Comments on yesterday’s Senate hearing with former FBI Director James Comey

Pleased to have contributed to reporter Sean Illing’s Vox roundups of academic commentary on yesterday’s testimony by former FBI Director James B. Comey before the U.S. Senate Select Committee on Intelligence. (photo credit)

Illing 1st asked whether, in “Comey’s introductory remarks or in his exchanges with senators,” the witness made “a case that President Trump attempted to obstruct justice.” My response here.

Next, he asked about a statement released by the President’s personal lawyer, which said that Comey had engaged in “unauthorized disclosure of privileged information.” My response, which treated the constitutional doctrine of executive privilege, here.

Marriage Cases ruling upends tradition … on how many teach Constitutional Law

Just had a chance to read in full the Marriage Cases – that is, U.S. Supreme Court’s June 26 judgment in Obergefell v. Hodges – and was struck by the degree to which it upends tradition.

No, not that tradition.

What’s striking is not so much the holding that the Constitution guarantees a right to marry that extends to couples regardless of sex. That result has seemed reside in the it’s-only-a-matter-of-time category for a while now.

What’s striking, rather, is that in reaching this result, the Court explicitly revived an interpretive method that views certain constitutional clauses as interlinked.

‘The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws,’

14th Amendment 2Justice Anthony M. Kennedy wrote for a 5-member majority. He continued:

‘The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.’

In support of this posited “synergy,” Kennedy cited numerous twentieth-century decisions, among them  Loving v. Virginia (1967), Zablocki v. Redhail (1977), and one I find a super teaching vehicle, Skinner v. Oklahoma (1942). He chose to stick close to the family-related subject matter at hand, and so omitted other examples of this method, such as Griffin v. Illinois (1956), requiring the provision of trial transcripts to rich and poor defendants alike. Each judgment evinces more concern for doing justice than for divining a single-clause source from open-ended terms like “due process” and “equal protection.” Some of these decisions also tend not to devote much time to shoehorning facts into “levels of scrutiny” – a judge-created superstructure not found in the Constitution’s text, and not invoked in last month’s Marriage Cases.

Far from aberrational, these developments follow a trend detectable in many constitutional opinions of the last couple decades. It bears echo to other Kennedy opinions, not to mention the duty to govern impartially posited by Justice John Paul Stevens during his many years on the bench. (Kennedy’s view that the Constitution’s framers intended today’s Court to interpret their words in an evolutive manner likewise jibes with writings of Stevens and another retired Justice, David H. Souter.)

Many law schools follow a format that puts the Due Process Clause in Con Law I and the Equal Protection Clause in Con Law II. That division has made for gaps or overlaps in teaching a number of issues. LGBT rights has been one of them. There are others – such as abortion – and one imagines the list will grow with the Court’s overt resuscitation of this method and others subsumed within what Kennedy calls “reasoned judgment.”

Time for those of us in U.S. legal academia to rethink how we teach constitutional law.

Citing delays, federal judge rules California death-penalty system unconstitutional

san_quentin_death_chamber

California’s capital punishment system has just been ruled unconstitutional.

Holding that the system violated the 8th Amendment to the U.S. Constitution was U.S. District Court Judge Cormac J. Carney, whom President George W. Bush appointed to the federal bench in 2003. According to a Los Angeles Times report, he becomes the 1st federal judge to rule against the state’s system, and also the 1st to hold that systemic delay may constitute cruel and unusual punishment.

Judge Carney set out his reasoning clearly and concisely in today’s 29-page ruling in Jones v. Chappell. In turn, the decision:

► Traced the tangled series of delays that is the state’s system. (Prior posts on that system here, here, and here.) Only 13 of the more than 900 persons whom California jurors have sentenced to death since 1978 have been executed, Judge Carney wrote. The typical time between sentence and execution is 25 years. The judge thus renamed the sentence (his emphasis): “life in prison, with the remote possibility of death.”

► Reiterated U.S. Supreme Court Justice Stewart Potter’s insistence in Furman v. Georgia, the 1972 decision that set in motion a 4-year moratorium on the death penalty, that the Constitution

‘quite simply cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.’

The ruling recognized that the Court, in Gregg v. Georgia (1976), permitted states to reinstate modified death penalty systems. Even so, Judge Carney wrote:

In the 40 years since Furman, the Supreme Court has never retreated from that fundamental principle.

► Applied the principle to the case at hand, ruling that California’s system is so arbitrary as to serve no proper penological purpose. The judge focused not just on the defendant who must endure a condemned life on death row, but also on jurors who must go through “horrific” evidentiary proceedings to no ultimate end, on victims and  survivors denied “some semblance of moral and emotional closure,” and on “the citizens of the State” of California, who must endure the broken “promise” of retribution that accompanies the imposition of a death sentence.

California Attorney General Kamala D. Harris was reported to be considering the state’s next move in this litigation.

 

Epic painting puts chemicals prosecution, Bond v. United States, into perspective

gassed

In this month that marks the centenary of World War I, the U.S. Supreme Court evoked an epic image of that global conflict. Thus was rejected today the prosecutorial conflation of chemical warfare with what the Court in Bond v. United States called an “unremarkable local offense.”

