The Supremes and Gay Marriage

There were wonderful thing said by some of the Justices today, but I want to concentrate on the cartoons.  Here are three from the Washington Post.

First Pat Oliphant.

Oliphant 3-26-2013

I love the duck in the corner reminding everyone that this is the same court that gave us corporations as people.

Moving on to Tom Toles.

Toles 3-26-2013

And finally Nick Anderson.

Anderson 3-26-2013

Do we have to say more?

Law and Order: Life imitates art – or is the other way around?

I am a major fan of  Law and Order.  The original not any of the spin offs.  I still like to catch a re-run now and then and particularly like the older ones.  Last week a story in the New York Times about Robert M. Morgenthau the retired DA from Manhattan reminded me of the show.  Morgenthau is the model for the original DA, Adam Schiff, from the TV show. Morgenthau retired about three years ago at 90.  He had been DA for 35 years.

Morgenthau is still practicing law.

Mr. Morgenthau, 93, and two other prominent former prosecutors are asking the United States Supreme Court to take up the case of William Ernest Kuenzel, who has been on death row in Alabama for 24 years.

Based on the testimony of two witnesses, Mr. Kuenzel was convicted in 1988 of murdering a convenience store clerk. Records that became available only in 2010 revealed that those two witnesses — one of whom admitted that he himself was involved in the murder — actually did not implicate Mr. Kuenzel when they first spoke with the authorities. In fact, they originally gave entirely different accounts from what they testified to at trial, but the defense lawyer was unaware that their stories had changed. So were the jurors.

Mr. Morgenthau learned about the case from Jeffrey Glen, a law partner of his late son-in-law. Their firm, Anderson Kill & Olick, was working on the appeal, along with David Kochman. To Mr. Morgenthau’s disbelief, the case was rejected by federal courts in Alabama, which ruled that the new evidence did not “refute the possibility that the defendant committed the crime.”

“It’s so wrong to say there’s presumption of guilt because he was convicted once — without the newly discovered evidence,” Mr. Morgenthau said. “I just thought that was off the wall.”

So Mr. Morgenthau contacted 2 other former DA’s and they have filed a friend of the court brief for the Supreme Court asking them to take the case on appeal.

He contacted Gil Garcetti, who served 32 years in the Los Angeles district attorney’s office, and E. Michael McCann, who was the district attorney of Milwaukee for 38 years, and they agreed to join him in a friend-of-the-court brief.

The opening lines explained why their views were worth hearing: They wrote “from the unique perspective of having overseen and been ultimately responsible for more than 7,000,000 criminal prosecutions.”

The concept of new evidence was what led to the reversal of the conviction of five teenaged boys for the attempted murder of  a Central Park jogger.  In 2009 Carlin DeGuerin Miller wrote for a CBS blog

But his tenure hasn’t been without its share of detractors and controversies,
one of the biggest being the wrongful convictions in the 1989 Central Park
Jogger case. In 2002, DNA evidence surfaced that incriminated someone else in
the rape and Morgenthau himself appeared in court to agree with the defense
request to dismiss the charges.

A good prosecutor knows when to cut his losses.  According to the Times, Morgenthau said

“That was a matter of newly discovered evidence,” he said. “I had to act. This case reminded me of that.”

Law and Order lives on in re-runs and Robert Morgenthau is still fighting the good fight for real.

Robert M. Morgenthau is asking the United States Supreme Court to take on the case of a man who has been on death row in Alabama for 24 years.

Robert M. Morgenthau is asking the United States Supreme Court to take on the case of a man who has been on death row in Alabama for 24 years.

Photograph Hiroko Masuike/The New York Times

The Supremes and getting married

Marriage is several things.  It is a contract between two people recognized by the state and it is a spiritual and, for some, a religious bond.  When my parents were married in a Buddhist ceremony, one of their friends, a Jewish lawyer, is alleged to have said in a stage whisper, “It doesn’t matter what ritual is used, it’s still just a contract.”  I wish I had thought to ask him about this when I became an adult, but true or not it makes a nice story.

