the first time.</p> </div> </div> </div> </div> </div> <p>It made sense for Justice Ruth Bader Ginsburg, as the senior dissenting justice, to assign the dissenting opinion to Kagan. When she was a law professor, Kagan had a particular interest in free speech under the First Amendment. As solicitor general for the Obama administration, her first argument before the Supreme Court (her first argument before any appeals court) was in Citizens United in 2009, defending the part of the campaign-finance statute restricting corporate spending in elections that the Court soon struck down. But none of that predicted how fresh, lucid, and powerfully cogent her dissent would be in the Arizona campaign-finance case. </p> <p>“Imagine two States, each plagued by a corrupt political system,” she began, addressing the reader directly and adding to the sense of immediacy by using the present tense. “In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors’ interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government.”</p> <p>One state adopts campaign finance measures approved by the Supreme Court: caps on contributions to campaigns; disclosure of big donations; and a limited public funding program. The measures don’t work and corruption continues to reign. The other state concludes that “the greatest hope of eliminating corruption lies in creating an effective public financing program, which will break candidates’ dependence on large donors and bundlers,” and that candidates must “receive sufficient funding to run competitive races.” The program, using matching funds, “accomplishes its mission of restoring integrity to the political system.”</p> <p>Arizona was the second state. It adopted public matching after AzScam, a public corruption scandal of gargantuan scale in which “nearly 10 percent of the State’s legislators were caught accepting campaign contributions or bribes in exchange for supporting a piece of legislation.” Kagan explained, “If an officeholder owes his election to wealthy contributors, he may act for their benefit alone, rather than on behalf of all the people.” With its program, Arizona met “the challenge that bedevils all public financing schemes: Fixing the amount of the subsidy.” It was “the Goldilocks solution, which produces the ‘just right’ grant to ensure that a participant in the system has the funds needed to run a competitive race.” Rather than restricting speech, the program did the opposite: “What the law does—all the law does—is fund more speech.”</p> <p>But the candidates for office in Arizona who had challenged the law were demanding “essentially a right to quash others’ speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing—and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this Court to prevent Arizona from funding electoral speech—even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this Court gladly obliges. If an ordinary citizen, without the hindrance of a law degree, thought this result an upending of First Amendment values, he would be correct.”</p> <p><span class="pullquote">Kagan’s dissent carried on with the same clarity, frankness, and solicitude for us, the readers.</span> Her closing section went like this:</p> <p>“This case arose because Arizonans wanted their government to work on behalf of all the State’s people. On the heels of a political scandal involving the near-routine purchase of legislators’ votes, Arizonans passed a law designed to sever political candidates’ dependence on large contributors. They wished, as many of their fellow Americans wish, to stop corrupt dealing—to ensure that their representatives serve the public, and not just the wealthy donors who helped put them in office. The legislation that Arizona’s voters enacted was the product of deep thought and care. It put into effect a public financing system that attracted large numbers of candidates at a sustainable cost to the State’s taxpayers. The system discriminated against no ideas and prevented no speech. Indeed, by increasing electoral competition and enabling a wide range of candidates to express their views, the system ‘further[ed] … First Amendment values.’” (The quote is from another Court opinion.) “Less corruption, more speech. Robust campaigns leading to the election of representatives not beholden to the few, but accountable to the many.</p> <p>“The people of Arizona might have expected a decent respect for those objectives. Today, they do not get it.”</p> <p> </p> <p><strong>KAGAN IS THE ONLY JUSTICE</strong> on the current Court with no prior experience as a judge. That turns out to be a notable plus. She is increasingly recognized as an outstanding writer of judicial opinions after almost five years on the Court. In a point-by-point comparison of conceptual insight, persuasiveness, eloquence, and argumentative verve, Kagan surpasses the other current justices in the quality and logic of her prose. It is premature to compare her with Justices Oliver Wendell Holmes Jr., Louis D. Brandeis, Robert H. Jackson, or other Olympian writers of the Court since it first sat in 1790, but, in one way, she already stands out even in that company. </p> <p>Alone among the current justices and different from any before, Kagan in her major opinions addresses the American public as her readers, as if being a justice obliges her to say simply and directly why what the Court has decided matters for us. That is so whether she is writing for the majority, as she has in about two-thirds of her opinions, or in dissent, in about one-fourth of them, and is often expressed in small turns with large implications.</p> <p>Last May, for instance, in <em>Town of Greece v. Galloway</em>, a major ruling about the role of religion in government, there were five different opinions, including a Kagan dissent. The Constitution was referred to as “the Constitution” in each of the other opinions, as it normally is. In Kagan’s, on the other hand, it was “our Constitution,” as in “Our Constitution promises …” and “our Constitution makes a commitment ….”</p> <p>In a public conversation at Princeton University last November, she was asked what her toughest decision had been so far as a justice. She answered in the vernacular familiar from her opinions: “It was a case about whether kids could buy violent video games without their parents’ permission.” California had passed a statute saying that they couldn’t. The Supreme Court struck down the law 7–2, with Kagan in a majority of five holding that the First Amendment fully protects depictions of violence, from Dante’s <em>Inferno</em> to Grimm’s <em>Fairy Tales</em> and now to violent video games like “Grand Theft Auto: Vice City.”</p> <div class="right-margin"> <div class="image image-large"> <div class="field-image"><img src="" alt="" title="" /></div> <div class="field field-name-field-credit field-type-text field-label-hidden"> <div class="field-items"> <div class="field-item even">(Courtesy of Princeton University)</div> </div> </div> <div class="field field-name-body field-type-text-with-summary field-label-hidden"> <div class="field-items"> <div class="field-item even"> <p>Kagan's 1981 Princeton yearbook portrait</p> </div> </div> </div> </div> </div> <p>Kagan said that she is “not usually an agonizer,” adding, “I don’t do a lot of Hamlet sort of stuff,” but in this case she had. To the justice, if a parent doesn’t want her kids to buy violent video games, she deserves the backing of the law. But the California law was at odds with well-established law under the First Amendment, and she could not figure out how to square that law with the state restriction. She finished her answer by trailing off, “That’s the one case I kind of think, I just don’t know, I just don’t know if that’s right.” The answer identified her with California parents and, by proxy, with anyone truly affected by a ruling of the Court against them.