Requiem for 5-4 Supreme Court Decisions

Chief Justice Roberts gave an address at Georgetown in which he lauds the virtues of deciding cases, where possible, narrowly and unanimously:

 ”If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case,” Roberts said. “Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.”

Its not clear that Roberts’ prediction (that consensus on the Court yields clarity, precision, and narrowness) is right.  Consensus-building in Congress, another multi-member voting body, is purchased at the price of legal fuzziness.  The more amorphous and open-ended the statute–the more the statute defers tough questions–the more members of Congress agree to add their names to it. 

While consensus building on the Supreme Court is a simpler prospect, there’s no reason to think the same basic dynamic won’t apply here too:  Supreme Court justices will purchase broad agreement at the price of clarity, harming the rule of law. 

Indeed, as I discuss at the end of this online debate, this may be the lesson of one of Roberts’ earliest opinions (in Rumsfeld v. FAIR).  There, the Court was asked to decide whether Congress violated law schools’ free speech rights by threatening to withdraw federal funding unless the schools sponsored JAG recruiters on campus.  The Court unanimously rejected the law schools’ First Amendment claims.  But in the course of doing so, it reached a question it didn’t have to reach:  the scope of deference owed to Congress when it regulates “military affairs.”  Worse, the Court’s cursory discussion of military affairs deference is exceedingly unclear and could be read to mean that judicial enforcement of the Bill of Rights is at a vanishingly low ebb when Congress raises and supports armies.  

As even the National Review admits, this aside is troubling and deserves clarification.  But it may also be a by-product of Roberts’ drive for consensus:  Some justices may have joined the Court’s ruling on the First Amendment only if there was some hedge that allowed them to distinguish the First Amendment ruling in a later, different case.  Adding in a bit about military deference may have been the hedge that brought those justices on board, allowing them to rule differently in a case that didn’t involve national security.  But other justices may have been wary about the scope of deference in this area.  Therefore it was necessary to discuss military deference in a vague way in order to belay these fears.  The result:  an opinion that inadvertently muddies the scope of civil liberties in the shadow of military-related legislation, inviting envelope pushing by Congress and the President.

The lesson:  Sometimes being narrow requires hedging.  And sometimes consensus requires wishy-washiness.  Hedging and wishy-washiness in turn make the law less clear.  That may give government officials more discretion to boss us around, while leaving the rest of us in the dark about the scope of our rights.

Misinformation on Iran

Last week, Canada’s National Post ran a revolting and disturbing report that the Iranian majlis had passed a law instituting “separate dress codes for religious minorities, Christians, Jews and Zoroastrians, who will have to adopt distinct colour schemes to make them identifiable in public.”  Perhaps the most disturbing aspect of the story was that 

Religious minorities… will also have to wear special insignia, known as zonnar, to indicate their non-Islamic faiths. Jews would be marked out with a yellow strip of cloth sewn in front of their clothes while Christians will be assigned the colour red. Zoroastrians end up with Persian blue as the colour of their zonnar. 

Several news outlets and blogs picked up on the story, and the New York Post ran the original column under the headline “Iran OKs ‘Nazi’ Social Fabric.” 

As it turns out, however, the reporting appears to be false.

The National Post ran a story backing away from its original claims

Sam Kermanian, of the U.S.-based Iranian-American Jewish Federation, said in an interview from Los Angeles that he had contacted members of the Jewish community in Iran – including the lone Jewish member of the Iranian parliament. 

They denied any such measure was in place. 

Mr. Kermanian said the subject of “what to do with religious minorities” came up during debates leading up to the passing of the dress code law. 

“It is possible that some ideas might have been thrown around,” he said. 

“But to the best of my knowledge the final version of the law does not demand any identifying marks by the religious minority groups.” 

The New York Sun similarly admitted that “The National Post story turned out to be incorrect”: 

Over the weekend, the representative of Iran’s Jewish community in the Iranian legislature, Maurice Motamed, denied that the proposed dress code changes would require minorities to wear distinctive clothing or badges. The chairman of the parliament’s cultural committee, Emad Afroogh, also told wire services that the initial reports of such restrictions were “worthless.” 

A summary of the legislation that appeared on the Majlis Web site contained no specific language designating special dress codes or markers for minorities, either.  

Mr. Motamed’s claims were actually stronger than the Sun indicated:

“Such a plan has never been proposed or discussed in parliament,” he said. “Such news, which appeared abroad, is an insult to religious minorities here.”