Yes, same sex couples can live together and in some places they can have a recognized civil union which may provide some benefits, but it is not the same as being married.  I can tell you from personal experience that they create very different states of mind.  Being married provides a level of comfort and security just living together does not.  And part of this comes from marriage being a contract.  Yes, all types of relationships fail and they fail for as many reasons as there are failures, but marriages are more difficult to sever therefore can provide more of a base on which a relationship can grow.

I’ve been writing about gay marriage as states are added to the list and I’ve been watching the attitude of the country toward gay marriage change.  Chris Cillizza posted two helpful charts on his Washington Post blog, the Fix.

Pretty amazing change is a relatively short period of time.  And Democrats have gone from not wanting to touch the issue to running for office supporting gay marriage in the space of one presidential election cycle.  This change was reflected at the ballot box.  I am happy that Washington State, Maryland, and Maine voted to legalize same sex marriage, but I still have this voice in the back of my head that says equal rights are not something that should be determined by a majority vote.

The Boston Globe reported

Last month, Washington, Maine, and Maryland became the first states to pass same-sex marriage by popular vote. They joined six other states — New York, Connecticut, Iowa, Massachusetts, New Hampshire, Vermont — and the District of Columbia that had already enacted laws or issued court rulings permitting same-sex marriage.

And now the Supreme Court will be ruling on the issue.  The New York Times explains

One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. The justices could also rule on narrower grounds that would apply only to marriages in California.

The second case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.

The California case was brought by the two lawyers who were on opposing sides in the infamous, Bush v. Gore case, Ted Olson and David Boies.  The second case is one of several that challenged the Defense of Marriage Act or DOMA.  It is interesting that the Massachusetts case is not the one being heard.

There was reason to think that Justice Elena Kagan was not free to hear an appeal from the Boston case because she had worked on it or a related case as United States solicitor general. The current solicitor general, Donald B. Verrilli Jr., gave the court a number of other options, including Windsor, probably partly to make sure that a case of such importance could be heard by a full nine-member court.

Edith Windsor of New York sued to be treated as a surviving spouse

The Obama Administration is not defending DOMA.

Chris Cillizza ended his post with this thought.

Go deeper into the Pew numbers — and thanks to Pew, you can! —  and you see why those trend lines won’t be reversing themselves.  In 2011-2012, 62 percent of people 18-29 supported gay marriage — by far the strongest support among any age group. During that same time period, just 32 percent of those 65 or older supported gay marriage.

The simple truth: Support for gay marriage tracks directly with age. The younger you are, the more likely you are to support it. Given that, it’s hard to imagine gay marriage getting less popular as the years go on.

Whatever the Supreme Court does with its two gay marriage cases next year, the die has been cast on the politics of the issue. By the 2016 presidential election, this could well be a decided issue that neither party — yes, that includes Republicans — spends much time talking about.

My guess is that the Supreme Court will overturn DOMA and rule that states can allow gay marriage if they want.  We will see in a few months if I’m right.

Photograph – Chester Higgins Jr./The New York Times

Understanding Health Care Reform

Health Care reform is coming before the Supreme Court soon and in an effort to really understand what it is all about I picked up a copy of Jonathan Gruber‘s book “Health Care Reform

Health Care Reform: What It Is, Why It's Necessary, How It Works

It is a nifty graphic novel which does an excellent job of explaining why we need health care reformm what the reform will do and when, and how is will help reduce the deficit.  This last is the most complicated and I’m not sure I got it all in a single reading.

Gruber uses several characters in differing circumstances to illustrate the law’s impact.  On the whole, very nicely done and highly recommended if you want to understand what the Affordable Health Care Act is all about.  Gruber is an economist who worked first with Mitt Romney on reform in Massachusetts and then with President Obama and his team.

Justice Clarence Thomas should resign

I’ve been thinking about this for several days now.  I’ve asked myself if this is just the left/progressive/liberal media piling on someone they have never liked much?  Am I attracted to this story because I never wanted him confirmed in the first place?  (I have my “I believe Anita” button somewhere.)  Is it because he never asks questions?  Because 99% of the time he does what Justice Scalia does?

