Tag Archives: Blog of Legal Times

“There’s Nothing In The Constitution About That.”

Calvin Massey interviewing Justice Scalia for California Lawyer:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

Max Fisher at The Atlantic with the round-up

Amanda Terkel at Huffington Post:

For the record, the 14th Amendment’s equal protection clause states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Marcia Greenberger, founder and co-president of the National Women’s Law Center, called the justice’s comments “shocking” and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

“In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them,” she said. “But what if they want to pass laws that discriminate? Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them. And that’s a pretty shocking position to take in 2011. It’s especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

Greenberger added that under Scalia’s doctrine, women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools — all things that have happened in the past, before their rights to equal protection were enforced.

Ann Althouse:

HuffPo headlines: “Women Don’t Have Constitutional Protection Against Discrimination.” The writer, Amanda Terkel, quotes the 14th Amendment, and concludes, with unironic textualism: “That would seem to include protection against exactly the kind of discrimination to which Scalia referred.” Thanks for the analysis, Amanda.

Terkel also called up Marcia Greenberger, founder and co-president of the National Women’s Law Center, who professed to find Scalia’s opinion “shocking” — even though he’s been saying it for at least 15 years.

Scott Lemieux at Tapped:

Scalia has never been consistent about applying the principles expressed above. Nobody who voted for the 5th or 14th Amendments thought that they were prohibiting affirmative action, and yet Scalia has found that both amendments prohibit affirmative action in virtually all circumstances. Scalia also believes that Brown v. Board was correct, although very few of the persons who voted in favor of the proposal or ratification of the 14th Amendment believed that it prohibited racial segregation. When the originalist principles outlined above clash with (rather than reinforce) his political preferences, Scalia has no problem ignoring them.

Scalia’s answer when it comes to gender? That while the framers and ratifiers of the 14th Amendment did not think they were outlawing affirmative action or school segregation, they did think they were outlawing racial discrimination; they didn’t specifically discuss gender discrimination. The problem with this response is that Scalia’s choice to stop at this particular point on the ladder of abstraction is completely arbitrary. Scalia has already made clear in other cases that he doesn’t think that the concrete expectations of framers or ratifiers are binding. And the 15th Amendment demonstrates that the framers of the 14th could have limited the equal protection clause to racial discrimination, but they did not. So what basis does Scalia have for being certain that the 14th Amendment permits gender discrimination?

He doesn’t. Scalia’s belief that the 14th Amendment does not prohibit gender discrimination is a political choice in no way compelled by the text of the Constitution.

Jack Balkin:

Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That’s not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination– discrimination in basic civil rights against single women.

Moreover, the Constitution was subsequently amended. After the nineteenth amendment, the common law coverture rules made little sense. If married women had the right to vote, why did they not have the right to contract or own property in their own names? If we read the Fourteenth Amendment’s guarantee of civil equality in light of the Nineteenth Amendment, the guarantee of sex equality should apply to both single and married women. The conservative court during the Lochner era thought as much in a case called Adkins v. Children’s Hospital, decided immediately after the ratification of the Nineteenth Amendment.

Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution’s framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964’s ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia’s arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today’s world. That is to say, he doesn’t really believe in originalism either when it comes to a very wide array of cases concerning federal governmental power.

Second, if Scalia had really wanted to be faithful to the expectations and assumptions of the the adopters of the Fourteenth Amendment, he had no business joining the opinion in Bush v. Gore, because the Amendment was not intended to change state rules concerning the right to vote.

During the interview Justice Scalia says that he doesn’t even need to read the briefs to know what originalism permits, requires or forbids; but I would respectfully suggest he needs to read a bit more history.

Legal Insurrection:

Gee, Scalia must hate women.

Except that the headline is a good example of a half-truth.  Scalia’s point is the fairly standard originalist view that the 14th Amendment does not broadly apply to prohibit all forms of discrimination on the basis of sex.  Either sex.  It does not protect men against discrimination on the basis of sex, either.  The Supreme Court decision in Reed v. Reed, 404 U.S. 71 (1971) is read by some as offering broad protection on the basis of sex, but that is an overreading of a fairly limited opinion in which the Court found no rational basis for a state law giving preference to males in the appointment of estate administrators.  Other cases after Reed have applied a more strict scrutiny approach.  I assume Scalia disagrees with the Reed decision, not because he doesn’t like the result, but because of the approach;  this difference in approach does not make Scalia wrong, or hostile to women as the HuffPo headline suggested.