CBS News outlined its own decisionmaking process, and why it decided against running with the story

CBS News Radio has also decided against running the story, according to Exective Producer Charlie Kaye. “There are too many red flags here,” he says. “The best we can determine is this has originated with Iranian dissidents in Canada. We have spoken to a CBS News correspondent just back from Iran and her producer, we’ve spoken to the Iranian mission to the UN, we’ve spoken to our State Department Reporter Charlie Wolfson, and at this point we’re not comfortable putting it on the radio.” 

Amir Taheri, the author of the original article, has now issued a classic non-denial denial through his PR firm, Benador Associates.

The Iranian government is reprehensible enough on its own.  The awful policies enacted by Tehran are too numerous to count.  (The very fact that the government is working on legislation concerning the way people dress being a good example.)  But irresponsible reporting that leads casual observers to believe that Iran is directly drawing on Nazi Germany for the crafting of its social policies is incredibly detrimental to the debate over US policy. 

Thanks to blogger Jim Henley for doing the digging on this. 

The Veterans Administration and Data Privacy

I woke up this morning to learn that I might be one of the more than 26 million veterans whose personal information - including name, social security number, and date of birth - is now in the hands of a (presumably) common thief. I won’t be certain that I am one of the individuals affected until I receive notification in the mail from the Department of Veterans Affairs. But I’m reasonably sure, given that I joined the service after 1975, that my personal information has now been compromised.

The Washington Post is certainly correct that this is a case of “incompetence” – the VA employee in question removed the data to his home, from whence it was stolen. The Post editors note:

Mr. Nicholson says that the employee was not authorized to take this information home, but his department clearly failed to do enough to enforce its own guidelines. It now promises to restrict access to sensitive data to those who need it and to conduct background checks on those who do. It’s extraordinary that this approach did not prevail already.

It is indeed. But the larger point is this: If we depend upon government to defend us from compromises of our personal information, and if we assume that such violations are most likely to be perpetrated by negligent, incompetent or mendacious individuals in private firms, then who is to protect us from negligence, incompetence or mendacity on the part of government officials?

In the case of the private firms, I retain some capacity for limiting the scope of my liability by tearing up that credit card application, or by hanging up on the telemarketer trying to sell me (another) home equity loan. Meanwhile, I subjected myself to a degree of scrutiny that most Americans avoid when I joined NROTC in 1985, and the active duty Navy in 1989. In a sense, I “opted in” and my name appears in a VA database. On the other hand, most Americans “opted out” by having never served in any branch of the military; and in this particular case, their personal data is not at risk. 

But unlike credit card solicitations and telemarketers, letters and phone calls from the federal government cannot be ignored, meaning that Americans are not always afforded the opportunity to opt in to a particular database. Nearly every American has a social security number, most have filed federal income taxes, and millions of American males are required to register with the federal government under the Selective Service Act. Each of these cases involve an obligation under the law; choosing to opt out is a criminal offense.

So I ask again: Given that we cannot limit our liability without penalty of fine or imprisonment when the government demands personal information from us, who protects us from identity theft when the government is at fault? 

Con Nation

According to new data from the U.S. Department of Justice, one in 136 Americans is behind bars today, including an astounding 12 percent of all black men between the ages of 25 and 29. The United States represents 4.6 percent of the world’s population, but houses nearly 23 percent of humanity’s prison population. Certainly, part of this is likely due to politicians’ unfortunate habit of addressing every social problem with a new law, but much of it is due to our ever-more-draconian drug laws. A few more statistics to chew on from the latest edition of Drug War Facts, published by Common Sense for Drug Policy:

  • As of 2005, drug offenders accounted for 55 percent of the federal prison population. About 45 percent of them were in prison for possession, not trafficking.
  • The number of people incarcerated in federal prisons for drug crimes rose from 14,976 in 1986 to 68,360 in 1999.
  • It costs U.S. taxpayers $3 billion per year to keep drug offenders behind bars in federal prisons.
  • Drug offenders have accounted for nearly half the meteoric growth in prison populations since 1995.
  • About half the population of U.S. jails and prisons are nonviolent offenders, more than the combined populations of Wyoming and Alaska.
  • Forty percent of the more than 1,000 state prisons in the U.S. opened in just the last 25 years. The state of Texas alone has opened an average of 5.7 new prisons each year for the last 21 years. Despite this, about half of federal and state prisons operate over capacity.
  • Total U.S. inmates numbered 488,000 in 1985, 1.3 million in 2001, and number 2.2 million today.
  • According to survey data by human rights groups, one in five U.S. prison inmates has been sexually assaulted.
  • According to federal sentencing guidelines, a man would need to possess 50 times more powder cocaine (preferred by white users) than crack cocaine (preferred by black users) to earn the same prison sentence.
  • Blacks represent about 12 percent of the U.S. population, but 48 percent of the prison population. They represent just 13 percent of drug users, but 38 percent of those arrested for drug crimes, and 59 percent of those convicted.
  • When convicted of the same drug felony, blacks are about 50 percent more likely to be sentenced to prison than whites.
  • A black woman’s chances of spending some time in prison over the course of her life (5.6 percent) is about equal that of a white man (5.9 percent). For black men, the odds are nearly one in three (32.2%).
  • Before Congress passed mandatory minimums for offenses related to crack (but which didn’t apply to powder cocaine) in 1986, the average drug-related sentence for blacks was 11 percent higher than for whites. After that law, the disparity jumped to 49 percent.
  • Despite all of this, overall drug use in this country hasn’t substantially abated. According to government survey data, the percentage of people reporting illicit drug use in their lifetimes rose from 31.3 percent in 1979 to 35.8 percent in 1998. Between 1999 and 2001, the figure went from 39.7 to 41.1 (data prior to 1998 isn’t comparable to data after 1998 due to changes in methodology). The percentage of college students reporting having used marijuana in the last year went from 27.9 percent in 1993 to 33.7 percent in 2003; the number using in the past month went from 14.2 percent to 19.3 percent; and the number reporting daily use went from 1.9 percent to 4.7 percent.

    Interestingly, all of these increases have come from people over 18 years of age. Drug use among minors is significantly down. Which means that even as adult Americans are more likely to take recreational drugs than they once were (and given these figures, with little corresponding social harm), they’re doing a good job of steering their kids away from them. Nevertheless, the government continues to arrest and incarcerate drug offenders, and in fact is now expanding its reach to include not just recreational users and traffickers, but doctors and patients who use controlled drugs to treat illnesses in ways the drug warriors have determined are “outside the scope of legitimate medical practice.” One wonders what percentage of Americans will need to be in prison before our politicians find the courage to say “enough.”

    Nuclear Welfare

    At a Senate Energy & Natural Resources Committee hearing yesterday, outgoing Nuclear Regulatory Commission chairman Nils Diaz reported that 16 utility companies were busily planning to build 25 new nuclear power plants thanks to last year’s energy bill. Champagne corks were popped, backs were slapped, congratulations were offered, and all was right in the political world.

    Just what did last year’s energy bill do to usher in this nuclear nirvana?  Well, our fair Senate–said by many to be in the grip of doctrinaire, free market Republican jihadis–passed a 20-year extension of the Price-Anderson Act (which protects the industry from liability if damages from an accident exceed a certain amount); adopted a 1.8 cent production tax credit for up to 6,000 megawatts of new nuclear generating capacity; provided risk insurance against the financial costs of litigation and other delays in building new nuclear power plants; and provided federal loans and guarantees for up to 80 percent of project construction costs.

    Look, I’ve got nothing against nuclear power per se.  But if nuclear energy had economic merit, it wouldn’t need this avalanche of government help and hand-holding.  Neither party looks good in all of this.  Republicans have no business meddling in markets this way.  And Democrats should quit folding to business interests like a cheap suit.

    The Influential Mr. Mbeki

    The Financial Times selects the most influential pundits and commentators in countries around the world. Their South African correspondent writes that the opinions of Moeletski Mbeki “arguably carry more clout” than those of his brother the president. If so, that’s good news for South Africa. Judging by his Cato paper “Underdevelopment in Sub-Saharan Africa: The Role of the Private Sector and Political Elites,” Mbeki has a pretty insightful understanding of what Africa suffers from. He blames African poverty on mismanagement and exploitation by political elites that control the state and see it as a source of personal enrichment. Inhibiting wealth creation by the private sector, the elites use marketing boards and taxation to divert agricultural savings to finance their own consumption and to strengthen the apparatus of state repression. He writes that peasants, who constitute the core of the private sector in sub-Saharan Africa, must become the real owners of their primary asset – land – over which they currently have no property rights (in much of sub-Saharan Africa, though South Africa is an exception to this).