</p> <p>Along with Roberts, Kagan is the only justice who can be entertaining without seeming to work at it. She is usually upbeat and down-to-earth, with a high-wattage smile and a wisecracker’s sense of humor. She keeps that in check most of the time, with an affable manner. At Princeton, surprisingly, she was asked if she had been hazed when she first arrived on the Court. Even more surprising, Kagan said yes, answering in a way that was both tongue-in-cheek and informative.</p> <p>The newest member of the Court, she reminded the audience, is called the “Junior Justice.” At meetings of the Court to decide cases, Kagan explained, only the justices attend. “So somebody has to do two things. The first is that somebody has to take notes, so you can then go out and tell people what just happened, and I take notes. That’s the Junior Justice’s job. The other thing is that you have to answer the door when there’s a knock on the door. Literally, if there is a knock on the door and I don’t hear it, there will not be a single other person who will move. They just all stare at me until I figure out, ‘Oh, I guess somebody knocked on the door.’ These two jobs, the note-taking and the door-opening—you can see how they can get in the way of each other, right? You might say, what do people knock on the door for? Why does anybody knock on the door? Knock, knock—I’m not going to name names—‘Justice X forgot his glasses.’ Knock, knock, ‘Justice Y forgot her coffee.’ There I am, hopping up and down. I think that’s a form of hazing, don’t you?”</p> <p>Appearances like Kagan’s Princeton visit, which all the justices make, are attempts to humanize a Court that is increasingly distrusted. In the past 15 years, the Court’s approval ratings have trended downward significantly (from 62 percent to 44 percent) and its disapproval ratings have trended upward even more (25 percent to 48 percent). In cases where law and politics seem to fuse, the kind decided by five Republicans over four Democrats, politics often appears to shape the law explicitly—making the Court seem more like the elected branches of government in a period when their standing is starkly low.</p> <p>The Court has had two big opportunities in recent years to earn public trust by making itself more accessible and more accountable, and has pointedly declined both. The first is to allow cameras in the courtroom, as other supreme courts have done throughout the United States and in other countries. The second is to require the justices to follow the code of ethics that is binding on other federal judges and to adopt a formal process for handling motions that ask justices to recuse themselves from hearing a particular case. The justices are the only American judges not bound by an ethics code. Each proposal enjoys bipartisan support and has been framed to respect the dignity of the justices and the Court. Its high-handedness in rejecting both has reinforced the perception of its remoteness. That is symbolized by the decision to close the Court’s bronze front doors, which Justice Stephen Breyer, in an unusual dissent from that choice, called “a metaphor for access to the Court itself.”</p> <p>Against this backdrop, Kagan is engaged in a remarkable democratic experiment. In a voice that is sometimes closer to journalism than to judicial prose, her opinions are locating cases and controversies in the fundamental currents of American history, as well as in the thickets of the legal process. <span class="pullquote">Speaking directly to Americans, Kagan offers inspiration when it is unexpected and sounds off against unfairness. She marks the path to redemption in areas of law that seem battered by politics.</span> In unhurried, unstuffy, and unadorned prose, her opinions are, by turns, serious, combative, cheeky, and elegiac, while addressing the law with warmth and intelligence. Her opinions seem crafted to gain, or regain, trust. They are easing those doors open again.</p> <p> </p> <p><strong>KAGAN'S FIRST MEMORY OF</strong> writing involves her mother. At home in New York City where Kagan was born and grew up, the two would go over her elementary school reports due as homework, line by line. Her mother, Gloria, was short, hyper-energetic, and brainy, as Kagan is. At Hunter Elementary School, where the justice went before going to Hunter High School, Mrs. Kagan taught language arts: grammar, punctuation, and writing. She had a rich, precise vocabulary, a former student of hers said recently, which she did not dumb down for her fifth- and sixth-graders. She taught her students the practice of looking closely, whether at the words and meter of a Keats poem or at the images on a Chinese scroll. She also taught them how to fold a newspaper so it was easy to read on the subway. She was a demanding, often prickly teacher, but she occasionally gave a word of praise that reassured her students how well she knew each one. Some adored her. How she taught her students suggests how she taught the future justice. “She had very high standards,” Kagan told Bryan Garner, the word maven and legal editor. “But I learned a lot from her and can count many years’ worth of students who learned a lot from her.”</p> <div class="right-margin"><span style="font-size: 13.0080003738403px; line-height: 20.0063037872314px;"> <div class="image image-large"> <div class="field-image"><img src="" alt="" title="" /></div> <div class="field field-name-field-credit field-type-text field-label-hidden"> <div class="field-items"> <div class="field-item even">Creative Commons</div> </div> </div> <div class="field field-name-body field-type-text-with-summary field-label-hidden"> <div class="field-items"> <div class="field-item even"> <p>Kagan graduates from Harvard Law School in 1986.</p> </div> </div> </div> </div> <p></p></span></div> <p>The mentor who helped Kagan become a writer was Sean Wilentz, a Princeton professor who won the Bancroft Prize for <em>The Rise of American Democracy</em>. In his second year on the history faculty in 1980, when he was 29 and Kagan 20, he advised her on her senior-year thesis about socialism in New York City. He was from the city (his father owned the Eighth Street Bookshop in Greenwich Village) and was also doing research about New York for his first book, which was about the city and the rise of the American working class.</p> <p>Kagan said to Garner, “That experience was probably the first time in my life when somebody who himself was a fabulous writer spent so much time, sentence by sentence, telling me what I could do better.” When she was nominated for the Court in 2010, Wilentz talked about her on the <em>Charlie Rose</em> show. Doing history takes “a tenacity of investigation,” he said, and Kagan had it. “She has an ability to enter into other peoples’ arguments,” he went on. “That’s a special kind of brilliance, to understand what your adversaries are talking about, to understand what they are saying. To pick up an object and look at it from all the angles, top to bottom. That is something Elena can do with great detachment. That requires not just smarts. It requires self-confidence—self-confidence in your own position—to do that. She has plenty of that.”</p> <p>The title of Kagan’s thesis was “To the Final Conflict: Socialism in New York City, 1900–1933,” referring to “The Internationale,” the left-wing anthem with the refrain: “’Tis the final conflict/Let each stand in his place/The International Union/Shall be the human race.” The paper addressed the question of why there wasn’t an influential socialist movement in the United States, given what she described as the “American discontent with the nation’s hardening corporate order” in that period. Three leading historians had found answers in external factors, like the lack of rigid class distinctions in the United States. Kagan brazenly rejected those arguments.