Scalia’s latest: Unethical or merely appalling?

We’ve all seen it before:

• Justice Antonin Scalia makes comments that are appalling in their racial insensitivity.
• Justice Antonin Scalia skates right up to the line of ethical impropriety.

But this time Scalia managed to do both at once, while discussing the Voting Rights Act in remarks at the University of California Washington Center this week.

Justice Antonin Scalia

Even as Scalia and his colleagues consider a challenge to a key provision of that law, Scalia chose this forum to elaborate on a claim he first raised during oral arguments, when he called the law a “perpetuation of racial entitlement.”  This week, he echoed that claim, calling the law an “embedded” form of “racial preferment.”

To support his claim he declared that that it was unfair for his current home state, Virginia, to have to clear changes to its voting laws with the Justice Department in advance when other states did not.  He suggested that there could not possibly be a racial bias problem in Virginia since that state once elected a black governor and most other states haven’t.  He neglected to mention the state’s far more recent efforts to suppress the votes of the poor and people of color through restrictive voter I.D. laws.  (We have more on the need for the Voting Rights Act on our website here.)

But most disturbing was this.  According to The Wall Street Journal, Scalia said that:

merely holding minority status should not insulate one from majoritarian policy choices. “Child abusers” are a minority, for instance, but they should not receive special protection as a result, he said.

Presumably, Scalia thought this hypothetical would bolster his efforts to deny equal protection to a whole slew of Americans – such as women, the mentally ill, and the LGBT community.

There is one crucial difference between making such callous, insensitive remarks during oral argument and making such callous, insensitive remarks elsewhere while the case is pending: judicial ethics.

We have long argued that the Code of Conduct for U.S. Judges, which applies to all other federal judges, should apply to Supreme Court Justices as well.  It was the topic of this brief AFJ documentary:


But since it does not, Scalia is off the hook no matter what.

If Scalia’s remarks had been uttered by a judge on whom the code is binding, they may very well have been in violation of the code – and at the very least would come right up to the edge of what is permissible.  The code says:

A judge should not make public comment on the merits of a matter pending or impending in any court. [Canon 3A(6).]

Although the code makes an exception for “scholarly presentations made for purposes of legal education,” the commentary to this part of the code advises judges commenting on cases from their own court to “take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality … .”

That’s because the code prohibits conduct that gives even the appearance of impropriety. [Canon 2A.] 

This is not the first time Justice Scalia’s behavior has raised questions about ethics.

• At the same event this week, Justice Scalia indicated his likely vote on another pending case involving the powers of the Federal Communications Commission. 
• In 2011, Justices Scalia and Thomas spoke at a fundraising event for the ultra-conservative Federalist Society.  While federal judges subject to the Code of Conduct can speak to any organization they want, the code bars them from speaking at fundraisers.  Justice Samuel Alito spoke at the same event last year. 
• As we noted in our report on Supreme Court ethics, Justices Scalia and Thomas reportedly have each attended at least one invitation-only retreat hosted by Charles and David Koch, co-owners of Koch Industries, the second largest private corporation in the United States.  The purpose of the Koch retreats is overtly political.

Whether Scalia crossed the line this time or just came very, very close, with each passing year it becomes more urgent to make Scalia, Thomas, Alito and all the other Justices subject to the code of conduct.

A blow to human rights: AFJ responds to Supreme Court decision in Kiobel v. Royal Dutch Petroleum

HEAR IT NOW: AFJ has comprehensive analysis of the decision, with excerpts from audio of the oral arguments on our AFJ Audio Analysis page 

WASHINGTON, D.C., April 17, 2013 – Alliance for Justice President Nan Aron issued the following statement today in response to the Supreme Court decision in Kiobel v. Royal Dutch Petroleum.

Kiobel plaintiffs on Feb 28, 2012.
Photo via Amnesty International USA

Environmental activists from Nigeria alleged that when they tried to protect their land against exploitation by a giant multi-national oil company, they were beaten, raped, tortured and sometimes killed by the military dictatorship ruling the nation at the time – with the active complicity of the oil company.  The evidence was persuasive enough to prompt the United States to grant these activists asylum.

Yet today, the Supreme Court majority struck a blow to decades of human rights law, providing a safe harbor to human rights abusers around the globe.

A basic premise of the law is that it applies universally; there is no escape from accountability for violating fundamental human rights. Until today, the Supreme Court consistently held for decades that foreign victims of human rights abuses could bring suit in American courts against foreign perpetrators of human rights abuses occurring abroad. The Roberts majority could have decided this case on far more narrow grounds – as the lower court did – but it jumped at the opportunity to place significant limits on our nation’s ability to enforce human rights law.