Scalia’s view is neither novel nor new.  That the Constitution does not address discrimination on the basis of sex as such was evidenced by the ultimately failed attempt to amend the Constitution to add an Equal Rights Amendment which would have added this provision:  “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

The Blog Of Legal Times

Cat White at Scholars and Rogues:

So how important is the Constitution for protecting people’s rights? Apparently not very. Scalia goes on to say, “You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.”

Unless you happen to be a corporation. Scalia et al continued the practice of defining corporations as persons with equal protection under the 14th Amendment (there is an article here on the history and meaning of the practice here–in short, define which “persons” are “citizens” and then grant protection to “citizens.”) Corporations are, of course, “legal persons” endowed by their creators with perpetual life and by the courts with inalienable rights by the 14th Amendment (as opposed to us “natural persons” who have limited life and apparently limited protection against discrimination by the 14th Amendment).

Apparently, “natural persons,” or at least female “natural persons” only need the protection of the laws, as Scalia said about the limits of the Constitution, “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

So who else does not need the additional protections of equality? Perhaps workers over 40, African-Americans, gays and lesbians?

Did corporations really need to be given the rights to control our elections through donations? What’s next, the corporate right to vote? Oh, right–they’d only get one vote that way, much better to control the whole process through funding.


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Walmart Woes

Erik Hayden at The Atlantic with a round-up.


The Supreme Court stepped into two major controversies on Monday, agreeing to sort out when a class-action lawsuit may be filed when employees are seeking back pay for alleged workplace discrimination, and to clarify whether companies claimed to be a major source of global warming can be sued under the law of nuisance.  The first issue is raised in an appeal by the discount retailer, Wal-Mart Stores; the second an appeal by four large  electric generating companies that have been sued by a group of state governments.  The cases are likely to be heard in March or April.

A federal judge in San Francisco has cleared the way for a class of at least 500,000, and perhaps as many as 1.5 million, present and former women employees of Wal-Mart to sue the huge chain over alleged sex bias throughout its 3,400 stores in the U.S.   The Court agreed to hear one issue raised by the company, and added a question of its own.  The outcome will not decide whether the company did engage in  discrimination, but only whether the lawsuit may proceed as a class-action.  Potentially, billions of dollars are at stake.

The first question will be whether, under Federal court Rule 23, a lawsuit may seek a money verdict — in this case, a claim for back pay — when the class was created under a provision that limits remedies to corrective court orders, not money.   Besides agreeing to hear that, the Court told the parties to file briefs and prepare to argue on a second question — whether the class was a proper one, under Rule 23, when it was cleared to go forward under Rule 23(b)(2).   It is unclear whether the Court, if it answered that second question in the negative, would be signaling that the class case might still proceed under a different part of Rule 23 — part (b)(3), which does allow money claims.

Wal-Mart’s petition had raised a second question that embraced the broader argument that no class should have been approved at all, since the claims made by the women employees were so disparate and so diffuse that they really had nothing in common, and that, as a result, Wal-Mart would not have been able to mount a defense to such claims.   The Court rewrote Wal-Mart’s second question, without making it clear exactly what arguments the lawyers should now be making in addition to whether a money claim could be made in this case.

Dahlia Lithwick at the XX Factor:

The six plaintiffs in the suit claim that despite the enormous size of the class, Wal-Mart’s decision-makers determine pay and promotion based on a rigid and highly centralized “strong corporate culture that includes gender stereotyping.” Their claim is that women constitute more than 70 percent of Wal-Mart’s hourly workforce but less than one-third of salaried management. They seek back pay, punitive damages, and changes to Wal-Mart’s hiring and promotions policies. Wal-Mart’s liability may be in the billions of dollars. Aside from the size of the class, Wal-Mart argues that the lower courts used the wrong standards to certify the class.

This is a high-stakes appeal that has elicited strong responses from the Chamber of Commerce on one hand, and those who worry about the need for class-action suits to protect worker rights on the other. It’s going to garner an enormous amount of interest from those who contend that big business never loses at the Roberts court and that workers can’t catch a break. It may also prove an early litmus test for whether the presence of three women at the high court will in any way shape the debate about gender discrimination.

