Topic: Law and Civil Liberties

The End of the Year (but not the Term) at the Supreme Court

Today marks the last day of official business for 2007 at the Supreme Court.  The Court released opinions in three cases that were argued this term,  which join the two last week as the only rulings on the merits so far.  (The very first case argued this term, NY School Bd. v. Tom F., was affirmed without an opinion because the court split 4-4.)

Two of the cases decided this morning definitively clarified that the Sentencing Guidelines are really not binding on the sentencing court.  In Kimbrough v. U.S., the Court, by a 7-2 majority speaking through Justice Ginsburg, reversed the Richmond-based Fourth Circuit and found that a district court may impose a sentence for a crack cocaine offense that departs downward from the Guidelines’ 100-to-1 ratio for crack versus powder cocaine sentences.

In Gall v. U.S., a 7-2 majority speaking through Justice Stevens repeated that appellate courts should review sentencing decisions that depart from the sentencing guidelines using the highly deferential abuse-of-discretion standard, and that the departure in this particular case was not unreasonable (reversing the St. Louis-based Eighth Circuit).

In both the above cases, Justices Alito and Thomas were the lone dissenters.  Justice Alito was concerned that the district courts were not deferring sufficiently to the Sentencing Guidelines (which, while non-binding, must still “be taken into account”) and worried that sentencing disparities would gradually increase.  Justice Thomas continued his disagreement with Booker (the case that made the guidelines merely advisory)  in rejecting the new “reasonableness” standard.

Also of note is that Justices Scalia and Souter filed concurring opinions in the above cases.  Not unreasonably and as he was in his dissent from Booker, Justice Scalia continues to be concerned that judges are unconstitutionally finding facts relevant to sentences.  Justice Souter, who only wrote separately in Gall but stated that his views applied to Kimbrough as well,  suggested that

[T]he best resolution of the tension between substantial consistency throughout the system and the right of jury trial would be a new Act of Congress: reestablishing a statutory system of mandatory sentencing guidelines … but providing for jury findings of all facts necessary to set the upper range of sentencing discretion.

Strangely, I agree with Justice Souter.

Finally, in Watson v. U.S., a unanimous Court through the pen of Justice Souter held that one does not “use” a gun for purposes of sentencing enhancement when that person receives a gun in trade for drugs.  Justice Ginsburg filed a concurring opinion stating that, according to today’s decision, it is better to receive than to give when the subject is guns and urging the Court to adopt Justice Scalia’s dissent from an earlier case that found that trading a gun for drugs is “use.”

I agree with Justice Ginsburg – and guarantee you that neither my agreement with her nor hers with Justice Scalia is the start of a new trend.

One interesting observation is that in all three opinions decided today, Chief Justice Roberts was in the majority and in all three he used his right to assign authorship to the three most liberal members of the Court.  (Of last week’s two opinions, one also went to Ginsburg, and the Chief wrote the other himself.)  This may mean one of three things: 1) Chief Justice Roberts is trying to curry the favor of his liberal colleagues; 2) Ginsburg, Stevens, and Souter write opinions faster than their colleagues (unlikely because the opinions so far have been simple and uncontroversial); or 3) nothing at all. 

Overall, the Court has now granted cert in 60 cases (which, believe it or not, is 5 ahead of last term) and has heard argument in 26 of them – plus one case of original jurisdiction involving a suit between two states.

The Court’s next official business day, when it may issue orders granting and denying new cases will be Jan. 7.  That day will also see the Court’s argument calendar start the New Year off with the explosive case of Baze v. Rees, which considers the constitutionality of a certain kind of lethal injection (and the granting of cert on which has effectively stayed all executions by lethal injections nationally).  The next time we may see decisions on the merits is Jan. 8.

Media Bias

There’s an interesting new blog called The Monkey Cage written by three political scientists at the George Washington University.  Any blog that takes its motto from H.L. Mencken deserves a look from libertarians, even if the authors are not libertarians (I have no idea whether they are or not).

The blog has only been up for a few days, but it already has some interesting posts on voter ID, campaign finance, and negative advertising in campaigns. The authors don’t follow the conventional wisdom on those issues. For example, they praise the work of Cato visiting research fellow John Mueller on the bias in threat assessments of terrorism. (You can find the short version of Mueller’s work here).

One of the group, John Sides, has a concise and interesting post on media bias.

His claim that newspapers are in the business of confirming the prior beliefs of their readers seems accurate, and yet it confirms the original concern (or, at least, a legitimate concern) about liberal bias: responding to readers or viewers leads to a biased or distorted account of reality.

Is there a market for unbiased reporting? You would think so, but perhaps not. Maybe it doesn’t matter. We may just dump media messages, bias and all, into the marketplace of ideas and trust that something like an unbiased political result will come out the other end.

Reading Sides, some might wonder: Why not relieve the media of market pressure as a way of dealing with bias? That prompts another question: Are NPR and the CPB free of political bias in their reporting and analysis?