Our nation prides itself on being a champion of human rights. Yet a majority of our highest court has chosen to make it easier for big corporations complicit in human rights abuses to evade responsibility, and vastly more difficult for their victims to get justice.

Why judges matter: The best-known example turns 40

Alliance for Justice President Nan Aron issued the following statement marking the upcoming 40^th Anniversary of the Supreme Court decision in Roe v. Wade:

Photo: Planned Parenthood Action Fund/womenarewatching.org

Tuesday’s anniversary of the Supreme Court decision in Roe v. Wade drives home the importance of the Supreme Court in our daily lives. A change of one vote on the Court in the wrong direction could set back set back advances made by women.  A change of one vote the right way can solidify the gains of the past four decades.

But after the anniversary, the urgency tends to fade.  We forget how important the Supreme Court is to our lives in so many other ways.  This year, for example, Supreme Court decisions may determine who can get married, who can go to college and even who can vote.

So we need to focus every day on fighting for a progressive judiciary, not only Supreme Court justices, but judges on our lower courts as well.

Sometimes it is, literally, a matter of life and death.

Read our three-part series: Will the Supreme Court overturn Roe v. Wade?

● Part One

● Part Two

● Part Three

And check out our Bolder Advocacy blog for a listing of how nonprofits are commemorating the anniversary.

AFJ releases “Unequal Justice: The Relentless Rise of the 1% Court"

In a series of 5 to 4 rulings, a majority on the United States Supreme Court effectively has rewritten the law to favor big business at the expense of the American people, according to a new documentary.  Unequal Justice: The Relentless Rise of the 1% Court, produced by Alliance for Justice (AFJ), was released online Monday.

“Today, as the Supreme Court begins a new term, the court will be ‘open for business,” said AFJ President Nan Aron.  “The term is already packed with cases with the potential to restrict corporate accountability and limit everyday Americans’ civil rights and access to justice  The Court’s decisions this term could have harmful consequences for the ability of consumers, victims of discrimination, and others to get a fair day in court. 

“But no one should be surprised,” Aron said.  “What we are likely to see in the term that begins today was decades in the making.”

Unequal Justice chronicles a 40-year campaign by corporate special interests to put the thumb of big business on the scales of justice.  The campaign has its origins in a profoundly-influential memo written in 1971 by corporate lawyer Lewis Powell, just months before he himself was named to the court by President Richard Nixon.  The memo urged the business community to fight what was then a burgeoning consumer and environmental movement.

“There has been much attention in recent months to the way the executive and the legislative branches stacked   the deck in favor of ‘the one percent’ and against the rest of us,” Aron said.  “But there’s been far too little attention paid to the success of big business in influencing the Supreme Court.  With a presidential election just weeks away, it’s time to pay attention to the decisions a president makes that often have the most lasting consequences – his nominees who will be appointed to the nation’s highest court.”

Said Aron: “We produced this video because we want to highlight the importance of the Supreme Court in the lives of everyday Americans and to spur a renewed sense of activism to hold the Court accountable for its actions.”
 

To learn more about the issues discussed in Unequal Justice and to find out about hosting  a screening, go to www.unequaljustice.org  And read AFJ President Nan Aron’s call to action in The Nation.

AFJ’s Nan Aron on MSNBC: “You can’t win a fight unless you start a fight”

Visit NBCNews.com for breaking news, world news, and news about the economy

Alliance for Justice President Nan Aron says progressives “need to get away from the notion that we have to put only ‘safe’ people up” as nominees for the United States Supreme Court.

“I’d like to see a [Supreme Court] justice who’s been a civil rights lawyer [or] a public interest laywer,” Aron said on MSNBC’s Up with Chris Hayes this morning. “If a president is willing to fight – and we’ve seen presidents fight for their nominees” we can have truly progressive judges on the nation’s highest court.  But, said Aron, “You can’t win a fight unless you start a fight."

As AFJ’s Supreme Court Preview makes clear, the stakes are enormous.  Even the heart of a signature achievement of the fight for racial equality, the Voting Rights Act of 1965, may be on the line.  But, Aron said, it’s not up to a president alone.  It has to be our fight, too.  “We have to be the heroes in this story,” Aron said.

If you want to be a part of the fight, go to www.afj.org and click on “Join Us.”  And to see the complete Up with Chris Hayes program, click here.

Supreme Court to Hear Major Human Rights Case Again: Much More at Stake the Second Time Around

Guest Post by Tyler Giannini & Susan Farbstein

Susan Farbstein & Tyler Giannini

The Supreme Court will open its new term on Monday.  The first argument it hears will be Kiobel v. Royal Dutch Petroleum Co., the most significant human rights case to reach the Court in recent years.  Intense interest in the case has generated more than 80 amicus curiae briefs from a range of actors around the world, including governments, human rights organizations, and corporations.  Kiobel is especially intriguing not only because of the human rights issues at stake, but also because it will be the Court’s second time hearing oral argument in the matter.  This is a rarity; the last example was Citizen United, the major campaign finance case.

