At Supreme Court, “intellectual whiplash” over investor-sovereign arbitration

The course of the U.S. Supreme Court oral argument in an international arbitration case is evident in Justice Anthony M. Kennedy’s comment toward the end of Monday’s hearing:

‘Your – your whole argument gives me intellectual whiplash.’

I put that comment into context in my SCOTUSblog post today, which also describes other exchanges between various Justices and the 3 lawyers who argued the matter – for the Republic of Argentina, for a British private investor, and for amicus the United States of America.

The case that’s nowdoll under submission, BG Group PLC v. Republic of Argentina, arises out of a dispute covered by the 1990 bilateral investment treaty between Britain and Argentina. Today’s post on “the matryoshka-doll complexities” of the case builds on my November SCOTUSblog argument preview, on which I posted here. (photo credit)

With South Sudan vote, US (again) will stand (virtually) alone on children’s rights

southsudanSouth Sudan appears poised to ratify the 1989 Convention on the Rights of the Child. The South Sudan Parliament approved a ratification bill yesterday (not coincidentally, Universal Children’s Day, so named to commemorate the adoption of the Convention on November 20, 1989, as well as the approval of a precursor Declaration on November 20, 1959). The bill awaits signature by the president of the country – since 2011, the newest member of the United Nations.

Completion of that process will return matters to where they stood in 2005, when Justice Anthony M. Kennedy referred in Roper v. Simmons, a judgment outlawing the juvenile death penalty, to the

‘United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia’

Then as now, Somalia lacks a strong central government, a fact that effectively leaves the United States standing alone.

usflagWhy the opposition? Factors compiled in “Why won’t American ratify the UN convention on children’s rights?”, an Economist article published last month, include claims that ratification “would usurp American sovereignty,” “undermine parents’ authority, particularly over religious and sex education,” and “provoke lawsuits demanding that the government pay” costs to improve children’s lot. Evidence of such concerns surfaced at p. 120 of a July/August essay in Foreign Affairs, which decried a 2002 Committee on the Rights of the Child recommendation (¶ 11) that Britain work to allocate funds and resources toward adequate implementation of obligations it undertook by joining the Convention. One also discerned such concerns earlier this month, in between the lines of questions that Chief Justice John G. Roberts, Jr. (pp. 42-43) and Justice Antonin Scalia (pp. 31-32) posed during oral argument of Bond v. United States, a U.S. treaty-power case.

Undercutting those concerns is the fact that most Convention rights are already guaranteed by U.S. law (though not all, as the Economist points out) – not to mention the fact that nonratification weakens U.S. efforts to advocate globally for child rights. The fate of the newest effort to secure U.S. ratification of the disabilities treaty (prior post) may signal whether such facts have traction in contemporary U.S. politics.

Arbitration say-so & U.S. courts

scotusblog-banner-925-1143Just published at SCOTUSblog: my preview of a case asking whether arbitrators or U.S. courts enjoy the last word on jurisdiction to arbitrate. The post discusses decisions below and briefs filed in BG Group PLC v. Republic of Argentina, a dispute arising out of the Britain-Argentina bilateral investment treaty, about which Justices are scheduled to hear oral argument on December 2.

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.

Treaty on non-international armed conflicts still collecting Senate dust

apsWhatever happened to AP II?

As international humanitarian lawyers well know, “AP II” refers to Protocol II Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, a treaty that clarifies legal rules in conflicts that present something other than the classic country v. country scenario. Put another way, AP II is the treaty that details the laws of today’s wars. It enjoys 167 parties. The United States is one of 3 countries (the others are Iran and Pakistan) that signed on December 12, 1977, but never ratified.

On that last point, a passage on page 365 of Jess Bravin’s Terror Courts (2013) piques interest. Bravin reports that in mid-2009 Secretary of State Hillary Clinton and her Legal Adviser, Harold Hongju Koh, lost their bid to stop the Guantánamo military commissions:

‘The State Department would have to make do with a couple of consolation prizes; to mollify Koh, the administration agreed to ask the Senate to ratify agreements expanding protections under the Geneva Conventions, including one that had been collecting dust since President Reagan signed it in 1987. “Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict,” a White House fact sheet said.’

The treaty mentioned is AP II: according to State’s current list of treaties pending in the Senate, Reagan submitted it to that upper house of Congress on January 29, 1987. Yet today, more than a quarter-century later, and four years after the promised “consolation,” AP II remains in the Senate’s dustbin. AP II is No. 10 on a list of 37 treaties, a list that includes some treaties about which I posted here. The most recent was submitted earlier this year, the oldest, ‘way back in 1949.