</p> <p>She answered the question by looking closely at New York City and what “caused the strange death of socialism” there. The answer was internal factors and, basically, self-destruction. A “right-left cleavage arose” among socialists over “the very fundamentals of socialism itself,” such as the class composition of a socialist party or the attitude the party should take toward non-radical reforms. The two camps engaged in “constant and acid debate” and doomed the Socialist Party.</p> <p>Kagan graduated <em>summa cum laude</em> and Phi Beta Kappa from Princeton in 1981. Writing about socialism was the first of a series of life choices indicating that, when defining her own politics, she looked to the left. It is also evidence that she was prodigiously young when she demonstrated her “tenacity of investigation” and what Wilentz called her “historical consciousness”—her understanding of large national choices in the context of American history.</p> <p>Her accomplishments between Princeton and the Supreme Court went like this: an M. Phil. from Oxford in 1983; a J.D. <em>magna cum laude</em> from Harvard Law School in 1986, where she was second-in-command of the <em>Harvard Law Review</em> (and runner-up for president to Carol S. Steiker, now a Harvard law professor); a clerkship with an old-fashioned liberal, Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit, from 1986 to 1987; a clerkship with the civil rights hero Justice Thurgood Marshall, during the 1987 term of the Supreme Court; two years as a junior lawyer in Washington, D.C., at Williams &amp; Connolly, an elite firm specializing in litigation; four years as an assistant professor of law at the University of Chicago Law School; four years in the Clinton administration, first as associate counsel under Abner Mikva, by then counsel to the president (Clinton nominated her to the D.C. Circuit in 1999, but Republicans refused to let the Senate consider her), and then as deputy assistant to the president for domestic policy; two years as a professor of law at Harvard from 2001 to 2003; appointment as the first female dean of Harvard Law School; appointment as the first female solicitor general in 2009; and a year and five months later, appointment as a justice in August of 2010.</p> <p>To some, this journey suggests that Kagan is a creature of power. <span class="pullquote">She is, more importantly, a student of power, as a practitioner and a scholar, with a liberal bent and a principled turn of mind.</span> As an oral advocate before the Court and a leader of the solicitor general’s office during her brief tenure, she exceeded expectations. But her relationship with the justices during the six arguments she made was sometimes testy, a result of her combativeness and the chief justice’s reported perception that she did not defer enough to the bench.</p> <p>In the 20 years before she got there, she spent 14 as a problem-solver and six as a scholar. As a justice, she is both. Her judicial opinions are fresh in part because they reflect what she has learned by immersing herself in what is often for her a new area of law and thinking her way to a resolution of the case. Her approach as a justice is strikingly deliberate: In the four Court terms before the current one, she wrote fewer opinions than any of her colleagues—60 percent of the average for the other eight justices.</p> <p>Kagan’s openness of mind serves her well on a court that is deeply conservative yet led by a chief justice who, by most accounts, is concerned about the Court’s legitimacy and pursues common ground. The justices did that last term to a surprising degree, with two-thirds of the cases unanimously decided. (On the other hand, the University of Chicago’s David Strauss told <em>The New York Times</em>, “A lot of the unanimity is ersatz,” because many of the decisions were narrow, to avoid surfacing severe disagreements among justices.) Kagan’s undogmatic approach means that she, like Roberts, tries to find opportunities for common ground. A case may bitterly divide the Court, but the next one brings a new day. She is eager to be influential on the Court.</p> <p>For that reason, her dissenting vote has been missing in cases where you might expect to find it. In 2013, the Court denied an appeal to review the outrageous practice in Alabama of state trial judges having the power to overrule juries that don’t impose the death penalty on a convicted criminal. Justice Sonia Sotomayor responded with a powerful dissent joined in part by Breyer, in which she listed each of the 95 cases where judges had overridden juries and turned a life sentence into a death sentence. During a public conversation at Yale Law School, journalist Linda Greenhouse asked Sotomayor why Justices Ruth Bader Ginsburg and Kagan hadn’t joined so there were enough votes to hear the case. “People don’t join for a variety of reasons,” Sotomayor said. She made very clear that not joining did not necessarily mean not agreeing.</p> <p>The most dramatic example of a missing Kagan vote was in 2012 in the Affordable Care Act case. In a ruling that will be part of the chief justice’s legacy, Roberts defied almost all predictions by joining the moderate liberals to uphold the statute, 5–4. The Court also ruled on a Medicaid provision of the statute, aimed at covering 17 million people who were uninsured. The act provided that the federal government would fund the expansion if a state committed to undertake it—but the government would no longer fund the state’s current Medicaid program if it refused. By 7–2, the Court ruled the provision unconstitutional as being coercive. Kagan and Breyer joined the conservatives in that decision. To some Court-watchers, Kagan had abandoned the president who appointed her and was a traitor to the liberal bloc.</p> <p>There was another ruling buried in the case, however: By 5–4, again with Roberts joining the moderate liberals, the Court majority upheld the Medicaid expansion as a voluntary program. The chief justice: “The question here is whether Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whether to participate in the new Medicaid expansion. … We are confident that Congress would have wanted to preserve the rest of the Act.”</p> <p>It is now widely understood that the chief justice was preparing to overrule the entire statute, but changed his mind, leaving the four other conservatives in the minority and joining the moderate liberals to uphold most of the act. Kagan and Breyer did something similar with their Medicaid votes. By joining Roberts in holding that the Medicaid expansion was constitutional as a voluntary program, they saved part of the expansion. As of March 2015, 28 states plus the District of Columbia, roughly half the country’s population, had opted for the expanded Medicaid program, and six other states were considering doing the same. It remains to be seen how the Roberts court will use this ruling to constrain federal mandates in other joint federal-state programs.</p> <p>In the January 2015 issue of the <em>Journal of Legal Studies</em>, Lee Epstein, William M. Landes, and Richard A. Posner update ideological rankings they made of all justices from 1937 to 2009 in their 2013 book, <em>The Behavior of Federal Judges</em>. This time, they included Kagan based on her first three terms as a justice. They found that in high-profile 5–4 cases, Roberts ranks as the fourth-most conservative justice in the last three-quarters of a century—that “he is a reliable conservative in the most closely contested cases.” Where there are fewer than four dissents, he ranks 22nd among conservative justices—“moderate when his vote can’t change the outcome.” Similarly, in high-profile 5–4 cases, Kagan is the sixth-most liberal justice, but in decisions with fewer than four dissents, the 10th-most liberal. Sotomayor’s voting follows the same pattern, the authors report: The shift to the right in cases where Kagan’s and Sotomayor’s votes can’t make a difference “makes them look moderate,” the article comments. “A moderate image is attractive to many judges, owing to a general dislike of ‘political’ judges.”