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.

The Justice doth protest too much

You can listen to the comments from Justice Scalia described in this post here:



Just before the Supreme Court heard oral arguments in two marriage equality cases, New York Times Editorial Writer Dorothy Samuels wrote that

there are two questions preoccupying legal writers: How will Justice Anthony Kennedy, the court’s wild card, vote, and how will Justice Antonin Scalia behave? … Can Justice Scalia hold his ego and intemperance in check for the two hour and 50 minute duration of the two marriage argumentss? 

Justice Scalia did seem to choose his words more carefully than he has in some other recent cases – perhaps because he knows that, as Samuels wrote, his increasingly intemperate remarks both on the bench and off are raising questions about whether he should recuse himself from cases like these.

But that didn’t stop Scalia both from getting distorting reality and straining credulity.

It happened during oral argument on Hollingsworth v. Perry, the case challenging Proposition 8, which bans same-sex marriage in California.  Charles Cooper, counsel for supporters of Proposition 8, was struggling to name any actual harm caused by same-sex marriage.  So Justice Scalia tried to help him out, declaring:  

Justice Antonin Scalia

I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must -- you must permit adoption by same-sex couples, and there's -­ there's considerable disagreement among -- among sociologists as to what the consequences of raising a child in a -- in a single-sex family, whether that is harmful to the child or not. … I take no position on whether [same-sex marriage is] harmful or not, but it is certainly true that -- that there's no scientific answer to that question at this point in time.

Scalia is wrong.  As Prof. Clifford Rosky pointed out in his guest post to this blog: 

we now have several dozen empirical studies on children raised by lesbian and gay parents conducted over a period of several decades. While no study’s methodology is perfect, the findings of these studies speak with one voice. As one expert testified during the Prop 8 trial, these studies have shown “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.

 Indeed, after a four-year review of the scientific literature, the American Academy of Pediatrics declared its support for same-sex marriage.  But what do pediatricians know about children anyway?  It’s the sociologists who count, right?

But, as Ezra Klein notes in The Washington Post, the American Sociological Association also strongly supports same-sex marriage.  The organization said so in an amicus brief filed in this very case.  The brief notes that 

The claim that same-sex parents produce less positive child outcomes than opposite-sex parents—either because such families lack both a male and female parent or because both parents are not the biological parents of their children—contradicts abundant social science research. Decades of methodologically sound social science research, especially multiple nationally representative studies and the expert evidence introduced in the district courts below, confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources. Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing.

Perhaps even more striking was Justice Scalia’s claim that he takes “no position” on whether same-sex marriage is harmful.

We’ve previously noted this Huffington Post story which points out: 

In his dissent in a 1996 Supreme Court decision overturning a voter-approved, anti-gay referendum in Colorado, Scalia wrote in support of the voter majority, "I had thought that one could consider certain conduct reprehensible -- murder, for example, or polygamy or cruelty to animals -- and could exhibit even 'animus' toward such conduct." And in 2003, after the Supreme Court negated a law in Texas that had criminalized same-sex "sodomy," Scalia wrote in dissent, "The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are 'immoral and unacceptable' -- the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity."

 Justice Scalia has an interesting definition of “takes no position.”

Our Nation’s Waters Dodge A Bullet: Clean Water Act Swings on Justice Kennedy’s Vote

This Full Court Press analysis is the work of guest blogger organization The Sierra Club.

On June 19, the Supreme Court handed down its opinion on whether the Clean Water Act protects our nation's wetlands. Generally speaking, there were four votes to gut this protection (Justices Scalia, Thomas, Roberts and Alito), four votes to keep it intact (Justices Stevens, Souter, Ginsburg and Breyer), and one vote to modestly circumscribe it (Justice Kennedy). Justice Kennedy's opinion reflecting that one vote establishes the precedent of the Court. The Court's 4-1-4 split ultimately did little to clarify the law, but revealed much about how individual justices feel about environmental protection and the role of courts.

The good news is that Justices Stevens et al. voted to "respect the work product of the Legislative and Executive Branches of our Government" and uphold the broad view of the Clean Water Act intended by Congress and long applied by the Army Corps of Engineers, which administers the Act's wetlands program:

The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation's waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow. The Corps' resulting decision to treat these wetlands as encompassed within the term "waters of the United States" is a quintessential example of the Executive's reasonable interpretation of a statutory provision.

The bad news is that Justice Scalia, writing for himself and three other justices (Thomas, Roberts and Alito), openly mocked the environmental purposes of the Clean Water Act, a law which he described as "downright tedious." Describing the Corps' wetlands permitting program, Justice Scalia added that the Corps "exercises the discretion of an enlightened despot, relying on such factors as 'economics,' 'aesthetics,' 'recreation,' and 'in general, the needs and welfare of the people'" -- as if these were not factors that Congress has written into dozens of environmental statutes.

What Justice Scalia ultimately said was that, despite what the Clean Water Act says, despite what members of Congress say they said, and despite federal regulators' decades-long interpretation of what Congress said, Congress really intended to leave most of the nation's wetlands outside the scope of the Clean Water Act, as well many waterways. In his view, the Act covers only "continuously present, fixed bodies of water" and those wetlands with a "continuous surface connection" to the "continuously present" waterbodies. Talk about legislating from the bench.

While ostensibly motivated by a desire to protect "states' rights," Justice Scalia's analysis also ran counter to the wishes of states, more than 30 of whom submitted amicus briefs supporting broad federal environmental protections in this case. The states were joined by associations of state wetland, floodplain and water pollution control managers.

With one more vote, Justice Scalia would have successfully consigned to legal limbo an enormous number of intermittent/seasonal streams across the country: "We have no occasion in this litigation to decide exactly when the drying-up of a stream bed is continuous and frequent enough to disqualify the channel as a 'water of the United States.'"

It is a disheartening sign that the two newest members of the Court, Chief Justice Roberts and Justice Alito, joined Justice Scalia's opinion. Though as the environmental community had feared, no one can really claim surprise.

Thankfully the Scalia-Thomas-Roberts-Alito view did not prevail here. Poised between the two 4-vote blocs was Justice Kennedy, who agreed with Justice Scalia that the case should be sent back to the lower courts, but rejected everything else in his opinion: "In sum, the plurality's opinion is inconsistent with the Act's text, structure and purpose." Acknowledging the environmental importance of the Clean Water Act, Justice Kennedy opined that a wetland is protected by the Clean Water Act if the Corps determines it has a "significant nexus" to either navigable waters or tributaries to such (including intermittent streams), and explicitly calls for deference to the Corps' determinations on this issue. Moreover, as the four dissenting justices noted, "in the long run", the Kennedy "significant nexus" test "will probably not do much to diminish the number of wetlands" protected under the Act.