I don’t think the New York Times is the liberal media.  And, yes, I’d like him to fall as payback for what he did to Anita Hill.  (I can’t be as forgiving as she).  I do believe that having him on the Court is a waste of a seat.  I also know that when Justice Kagan does not recuse herself from voting on the health care reform Fox etc. will be jumping all over her.  Justice Kagan has, however, recused herself from several cases that were already filed and being considered by the Department of Justice as well as her former office, Solicitor General.

What is the Times story about?  It is about preservation of a site in Pin Point, GA where Justice Thomas’ mother once picked crabs and the creation of a museum there.  It is about the owner making connection with Harlen Crow through Justice Thomas.  Crow, you may remember, financed the Swift Boat campaign against Senator John Kerry.

Mr. Crow stepped in to finance the multimillion-dollar purchase and restoration of the cannery, featuring a museum about the culture and history of Pin Point that has become a pet project of Justice Thomas’s.

The project throws a spotlight on an unusual, and ethically sensitive, friendship that appears to be markedly different from those of other justices on the nation’s highest court.

The two men met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas.

OK, Justices have to have a life outside of court and they have friends.  But as the Mike McIntire who wrote the story in the Times points out

In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.

Although the Supreme Court is not bound by the code, justices have said they adhere to it. Legal ethicists differed on whether Justice Thomas’s dealings with Mr. Crow pose a problem under the code. But they agreed that one facet of the relationship was both unusual and important in weighing any ethical implications: Justice Thomas’s role in Mr. Crow’s donation for the museum.

The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge. In addition, judges are not even supposed to know who donates to projects honoring them.

What do other Justices, Justices on the other side of the Court’s ideological divide do?

It is not unusual for justices to accept gifts or take part in outside activities, some with political overtones.

Justice Stephen G. Breyer has attended Renaissance Weekend, a retreat for politicians, artists and media personalities that is a favorite of Democrats, including former President Bill Clinton. Justice Ruth Bader Ginsburg participated in a symposium sponsored by the National Organization for Women’s Legal Defense and Education Fund, and a philanthropic foundation once tried to give her a $100,000 achievement award. She instructed that the money be given to charity.

And as I pointed out earlier, Justice Kagan has recused herself from a number of cases.

Justice Thomas and Harlan Crow are friends.  They spend time together.  Crow is helping to finance the museum and Thomas has done more than simply introduce the property owners to him.  According to the Times story he has picked the people to put the exhibit together and has worked on the film that will be shown.  Opposition first came from a group that opposes Thomas politically, but does that make this suspect?

No one is saying that Crow and his money have directly influenced any of Thomas’ votes.  But we can have suspicions.

Mr. Crow has not personally been a party to Supreme Court litigation, but his companies have been involved in federal court cases, including four that went to the appellate level. And he has served on the boards of two conservative organizations involved in filing supporting briefs in cases before the Supreme Court. One of them, the American Enterprise Institute, with Mr. Crow as a trustee, gave Justice Thomas a bust of Lincoln valued at $15,000 and praised his jurisprudence at an awards gala in 2001.

The institute’s Project on Fair Representation later filed briefs in several cases, and in 2006 the project brought a lawsuit challenging federal voting rights laws, a case in which Justice Thomas filed a lone dissent, embracing the project’s arguments. The project director, an institute fellow named Edward Blum, said the institute supported his research but did not finance the brief filings or the Texas suit, which was litigated pro bono by a former clerk of Justice Thomas’s.

“When it came time to file a lawsuit,” he said, “A.E.I. had no role in doing that.”

Plus we all know that the Affordable Health Care Act will be coming to the Court.

Supreme Court ethics have been under increasing scrutiny, largely because of the activities of Justice Thomas and Ms. Thomas, whose group, Liberty Central, opposed President Obama’s health care overhaul — an issue likely to wind up before the court. Mr. Crow’s donation to Liberty Central was reported by Politico.

So what does this all mean?  What can anyone do about it?