</p> <div class="right-margin"><span style="font-size: 13.0080003738403px; line-height: 20.0063037872314px;"> <div class="image image-large"> <div class="field-image"><img src="" alt="" title="" /></div> <div class="field field-name-field-credit field-type-text field-label-hidden"> <div class="field-items"> <div class="field-item even">(Elise Amendola/AP Images)</div> </div> </div> <div class="field field-name-body field-type-text-with-summary field-label-hidden"> <div class="field-items"> <div class="field-item even"> <p>Harvard president Lawrence Summers (center) picked Kagan to be dean of the law school in 2003, replacing Robert C. Clark (left).</p> </div> </div> </div> </div> <p></p></span></div> <p>The larger point is that Kagan, like Roberts, appears to be a strategic voter. No case in Kagan’s time on the Court has had greater consequences than the Affordable Care Act case, so it wouldn’t be surprising if her vote on the Medicaid provision was strategic in the sense of paying close attention to the benefit of joining the chief justice versus the cost of joining Ginsburg and Sotomayor in dissent. Since Kagan wrote no opinion in the case, why she voted as she did remains a mystery. A common speculation is that she rewarded Roberts’s moderation with her own, showing she could be a partner in shaping both consensus and a more consensus-driven Court. For many liberals, the more striking fact is that the Epstein, Landes, and Posner analysis of all cases where the justices were divided ranks Kagan as the current Court’s most liberal member, with Ginsburg and Sotomayor a bit more moderate, and Breyer the most moderate of the four. The only former justices since 1937 ranked to the left of Kagan are William J. Brennan Jr., William O. Douglas, and Thurgood Marshall.  </p> <p>When Kagan writes her own opinion, there is no mystery where she stands. Kagan has taught herself how to write judicial opinions that “reach a multitude of minds from the eminence of the judicial office,” as the legal scholar Paul Freund wrote about the ambition of the justice for whom he had clerked, Louis D. Brandeis, a great justice also with no prior experience as a judge.</p> <p>This February, a majority of the Court seemed to contort legal logic to overturn the conviction of a commercial fisherman under a federal criminal statute primarily intended to restore trust in financial markets. He was convicted of disposing of evidence, by tossing back into the sea undersized fish he had unlawfully caught. Kagan contended in her dissent that the Court’s main opinion relied on “never-before-propounded, not-readily-explained interpretive theories” to defy “what Congress wrote and what Congress wanted.”</p> <p>The ruling for the fisherman was a response to “overcriminalization and excessive punishment in the U.S. Code,” she wrote, and she agreed that both are acute problems. The law under which he was convicted is “a bad law—too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion.” But, she concluded, “this Court does not get to rewrite the law.” She was joined in the dissent by Justices Scalia, Kennedy, and Thomas, the first time she had written for that alignment.</p> <p> </p> <p><strong>NOTHING IN THE THOUSANDS</strong> of pages of writing Kagan submitted as a nominee truly foreshadowed the voice she is developing as a justice. The closest harbinger may have been a stirring tribute she wrote to Thurgood Marshall when he died in 1993. She began by describing how “the ordinary people of Washington”—“some 20,000 of them”—paid their respects to him and his flag-draped casket lying in state at the Supreme Court. “One left a yellowed slip opinion of Brown v. Board of Education,” she noted, the historic school desegregation decision that Marshall won as an advocate. She captured his sometimes wicked sense of humor: “He once came back from conference and told us sadly that the other Justices had rejected his proposal for a new Supreme Court rule. ‘What was the rule, Judge?’” she and his other law clerks asked. “‘When one corporate fat cat sues another corporate fat cat,’ he replied, ‘this Court shall have no jurisdiction.’” She conveyed the disquieting truth that “most of the stories, if told by someone else, would have expressed only sorrow and grimness,” because they were about “daily humiliation and abuse” from “growing up black in segregated Baltimore.”</p> <p>Beyond having a mind that remained “active and acute” when he was 80, the year she clerked for him, Marshall “had the great lawyer’s talent (a talent many judges do not possess) for pinpointing a case’s critical fact or core issue,” which came from “his understanding of the pragmatic—of the way in which law worked in practice as well as on the books, of the way in which law acted on people’s lives.” And he “believed that one kind of law—the Constitution—was special, and that courts must interpret it in a special manner.” America’s fundamental law, to Marshall, “demanded that the courts show a special solicitude for the despised and disadvantaged.” It had taken the United States 200 years to gain the respect for individual freedoms and human rights now regarded as fundamental. And that came about only because some Americans refused to accept “outdated notions of ‘liberty,’ ‘justice,’ and ‘equality.’” The credit for the progress, Kagan observed, “belongs to people like Justice Marshall.”</p> <p>Her most significant majority opinion so far came in June of 2012 in a 5–4 split, this time with Kennedy joining the moderate liberals to make a majority as he had in related cases for many years. The Court ruled that it is a violation of the Eighth Amendment’s ban on cruel and unusual punishment to give mandatory sentences of life without parole for juveniles convicted of murder.</p> <p>Roberts wrote a stern dissent in which Justices Samuel Alito, Antonin Scalia, and Clarence Thomas joined. He said, “Determining the appropriate sentence for a teenager convicted of murder presents grave and challenging questions of morality and social policy. Our role, however, is to apply the law, not to answer such questions.” <span class="pullquote">But the Kagan opinion had hallmarks of a compromise meant to attract and hold Kennedy’s vote. It left to the states the responsibility for answering those questions.</span> They retained the option of imposing a life-without-parole sentence, after weighing the details of the crime and a young offender’s “immaturity, impetuosity, and failure to appreciate risks and consequences”—factors making a child different from an adult and making unconstitutional the harsh penalty of an irrevocable life sentence. </p> <p>By the spring of 2013, it was clear Kagan had found her voice as a justice, and, when there was no common ground, she felt no compunction about using it to attack an opinion she felt was deserving of scorn. By 5–3 (Sotomayor had recused herself), the Court ruled that a group of merchants could not bring a class action against a company when each had signed a contract requiring they make complaints through individual arbitration.</p> <p>“Here is the nutshell version of this case, unfortunately obscured in the Court’s decision,” Kagan wrote. “The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”</p> <p>She added, “And here is the nutshell version of today’s opinion, admirably flaunted rather than camouflaged: Too darn bad.”</p> <p>Kagan’s most impressive opinion came toward the end of last term in <em>Town of Greece v. Galloway</em>, the major ruling about the role of religion in government. By 5–4, conservatives over moderate liberals, the Supreme Court ruled that the town of Greece, New York, outside Rochester, did not violate the First Amendment’s ban on government favoring a particular religion when it, for many years, allowed Christian ministers to open town meetings with Christian prayers.