Unfortunately, unlike the bright-line approach taken by the Corps and the dissent, applying the "significant nexus" test means that, unless Congress finally acts to clarify the situation, we are in for years of case-by-case administrative determinations and legal fights (and the ensuing confusion and inconsistent results) over what is protected by the Clean Water Act. Many of those legal fights will take place in front of judges appointed by George W. Bush, judges who in many cases may share Justice Scalia's contempt for federal environmental laws.

Rapanos v. US, No. 04–1034, slip op. (June 19, 2006)

Scalia Spouts Stale Judicial Philosophy

Justice Antonin Scalia has been traveling the country this week to promote his new book on legal argument. While speaking to students at Roger Williams University School of Law and Fairfax County high schools, Scalia attempted to explain the basis for his judicial philosophy, which he refers to as an “originalist” view, and criticized the current process of judicial confirmations in the Senate.

Scalia mocked recent Senate battles over judicial nominees, likening them to “mini constitutional convention[s],” and noted that while he received 98 votes for his seat on the Supreme Court in 1986, he doubted that he could even “get 60 votes today.” Ahem. Not to sound callous…but if we had our way, he wouldn’t even have be able to dig up that many. Justice Scalia has been one of the most reliably conservative voices the Supreme Court has ever had.

In his attempt to make a case for his philosophy of constitutional originalism, the 72-year-old justice rejected the view that the Constitution is a “living document,” arguing that “Reading new stuff into the Constitution will bring you what a constitution always brings – rigidity.” He opined, “You don’t need a constitution for flexibility. All you need is a legislature and a ballot box.” When students pushed back and suggested that judges should intervene when legislatures are slow to resolve tough social or moral dilemmas, Scalia was dismissive. “I am not a moralist-in-chief…[nor an] ayatollah who is supposed to tell America what its morality should be.”

It seems to us that those who espouse this so-called “originalist” view of the Constitution are in fact just being indolent. With one vague philosophical declaration, they have conveniently freed themselves of any responsibility to make this 200-year-old document applicable to the complexities of modern life. For evidence, one need only look as far as the Indiana Voter-ID case which recently came before the Supreme Court. Everyone acknowledges that the Constitution guarantees the right to vote, but judging from the questions Scalia asked during oral arguments, he is not inclined to extend this right much beyond the hypothetical. His views seem to imply that just because the government has to let you vote doesn’t mean it has to make it easy for you to do so.

Movement conservatives like Justice Scalia frequently throw around terms like "judicial restraint" and decry so-called "activist judges" who "legislate from the bench,” as if to minimize the Third Branch's authority. But they use these catch phrases to distract from their own agenda, which consists of overturning settled precedents when they conflict with desired results, restricting access to the courts, and promoting the interests of businesses over consumer protections. This ultra-conservative agenda is precisely why Alliance for Justice fights as hard as it does – not just to keep judges in the mold of Antonin Scalia off the bench, but to advance a vision of the law which champions fairness, justice and equality for all.

Stop Us If You've Heard This One Before

A couple of weeks ago, at an ACLU debate, Justice Scalia listed numerous areas where, according to him, the Constitution gives courts no power to protect individuals from politicians who authorize government intrusion into their personal affairs. On Saturday, this time joined by Justice Alito, he made similar arguments at a National Italian American Foundation panel. True to form, Justice Scalia said that courts have no business addressing "social issues" on which the Constitution is "silent." He specifically identified abortion and assisted suicide as two such issues. The more courts decide to wade into these subjects, Justice Scalia asserted, the less they are entitled to the independence the Framers gave them.

Lots to unpack there, but nothing new. We've got one question, though: when Justice Scalia talks about what courts shouldn't be deciding, and what they must leave up to politicians, why is it that he always seems to draw the line at so-called "social issues" in his public speeches? There are, after all, plenty of issues on which the Constitution is far from explicit -- or "silent," as he would say -- yet the Court insists on flexing its muscles when confronted with them. In fact, on many of those issues, it is Justice Scalia himself who is among the most forceful advocates for judicial intervention. Justice Scalia maintains, for example, that:

• the Constitution prohibited the state of Florida from conducting a ballot recount in the 2000 presidential election
• the Fourteenth Amendment prohibits affirmative action
• the Fifth Amendment's takings clause requires the government to compensate property owners when land use regulations diminish, but don't extinguish, the value of their property
• the First Amendment prohibits laws that limit campaign contributions and commercial advertising
• Congress's power to enforce the Fourteenth Amendment's equality guarantees doesn't authorize legislation targeting gender, disability or national origin discrimination and is limited to authorizing legislation that remedies a history of demonstrable, state-sponsored racial discrimination.

Funny, we can't find any of these things in text of the Constitution. Indeed, one is also hard-pressed to say they're consistent with the document's original understanding, which Justice Scalia claims to follow.

Seems to us that by telling courts to steer clear of only "social issues" in his public comments, Justice Scalia is artificially limiting the universe of areas where he personally wants the court to butt out, but is at the same time purposefully -- but much more quietly -- leaving plenty of room for areas where he personally wants the court to butt in. University of Chicago law professor Cass Sunstein has called this "a political program in legal dress."

We disagree with Justice Scalia on a lot of things. We nevertheless firmly believe that that isn't an argument for making him, or the courts, less independent. If only he would have the humility to concede that his jurisprudential opponents are working in good faith to get the law right, and that they don't deserve any less independence merely because they're interpreting some aspects of the Constitution in ways he doesn't like. Because by repeatedly condemning the Court for "addressing social issues" (i.e., giving meaning to the liberty guarantees of the due process clause), and even worse, by saying that the Court's opinions disentitle it to judicial independence, he's sounding a lot like the James Dobsons and Pat Robertsons of the world. As a result, he’s encouraging them.

When Worlds Collide

On Tuesday, the American Constitution Society and the Federalist Society co-sponsored “A Conversation on the Constitution,” featuring Supreme Court Justices Scalia and Breyer. Scarcely letting moderator Jan Crawford Greenburg get a word in edgewise, the two justices engaged in a lively but largely predictable debate -- which felt a bit like old sparring partners circling one another but never landing any punches. Justice Breyer, echoing comments from his recent foray on Fox News Sunday, emphasized the need to look at statutory purpose when deciding cases. Justice Scalia eschewed Justice Breyer's purposive method, saying judges need only look to—surprise, surprise—the text. Justice Breyer responded by saying the text isn’t always clear. Etc., etc....

Hidden within the usual back and forth were a few notable moments, including when Justice Scalia touted himself and Justice Thomas as the Court’s only two “certified originalists.” We wondered if they really get certificates, and if so, are they displayed prominently on their office walls for all to admire? Justice Scalia also said the “living Constitution” is one “I wish would die,” but in a major concession he granted that --- drum roll please -- for the most part, the "living Constitution" is not an "idiotic" interpretive model.