What are the issues?

Kiobel is an Alien Tort Statute (“ATS”) suit based on a 1789 statute that allows non-U.S. citizens to bring civil claims in U.S. federal courts for universally recognized violations of international law.  The case arises out of allegations that Royal Dutch/Shell was complicit in killings and other abuses by the Nigerian government in the 1990s.  The Court first heard Kiobel last February, addressing the question of whether corporations can be held liable under the statute.  But in an unusual move, a week later the Court requested supplemental briefing and a second oral argument.  

At the first oral argument in February, it quickly became clear that some of the justices were interested in additional questions beyond corporate liability.  Specifically, they asked about whether the ATS permits claims that arise out of actions that take place on foreign soil (in this case, Nigeria).  This question—whether, and when, the ATS allows such suits—was the focus of the supplemental briefing and will be addressed in the second oral argument. 

As the Petitioners and their amici have explained, the text of the statute, as well as its history, show that the ATS does allow for cases arising on foreign soil.  It was intended to provide a remedy for universal violations, including piracy, which by definition occur outside the United States.  For example, one of the earliest interpretations of the ATS, by Attorney General William Bradford in 1795, involved pillage and plunder committed during a raid on the British colony of Sierra Leone.

What is at stake?

On the question of corporate liability, Shell’s lawyers have advocated for a categorical rule: there should be no corporate liability under the statute under any circumstances.  Shell’s lawyers are proposing a similarly absolutist rule on the question of extraterritoriality: plaintiffs should never be allowed to bring ATS claims for violations occurring outside the United States.  This view is in opposition to the U.S. government’s position, and has drawn the attention of numerous commentators, including John Ruggie, the former UN Special Representative on business and human rights, who views Shell’s position as “extraordinarily far-reaching.”

Shell’s views raise the stakes of the case.  Its stance on corporate liability departs from more than fifteen years of corporate ATS jurisprudence.  But Shell’s proposed rule on extraterritoriality would be an even more profound reversal, departing from more than thirty years of ATS case law. 

The first seminal ATS case—Filártiga, considered the Brown v. Board of international human rights litigation in U.S. courts—launched the modern era of ATS jurisprudence in 1980.  Dolly Filártiga brought her case in New York against the Paraguayan police official who had tortured her brother to death.  The court’s decision was rooted in the notion that today’s torturers, like eighteenth century pirates, are the enemies of all mankind.  Filártiga was endorsed by the Supreme Court in its 2004 ATS decision, Sosa v. Alaverez-Machain. 

The categorical rule now advanced by Shell would close the door to remedies for plaintiffs like Dolly Filártiga, who wrote before Sosa: “I am proud to live in a country where human rights are respected, where there is a way to bring to justice people who have committed horrible atrocities.  Now it is up to the Supreme Court to ensure that truth will continue to triumph over terror.”  Her sentiments remain as moving today as they did then.

What might happen?

As with so many cases, it is difficult to make predictions, but most commentators are focused on Justice Anthony Kennedy as the critical swing vote.  Justice Kennedy has been a supporter of international law and joined the majority in Sosa, which allowed ATS claims to proceed in narrow circumstances for well-recognized violations of international law.  At the same time, Justice Kennedy and the Court have been notably sympathetic to corporate interests in recent years.  After Monday, we may have a better sense of what to expect in Kiobel. 

The Sosa Court left the door ajar to ATS suits for universal violations, whether piracy or genocide, whether committed outside the United States or within its borders.  This Court should do the same.  Survivors of torture, extrajudicial killing, crimes against humanity, and war crimes deserve the opportunity to obtain justice in U.S. courts, just as Dolly Filártiga did more than thirty years ago.   

Tyler Giannini and Susan Farbstein are the co-directors of the International Human Rights Clinic at Harvard Law School.  They are currently co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the Petitioners in Kiobel v. Royal Dutch Petroleum Co.  Giannini served as one of the architects of Doe v. Unocal, a precedent-setting suit that settled in 2005.  Farbstein was a member of the legal team in Wiwa v. Royal Dutch Petroleum Co., the companion case to Kiobel that settled in 2009.   

Could this Supreme Court term be The One Percent Court on steroids?

The United States Supreme Court term that starts Monday is packed with cases with the potential to restrict corporate accountability and limit everyday Americans’ civil rights and access to justice.  According to a report released today by the Alliance for Justice “the majority on the court is likely to live down to its full potential,” says AFJ President Nan Aron.