</p> <div class="right-margin"> <div class="image image-large"> <div class="field-image"><img src="" alt="" title="" /></div> <div class="field field-name-field-credit field-type-text field-label-hidden"> <div class="field-items"> <div class="field-item even">Copyright 2013 Burton Silverman, Courtesy of Historical &amp; Special Collections, Harvard Law School Library</div> </div> </div> <div class="field field-name-body field-type-text-with-summary field-label-hidden"> <div class="field-items"> <div class="field-item even"> <p>This oil painting of Elena Kagan hangs in the Harvard Law School, commemorating the years she served as dean there.</p> </div> </div> </div> </div> </div> <p>Relying on a 1983 precedent that said it was constitutional for Nebraska’s legislature to begin its morning sessions with nonsectarian invocations by various clergy members, Kennedy wrote for the majority that Greece’s town meetings were like Nebraska’s sessions, with the prayers merely ceremonial, “acknowledging the central place that religion, and religious institutions, hold in the lives of those present.”</p> <p>After describing the Nebraska session, Kagan wrote, “It is evening in Greece, New York, and the Supervisor of the Town Board calls its monthly public meeting to order.” The first order of business: “The pastor steps up to a lectern (emblazoned with the Town’s seal) at the front of the dais, and with his back to the Town officials, he faces the citizens present. He asks them all to stand and to ‘pray as we begin this evening’s town meeting.’ (He does not suggest that anyone should feel free not to participate.)” He prays “for the guidance of the Holy Spirit”—the risen Christ. “After the pastor concludes, Town officials behind him make the sign of the cross, as do some members of the audience, and everyone says ‘Amen.’”</p> <p>She continued, “Let’s count the ways in which these pictures diverge.” The Nebraska sessions were for lawmakers, the chaplain spoke only to lawmakers, and the prayers were in the Judeo-Christian tradition rather than advancing one faith. “Greece’s town meetings, by contrast, revolve around ordinary members of the community” who are actively taking part in the town’s governance and “the prayers there are directed squarely at the citizens. Remember that the chaplain of the month stands with his back to the Town Board; his real audience is the group he is facing—the ten or so members of the public, perhaps including children” and “he typically addresses those people, as even the majority observes, as though he is ‘directing [his] congregation.’” To Kagan, “no one can fairly read the prayers from Greece’s Town meetings as anything other than explicitly Christian—constantly and exclusively so.” For nine years, all of the Greece monthly chaplains were Christian. When citizens sued the town for favoring one religion, “a Jewish layman, a Wiccan priestess, and a Baha’i minister appeared at meetings” for a short time. Then the town “resumed its practice of inviting only clergy from neighboring Protestant and Catholic churches.”</p> <p>Why was that unconstitutional? “The government (whether federal, state, or local) may not favor, or align itself with, any particular creed,” especially “when officials and citizens come face to face in their shared institutions of governance.” The town of Greece need not be “religion- or prayer-free.” But it did need to recognize that “we are a pluralistic people” and to “take especial care to ensure that the prayers” offered at the beginning of meetings “seek to include, rather than serve to divide.”</p> <p>Justice Alito voted with the majority, but wrote his own sour concurring opinion that took offense at Kagan’s dissent: “All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures.” In using “rhetoric and highly imaginative hypotheticals” to suggest otherwise, “the principal dissent goes far astray.” Alito sought to make Kagan’s dissent seem like a radical departure from settled law. <span class="pullquote">It was also the first effort by another justice to call attention to and apparently try to undermine Kagan’s style of opinion-writing, presumably because of its effectiveness.</span> Alito was right about one thing: The opening and closing of Kagan’s opinion employed rhetoric in the sense of eloquence.</p> <p>“For centuries now,” she wrote, “people have come to this country from every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable—that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American.”</p> <p>For the justices in the majority, for students of constitutional law, and for journalists reporting about the Court, the case was about the role of religion in government. For Kagan, however, it was about what it means to be a citizen in a pluralistic society and why the Founding Fathers were right to limit what government can do to impinge on each citizen’s liberty, by prohibiting it from favoring one religion. Her opinion was about the law, but also about a tenet of the nation.</p> <p>Here is the closing section of her dissent:</p> <blockquote><p>In 1790, George Washington traveled to Newport, Rhode Island, a longtime bastion of religious liberty and the home of one of the first communities of American Jews. Among the citizens he met there was Moses Seixas, one of that congregation’s lay officials. The ensuing exchange between the two conveys, as well as anything I know, the promise this country makes to members of every religion.</p> <p>Seixas wrote first, welcoming Washington to Newport. He spoke of “a deep sense of gratitude” for the new American Government—“a Government, which to bigotry gives no sanction, to persecution no assistance—but generously affording to All liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language, equal parts of the great governmental Machine.” The first phrase there is the more poetic: a government that to “bigotry gives no sanction, to persecution no assistance.” But the second is actually the more startling and transformative: a government that, beyond not aiding persecution, grants “immunities of citizenship” to the Christian and the Jew alike, and makes them “equal parts” of the whole country.</p> <p>Washington responded the very next day. Like any successful politician, he appreciated a great line when he saw one—and knew to borrow it too. And so he repeated, word for word, Seixas’s phrase about neither sanctioning bigotry nor assisting persecution. But he no less embraced the point Seixas had made about equality of citizenship. “It is now no more,” Washington said, “that toleration is spoken of, as if it was by the indulgence of one class of people” to another, lesser one. For “[a]ll possess alike … immunities of citizenship.” That is America’s promise in the First Amendment: full and equal membership in the polity for members of every religious group, assuming only that they, like anyone “who live[s] under [the Government’s] protection[,] should demean themselves as good citizens.”</p> <p>For me, that remarkable guarantee means at least this much: When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines. I believe, for all the reasons I have given, that the Town of Greece betrayed that promise. I therefore respectfully dissent from the Court’s decision.  </p> </blockquote> <p>Kagan grounded in history the elementary point about political philosophy as well as law on which the case turned—that the different identities of citizens disappear when they enter the public sphere and become simply Americans. Sean Wilentz said of his former student’s opinion: “It’s rare that anyone in American public life, whether a politician or a judge, understands what words an occasion calls for and rarer still for that figure to be able to rise to the occasion. She is doing both. Eloquence is not a prerequisite for being a great justice, but it is an enormous asset.”