When Ms. Greenburg asked what the justices thought about the new Chief’s desire to bring more consensus to the Court, Justice Scalia joked, “Lots of luck.” However, both Justices Breyer and Scalia opined that consensus wasn't all it was cracked up to be, since writing extremely narrow opinions just to get unanimity on the Court was not necessarily feasible or desirable.

In response to an audience question about the meaning of the phrase “judicial activism,” which has most commonly been used to attack liberal judges, Justice Scalia confessed that calling someone an “activist judge” is merely an empty insult. He tacitly acknowledged that conservatives too engage in something that could very well be labeled activism: Despite his frequent references to democracy and deference, Justice Scalia proclaimed that it is sometimes the very job of a judge to strike down acts of Congress. We wonder where he got this insight. Perhaps he’s been reading our blogs, or hosting secret screenings of our film Quiet Revolution! Or maybe not.

All in all, it was an interesting night.

Scalia Reinterprets History on ‘60 Minutes’

On Sunday, Supreme Court Justice Antonin Scalia sat down for an interview with Leslie Stahl of ‘60 Minutes.’ While interviewing the archetype of conservative judges – or, as CBS puts it, an “evangelist of originalism” – Ms. Stahl probed Justice Scalia’s views of the Constitution, his relationships with the other justices, and the controversial Bush v. Gore decision, which handed the presidency over to George W. Bush.

Throughout the interview, Justice Scalia made some particularly troublesome comments, leading us to question whether he can even tell the difference between historical truths and conservative myths. In an attempt to justify the Court’s decision in Bush v. Gore, Justice Scalia said that “the principle issue…whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn’t even close. The vote was seven to two.” In reality, the decision in this case was split 5 to 4, not 7 to 2. While two of the dissenters did acknowledge that Florida’s recount procedures violated the Constitution, they suggested sending the case back to the state court to establish new standards.

Justice Scalia also claimed that it was Al Gore who asked the courts to intervene in 2000. “We didn’t go looking for trouble. It was [Gore] who said, ‘I want this to be decided by the courts.’” But this too is false. Al Gore did bring a case in Florida state court, but it was George W. Bush who asked the federal courts to intervene and overrule the state, and it was George W. Bush who was listed as the plaintiff in the Supreme Court case.

In an attempt to dismiss his critics once and for all, Justice Scalia told America to “get over it.” But as a result of the Court’s intervention, President Bush took control of the White House and was allowed to put his court-packing agenda in motion. While Justice Scalia may be thrilled to have new allies on the bench, millions of Americans have been abandoned by ideological judges more concerned with furthering a rightwing agenda than protecting civil rights.

Scalia Uses Dissent to Deliver Policy and Political Lecture from the Bench

If you think that the Supreme Court is supposed to leave policy and political concerns to the policy-makers and politicians, then your name probably isn’t Antonin Scalia.

In a blistering dissent from the Supreme Court’s decision rejecting much of Arizona’s controversial immigration law, Scalia spends an inordinate amount of time railing against President Obama’s enforcement policies and Congress’ budget, legislative, and appropriation decisions, as well as the politics of immigration enforcement and reform.

Scalia not only characterizes current federal polices as “questionable” or “unwise,” he rails against the way in which laws – even laws not currently at issue in this case! – are enforced:

“The Government complains that state officials might not heed ‘federal priorities.’ Indeed they might not, particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona.”

He also asks:

“Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement – or, even worse, to the Executive’s unwise targeting of that funding?”

Very few of those things are traditionally considered the domain of the Supreme Court.

Here are some additional points from Scalia’s dissent.

“The Court opinion’s looming specter of inutterable horror – ‘[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,’ ante, at 10 – seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the  Nation’s immigration laws?”

...

“What I do fear – and what Arizona and the States that support it fear – is that “federal policies” of nonenforcement will leave the States helpless before [the] evil effects of illegal immigration[.]”

...

“The President said at a news conference that the new [DREAM Act] program is ‘the right thing to do’ in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.”

If you think some of Scalia’s arguments sound more like policy or political points than analysis of a state law and whether it’s preempted by the Constitution, you’re not alone.

Dangerous Duo?

Chief Justice Roberts and Justice Alito are often linked together in the public’s mind because they joined the Supreme Court at about the same time. The same is true for Justices Scalia and Thomas, who are linked together as the Rehnquist Court’s staunchest conservatives. However, as Joan Biskupic recently discussed in an article in USA Today, Justices Roberts and Scalia may actually be the pair who resemble one another the most:

Chief Justice John Roberts and Justice Antonin Scalia share conservative views on the law, and in Roberts' second term on the court he appears to have formed a bond with Scalia that involves not just substance, but also style. …

[T]hey have become partners in energizing court sessions. They reinforce each other's points and sometimes even finish each other's sentences. Occasionally, they
launch into rapid, back-and-forth dialogues that recall the routines of Abbott and Costello.

Indeed, the dissent by the Chief Justice in the recent global warming case suggests that he may be adopting Justice Scalia's acerbic writing style. If the Chief Justice continues to pattern his behavior after that of Justice Scalia, whose scornful manner has been known to alienate his colleagues, we doubt that the Chief Justice can make good on his promise to be a consensus-builder on the Court.

Are We Ready for the Roberts Court?

Global warming, school desegregation, abortion, and punishing tobacco industry fraud.

These are some of the contentious issues the Supreme Court will be addressing when it ushers in its 2006-07 term next Tuesday. Movement conservatives are crossing their fingers that the new duo of Chief Justice Roberts and Justice Alito will use these cases to drive the law hard to the right – and sweep away some important precedents along the way.

If the last term was any indication, they may not have to keep their fingers crossed for long. Indeed, court watchers like the Los Angeles Times’s David Savage are openly wondering whether the new Roberts Court “will … seek the right result or the right’s result?” A conclusive answer to that question is probably a few years off. But the upcoming term is going to give us a much better sense of things.

Here’s what the big cases are about – and what you might expect to see happen in them:

Massachusetts v. Environmental Protection Agency: The EPA’s slacking could leave us all under water.

A coalition of 12 states, three cities, an island government, and numerous environmental organizations are urging the EPA to regulate global warming-inducing greenhouse gases. Researchers have concluded that global warming is triggering an observable increase in hurricanes, floods, droughts, and heat waves. The scientific community and former EPA heads under Nixon, Ford, Reagan, Bush I, Clinton and Bush II all agree that the EPA needs to take action.