The image is the one above: John Singer Sargent’s 1919 painting, Gassed. Fully 20 feet wide and 7-1/2 feet tall, it hangs in the Imperial War Museum in London. (image credit) Writing for a 6-member majority, Chief Justice John G. Roberts, Jr., described the scene, one that Sargent had encountered in 1917 on a battlefield in France:

‘[T]wo lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.’

The tragedy, Roberts wrote, contributed “to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings” – a consensus reflected in instruments like the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, which today has 190 parties. Among them is the United States, which, Roberts explained, “gave domestic effect” to the obligations it had assumed under that treaty in 1998, when it passed the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229 et seq. The statute makes the use of “chemical weapons,” a federal crime, punishable by death if the use resulted in death. It “‘goes without saying,'” Roberts concluded, that Congress had in mind tragedies along the lines depicted above – or at least as grave as the mid-1990s sarin gas attacks in Japan. He deemed well out of Congress’ mind the facts at bar: “an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water.”

This overturning of a federal conviction on federalism grounds did more than give perspective on the acts under review. It also avoided the asked-for reconsideration of Missouri v. Holland (1920), a precedent nearly as old as Sargent’s painting. There a unanimous Court upheld a federal statute that gave domestic effect to a 1916 treaty by regulating the hunting of birds that fly between the United States and Canada. Invoking the Constitution’s treaty-making and supremacy clauses, Justice Oliver Wendell Holmes, Jr., wrote:

‘If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.’

Holmes’ terse reasoning invites questions, many of them bruited about in the months since the Court announced it would review the decision below in Bond. (See, for example, this article by my Georgia Law colleague Harlan Cohen.) Roberts’ majority opinion declined, but 3 Justices who disagreed with him accepted that invitation. “[T]he Treaty Power is itself a limited federal power,” Justice Clarence Thomas wrote in a concurrence-in-the-judgment that Justices Antonin Scalia and Samuel Alito, Jr., joined. In another concurrence-in-judgment Scalia, joined by Thomas, attributed others’ reluctance to revisit Holland to the nature of the case. “We would not give the Government’s support of the Holland principle the time of day,” they insisted, “were we confronted with ‘treaty-implementing’ legislation that abrogated the freedom of speech or some other constitutionally protected individual right.” Whether they are right remains a question for another day.

Religious freedom & Mr. Jefferson’s grave

TJ_grave

CHARLOTTESVILLE, Virginia – There is a grave-spinning serendipity in the fact that I began this week at the resting place of Thomas Jefferson. At the foot of his home, Monticello, lies the walled-in family graveyard over which the obelisk above stands sentry. Its all-caps inscription reads:

Here was buried
Thomas Jefferson
Author of the
Declaration
of
American Independence
of the
Statute of Virginia
for Religious Freedom
and father of the
University of Virginia

The Supreme Court cited that religious freedom statute Monday, along with another writing that associates Jefferson with the concept of separation of church and state. But in Monday’s judgment in Town of Greece v. Galloway, the citations did not appear in the opinion for the Court by Justice Anthony M. Kennedy, which held that the Establishment Clause of the 1st Amendment to the Constitution was not offended by the practice of opening meetings of an upstate New York town council with a prayer.

The citations occurred, rather, in the dissent that Justice Elena Kagan wrote on behalf of herself and 3 other Justices.  Contending that the principle of religious neutrality dates to the Constitution’s founding era, she cited the United States’ 1st, 3d, and 4th Presidents as examples of leaders who “consistently declined to use language or imagery associated only with” Christianity. She continued:

‘Thomas Jefferson, who followed the same practice throughout his life, explained that he omitted any reference to Jesus Christ in Virginia’s Bill for Establishing Religious Freedom (a precursor to the Establishment Clause) in order “to comprehend, within the mantle of [the law’s] protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination.”’

Then quoting Jefferson’s Virginia statute – for the principle that “opinion in matters of religion … shall in no wise diminish, enlarge, or affect … civil capacities” – Kagan articulated the dissenters’ view of what the Constitution requires:

‘Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture. … The government she faces favors no particular religion, either by word or by deed. And that government, in its various processes and proceedings, imposes no religious tests on its citizens, sorts none of them by faith, and permits no exclusion based on belief. When a person goes to court, a polling place, or an immigration proceeding—I could go on: to a zoning agency, a parole board hearing, or the DMV—government officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans—none of them different from any other for that civic purpose. Why not, then, at a town meeting?’

It is a question Mr. Jefferson himself might have asked.

2 Justices show interest in barring judges from overriding lenient capital juries

sgbssTwo Justices of the U.S. Supreme Court have signaled a willingness to reconsider precedent that permits state judges to impose the death penalty even after the jury has voted for a lesser sentence.

The signal came yesterday in a dissent from denial of the petition for certiorari in Woodward v. Alabama, No. 13-5380. The dissent’s author, Justice Sonia Sotomayor, wrote (citations omitted):

‘In Spaziano v. Florida (1984), we upheld Florida’s judicial-override sentencing statute. And in Harris v. Alabama (1995), we upheld Alabama’s similar statute. Eighteen years have passed since we decided Harris, and in my view, the time has come for us to reconsider that decision.’