</p> <p> </p> <p><strong>ON A WALL AT HARVARD LAW</strong> School, there is a lovely painting of Kagan to commemorate the six years she served as dean there, from 2003 to 2009. In a dark pantsuit and rose-colored top, she is sitting at a table with an open book in front of her, looking off into the distance. The expression on her face is not easy to describe: That’s what makes the painting affecting. The painter, Burton Philip Silverman, said he found in her “an elusive psychological dimension” that is “searching and very human” yet “scholarly and reassuring.” That’s what he tried to capture. She was 53 when the painting was finished in 2013, four years after she left the law school to become solicitor general, three years after she became a justice. Her face bears signs of hard experience: pouches under her eyes, a gaze reflective but worn and appraising.</p> <p>A friend of Kagan’s from her Harvard days observed that, comparing what she was like as a new justice at 50 and what she is like now as a five-year veteran about to turn 55, her outlook is both more buoyant as she masters the challenges of the job and more solemn as she lives with the weight of the responsibility. In its depiction of her eyes especially, the painting conveys both. Kagan is young as justices go. If she stays on the bench until she reaches the age of the oldest current justice, she has another 27 years to make her full mark. But she is already expanding the role of Court opinions and, in doing that, of a Supreme Court justice. The painting is accurate in depicting her as a figure to reckon with in history.</p> </div></div></div> Mon, 04 May 2015 04:00:56 +0000 222084 at Lincoln Caplan The Withered Writ <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><span class="dropcap">T</span>he writ of habeas corpus, until not long ago, was a mysterious yet potent safeguard of liberty in American law. It worked like an incantation to break an evil spell. A prisoner petitions a court for a writ. “Habeas corpus” means “May you produce the body,” spoken from the point of view of a judge. He orders whoever is depriving the prisoner of his freedom to bring him to court—a warden confining a prisoner, the secretary of defense holding a detainee, or a magistrate who has denied bail to someone jailed but not convicted—and to justify the detention. The judge then decides whether the petitioner is being detained in breach of the Constitution or some other law.</p> <p>In 1963, Justice William Brennan Jr. wrote that “government must always be accountable to the judiciary for a man’s imprisonment.” The prisoner is “entitled to his immediate release,” the justice emphasized, if the government violates the law in putting him behind bars. Brennan was one of the most influential justices of the 20th century. A champion of the individual versus the government—in what he called “the unceasing contest between personal liberty and government oppression”—he led the Supreme Court to strengthen American democracy by strengthening various roles of citizens, to minimize those clashes. That included bolstering the First Amendment so people could be confident about criticizing officials without getting sued, adopting the principle of “one person, one vote” so each vote would have equal weight, and enhancing the power of federal courts and citizens’ access to them to protect these and many other rights.</p> <p>He embraced habeas corpus as part of that enhancement—as a crucial tool for the protection of constitutional rights. Following his lead, the Warren Court expanded habeas law to redress appalling treatment by many states of criminal defendants, especially minorities and the poor, who had often experienced unfair arrests, been coerced into confessions, and received unjust trials.</p> <p>Habeas became, above all, a tool for challenging death sentences. Robust habeas law protects death-row inmates from a kind of vigilantism carried out in state courts—particularly inmates whose crimes were experienced as an outrage not just against the victim but also against the community. The idea was to give the petitioner access to the safe harbor of a federal court.</p> <p>By expanding habeas law, the Supreme Court empowered the hundreds of federal trial courts to play an essential part in making sure state and local governments were complying with the Constitution. Since the Judiciary Act of 1867 made habeas corpus available in federal court to state prisoners who claimed their rights had been violated, the writ has been pushed and pulled in the persistent American debate about the balance of power between the national government and the states.</p> <p>In Brennan’s view, the federal courts had the ultimate responsibility to defend the Constitution. No state’s denial to an individual of constitutional rights could become final without that review—especially state criminal decisions that deprived someone of his liberty and possibly his life. No statute of limitations cuts off an individual’s access to a habeas writ because, the Supreme Court said, there is no higher duty than to maintain the writ unimpaired. For that reason, a petitioner’s failure to persuade a federal trial court to grant a writ did not keep him from applying for one again.</p> <p>The Constitution explicitly limits the power of Congress to suspend the right to habeas. In doing so, Brennan believed, the Constitution underscores the importance of the writ and its role as a check on government. He declared that “the Constitution invites, if it does not compel, a generous construction of the power of the federal courts” to grant what he, like others going back to this country’s founding, reverentially called the Great Writ.</p> <p> </p> <p><span class="dropcap">T</span>oday, federal law governing habeas corpus makes Brennan’s view seem antique. The writ has withered and is in a shabby state. The Supreme Court occasionally lets petitions for writs go forward in federal courts, as it did this past term in a pair of 5-4 rulings. But far more often, the Court thwarts such intrusion, impatiently overturning federal appeals courts that have granted a state prisoner relief based on a habeas petition. These reversals matter because they almost always involve life-and-death stakes: The habeas story is about capital punishment. More to the point, it is about the radical cutback in habeas law as a reliable means of challenging unconstitutional death sentences.</p> <p>Many reversals involve no dispute between the conservatives who control the Roberts Court with five seats and the four moderate liberals. The decisions are often per curiam—by the court—which is to say, collectively and unanimously. Per curiam opinions are supposed to be for uncontroversial rulings, but that is not how the current Court regularly uses them.</p> <p>Last year, for example, with a per curiam opinion, the Court made a typical reversal of a grant of a habeas writ, this one by the Sixth Circuit, which encompasses Michigan, Ohio, Kentucky, and Tennessee. The appeals court’s majority opinion described “flagrant prosecutorial misconduct” at the trial of the petitioner, concluding that the prosecutor’s comments “so infected the trial with unfairness as to make the conviction a denial of due process.” The Court rebuffed that and other well-delineated reasons for granting habeas as “the flimsiest of rationales.”</p> <p>The main advocate for habeas retrenchment after the heyday of the Warren Court was Justice William Rehnquist, who ardently believed that states should be free to run their systems of criminal justice without federal interference, and the best way to avoid that was by drastically constraining the federal habeas writ.</p> <p>After Rehnquist became chief justice in 1986, the Supreme Court moved to the right about habeas by narrowing the grounds on which the writ could be used. The restrictions were procedural but had serious substantive consequences. They blocked federal habeas claims, for example, when a state court denied them on non-federal grounds, even if the petitioner’s constitutional rights might well have been violated.