But President Bush’s current EPA recalcitrantly insists it doesn’t have the power. This, despite the plain language of the Clean Air Act, which says the EPA shall regulate “any air pollutant” that can “reasonably be anticipated to endanger public health or welfare.” How is the administration getting around this clear directive? By rejecting generally accepted science linking emissions and global warming (sound vaguely familiar?) and by asserting it can make policy in spite of what Congress directs.

Commentators believe the Court may sidestep the issue of the Bush EPA’s hands-off approach to climate change and rule instead that none of the parties have “standing” (the right to bring the case) since EPA regulation wouldn’t, by itself, solve the whole crisis. Precedent should compel the Court to reject this result.

But the commentators could have a point. Curbing access to the courts by environmental interests – including access authorized by Congress – is one of the signatures of Justices Scalia and Thomas. And Justice Alito joined perhaps the harshest environmental standing decision ever written, one that required individuals to show harm to the environment before being permitted to file suit. The Supreme Court decisively rejected that view by a 7-2 vote in 2000, with – surprise, surprise – Scalia and Thomas dissenting.

That means Chief Justice Roberts and Justice “swing vote” Kennedy are holding all the cards, and they haven’t clearly revealed what they’ve got. On one hand, Kennedy toed the Scalia-Thomas hard-line in a landmark 1992 opinion dubbing environmentalists’ claims nothing more than “generalized grievances” unworthy of judicial resolution, and Roberts wrote a law review article embracing that opinion. On the other hand, Kennedy signed onto the majority in the 2000 decision featuring Scalia and Thomas in dissent. Then again, in that same case, he concurred to suggest he might have sided with Scalia and Thomas if the standing issue had been presented differently.

No one knows where Roberts would have come out in that case. But it’s at least possible he’s with Justice Kennedy on the issue. Which leaves room for hope, particularly given the view Roberts expressed during his confirmation hearings that federal judges ought to respect the will of Congress.

Parents Involved in Community Schools v. Seattle School District #1; Meredith v. Jefferson County Board of Education: Voluntary school desegregation efforts find themselves in jeopardy.

Brought by white parents of public school children in Seattle and Louisville, this case may determine whether the Court will categorically prohibit long-running efforts to ensure schoolhouse diversity. It deals with the constitutionality of assigning children to elementary and secondary schools based in part on their race. The outcome may determine whether the promise of Brown v. Board of Education is dead or alive.

The Court will have to grapple with whether to apply, dramatically narrow, or flat-out overturn a 5-4 decision from 2003 that preserved affirmative action practices in higher education. If the Court applies that precedent, public schools may be able to maintain voluntary desegregation policies. If it doesn’t (which is what the right fervently hopes), the country will come to understand even more quickly than last term what the substitution of Justice Alito for Justice O’Connor means.

Arch-conservative non-profit law firms like the Pacific Legal Foundation, the Competitive Enterprise Institute, and the Center for Individual Rights have pushed this case. Now the Bush administration is on board, too.

Justices Ginsburg, Breyer, Souter, and Stevens are expected to respect local governments’ judgment that the goal of classroom diversity justifies flexibly using race as one of several factors in making school assignments, particularly in places with segregated housing patterns. Justices Scalia and Thomas, on the other hand, are certain to take the activist route and vote to override the will of local, popularly elected officials. Justice Kennedy probably will, too, as he’s never been a fan of race-conscious policies, even to remedy discrimination.

That leaves our two newest justices. And we already have a pretty good idea where they’re headed. A fierce opponent of anything remotely resembling race-consciousness while serving in the Reagan administration, Chief Justice Roberts declared in last term’s big voting rights case, “It is a sordid business, this divvying us up by race.” Justice Alito joined that opinion. What’s more, Alito stridently criticized race-conscious policies in the Reagan administration, saying he was “particularly proud” of his efforts to squelch affirmative action programs.

Unless Roberts and/or Alito defer to precedent and break from what they’ve previously written, voluntary school desegregation could soon be a thing of the past. Which, in the Louisville case, is pretty ironic – until 2000 that school district was under a 25 year-long court order requiring it to use race as a factor in school assignments.

Gonzales v. Carhart, Gonzales v. Planned Parenthood: Can Congress get in between women, their health, and their doctors?

A federal law prohibits doctors from performing specific types of abortions, referred to by the anti-abortion movement as “partial birth-abortions.” These include certain second-trimester abortions. The law makes no exception to preserve the health of the woman. Congress passed it in 2003 as a direct challenge to the Court’s hotly contested decision in Stenberg v. Carhart, which struck down an almost identical Nebraska statute by a 5-4 margin, with Justice O’Connor casting the deciding vote.

Based on Stenberg, the Second, Eighth and Ninth Circuits all have agreed that the 2003 law is unconstitutional. What’s at stake in this case is not just Stenberg’s continuing vitality, but the continuing vitality of the long-standing idea that doctors, rather than legislatures, should decide whether a medical procedure is necessary to protect a woman’s health.

A regular who’s who of conservative activists has filed friend-of-the-court briefs asking the Court to uphold the abortion restrictions – Pat Robertson’s American Center for Law and Justice, James Dobson’s Focus on the Family, Tony Perkins’ Family Research Council, and Phyllis Schlafly’s Eagle Forum, to name a few. Some, like the Foundation for Moral Law, Inc., are specifically asking the Court to overturn Roe v. Wade.

Since seven of the current justices decided the same issue just a few years ago, there is little doubt about their votes here, especially given the stridency of the Stenberg dissent, written by Justice Kennedy. So expect Justices Souter, Breyer, Ginsburg and Stevens to rebuff Congress’s direct challenge to Stenberg, and look for Justices Kennedy, Scalia and Thomas to ratify it. The question on everyone’s mind is whether Chief Justice Roberts and Justice Alito will stand by what they respectively – and repeatedly – said about the importance of precedent during their confirmation hearings.

This is where the rubber meets the road, because both justices have previously rejected the very notion of abortion rights. As a political appointee in the Reagan and Bush administrations, Roberts denounced the right to privacy, on which Roe v. Wade is premised. In a case not even implicating Roe, he co-authored a brief stating that “Roe was wrongly decided and should now be overruled.”

Justice Alito’s record is even more stark. In the Reagan administration, he expressed his personal belief that the Constitution doesn’t protect the right to abortion and advocated a strategy of eventually overturning Roe while “in the mean time mitigating its effects.” As an appeals court judge, he would have upheld a spousal consent law the Supreme Court struck down. He also grudgingly concurred in following Stenberg to invalidate a New Jersey abortion ban because, as a lower-court judge, he had to. As a Supreme Court Justice, he is not similarly bound.

Last term Chief Justice Roberts joined an opinion declaring that “the rule of law demands that adhering to our prior case law be the norm.” For him and Justice Alito, we’ll soon see just how firm that norm is.