The Code of Conduct for judges does not directly apply to the Supreme Court largely because there is not higher court to enforce it.  Justices do say that they follow the Code anyway.  But Thomas does not seem to have reported all the travel paid for by Crow.  Even as a group of law professors and Common Cause call for legislation to extend the Code directly to Supreme Court Justices one has to wonder who would be the enforcer.  If a Justice is already ethically aware there is no problem.   But there will always be a Clarence Thomas who appears not to have a clue.  His friends should tell him it is time for him to leave the Court.

 

Thinking about the Supreme Court

I’m not going to speculate (at least in this post) on who President Obama will nominate in a few weeks, but I am going to talk about  two pieces discussing the Court itself and how decisions are made. The first by Geoffrey R. Stone in the New York Times, the second posted by William Forbath  this weekend on Politico’s Arena in response to Stone.

Stone begins

AS the Senate awaits the nomination of a new Supreme Court justice, a frank discussion is needed on the proper role of judges in our constitutional system. For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law. According to Chief Justice John Roberts, his job is just to “call balls and strikes.” According to Justice Antonin Scalia, conservative jurists merely carry out the “original meaning” of the framers. These are appealing but wholly disingenuous descriptions of what judges — liberal or conservative — actually do.

As both Stone and Forbath remind us, the Constitution is an 18th Century document.  I believe that the vague yet sweeping language is why the Constitution is still a living and useful document.  The question addressed by Stone and Forbath is how one interprets it to meet the modern age. Neither thinks much of the way the current conservative majority uses the constitution.

Stone

Rulings by conservative justices in the past decade make it perfectly clear that they do not “apply the law” in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.

Forbath

… Conservative judges use history to claim that when they strike down a law, they are merely applying the “original understanding” or “intentions” of the framers of the Constitution. This is bunk. But it is reassuring. It enables conservatives on and off the Court to claim that what liberal judges do is something different and illegitimate. Liberals are “judicial activists.” When liberal judges strike down a law, they are “making up” new law. They are “betraying” the Founding Fathers. This is also bunk. Conservative and liberal judges alike bring their own present-day values and convictions to bear on interpreting and applying the Constitution. Conservatives are wrong to deny it. But they are right that appealing to history and “keeping faith with the past” is an indispensable part of our constitutional tradition – and one that helps mobilize popular support behind the constitutional commitments a judge, lawmaker, or citizen may prize. So, liberals need to get a better handle on the way to use history.

So what should the role of history be?  And how can liberal justices use it more to their advantage?  Stone points out that

So, how should judges interpret the Constitution? To answer that question, we need to consider why we give courts the power of judicial review — the power to hold laws unconstitutional — in the first place. Although the framers thought democracy to be the best system of government, they recognized that it was imperfect. One flaw that troubled them was the risk that prejudice or intolerance on the part of the majority might threaten the liberties of a minority. As James Madison observed, in a democratic society “the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended … from acts in which the government is the mere instrument of the major number of the constituents.” It was therefore essential, Madison concluded, for judges, whose life tenure insulates them from the demands of the majority, to serve as the guardians of our liberties and as “an impenetrable bulwark” against every encroachment upon our most cherished freedoms.

Conservative judges often stand this idea on its head. As the list of rulings above shows, they tend to exercise the power of judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society. They employ judicial review to protect the powerful rather than the powerless.

Liberal judges, on the other hand, have tended to exercise the power of judicial review to invalidate laws that disadvantage racial and religious minorities, political dissenters, people accused of crimes and others who are unlikely to have their interests fully and fairly considered by the majority. Liberal judges have ended racial segregation, recognized the principle of “one person, one vote,” prohibited censorship of the Pentagon Papers and upheld the right to due process, even at Guantanamo Bay. This approach to judicial review fits much more naturally with the concerns and intentions of people like Madison who forged the American constitutional system.

Where Forbath disagrees is with Stone’s reliance on James Madison and original intent.  He points out

So, judges today must attend to the text the framers gave us, the general principles it enshrines, the Amendments Americans have added, and the meaning and range of applications generations of judges, lawmakers and citizens have poured into them. And judges must consult their own conscience and experience as they sift through these materials that history provides and decide how best to keep faith with the past.