AP II’s sibling, Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, is not pending at all. (It has 173 states parties, and the same 3 state signatories.) (image credit) Villanova Law Professor John F. Murphy’s chapter in a 2012 book indicates that the March 2011 fact sheet said only that the White House intended to apply the first protocol’s fair-trial provisions (provisions that a plurality of the Supreme Court deemed “indisputably part of the customary international law” in Part IV-D-iv of Hamdan v. Rumsfeld (2006)) – not that the White House wished to submit that treaty as a whole.

Dred & Harriet Scott look eastward

ST. LOUIS – Made acquaintance with Dred Scott and Harriet Robinson Scott this morning.

archThey are the subjects of this statue, which stands before the columns of the Old Courthouse, its cupola mirrored in the windows behind them. As a plaque explains, it was here, in 1846, that the husband and wife “filed suit for their freedom.” Born into slavery as were many in 19th C. America who claimed African ancestry, the Scotts contended that they had become free while residing for a time in free territory – Wisconsin – and so challenged efforts to retain them as slaves when they found themselves back in what was then a slave state. Having lost in Missouri, they petitioned the U.S. Supreme Court. Perhaps that is why the statue looks eastward, through the Gateway Arch (below) and toward Washington, D.C.

As is well known, the Scotts found no recourse in the nation’s capital. Applying a tendentious originalist methodology, Chief Justice Roger B. Taney’s opinion for a 7-2 majority of the Supreme Court in Scott v. Sandford (1857) held against the Scotts on the ground that no one of their ancestry could be a citizen under the U.S. Cscottsonstitution. For added measure, Taney proclaimed the Missouri Compromise, by which the Wisconsin territory was deemed free, unconstitutional. It marked the first high court invalidation of a congressional statute since Marbury v. Madison (1803).

It would take a Civil War, fought primarily in the eastern United States, to secure – by means of the 13th, 14th, and 15th amendments to the Constitution – the freedom the Scotts had sought decades earlier.

Lovely art, missed lesson at Neue Galerie

neueNEW YORK – Art from fin de siècle Vienna has been a favorite since my semester study abroad in Austria. The taut pull of multiple styles gives energy to the paintings and prints – even the pillows – produced by Schiele, Kokoschka, et al. With good cause these artists professed to have seceded from the staid traditions of the Austro-Hungarian imperial past.

It was thus with great anticipation that I visited the Neue Galerie, opened a dozen years ago just up 5th Avenue from the Metropolitan Museum of Art. The Neue’s dedicated to showcasing the Vienna Secessionists’ works. “Showcase” is indeed the word, for the art is displayed amid the lustrous appointments of a circa-1914 mansion.

The art did not disappoint. Especially stunning were the golden, otherworldly portraits of the women of Klimt‘s world. Among the most famous is the one at top, of socialite Adele Bloch-Bauer – a painting I had admired years ago at an Austrian national museum.

In 2006 that museum handed the 1907 portrait over to Maria Altmann, the Bloch-Bauer niece who fought for years to reclaim it and other artworks looted from her family when the Nazis overtook Austria. As lawyers well know, a watershed in her struggle came in 2004, when the U.S. Supreme Court ruled 8-1 against Austria’s contention that sovereign immunity shielded it from Altmann’s lawsuit. That holding set the stage for the 2006 arbitral award of 5 looted Klimts to Altmann, and for her sale of Adele to the Neue Galerie. (In 2011,  Altmann, then 94 years old, died at her Southern California home.)

My visit to Neue thus brought some disappointment. The judicial story was not to be found in the exhibit, nor even in a gift shop children’s book that purported to trace Adele‘s provenance. At least for this lawyer, that absence seemed a missed opportunity to show that even in the world of art, law may serve justice.

Justice Scalia cites foreign law

In retrospect, the early 2000s were the salad days of U.S. Supreme Court citations to foreign and international law.

As I wrote in International Law and Rehnquist-Era Reversals (2006), 3 milestone decisions included overt evidence that a majority of Justices, in the course of deciding to overrule precedents, had given consideration to norms contained in international treaties and found in the practice of foreign countries:

► Justice John Paul Stevens dropped a footnote citation to a brief by the European Union in his opinion for the Court in Atkins v. Virginia (2002), which held that the execution of mentally retarded persons violated the Cruel and Unusual Punishments Clause of the 8th Amendment to the Constitution.

► Outlawing the execution of juveniles, Justice Anthony M. Kennedy’s opinion for the Court in Roper v. Simmons (2005) stressed that international treaties and states’ practice forbade such executions.

► And in his opinion for the Court in Lawrence v. Texas (2003), Kennedy discussed British legal practice and a decision of the European Court of Human Rights to refute a prior judgment’s assertion that governmental bans on “homosexual conduct” were “firmly rooted in Judeao-Christian moral and ethical standards.”