Joining her in that estimation was Justice Stephen G. Breyer, who’d voted with the majority in Harris. (credit for Washington Post photo of Breyer and Sotomayor) Indeed, in that 1995 judgment, all the Justices then on the Court voted in favor of the state – all except Justice John Paul Stevens, who dissented in both the precedents Sotomayor named. Quoting Stevens’ dissent in Harris, she wrote:

‘Alabama judges, it seems, have “ben[t] to political pressures when pronouncing sentence in highly publicized capital cases.'”

listSupporting that conclusion was evidence in the Woodward record of state judges’ admissions that re-election worries may have motivated them to override jurors who, after balancing mitigating and aggravating circumstances, had voted for life imprisonment and against capital punishment. Fully 95 Alabama defendants have received death sentences in such a way, wrote Sotomayor, appending the list of those defendants to her opinion. In the last 13 years, “there have been only 27 life-to-death overrides, 26 of which were by Alabama judges,” Sotomayor added, commenting:

‘As these statistics demonstrate, Alabama has become a clear outlier.’

Whether the judicial-override sentence will go the way of 2 others Sotomayor cited – death penalties for juveniles and for mentally retarded persons, both no longer deemed constitutional – remains to be seen.

At Georgia Law, Justice Stevens takes on Scarlett O’Hara view of Civil War aftermath

john-paul-stevens2Margaret Mitchell got the Reconstruction Era all wrong. So said Justice John Paul Stevens in an address to the University of Georgia School of Law, the highlight of today’s Georgia Law Review symposium. Stevens, who retired from the U.S. Supreme Court in 2010, at age 93, spoke here in Athens at the university’s Chapel, used during the Civil War as a hospital for wounded Confederate soldiers – and afterward, as quarters for “Federal occupation troops.”

Stevens recalled a day in December 1939 when, as a junior in college, he and his family of Chicagoans watched the newly released adaptation of Mitchell’s epic “Gone With the Wind” from the balcony of an Atlanta theater. It was, as is well known, a Civil War story told from the perspective of a petulant, pampered, proslavery heroine, Scarlett O’Hara (below). (photo credits here and here) Stevens said that when the movie screen depicted Atlanta ablaze as a result of Union General William T. Sherman’s onslaught, the emotion of the assembled Georgians was intense. He reported:

scarlett‘I was afraid even to whisper a comment lest my accent reveal the fact that Yankees were in the audience.’

Stevens used the anecdote to introduce “Originalism and History,” the theme of his address. Resuming a refutation of originalism he had launched in 1985, in  response to a speech by then-Attorney General Edwin Meese (as I wrote in a Northwestern University Law Review article last year), Stevens stressed that “history is at best an inexact field of study, particularly when applied by judges.” For this reason, “the doctrine of original intent may identify a floor that includes some of the rule’s coverage, but it is never a sufficient basis for defining the ceiling.”

Atlanta-born Margaret Mitchell‘s version of the Civil War and its aftermath – a version that “influenced the thinking of millions of readers” – evinced sympathy for the antebellum South and hostility toward Reconstruction, Stevens said. Mitchell called the Reconstruction Republicans who controlled Georgia immediately after the war “incompetent and corrupt.” Stevens offered contrary evidence: the Reconstructionist governor reviled by Mitchell was acquitted of such charges and went on to become one of Atlanta’s leading figures, while the gubernatorial opponent whom Mitchell extolled is now believed to have been a leader in the state’s Ku Klux Klan. Uncertainty regarding that allegation served to underscore Stevens’ concern respecting judicial overuse of history:

‘The fact that the Klan’s activities were shrouded in so much secrecy has not only prevented historians from positively confirming that identification, but also explains why ambiguity characterizes so many important historical events.’

Another such event was the 1876 Presidential contest between Rutherford B. Hayes and Samuel Tilden. As he had in an August essay that the New York Review of Books titled “The Court & the Right to Vote: A Dissent,” Stevens pointed to the post-election withdrawal from the South of federal troops as a pivotal moment in American history. That moment might not have occurred, or might be viewed quite differently, absent a “‘reign of terror'” that suppressed the Southern Republican electorate, white and black alike. (Stevens drew the quoted phrase from a dispatch reprinted by his former colleague, William H. Rehnquist, in Centennial Crisis (2005).)

Today’s talk then moved beyond the Reconstruction Era, encompassing jurisprudential topics as varied as the Constitution’s religion clauses, the incorporation doctrine, the desegregation decision in Brown v. Board of Education (1954), and political gerrymandering. Discussed was the 2d Amendment right announced not long ago by a majority of the Court, as well as a same-sex sexual harassment judgment written by Stevens’ longtime sparring partner, Justice Antonin Scalia. Each example was deployed to drive home Stevens’ central point, regarding what he calls the sovereign’s duty to govern impartially: History is relevant but not dispositive. No less important to a judge construing terms like “equal protection” and “due process of law” is the contemporary social meaning of those constitutional phrases.