Philip Morris USA v. Williams: Damages limits could insulate wayward companies and threaten consumer access to courts.

In a civil lawsuit, compensatory damages are meant to cover the actual harm suffered by someone who’s been injured. Punitive damages, meanwhile, serve the distinct purpose of punishing a defendant for particularly malicious misconduct. In this case, brought against tobacco giant Phillip Morris, the jury awarded $821,000 in compensatory damages and $79.5 million dollars in punitive damages to a widow whose husband, a smoker, died of lung cancer.

The issue here is whether the punitive damages award, which was intended to punish Phillip Morris for a long pattern of hiding the dangers of smoking, is unconstitutionally high. The Supreme Court has said that it’s generally unconstitutional for juries to award punitive damages greater than nine times the compensatory damages. Here the lower court found Phillip Morris’s conduct so reprehensible that it approved a much higher ratio. Phillip Morris’s big business allies, including the National Association of Manufacturers, are weighing in on this case to change that.

If the Court strikes down the jury’s award and sets forth mandatory damages ratios or something like them, it will make consumer protection, housing discrimination and other small compensatory damages cases financially infeasible for injured parties to pursue, leaving big corporations with an economic incentive to cut corners.

The justices’ alignment in this case is likely to break from what one typically expects. Justices Scalia, Thomas and Ginsburg will probably uphold the jury verdict, all having argued that the Constitution’s due process clause places no limits on punitive damages. Given his penchant for narrowly interpreting the due process clause on the Third Circuit, Justice Alito may go their way. But if he’s worried about extending the liability of corporations, as he appeared to be on the appeals court, he may not. The other justices have been willing to limit damages in some cases, but it’s not clear whether they’ll do so here.

Supreme Court Reinterprets 2nd Amendment

As most of you have already heard, the Supreme Court released its long-awaited decision in District of Columbia v. Heller today, in which it struck down DC’s handgun ban in a split 5-4 decision. Despite the fact that no federal court in the history of our nation has ever understood the Second Amendment to grant an individual right to bear arms – at least until last year’s DC Circuit Court decision – the majority decided not to rely on precedent and instead simply reinterpret the Constitution as they would like it to read.

In a Washington Post editorial, Colbert King wrote that Scalia "said that the Constitution doesn’t allow 'the absolute prohibition of handguns held and used for self-defense in the home.'" He went on to discuss Scalia’s determination that "the American people consider the handgun to be the quintessential self-defense weapon," and asked, "If machine guns one day should become the weapon of choice for home protection -- what say ye then, Justice Scalia?"

In a statement released this afternoon, Alliance for Justice President Nan Aron said, "once again, Justice Scalia’s Originalism is…little more than a convenient buzzword…His latest opinion, in DC v. Heller, exposes [his] hypocrisy and results-oriented…approach to the law." She went on to say that, "today's decision…should come as no surprise to those who recognize that Justice Scalia and his conservative counterparts, for all of their professed deference to legislatures and precedent, are willing to reject even those precedents they penned themselves when it interferes with the policy results they seek."

"Voice of the children": Proposition 8 and LGBT families

You can hear the excerpts from oral argument discussed below on our AFJ Audio Analysis page for this case.

by Clifford J. Rosky, Associate Professor of Law at University of Utah College of Law
 
In today’s arguments on the constitutionality of California's Proposition 8, the issue of “standing” took center stage. Chief Justice Roberts and the so-called liberal Justices—especially Justices Ginsburg, Sotomayor, and Kagan—argued forcefully that the sponsors of Prop 8 do not have the right to defend the law in federal court, because they are not representatives of the state of California. Although Justice Kennedy seemed to think otherwise, he, too, suggested that the appeal may not have been “properly granted.” All told, it seems most likely that the case will be dismissed—either because a majority of the Justices agree that the sponsors of Prop 8 do not have standing, or because a majority is not able to agree on any particular result. Given that the plaintiffs won at trial and on appeal, either of these outcomes would be regarded as victories. Come summer, it seems likely that same-sex couples will once again be permitted to marry in California.

But once we dispose of these legal technicalities, there are other ways to take stock of today’s performance—and more broadly, to measure the LGBT movement’s remarkable progress in the last fifty years. One reliable way of assessing today’s argument is to listen carefully to how the Justices talked about the impact of same-sex marriage on kids.

In the opening argument, Justice Scalia drew upon a long tradition of anti-gay rhetoric when he raised the possibility that allowing lesbian and gay people to adopt a child may be “harmful to the child.”  Although Justice Scalia claimed to “take no position on whether it’s harmful or not,” he argued that there was still “considerable disagreement among sociologists as to...whether [it] is harmful to the child.” Because “there’s no scientific answer,” he reasoned, Proposition 8 could be justified by the mere possibility that lesbian and gay parenting is harmful.

To be sure, Justice Scalia’s remarks are a far cry from Anita Bryant’s notorious “Save Our Children” campaign, in which she argued that “homosexuals can’t reproduce, so they must recruit” children into the “homosexual lifestyle.” But even so, Justice Scalia’s remarks betray a rather strange and strained view of the existing data. By this point, we now have several dozen empirical studies on children raised by lesbian and gay parents conducted over a period of several decades. While no study’s methodology is perfect, the findings of these studies speak with one voice. As one expert testified during the Prop 8 trial, these studies have shown “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.”

Of course, all eyes were on Justice Kennedy in today’s argument—but as usual, he confounded any effort to discern where he stands. On one hand, he admitted that he found “substance” in Justice Scalia’s point that the “sociological information is new.” Because same-sex couples have not been permitted to marry until the twenty-first century, he explained, “We have five years of information to weigh against 2,000 years of history or more.” “On the other hand,” he continued, “there is an immediate legal injury...and that’s the voice of the children.” Giving eloquent voice to the interests of children raised by same-sex couples, Justice Kennedy explained: “There are some 40,000 children in California...that live with same-sex parents, and they want their parents to have full recognition and full status.” Admonishing the sponsors of Prop 8, he insisted: “The voice of those children is important in this case, don’t you think?” If Justice Kennedy remains focused on the voices of these children, then the prospects for lesbian and gay families look bright.

Clifford J. Rosky is an Associate Professor of Law at the University of Utah's S.J. Quinney College of Law.

Scalia on retirees losing their health insurance: “I can’t feel bad about it.”

By Trevor Boeckmann

AFJ Dorot Fellow

It’s no surprise to see the majority on the United States Supreme Court siding against consumers, employees, and everyday Americans. In the past, we’ve told you about the Court upholding forced arbitration clauses that keep those harmed by big businesses out of court, preventing women from banding together to stop employment discrimination, and allowing employers to impose their religious views on employees.