</p> <p>As part of his campaign to restrict habeas, Rehnquist in 1988 persuaded the American Bar Association (ABA) to recommend steps for reform. A commission of ten experts with divergent outlooks—from a law-and-order state chief justice and a pro-death-penalty state deputy attorney general, to a leading anti-death-penalty trio including a lawyer, a scholar, and a state court justice—made a comprehensive review of habeas.</p> <p>Everyone on the commission agreed that reform was vital. But the members disagreed about whether they needed to concentrate on speeding up the habeas process or making it fairer. In 1986 and 1987, when a total of 43 death-row inmates were executed, the average delay between conviction and execution was about seven years. Habeas critics blamed the delay on frivolous appeals and the inexplicably long time it took to complete each step of a capital case, from trial through final appeal. Habeas defenders attributed the delay to a process that was admittedly arcane yet should not be rushed since a life hung in the balance, and to the time it took to discover the many ways an inmate was squashed by American criminal justice.</p> <p>A book-length report laid out the evidence the commission had gathered and concluded that one would be “grossly naïve to think that delay arises simply from repetitious filings in federal court at the eleventh hour by unethical lawyers who hope to get stays of execution from anti-death-penalty judges using their discretion as a subterfuge.” Delays were caused by a host of reasons: from incompetent counsel; from reviewing the elaborate record in a capital case; from drawn-out state court contemplation about the meaning of cruel and unusual punishment; from uncertainty about when it was OK to petition for federal habeas review; from the time it took to investigate new facts; from assessing how new developments in the law affected a case; and, finally, “from the understandable inclination of both litigants and their attorneys to postpone the ultimate sanction”—executing an inmate. The commission also reported that “many state supreme court judges and justices either feel no resentment when federal courts address the merits of state death-row inmates’ claims or actually invite federal consideration.”</p> <p>The commission made 16 recommendations for habeas reform. Six were about providing competent counsel at every stage of challenging a capital conviction and death sentence. (A former Supreme Court law clerk told the commission what he had learned during that experience: “The death penalty frequently results from nothing more than poverty and poor lawyering.”) Other recommendations were intended to speed up the habeas process by adding time constraints, limiting challenges following an appeal of the conviction and sentencing, and narrowing the scope of habeas in most instances to claims that the petitioner was innocent rather than that he suffered a violation of his constitutional rights.</p> <p>The ABA’s endorsement of the recommendations suggested that the commission had forged a solid consensus, with compromises on both sides. When the House and Senate got around to passing a new statute to address imperfections of habeas law, it was hoped they could adopt the ABA model already accepted by conservatives and liberals.</p> <p> </p> <p><span class="dropcap">T</span>he dark age of federal habeas law began in 1996, with the passage of a federal statute called the Antiterrorism and Effective Death Penalty Act (AEDPA). In the words of the leading treatise about habeas law, this was the moment “Congress dropped the atomic bomb of AEDPA on the federal judiciary, shattering the preexisting structure of habeas corpus law.” The statute seemed to take the association’s recommendations and twist them into more restrictive versions.</p> <p>The basics of the new habeas provisions were part of Newt Gingrich’s 1994 Republican “Contract with America.” They went from being right-wing pipe dreams to stringent law-and-order options in 1995, after the bombing of the Murrah Federal Building in Oklahoma City killed 168 people, including 19 children in a day-care center.</p> <p>Senator Orrin Hatch, a Republican from Utah, took the position that federal habeas proceedings gave convicted criminals the chance “to relitigate claims already considered and rejected by State courts.” Habeas law, he argued, allowed a single federal trial judge to undo three levels of time-consuming state court work: the trial, a regular appeal, and a post-conviction review. In death-penalty cases, he insisted, delays due to habeas had “seriously eroded the public’s confidence in our criminal justice system.”</p> <p>A bipartisan Emergency Committee to Save Habeas Corpus, led by former Democratic and Republican attorneys general from the Johnson, Nixon, Ford, and Carter administrations, presented a different view. Nicholas Katzenbach, a former Johnson attorney general, testified before the Senate that “undoubtedly the writ does raise problems of federalism.” The habeas process should and could be streamlined, the committee argued, but Congress would create a greater problem by compromising the Bill of Rights, as the legislation would clearly do.</p> <p>Republicans in Congress attached the habeas provisions to an anti-terrorism bill of the Clinton administration. Bill Clinton, running to the right for re-election as president, beat back opposition to the bill in both houses of Congress, insisting that it be passed. A year and a week after the bombing, it was. That was the year that annual death sentences in the United States peaked at 315.</p> <p>For the first time, the law imposed a statute of limitations on habeas petitions, with a complexity that ensured most defendants would not be able to comply with the limit; most defendants do not have a lawyer, since the right to counsel generally does not apply in habeas cases. The law also made it nearly impossible to qualify for filing a second or subsequent petition for a writ.</p> <p>Most significantly, it adopted a novel concept that the emergency committee considered unconstitutional. It said that a federal court cannot grant a writ of habeas corpus to an inmate in state prison solely because a state court misapplied the Constitution. Instead, the inmate must prove that the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” by the time the inmate was convicted and sentenced. In other words, even if a federal court is certain a state court decision is wrong and there are excellent reasons that view is correct, that does not make it “unreasonable.” This draconian provision attacked the writ at its core as a check on government.</p> <p> </p> <p><span class="dropcap">I</span>n 2000, James Liebman of Columbia Law School and colleagues published “A Broken System,” a groundbreaking study of every American capital appeal in the 23 years before AEDPA was passed. It found precisely the opposite of what Congress said was needed. In that span, 34 states imposed 5,760 death sentences and executed 313 inmates. Liebman and his colleagues learned that, in almost seven out of every ten cases, a reviewing court decided that the trial court had made a serious, reversible error. State courts found errors in almost half the capital cases. Federal courts found serious errors in 40 percent or more of the cases they reviewed—after state courts had upheld those convictions and death sentences.