Topic: Law and Civil Liberties

Supreme Court Still Split

Those who just days ago were proclaiming a new “era of good feelings” on the Court have been definitively proven wrong. Indeed, the last two weeks have seen more 5-4 divisions than the entire rest of the year to that point. While we have seen more unanimous rulings and fewer narrow splits than last term – when a full third of the cases came out 5-4 – this is clearly a function of the vagaries of the docket and not any shift in ideologies, judicial philosophies, or voting strategies. True, the Court under Chief Justice Roberts’ direction has increased the portion of business cases (typically more technical and therefore less divisive), but still the constitutional cases that catch the public’s eye – relating to social issues, civil rights, and national security – divide the Court on predictable lines. While this is in some senses unfortunate – we would prefer the highest court in the land to speak with one voice in resolving the nation’s deepest disputes – it is better for five justices to hold to their constitutional duty to say what the law is than to have nine produce a lukewarm opinion that either splits the baby or, worse, legislates from the bench. All in all it was a pretty good term for those concerned with upholding constitutional rights and limiting governmental powers (as well as reining in lawsuit abuse), but a sanguine consensus remains a pipe dream.

Good Day for the Bill of Rights

Congrats to Bob Levy, the prime mover behind yesterday’s landmark ruling concerning the right to keep and bear arms for self-defense.  Congrats also to his legal team of Alan Gura and Clark Neily.  And congrats to Eugene Volokh (of the Volokh Conspiracy blog) who had three of his law review articles cited in the majority opinion.

Brian Doherty, author of the forthcoming Cato book, Gun Control On Trial, has this piece in today’s Los Angeles Times. Cato associate policy analyst (and gun control expert) David Kopel offers his quick take here.  The Washington Post offers full coverage here.  More Cato analysis here.

Stephen Colbert and the Supreme Court

In the interview touted below by Jim Harper, the faux-neocon character played by Stephen Colbert asks constitutional scholar Neal Katyal, “Where does the Constitution get off telling the government what it can and cannot do?”

He’s ostensibly speaking for the four conservative justices who dissented in the Boumediene v. Bush case. But today he could be channeling the four liberal justices who dissented in the D.C. v. Heller case. Justice John Paul Stevens wrote that he couldn’t imagine that the Constitution would “limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

It is sadly hard to find justices who don’t, in some cases, sound like “Stephen Colbert”:

“Where does the Constitution get off telling the government what it can and cannot do?”

For a discussion of how the Constitution does in fact establish a government of delegated, enumerated, and thus limited powers, go here.

Supreme Court Crack-Up (and Down with Punitive Damages)

Certain commentators are noting the relative dearth of 5-4 decisions this term after a full third of last year’s cases were decided by that narrowest of margins (with Justice Kennedy in the majority in all of them).  That’s a bit premature, however, as already the last ten days have produced more 5-4 cases than the term leading up to them.  Tomorrow – with the contentious issues of energy deregulation, campaign finance, and, of course, the D.C. gun ban – will no doubt have even more.  They always leave the close cases for the end, folks, and none of today’s four cases were anywhere near unanimous. The two decisions that got all the attention, of course, were Kennedy v. Louisiana (capital child rape) and Exxon v. Baker (punitive damages from the Valdez spill).

I won’t say much about Kennedy, other than that, as he has so, so many times in the past, Justice Kennedy again shamelessly substituted his own policy preferences for the will of the people.  Regardless of one’s views on whether certain types of crimes short of murder (aggravated rape, child rape, treason, etc., etc.) warrant the death penalty, this is an issue properly left to the people and their elected representatives in state legislatures.  We do not pick nine (left alone five) black-robed lawyers to be our moral arbiters, philosopher-kings, or bureaucrats-in chief.  Kennedy versus Louisiana indeed!

As for Exxon, here we have the curious situation on the Court splitting 4-4 (Justice Alito having recused himself for owning Exxon stock) on the question of whether maritime law – the Court was only reviewing issues of federal maritime not constitutional law – permits punitive damages for the acts of agents.  This means that, on that issue, the Ninth Circuit’s opinion is summarily affirmed (without setting Supreme Court precedent), a terrible result because the Courts of Appeal are themselves split.  The Court went on, nevertheless and I think properly, by a 5-3 vote to vacate the $2.5 billion punitive damages award because, under maritime common law, punitives should be limited to the amount of compensatory damages (here $507.5 million).  The trial lawyers, as expected, are upset (about losing 80 percent of their contingency fee).  For further comment both on the issue of deadlock-producing recusals and punitive damages, I’ll save pixels here and refer you to my podcast. [Editor: Subscribe already!]

And again, stay tuned tomorrow for D.C. v. Heller (guns, for which my colleague Bob Levy is co-counsel and in which Cato filed an amicus brief), Davis v. FEC (campaign finance, in which we also have a brief), and Morgan Stanley v. Public Utility No.1 (electricity contracts).  The way the opinions have come down, smart money is on Scalia writing Heller (majority or plurarity) and Alito writing Davis.  Note that all three cases were long ago selected for inclusion in this year’s Cato Supreme Court Review.