At some point, one would think the majority would start to feel bad about how their actions affect us. Apparently not.

This week, the Court heard oral arguments in a case involving health insurance for retirees.

 M&G Polymers USA, LLC v. Tackett involves a chemical company in West Virginia that had a series of collective bargaining agreements with its employees’ union. At issue was a clause in the agreement that said retired employees “will receive a full company contribution towards the cost of [health] benefits.” The union argued the benefits were guaranteed for life. The company argued it could take away these benefits whenever it chose—which it did in 2007.

As Professors Susan Cancelosi and Charlotte Garden wrote in a previous post: “The equitable case for retirees is compelling: they devoted their working lives to their employer with the expectation that they would then have health insurance to see them through their retirement.” Compelling, unless you’re Justice Antonin Scalia.

During oral argument, Justice Scalia mused:

 You know, the nice thing about a contract case of this sort is you can’t feel bad about it.  Whoever loses deserves to lose. I mean, this thing [the duration of the health benefits] is obviously an important feature.  Both sides knew it was left unaddressed, so, you know, whoever loses deserves to lose for casting this upon us when it could have been said very clearly in the contract.  Such an important feature.  So I hope we’ll get it right, but, you know, I can’t feel bad about it.

 Justice Stephen Breyer was quick to disagree:

Well, you know, the workers who discover they’ve been retired for five years and don’t have any health benefits might feel a little bad about it.

Listen to the comments of Justice Scalia and Justice Breyer:

This is nothing new for Justice Scalia.  Last year, he compared the LGBT community to “child abusers” and referred to the Voting Rights Acts as a “perpetuation of racial entitlement.”

And if the majority sides with the chemical company, that won’t be anything new either.

Right-wing crankiness on full display

In his new book, The Oath: The Obama White House and the Supreme Court, Jeffrey Toobin writes that the dissent Justice Antonin Scalia wrote in a case striking down part of Arizona’s notorious law on immigration (Arizona et. Al. v. United States) "marked his transition from conservative intellectual to right-wing crank." (Writing in Salon, Paul F. Campos has another term for Scalia: "Intellectual fraud.")

The crankiness was on full display last week, when Scalia spoke at the American Enterprise Institute. He discussed some of the toughest issues to face the Court. They are the kinds of cases that prompt many justices, and other Americans in all walks of life, to wrestle with their consciences.

But not Antonin Scalia, who declared:

The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state.

That we might have become a more civilized nation since the days when death had to be by torture for it to be considered "cruel and unusual" and the days when women effectively were the property of men, is of no concern to Justice Scalia. He prefers to party like it’s 1789.

Don’t Call Me a “Strict Constructionist”

This weekend, Associate Supreme Court Justice Antonin Scalia debated ACLU president Nadine Strossen live on CSPAN. During the predictable but lively exchange, Justice Scalia basically recommitted himself to things he’s said in judicial opinions many times before – not that that makes them any more palatable, of course. Among the gems:

• The constitutional right of privacy doesn’t exist;
  
• Laws that punish people for engaging in conduct that offends others’ supposed morals – like laws criminalizing non-commercial sex between consenting gay adults in the privacy of their own homes– are A-OK;
  
• Religious minorities may be criminally punished for practicing their religion and states may not accommodate them, even if prosecuting them doesn’t serve a compelling state interest;
  
• All race-conscious policies, no matter what kind, are unconstitutional (so much for the “original understanding” of the 14th Amendment that Justice Scalia claims he follows);
  
• Constitutional text should be interpreted by divining what its Framers thought it meant hundreds of years ago (so “due process of law” means only “those processes that were the rights of Englishmen in 1791”);

Notably, Justice Scalia, often heralded by right-wing political figures as the nation’s preeminent “strict constructionist,” flatly rejected the label. Repeating a point he has made before, he said it does not describe his judicial philosophy.

Funny how the right’s rhetoric about “strict constructionism” is so fatuous and so misleading that even its poster-boy is embarrassed to be associated with it.

But the most entertaining moment in the debate occurred after Strossen suggested that the Constitution’s broad, freedom-preserving language must adapt to changing times. Scalia scolded, “Someday, you’re going to get a very conservative Supreme Court and regret that approach.”

Strossen, and the audience, burst out laughing. Someday? Try today.

A Slightly Different Definition of Restraint

Yesterday, in an op-ed for The Washington Post, Senator Arlen Specter (R-PA) plugged his proposal for televising Supreme Court proceedings -- a proposal that Alliance for Justice is actively supporting. Though something of a non sequitur, Specter also used the piece to take another well-deserved shot at the decidedly conservative brand of judicial activism that the Supreme Court has practiced over the past decade. Specter, Chair of the Judiciary Committee, unfortunately acquiesced today in the Republican leadership’s effort to gin up the conservative base for the November midterms by agreeing to begin pushing through the White House’s most controversial judicial nominees. But on the issue of the aggressive conservative activism of the Supreme Court in recent years, the senior senator from Pennsylvania is spot on.

Repeating a point that he made forcefully during the confirmation hearings of John Roberts and Samuel Alito, Specter wrote:

But does the Supreme Court respect Congress? By a 5 to 4 vote the court has declared legislation protecting women against violence unconstitutional because of the congressional "method of reasoning" in passing it, and the insufficiency of the legislative record -- even though Justice David Souter noted in dissent that a "mountain of data" on the subject had been acquired from task forces in 21 states. Similarly, in a 5 to 4 decision, the court struck down a law prohibiting discrimination in employment because of an allegedly insufficient record, even though the legislation was supported by 13 congressional hearings and evidence gathered by special task forces in every state.

Within the past decade the court has expanded its super-legislature status by invalidating legislation it dislikes, plucking out of the air a brand-new doctrine that acts of Congress are "disproportionate and incongruent," whatever that means. That led Justice Antonin Scalia to admonish his colleagues for setting the court up as a "taskmaster" to determine whether Congress has done its "homework," a situation that he saw as an "invitation to judicial arbitrariness and policy-driven decision-making."

I agree that our constitutional system is best served by giving the Supreme Court the last word, but there is no doubt that congressional procedures and authority have been severely diminished by the court.