</p> <p>To the authors, the study affirmed the view that many capital appeals took too long, not for the reasons AEDPA supporters claimed but “because American capital sentences are so persistently and systematically fraught with error that seriously undermines their reliability.” There were two persistent reasons for errors: “(1) egregiously incompetent defense lawyers who didn’t even look for—and demonstrably missed—important evidence that the defendant was innocent or did not deserve to die; and (2) police or prosecutors who did discover that kind of evidence but suppressed it, again keeping it from the jury.” The study proved that many on death row should not be there and that their principal avenue for relief—filing a writ of habeas corpus—had been closed off.</p> <p>“A Broken System” helps explain why the American Law Institute, the country’s most prestigious nonpartisan group of scholars, judges, and lawyers, voted “overwhelmingly” (its word) in 2009 to support a resolution against the death penalty. The institute reported on the “major reasons why many thoughtful and knowledgeable individuals doubt whether the capital-punishment regimes in place in three-fourths of the states, or in any form likely to be implemented in the near future, meet or are likely ever to meet basic concerns of fairness in process and outcome.”</p> <p>One reason is the huge costs of trials for people charged with capital crimes, of the intricate appeals process, of keeping prisoners on death row, and of maintaining a corrections unit that meets constitutional standards for carrying out executions. Another reason is the near impossibility of expunging racial bias from a criminal-justice system that disproportionately imposes death sentences on blacks who kill whites. Still another is the long-unmet challenge of providing capital defendants with lawyers who have the skill, experience, and expertise to represent them ably.</p> <p>The institute’s concerns didn’t end there. In the 32 states that now have the death penalty, 28 have elected judges who are more likely to feel pressed by politics to stand up for the death penalty. There is also the likelihood that, after some people have been executed, evidence will then surface proving they were innocent: Eighteen people who served time on death row for an average of 11 years have been exonerated since 1993 with DNA evidence.</p> <p>Six states in the past six years have abolished the death penalty, bringing the total to 18 that do not allow capital punishment. There is a de facto moratorium in a dozen more states that still have the death penalty: None of these has executed anyone for at least seven years. That makes 30 states that have abolished capital punishment or have long paused from carrying out executions. This death-penalty-free zone is even larger, since prosecutors pursue most death-penalty cases in counties where just one-eighth of the American population lives.</p> <p> </p> <p><span class="dropcap">I</span>n the meantime, AEDPA operates in its alternate universe. This summer, Warren Lee Hill, with an IQ of around 70, waited for the Supreme Court to decide to hear his lawyers’ challenge to his death sentence. While serving a life term in a Georgia prison for murdering his girlfriend, he killed another inmate. A Georgia state court sentenced him to death in 1993. Under a 2002 Supreme Court ruling, it is unconstitutional to execute someone who is intellectually disabled (some courts still use the term “mentally retarded”).</p> <p>Hill’s state case was a close one, because he was considered mildly disabled. This year, at 52, he functioned at the level of a sixth-grader. Alone among the states, Georgia requires proof of this disability beyond a reasonable doubt. Seven experts were divided about whether Hill met that severe standard: Four experts for the defense concluded he did; three for the prosecution said he did not. A state trial judge said that, if the Georgia standard of proof were the same as in most states—where a claim of being intellectually disabled would have to be shown to be more likely than not—he would have found Hill disabled and exempt from execution. But under Georgia’s more demanding standard, the judge upheld the death sentence. State and federal appeals courts have upheld that sentence again and again.</p> <p>In February, Hill was within half an hour of being put to death by lethal injection when the federal United States Court of Appeals for the 11th Circuit, which encompasses Alabama, Georgia, and Florida, was persuaded to stay the execution. In response to publicity about the case, the three state experts changed their mind and explained why in sworn affidavits. As a result, all of the experts who examined him were of the unanimous opinion that he was disabled—beyond a reasonable doubt.</p> <p>In a brief to the federal appeals court, lawyers for Hill wrote that the new evidence proving his disability “was previously unavailable” and that, under these facts, “no reasonable fact finder” would have found Hill “eligible for the death penalty.” His lawyers sought life without parole for their client. In April, a three-judge panel of the 11th Circuit ruled 2-1 against him and vacated the stay on his execution. In the view of Judge Frank M. Hull for the court’s two-judge majority, while Hill presented new evidence, it was in support of the same claim he had made in a previous habeas petition—that his intellectual disability made him ineligible for the death penalty. The court had to reject that old claim under AEDPA, Judge Hull wrote, because the statute “greatly restricts the power of federal courts to award relief to state prisoners” in order “to advance the principles of comity, finality, and federalism.” The court could consider only a new claim asserting Hill’s innocence, the majority said. Since he accepted his own guilt, what business did he have in federal court?</p> <p>It is a measure of how draconian AEDPA is, and the Court’s application of it, that the country’s leading habeas scholars felt compelled to file a brief with a stern message for the justices: If you don’t grant relief, it will mean that AEDPA has eliminated the power of the federal courts to grant relief as a last resort even in a “rare and extraordinary” case like Hill’s that presents “a patently meritorious, life-or-death constitutional claim.” The state of Georgia scheduled Hill’s execution for July, unless the Court stayed his execution again.</p> <p>In dissent, Judge Rosemary Barkett wrote, “The perverse consequence of such an application of AEDPA is that a federal court must acquiesce to, even condone, a state’s insistence on carrying out the unconstitutional execution of a mentally retarded person.” She went on, “The idea that courts are not permitted to acknowledge that a mistake has been made which would bar an execution is quite incredible for a country that not only prides itself on having the quintessential system of justice but attempts to export it to the world as a model of fairness.”</p> <p>Since AEDPA became law, most of the federal courts that have interpreted the statute have said it obliged them to defer to state court rulings. The statute has largely kept federal courts from reaching the merits in countless cases where lawyers made compelling arguments that the prisoner deserved to win under the Constitution; the statute has largely eliminated the federal writ of habeas corpus for state prisoners. In too many AEDPA cases, federal courts have allowed inmates on death row to be executed in models of unfairness.</p> <p>There now exists an illogical chasm between law and justice—between, on the one hand, the statute’s reflexive antagonism to challenges to the death penalty and, on the other hand, much of the country’s reckoning with the failure of states to administer capital punishment constitutionally.</p> <p>AEDPA and the Supreme Court all but hide this chasm—and the injustice it regularly leads to—behind byzantine rules and rulings, making it exceedingly hard for our legal system to keep the Constitution’s promise that habeas will be available to prevent the most serious deprivations of liberty. Rather than a grand means to break an evil spell, AEDPA is the opposite. </p> </div></div></div> Mon, 15 Jul 2013 12:18:29 +0000 218240 at Lincoln Caplan