That refutation paved the way for the invalidation of an anti-sodomy law in Lawrence – a decision on which the Court relied on June 26 of this year, when it, again through a majority opinion by Kennedy, invalidated a law denying federal benefits to married same-sex couples. (Prior posts here and here.)

antonin_scalia-photographThe trio of early 2000s decisions prompted criticism, even specious calls to impeach members of those majorities, as I have written here and here. Dissenters likewise inveighed against such citations. For example, Justice Antonin Scalia (photo credit), quoting an earlier opinion by Justice Clarence Thomas, wrote in Lawrence:

The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court … should not impose foreign moods, fads, or fashions on Americans.”

Members of the Court’s majorities in those 3 decisions pushed back in public speeches. They defended consideration of foreign norms as a responsible deliberative practice, an examination of nonbinding yet potentially persuasive sources not unlike their frequent, and accepted, examinations of useful law review articles.

Nevertheless, the criticism seems to have taken its toll: although amici continue to file briefs informing the Court of pertinent foreign norms, in the last decade citations to such sources largely vanished. The June 26 judgment in the same-sex marriage case, United States v. Windsor, stands as a curious exception.

To be sure, Windsor and a related case, Hollingsworth v. Perry, attracted amicus briefs discussing foreign and international law. Indeed, international lawyers filed briefs that cited international developments both in favor of and against gay marriage. Moreover, as I then posted, the global legal landscape on gay marriage continued to shift even as the cases were argued and under advisement.

Yet not a word about any of this in any of the opinions in Perry or Windsor. With one exception, that is.

Challenging the Court’s decision that it had jurisdiction to decide Windsor, Justice Scalia took on the majority’s contention that Chief Justice John Marshall’s opinion in McCulloch v. Maryland (1819) had made clear that the Court has power to review the constitutionality of federal statute. In a dissent joined by Chief Justice John G. Roberts Jr. and by Justice Thomas, Scalia contended that the refusal of President Barack Obama to defend the statute meant that both the government and the claimant agreed, so that there was no issue left to decide. (The majority disagreed because the government still required the claimant to pay taxes owed under the disfavored  statute.) Ridiculing the Court’s view of its power, Scalia wrote:law

The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons.

One senses not only Scalia’s disagreement with the majority on an issue of standing, but also, perhaps, his frustration that Justices were aware of global changes, and likely read the briefs discussing them, yet eschewed including a citation that marked such consideration. That 2d point has merit. Supporters of foreign-norm consultation no less than opponents ought to urge – in service of the values of transparency and reasoned judgment – that Justices who have looked to such norms write that they have done so.

Children & the Court

authEmphasis on children marks the Supreme Court opinion invalidating a U.S. law that had defined “marriage” as the union of a man and a woman, and so denied federal benefits to a widow in same-sex marriages that had been recognized by the state of New York. (photo credit)

The harm to such spouses of course was a concern. Citing his 2003 opinion in Lawrence v. Texas, Justice Anthony M. Kennedy wrote in his opinion for the Court:

‘The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify.’

He continued:

‘And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.’

The opinion later condemned the law on the further grounds that it “brings financial harm to children of same-sex couples,” and that it “instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”

As noted by Wall Street Journal reporter Jess Bravin, this emphasis was remarkable in part because opponents had argued that the interests of children required continuing bans on gay marriage. Bravin wrote with regard to that argument: “The court turned it on its head.” He added that Kennedy’s account of “concrete harms” that children suffered gave foundation to the theories on which Lawrence was based – an argument that, I argued in this post, drew influence from the views on liberty and equality harbored by the Justice who assigned Lawrence to Kennedy, John Paul Stevens.

In looking for an earlier instance in which the Court had struck a law because it operated to injure children of disfavored parents, Bravin pointed to Levy v. Louisiana (1968), involving the effort by children to recover for the wrongful death of an unwed parent. A more recent example that jumps to my mind is Palmore v. Sidoti (1984), decided fewer than 4 years before then-Judge Kennedy was sworn in as an Associate Justice at the high Court. Stevens took note of this case in a 2005 speech at Fordham Law School:

‘Equally dramatic is the contrast between the final ruling of the unanimous Court in Palmore v. Sidoti and the Court’s reaction to the case when it first appeared on the conference list. The case involved a dispute between divorced Caucasian parents over the custody of their daughter. In the 1980 divorce decree, custody of the three-year-old child was awarded to the mother, who later married an African-American. Without any evidence that the mother had become unfit, the Florida court entered an order transferring custody to the father in order to protect the child from anticipated “social stigmatization.”
‘By a vote of 8-1 – and I am proud that I was the one – the Court denied an application to stay the mandate of the Florida court transferring custody. However, after granting certiorari and hearing argument, we unequivocally held that the effects of racial prejudice, however real, could not justify the removal of an infant child from the custody of her natural mother. Of course, despite the clarity of the Court’s opinion, that is exactly what its earlier refusal to stay the order modifying custody had done.’