Specter could have added that in 10 short years, the Rehnquist Court –- cheered on by “movement” conservatives -- boasted an annual rate of invalidating federal laws far greater than in any other era. Often by a 5-4 vote, the Court struck down more than 35 acts of Congress, including laws protecting workers, seniors, people with disabilities, abused women and religious minorities. Specter could have also mentioned that despite the Right's constant carping about "liberal" judicial activism, it is the Supreme Court's reputed conservatives who have led the charge here. A recent study by professor Paul Gewirtz and Chad Golder of Yale Law School showed that, between 1995 and 2004, Justices Thomas and Scalia ranked first and third, respectively, in their willingness to override the will of Congress. Justices Ginsburg and Breyer were at the bottom, trailing far behind. (Specter quotes Justice Scalia's criticism of the standard that conservative justices have adopted for reviewing and invalidating anti-discrimination legislation. Specter fails to mention, however, that Justice Scalia opts for a rule that would choke off Congress's authority to enact nationwide antidiscrimination protections even more than the "flabby" standard that he aptly condemns.)

In the past several years, the Supreme Court has cautiously scaled back its assault on Congress' law-making prerogatives, upholding applications of (1) the Family and Medical Leave Act, (2) the Americans with Disabilities Act and (3) the Controlled Substances Act -- but thanks only to the defection of at least one of the Court's conservatives in each case (Justices O'Connor and Rehnquist in (1), O'Connor in (2), and Scalia and Kennedy in (3)). With the addition of Chief Justice Roberts (who raised questions about the constitutionality of the Endangered Species Act) and Justice Alito (who infamously voted in dissent to invalidate the federal law banning machine gun possession), this scaling back might only reflect a temporary lull. One hopes not. Indeed, one hopes that at least in the case of the Chief Justice, he stays true to the mildly reassuring testimony he gave on this subject during his confirmation hearings.

We have to admit to finding it somewhat amusing—disturbing, but amusing—that right-wingers continue to push the poll-tested message that they believe in "judicial restraint." We get the judicial part, but keep missing the restraint part. Perhaps because, as Senator Specter has so aptly pointed out, there is little resembling restraint in the Right’s approach to the law nowadays.

Supreme Court Justices: Ready for Their Close-ups

As many commentators have pointed out, these days the justices seem to be making more public appearances than ever -- as well as openly discussing their approaches to constitutional interpretation and the role of the judiciary. Dahlia Lithwick observed in Slate last Saturday:

In recent months, Justice John Paul Stevens and Chief Justice John Roberts gave prime-time interviews to ABC's Jan Crawford Greenburg; Justice Ruth Bader Ginsburg chatted with CBS' Mike Wallace in chambers; and Justice Stephen Breyer has logged almost as much time on camera as Lindsay Lohan—including a sit-down with Charlie Rose and a gig on Fox News Sunday. Roberts is participating in a four-hour documentary to be aired on PBS starting next week.

As Ms. Lithwick highlighted, however, what the justices choose not to say may be more important than what they do say. She posited that the justices’ reticence to discuss such issues as abortion, church-state separation, or Bush v. Gore, may reflect the justices' reluctance to further inflame public debate over these polarizing issues. Ms. Lithwick also suggested that the constitutional doctrines on which these areas of law are based require more explanation than can be given in a brief interview. (Justice Breyer recently wrote a whole book on constitutional interpretation).

Justice Scalia is the one justice who seldom steers clear of controversial issues. Ellen Rosen had an article in The New York Times on Sunday about Justice Scalia’s recent talk at Iona College. Justice Scalia told the audience that it is time to “get over” the Bush v. Gore decision and touted his originalist constitutional vision.

As Dahlia Lithwick pointed out in her article, however, Justice Scalia's candor may be because it's easier to reduce his constitutional views to sound bites:

As Justice Scalia continues to prove, the taut lines of his theory of “originalism” tend to be an easier sell than the blurriness of a “living Constitution.” Which may be why some of the justices sometimes talk the loudest when they say nothing at all.

Braving the New World

In the final two weeks of the Supreme Court term, which wrapped up yesterday, prior suggestions about Chief Justice John Roberts’ ushering in a new era of broad agreeability proved just a tad premature. Oh, yes, there are new alliances. But on the hot-button cases – the kind reserved for term’s end – they sure don’t extend court-wide. What we’ve seen is Justices Alito and Roberts almost always joining each other, and almost always siding with (if not always wholeheartedly embracing) Justices Antonin Scalia and Clarence Thomas, to form what is fast becoming the Court’s new, hard right flank. Though often a moderating force, Justice Anthony Kennedy usually swings that way, too

Make no mistake: this is changing things. Already. On the numbers alone, as SCOTUS Blog reports, Justice Alito has lined up with Justices Thomas and Scalia far more often thus far than did Justice O’Connor, whom he replaced, and he definitively changed the outcome of at least two big cases that had to be re-argued once he took over. As to the impact of Chief Justice Roberts, he, too, has done little if anything to defy expectations.

The end-of-the-term news isn’t all bad, though, thanks largely to Justice Kennedy, whose sometimes lonely vote, swinging the Court hither and yon, has tamped down the presidential threat to checks and balances, salvaged part of an otherwise scuttled (also thanks to him) voting rights challenge to Tom DeLay-orchestrated gerrymandering in Texas, and, as previously reported, preserved wetlands protections under the Clean Water Act. In case you missed them, here’s a run-down of some of the noteworthy cases decided as the curtain closed on this year’s term. Good news first.

Hamdan v. Rumsfeld: A Stinging Rebuke to the Bush Administration. By now, you’ve all read, heard and undoubtedly talked about this one, the mack-daddy of the term, and on the scope of the president’s commander-in-chief powers, perhaps the mack-daddy of all-time. A five-justice majority said that the president’s military commissions, which he set up unilaterally to try certain Guantanamo detainees, violate U.S. military law and the Geneva Conventions. Justice Kennedy provided a key fifth vote. Justice Alito joined Justices Thomas and Scalia in dissent. Chief Justice Roberts had to recuse himself because it was his decision as a D.C. Circuit judge (which upheld the commissions) that the high court was reviewing.

At its core, the ruling pretty much eviserates the Bush administration's brazen claim that the president can flat-out ignore acts of Congress under some “inherent” authority. Think torture. Think warrantless wiretapping. The twisted legal justifications for those policies are now history. Another significant thing about the ruling is its holding that Common Article 3 of the Geneva Conventions does apply to our treatment of Gitmo and other detainees, something the Bush administration has long denied. What that means is not only that the existing commissions go by the boards, but that any administration policy that violates Common Article 3 – and yes, that includes “coercive interrogation techniques”– is a dead letter.

Hard right conservatives are spinning Hamdan as “judicial tyranny” and a victory for al Qaeda. Nonsense. It is a victory for the rule of law. The commissions will be quickly resurrected, only with Congress’s help and (hopefully) with adequate procedural protections, pursuant to our constitutional design. As Justice Breyer said in his concurrence:

The Court’s conclusion ultimately rests upon a single ground: Congress has not issued the Executive a ‘blank check.’ Indeed, Congress has denied the President the legislative authority to create military commissions of the kind at issue here … Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine – through democratic means – how best to do so. The Constitution places faith in those democratic means. Our Court today simply does the same.