“With polling showing the public increasingly fearful that corporations are receiving favorable treatment, the Court risks drifting further from the American mainstream and jeopardizing the legitimacy of its decisions,” Aron said.

The report, available here, comes on the same day AFJ previews its documentary Unequal Justice: The Relentless Rise of the 1% Court, at American University’s Washington College of Law.  The screening, at noon today, will be followed by a panel discussion.

“The documentary describes a 40-year campaign by big business to put its thumb on the scales of justice,” Aron said.  “AFJ’s Supreme Court Preview documents how the campaign may reach its zenith in the term that starts Monday.

"Decisions this term could harm the ability of consumers, victims of discrimination, victims of human rights abuses and many others to stand up for their rights in court,” Aron said.  “This could be The One Percent Court on steroids.”

● AFJ’s Supreme Court Preview.

● Information about AFJ’s First Monday Film: Unequal Justice:The Relentless Rise of the 1% Court.

● Information about today’s screening and panel discussion.

● AFJ Supreme Court poll results.

AFJ President Nan Aron on The 1 Percent Court - and what we can do about it

We all know how big business has eroded the American dream by getting Congress and the executive branch to change the rules to favor corporations and the wealthy at the expense of the rest of us.  But it hasn’t stopped with two branches of government.  Corporate special interests have spent decades working to put their thumb on the scales of justice.  The campaign finance decision in Citizens United is only the most prominent example.

But it doesn’t have to be this way.  In a special issue of The Nation, produced in cooperation with the Alliance for Justice, AFJ President Nan Aron writes about what big business has done to the cherished American value of equal justice under law and, most important, what we can do about it:

"Liberals who came of age in the 1960s and ’70s perceived the Supreme Court largely as a constructive force, devoted to protecting civil, environmental and consumer rights and liberties, and interpreting the Constitution as a living document relevant to a rapidly changing twentieth-century world. It was a Court worthy of respect, if not reverence.

That was then. The 1 Percent Court is now in session."

Nan's full article is available here.

More from this special issue of The Nation is available here.

Media coverage for "The 1 Percent Court"

AFJ’s forthcoming video about corporate influence on the U.S. Supreme Court already is getting intensive media attention. 

AFJ worked with The Nation on a special issue devoted to “The 1 Percent Court” – available online starting Sept. 19 and on newsstands starting Sept. 20.  The issue includes an article by AFJ President Nan Aron outlining specific action steps  the legal community and the public at large can take to pry the thumb of big business off the scales of justice.  This weekend, Nation editor Katrina vanden Heuvel previews the issue on the public television series Moyers & Company.  Check their website for the date and time in your area.

Non-profits Divided Over Citizens United

Abby Levine, AFJ’s Deputy Director of Advocacy Programs, spoke at today’s Hudson Institute panel titled “Non-profits Divided Over Citizens United,” analyzing the impact of Citizens United v. Federal Election Commission on business corporations, unions, and nonprofit organizations.

The panel was broadcast live by CSPAN, and you can watch it in its entirety here.

As you can see in this broadcast, the Citizens United case in some ways encompasses the breadth and depth of AFJ’s work—it demonstrates the importance of who sits on the Court and the impact the Court has on our everyday activities; as well as the important role nonprofits play in our democratic society and the ways in which nonprofits can participate in our electoral process.

In speaking about the composition of the court, Levine commented that:

“Too often, the current Court has decided cases in favor of big business at the
expense of ordinary people. We expect to have a Supreme Court vacancy sometime
this year. It is critically important that our next justice understands how the
law affects ordinary people. We need justices and judges in all of our courts
who will keep faith with our core constitutional values and protect the rights
of all Americans, not a select few.”

As for the opportunities afforded to nonprofits, Levine pointed out that while much of the focus has been about increased spending by for-profit corporations, the Citizens United decision provides new opportunities for organizations that promote the social good. AFJ has developed a number of resources to ensure nonprofits have the information needed to navigate this new legal landscape. Nonprofit organizations interested in taking advantage of these new opportunities can visit our website for a plain-language discussion of the impact of Citizens United as well as updates on changes in the law as a result of Citizens United.

While it’s likely Congress and some state legislatures will pursue new mechanisms to counteract the high court’s decision, Levine pointed out it is doubtful these proposals will be in place before the fall election season. She recommended that nonprofits learn to seize the current opportunity to participate more fully in our democracy.

Other speakers included: Geri Mannion, Carnegie Corporation of New York, Allison Hayword, George Mason University, Larry Ottinger, Center for Lobbying in the Public Interest, and Cleta Mitchell of Foley & Lardner.
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