FISA Face-saving

Since the new FISA bill was announced last week, Democratic leaders have been desperately trying to spin the legislation as a hard-won compromise rather than a capitulation. Time has an article on the FISA bill that’s a classic of the genre:

A compromise deal to extend the federal government’s domestic spying powers, passed by the House on Friday and expected to sail through the Senate next week, has drawn attacks from both sides of the political spectrum. The right is unhappy at concessions made to protect civil liberties; the left is furious that the Democrats allowed the domestic spying powers to be extended in any form.

There’s just one problem with this framing of the issue: outside of the Democratic leadership and a few elite journalists, no one believes it. Conservatives sure don’t. If you look at what actual conservatives are writing about the deal, you’ll find most of them crowing in victory. National Review’s Ramesh Ponuru, for example, says “It sure looks like [House Democrats] got rolled.” National Review’s Andy McCarthy calls the deal “the best we could have hoped for under the circumstances.” Coverage of the announcement on Human Events quoted no outraged conservatives. Paul at Power Line calls it “a decent FISA deal that’s likely to pass.” John McCormack at the Weekly Standard gives a thumbs up, as does Michelle Malkin.

And then there are the Republicans in Congress. Virtually every Republican in the House voted for the bill (compared with fewer than half the Democrats), and Kit Bond said that “I think the White House got a better deal than they even had hoped to get.”

In short, I’m hard-pressed to find even one person on “the right” who is opposing the bill. Virtually every civil liberties advocate opposes the legislation; virtually every partisan for executive power is happy with it. That is not a compromise. The deal was an unqualified victory for the White House, and everyone except the Democratic leadership knows it.

The article also suggests that Pelosi capitulated because “Democrats still trail on national security, and that could hurt them in Congress.” It seems to me that this represents a fundamental misunderstanding of the politics of national security issues. Democrats are perceived as weak on national defense largely because they’ve failed to articulate a clear position on the issue and stick to it. This spring, they staked out the principled (and in my view, correct) position in favor of judicial oversight and against retroactive immunity and got some good press for it. Now, they’re backing off from that view. Were they wrong back in March, or are they unwilling to stand up for their convictions now? Either way, the performance doesn’t inspire confidence in their judgment.

The article rather badly mischaracterizes the immunity provisions of the legislation:

Under Administration proposals, the telecoms would have received full retroactive immunity from lawsuits brought by civil libertarians alleging they violated the Fourth Amendment by complying with Administration requests to conduct wiretaps following 9/11. In negotiations with Pelosi’s office, the telecoms offered a compromise: Let a judge decide if the letters they received from the Administration asking for their help show that the government was really after terrorist suspects and not innocent Americans.

If the legislation passes, the judge won’t decide if the administration was “really after terrorist suspects.” The judge will simply determined whether the telecom companies received a letter from the executive branch stating that the programs were legal. And we already know that the telecom companies received such a letter, because it says so in a report from the Senate Intelligence Committee. There is therefore absolutely no doubt that if the legislation passes, the lawsuits will be dismissed. The changes to the immunity provision were a face-saving exercise, not a substantive compromise.

Blind Faith and FISA

Over at Ars Technica, I cover Sen. Chris Dodd’s plans to filibuster the FISA bill that is now under consideration in the Senate. Given that the Senate already overrode Dodd’s filibuster and passed legislation that undermines civil liberties back in February, his effort this time is a long shot. But he’s giving it all he’s got. Dodd gave a really excellent speech on the Senate floor in opposition to the legislation. He makes a lot of great points, but this passage was my favorite:

This bill does not say, “Trust the American people; Trust the courts and judges and juries to come to just decisions.” Retroactive immunity sends a message that is crystal clear: “Trust me.”

And that message comes straight from the mouth of this President. “Trust me.”

What is the basis for that trust? Classified documents, we are told, that prove the case for retroactive immunity beyond a shadow of a doubt. But we’re not allowed to see them! I’ve served in this body for 27 years, and I’m not allowed to see them! Neither are a majority of my colleagues. We are all left in the dark. I cannot speak for my colleagues—but I would never take “trust me” for an answer, not even in the best of times. Not even from a President on Mount Rushmore.

I can’t put it better than this: “ ‘Trust me’ government is government that asks that we concentrate our hopes and dreams on one man; that we trust him to do what’s best for us. My view of government places trust not in one person or one party, but in those values that transcend persons and parties.”

Those words were not spoken by someone who took our nation’s security lightly, Mr. President. They were spoken by Ronald Reagan – in 1980. They are every bit as true today, even if times of threat and fear blur our concept of transcendent values. Even if those who would exploit those times urge us to save our skins at any cost.

We once had a Republican president who understood that blind faith in the president was unpatriotic. Not only do few Republicans understand that today, but it seems a lot of Democrats have forgotten it too.