Burlington Northern & Santa Fe Railway v. White: A Civil Rights Victory. In a “welcome instance of common-sense judging,” the Court voted unanimously to preserve broad anti-retaliation protections for workers who lodge discrimination complaints. In order to trigger federal anti-discrimination law, the Court held, retaliation need not involve termination, formal demotion, or other conditions-of-employment moves; rather, it need only be reasonably likely to dissuade a worker from complaining. So now it’s clear that the law covers retaliatory “lateral” job reassignments, shift changes and negative references for other jobs. The decision was a win for all employees, but especially for White, a female railroad worker who was reassigned to a theoretically equivalent, but actually less desirable position after complaining of sexual harassment. Later, after filing her complaint with the EEOC, she was also suspended without pay for 37 days, though the company subsequently admitted mistake and reimbursed her. Justice Alito, while agreeing that White was entitled to win the case on those facts, was the only judge not to sign on to Justice Breyer’s opinion. Perhaps unsurprisingly in view of his ordinarily stingy civil rights rulings on the Third Circuit, he disputed the Court’s reasoning and argued for a standard that would have limited the kinds of cases where workers would enjoy legal protection.

LULAC v. Perry: A Mixed (and Mixed Up) Bag. Remember Tom Delay? Well, he may never again grace the halls of the United States Congress, but the Supreme Court has made sure that his handiwork in the partisan redistricting of Texas is mostly here to stay – or at least until the Texas legislature decides otherwise. In a long, splintered and exceedingly confusing decision, the Court voted to reject Texas Democrats’ argument that constitutional assurances of “one person one vote” prohibit mid-decade redistricting. And although once again unwilling to articulate a standard for over-the-line partisan gerrymandering, the Court, by a much narrower margin, told us this instance of gerrymandering just didn’t meet it, whatever it is.

Together with Justice Kennedy, Justices Scalia, Thomas, Roberts and Alito, also agreed that there was no Voting Rights Act violation in the redrawing of a substantially African-American district. That part of the opinion effectively killed a certain type of claim – a voter influence claim – that voting rights advocates have been using for some time. But not all was lost. In the last part of the case, Justice Kennedy switched sides, joining Justices Stevens, Souter, Ginsburg, and Breyer, to find that a redrawn, heavily Latino south Texas district violated the Voting Rights Act. Over strong disagreement from Chief Justice Roberts, who called the majority’s preservation of Latino voting strength under the Voting Rights Act “a sordid business,” Justice Kennedy admonished state legislators for undermining “the progress of a racial group that has been subject to significant voting-related discrimination and that was becoming increasingly politically active and cohesive.” By reconfiguring the district to protect a Latino Republican, Justice Kennedy found, the State “took away the Latinos’ opportunity [to elect their candidate of choice] because Latinos were about to exercise it.”

Will this decision open the floodgates for mid-decade and aggressively partisan gerrymandering around the country? Whether the future brings ugly partisan warfare, a more gently-stated redistricting boom, or something else entirely will be a game of wait-and-see. If the nation's leading election law experts, like Rick Hasen, can’t predict what’s in store, who’s to know?

Randall v. Sorrell: Precedent Holds on Campaign Finance. In a splintered 6-3 ruling, the Court largely hewed to a landmark, 30 year-old precedent and found unconstitutional a Vermont law that limited both the amount that candidates for state office could spend on their campaigns and the amount that individuals, organizations, and parties could contribute to campaigns. Though there was no majority opinion, Justices Roberts and Alito joined Justice Breyer in ruling that the expenditure limits violate free speech guarantees and that the contribution limits are so low that they burden the democratic process by precluding challengers from effectively campaigning against incumbents. Unlike Justices Scalia and Thomas, who would have overruled precedent and found that all contribution (and expenditure) limits are always unconstitutional, Justices Breyer, Roberts and Alito said that contribution limits may sometimes be acceptable to prevent corruption.

Criminal Cases: If Nothing Else, the Sixth Amendment Lives. No one should be surprised if the Roberts Court – and our two newest justices, in particular – eat into the provisions of the Bill of Rights that protect the accused. And no one should be surprised that that’s already begun. But the Sixth Amendment, which safeguards the right to counsel and the right to confront adverse witnesses, just received a boost. In one 5-4 ruling, where Justice Scalia joined Justices Stevens, Souter, Breyer and Ginsburg to form a majority, the Court said that no set of circumstances compromises a person’s right to have the paid lawyer of his choice (U.S. v. Gonzalez-Lopez). Justice Alito wrote the four-member dissent. In another case, which is of immense practical significance to criminal courts country-wide, a nearly unanimous Court said that unless a witness’s out-of-court statement is made in the midst of an emergency, it cannot be used against a defendant in court (Davis v. Washington).

Criminal defendants did not fare so well in the other biggies decided the past two weeks. By a narrow margin, the Court found constitutional the State of Arizona’s restrictive definition of insanity, as well as its rule barring criminal defendants from using psychiatric evidence short of insanity to show that they didn’t have the “guilty mind” necessary for conviction (Clark v. Arizona). Other rulings raise the question whether the Court is embarking on a course of recognizing rights without remedies – toothless rights, that is. In one 5-4 decision, the Court knocked down a centuries-old privacy protection, holding that a criminal trial court should not exclude evidence obtained when police violate the Fourth Amendment requirement that police “knock and announce” before entering someone’s home with a warrant. (Hudson v. Michigan). In another close decision, the Court said that even if the Vienna Convention gives arrested foreigners a judicially-enforceable right to consult with their U.S. consulate, violations of that right may not be remedied by the exclusion of evidence (Sanchez-Llamas v. Oregon).

In Kansas v. Marsh, the Court ruled, also 5-4, that states can require imposition of the death penalty when the jury finds that the aggravating circumstances supporting the punishment and the mitigating circumstances cutting against it are in equal balance. What proved remarkable about an otherwise expected result is the unbridgeable chasm that has emerged between the majority and the dissenters on the issue of capital punishment. The dissenters call the Kansas law which the majority upheld "morally absurd" and “obtuse.” And by suggesting that the spate of death row exonerations in recent years bolstered their position, they prompted an angry screed from Justice Scalia, who pooh-poohed academic studies about exonerations, embraced hotly-contested countervailing ones, and exuded all-around contempt for anything and everything that casts doubt on the efficacy of capital punishment. For a justice who regularly accuses his colleagues of letting their personal opinions interfere with their judging, his concurrence is really ... something else.

With the lone exception of the out-of-court statements decision, Chief Justice Roberts and Justice Alito ruled in favor of the government and against the accused in each of these criminal cases.