As long as they hew to this honest approach to history, liberals often draw compelling lessons from it. But lately, liberals are being drawn into the fictions and falsities of the “framers’ intentions” in order to sound just as “true” to the Founding Fathers as our conservative foes. When we liberals play the “framers’ intentions” game, however, we end up sounding silly and disingenuous.

Take for example constitutional scholar Geoffrey Stone’s important op-ed piece in last Wednesday’s New York Times. Looking ahead to President Obama’s soon-to-be-announced nomination of a new Supreme Court Justice, Stone urges “a frank discussion .on the proper role of judges in our constitutional system.” He laments that for thirty years or so, conservatives have dominated the national conversation about the Constitution and the Court, and he rightly points out that they have done so “in a highly misleading way” by claiming that conservative judges just “apply” the Constitution by enforcing the “framers’ intentions.” Stone goes on to contrast the kinds of laws that liberal judges strike down – laws that burden racial minorities, the poor and the powerless, with laws that conservative judges strike down – laws that “disadvantage corporations, business interests, the wealthy and other powerful interests in society.” And he suggests that liberal judges surely have a wiser vision of the role of judges in a constitutional democracy, since they wield the power of judicial review to safeguard people most at risk of being shortchanged in the ordinary political process, while the conservative judges conjure up new safeguards for those who already enjoy ample sway in the political arena.

So far so good. But along the way, Stone proves unable to resist the siren song of “framers’ intentions.” He tries to turn the table on the conservatives. He goes to some lengths trying to cloak liberal constitutional values and commitments in the mantle of James Madison’s “intentions.” Stone has dressed up James Madison as a Great Society liberal. Says Stone, the “intentions of people like Madison who forged the American constitutional system” was to safeguard minorities like African-Americans, undocumented immigrants and the Guantanamo detainees against the tyranny of the majority. That is what liberal judges do. Conservatives, Stone declares, stand Madison’s “idea on its head.” They wield judicial review to overturn affirmative action, gun control, and restrictions on corporate speech; they “tend to exercise. judicial review to invalidate laws that disadvantage corporations, business interests, the wealthy and other powerful interests in society.”

Stone’s James Madison is bunk too. The real James Madison was largely hostile to any kind of judicial review. More important: while Madison did craft the Constitution to safeguard minority rights against the tyranny of the majority, and while Madison, the wealthy slaveholder, was concerned about protecting religious minorities, he had no concern for the rights of “racial minorities,” and it was mainly the rights of the wealthy over against the majority of Americans of modest means that Madison hoped to protect! Thus, the conservatives on today’s Court have about as good a claim to Madison’s mantle as we liberals do.

I think Forbath is right about history and original intent.  As long as we argue about which view of original intent is correct, liberals will never prevail.  We need to move on to take into about all the history since 1787.  Forbath writes

History is on our side; but that has much less to do with James Madison and much more to do with the bloodshed of the Civil War and the Civil War and Reconstruction Amendments that made the Constitution a charter of equal rights for all Americans, including the former slaves. It was the Republicans of the Reconstruction Era, the New Dealers, the Civil Rights Movement, and the twentieth-century Court who gradually enlarged Madison’s original conception of minority rights and majority tyranny to make it a safeguard for the poor and vulnerable.

We do need “a frank discussion” on the Constitution and the proper role of judges, and we can’t be half-frank about it. There are good arguments why the liberals’ account is better. Stone offers a few. But wrapping ourselves in the mantle of the 18th century framers’ intentions as he tries to do is not one. Our constitutional commitments have emerged over two centuries of tumultuous change. The arc of constitutional history generally has bent toward a more inclusive and generous vision of rights-bearing membership in We, the People. Conservatives are bending it back. The 18th century framers might have agreed with them; but the Civil War, the Reconstruction Amendments, and much else have intervened in the mean time; and, in any case, the choice – about how to keep faith with our constitutional past – is ours.

We need a Supreme Court with Justices that are willing to grow, to learn and to change with the times.  President Obama could do worse that nominate someone in the Earl Warren or Justice Powell or Justice Brennan mold.  Those were men who learned to consider cases on their merits, who understood the need to connect decisions to real ordinary people.  They were men with empathy.