The post also prompted the following thought: I have worked on the campaign finance issue for many years now and I have never talked to a reporter from major media who doubted any part, much less the whole, of the reform case. Political scientists have not found that campaign contributions have much effect on members of Congress (see the earlier link). But that has not affected the prior beliefs of reporters . One raw assertion of corruption by Fred Wertheimer outweighes a hundred careful studies of the influence of money on politics. That might suggest that how monolithic liberalism is in the media depends on the issue. But still, do reporters favor reform because they are liberal or because they get to write “Look, corruption!” a couple times a week? Or do they favor reform because it tends to suppress accounts of reality and messages that compete with the product offered by their employers? In other words, do they support regulations that confer directly nonproductive deadweight rents on their employers?

Finally, Sides does not discuss the Milyo-Groseclose study of media bias. Maybe he will in future posts.

Supreme Court and GITMO (Part 2)

Because of widespread interest in yesterday’s Guantanamo case, the Supreme Court released the audio of the oral argument.  Since Justice Anthony Kennedy is considered to be the deciding vote in what will be a 5-4 decision, I thought the most interesting and perhaps pivotal moment came at the very end of the oral argument.  If you have any interest in this debate at all, click on the audio link above and then skip to the good part at the 1 hour, 21 minute mark and just listen to the final three minutes. 

Justice Kennedy asks a question and attorney Seth Waxman begins his response, explaining the “Kafkaesque” procedures that are supposed to be a “substitute” for the writ of habeas corpus.  But then Waxman’s alloted time expires! Had the late Chief Justice William Rehnquist been presiding, he would have immediately pounded his gavel and thanked the attorneys–even if Waxman had been in mid-sentence.  Very strict about the clock, among other things. Fortunately, Chief Justice John Roberts was presiding–because he allowed Waxman an extra minute to complete his powerful closing argument in response to Justice Kennedy’s question.

Previous coverage here.  Podcast here

Supreme Court and GITMO

Today, the Supreme Court will be hearing oral arguments in the case of Boumediene v. Bush  The case represents an important battle over the constitutional doctrine of separation of powers and the “Great Writ” of habeas corpus.

This isn’t the place to lay out all the details, but I will try to boil it down.  The case is about two things: (a) the power of government to put people in prison; and (b) a power clash between the three branches of our government. 

President Bush says the entire world, including every inch of U.S. territory, is a battlefield.  As Commander-in-Chief, Mr. Bush and his military and intelligence agents will decide who must be imprisoned (sometimes the prisoners are called “enemy combatants,” “POWs,” “high value detainees,” or “imperative security detainees”) and the courts should not “second guess” the calls made by members of the executive branch. 

There is a Supreme Court precedent called Eisentrager that says the courts do not have jurisdiction over prisoners–so long as they are non-citizens who are kept in facilities abroad.  Guantanamo was selected as the site, in part, for that legal reason.  The Bush administration has tried to keep any legal claims by prisoners out of federal court.  When the Supreme Court ruled that a federal statute permitted claims in federal court, Bush went to Congress to change that law.  We now have the Military Commissions Act, which tries to withdraw federal habeas corpus jurisdiction from the federal courts–for any case arising out of Guantanamo.  The Court will be hearing arguments on the constitutionality of that law today.

In my view, Guantanamo gets so much media attention that most people end up losing the big picture.  What if the Supreme Court says habeas petitions from Guantanamo can be heard in federal court?  In an ironic twist, such a ruling might prompt Mr. Bush to announce, “I am closing of Guantanamo!” (footnote: The prisoners, however, will be moved to Abu Graib or some other facility).  What then?

“Jurisdiction” refers to the power of a court to decide a case.  Territory is usually a key factor in deciding jurisdiction.  If a prisoner in a California prison sends a habeas petition to a court in Maine, the Maine court will quickly toss it out because it has no jurisdiction.  It does not matter if the Maine judge is convinced of the prisoner’s innocence. 

The Bush administration says it should win the Boumediene case because federal courts do not have jurisdiction over non-citizen prisoners who are beyond U.S. borders.   And they refer us back to the terms of the Military Commission Act and the Eisentrager case.

I believe the Bush administration should lose this case.  The Framers of the American Constitution called the writ of habeas corpus the “Great Writ” because it is the fundamental check on the power of government to put people in prison.  In law, we say this writ “cuts through all forms,” such as territorial jurisdiction.  The courts do have jurisdiction over the “power of control,” which is the President.  The writ operates upon the jailer, not the prisoner.  Thus, if a habeas petition has merit, the court orders the jailer to release his grasp. 

The Supreme Court needs to protect the role of the judiciary in habeas litigation by invalidating the habeas removal provisions of the Military Commission Act.  Once jurisdiction is established, federal courts can move on to the “merits” of the petitions.  Whether any particular prisoner can persuade a court that his imprisonment is a mistake remains to be seen. 

The Cato brief in this case can be found here.  To watch or listen to me debate George Mason University professor Jeremy Rabkin, go here.  I am also participating in an on-line debate over at the Federalist Society.

Free Speech and Property Rights in St. Louis

The St. Louis Post-Dispatch has a story on an important free speech case here in St. Louis. Property rights activist Jim Roos, whose run-ins with city bulldozers are documented in my recent study, has painted an enormous two-story mural on the side of one of the buildings the city has threatened with eminent domain. It reads “End Eminent Domain Abuse,” and its location makes it plainly visible for commuters driving on Interstate 55, a major commuter route.

The city isn’t amused, and has charged Roos with having an “illegal sign.” Roos fought back:

Roos fought the citation, claiming the city was targeting him not because of the size of his sign, but because of its message.

“I think if it said, ‘Go Cardinals,’ we wouldn’t have any problems,” Roos said.

The city routinely approves exemptions for large signs. On the same day a city panel rejected Roos’ claim, it granted an appeal by Laclede Gas to display a sign of over 1,000 square feet on the utility’s downtown headquarters.

Even so, content is not the issue, city officials say — it’s keeping the city tidy.

“Can you imagine what our city would look like if everyone were allowed to paint a 363-square-foot, two-story sign on their buildings?” asked City Attorney Patti Hageman.

Roos has taken his case to federal court, where he has drawn the aid of the Institute for Justice, a libertarian advocacy group in Arlington, Va. The interest in Roos’ fight is twofold for the institute, which advocates for both free speech and property rights.

It sure would be terrible if everyone were allowed to express their political opinions by painting murals on their buildings.

More Nanny-State Foolishness

Article I, Section VIII of the United States Constitution specifies the powers of the United States Congress. The list of congressional powers is not very long, comprising less than 20 items, so it did not take very long to discover that federal lawmakers do not have any power to regulate school lunches. So I was shocked, absolutely shocked, to read in the New York Times that Senators Harkin and Murkowski are pushing legislation to micro-manage the number of calories in vending-machine snacks (though they have graciously and generously decided to exempt the Girl Scouts):

Federal lawmakers are considering the broadest effort ever to limit what children eat: a national ban on selling candy, sugary soda and salty, fatty food in school snack bars, vending machines and cafeteria lines. …Senator Tom Harkin, Democrat of Iowa and the chairman of the Agriculture Committee, has twice introduced bills to deal with foods other than the standard school lunch, which is regulated by Department of Agriculture. Several lawmakers and advocates for changes in school food believe that an amendment to the $286 billion farm bill is the best chance to get control of the mountain of high-calorie snacks and sodas available to schoolchildren. Even if the farm bill does not pass, Mr. Harkin and Senator Lisa Murkowski, Republican of Alaska, a sponsor of the amendment, vow to keep reintroducing it in other forms until it sticks. …Food for sale would have to be limited in saturated and trans fat and have less than 35 percent sugar. Sodium would be limited, and snacks must have no more than 180 calories per serving for middle and elementary schools and 200 calories for high schools. The standards would not affect occasional fund-raising projects, like Girl Scout cookie sales.

The Politics of Free Speech Change for the Better

The politics of free speech are changing fast.

The presidential public financing system is all but dead, largely because the candidates are raising so much money they don’t need to dun the taxpayers for campaign cash. The Democrats have raised a lot more money for the coming election than the Republicans. The Supreme Court is starting to favor free speech in campaign finance cases and casting a cold eye on laws like McCain-Feingold.

For most of the past three decades, so-called “reform” groups have dominated DC battles about campaign finance. These special interest groups lobbied Congress while their lawyers practiced the art of restricting speech before the Federal Election Commission.

Now that too is changing. A new group,, has formed to fight restrictions on speech. They just asked the Federal Election Commission to issue an advisory opinion about whether their fundraising must follow the contribution limits in federal election law.

Contribution limits exist–in law, if not in fact–to prevent corruption or the appearance of corruption. But is not giving money to federal candidates for office, and it is not incorporated (corporations cannot legally give money to parties or candidates). The organization is funded solely by individuals, some of whom want to give more than $5,000 to support the work of the new group.

What are they planning to do? The Center for Competitive Politics, which along with the Institute for Justice provides legal counsel to, says that “the group wants to run TV ads supporting and opposing candidates on free speech issues during the 2008 election cycle.”

Think about that for a minute. A group of citizens wants to come together to pool their resources to speak out for and against candidates on matters concerning free speech. They don’t plan to give candidates or the parties money, so the corruption threat does not exist. What could be more in line with the First Amendment and the Constitution? And yet… finds itself asking the Federal Election Commission “mother may I?” just to exercise its constitutional rights.

That should make you angry.

But think about this too. is something different from what we’ve heard on these issues for so many years, a group that plans to defend the First Amendment outside the courtroom. And somewhere in this nation is at least one person who is willing to give more than $5,000 for that effort.

That gives me hope.