Marcia Coyle at The Blog Of Legal Times:

The merits of the case, however, are not before the justices. Instead, the Court will focus on whether the class was properly certified.

“We welcome the Supreme Court’s limited review of the class certification decision in this case. As that decision was based on a vast body of evidence, we are confident that the decision to certify the class was sound,” said the plaintiffs’ lead co-counsel Joseph Sellers, partner in Washington’s Cohen Milstein Sellers & Toll, in a statement. “We believe the Court will reach the same decision after reviewing the record before the U.S. District Court for the Northern District of California, where class certification was granted in June 2004.”

Wal-Mart has lost the class action issue four times in lower court rulings, noted Sellers.

Wal-Mart, represented by a team of lawyers from Gibson, Dunn & Crutcher, led by partner Theodore Boutrous, contends that the class was improperly certified, both as to its size and type. It argues that the plaintiffs, who are seeking back pay, were certified under Federal Rule of Civil Procedure 23(b)(2), used for classes seeking injunctive relief and, instead, should have been required to meet the tougher standards for classes seeking damages.

In the grant of review Monday, the justices ask the parties to address whether claims for money damages can be certified under 23(b)(2) as well as whether certification under that rule was consistent with the certification requirements of Rule 23(a).

Carrie Lukas at The Corner:

It will be interesting how this plays out. Walmart claims that its employment practices “expressly bar discrimination and promote diversity,” and it is hard to imagine that the official employment practices would do the opposite. The crux of this case will likely be the outcomes of that employment system: If, on average, women have ended up earning less than men with similar job titles, that will be evidence of discrimination.

Those familiar with debates about the so-called wage gap (the difference between the earnings of the median working man and working woman) know that there are many reasons other than discrimination why women sometimes end up earning less than men do. As a report for the Department of Labor (conducted using data from the Current Population Survey) concluded:

Although additional research in this area is clearly needed, this study leads to the unambiguous conclusion that the differences in the compensation of men and women are the result of a multitude of factors and that the raw wage gap should not be used as the basis to justify corrective action. Indeed, there may be nothing to correct. The differences in raw wages may be almost entirely the result of the individual choices being made by both male and female workers.

It’s an important fact to keep in mind: Even if statistics show that men and women earn different amounts, discrimination isn’t necessarily to blame.

Monica Potts at Tapped:

I’m not expecting the current court to side against Wal-Mart, however. At every opportunity, the Roberts Court has expanded the rights of corporations. Moreover, as Tiku points out, the issue might even split Obama’s two appointees. Wal-Mart twice cited Justice Elena Kagan, who wrote an influential law-review note on class certification while she was a student at Harvard.

But class-action suits are important ways for a discriminated class of people to be compensated. If Wal-Mart as an institution discriminates against women, it seems perfectly reasonable that those affected stretch across the country and through the entire corporate hierarchy. Women already have a hard time seeking redress against discrimination; it’s disappointing to consider that it’s about to get even harder.

Don Suber:

For years, conservatives have called for tort reform. Legislating tort reform is difficult because so many lawyers like it (including the defense attorneys for businesses) and really the courts do not like to be told what to do.

The class-action lawsuit is the biggest paid. It always seem the lawyers get millions while the “victims” get coupons for prices off on their next purchase from the maker of the defective product.

Walmart may help end that abuse.

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Let’s Return To The Burning Issue Of, Oh, One Month Ago, Part II

Josh Gerstein at Politico:

The federal government filed a lawsuit Tuesday aimed at blocking a controversial Arizona law that instructs local police and sheriffs to question and arrest anyone whom they suspect is in the country illegally.

The Justice Department lawsuit, filed in U.S. District Court in Phoenix, argues that the new state law violates the U.S. Constitution by usurping federal authority over immigration policy, traditionally the jurisdiction of the federal government.

“Arizonans are understandably frustrated with illegal immigration, and the federal government has a responsibility to comprehensively address those concerns,” Attorney General Eric Holder said in a statement yesterday. “But diverting federal resources away from dangerous aliens such as terrorism suspects and aliens with criminal records will impact the entire country’s safety.

“Setting immigration policy and enforcing immigration laws is a national responsibility,” Holder said. “Seeking to address the issue through a patchwork of state laws will only create more problems than it solves.”

David Ingram at The Blog Of Legal Times:

“In our constitutional system, the federal government has preeminent authority to regulate immigration matters. This authority derives from the United States Constitution and numerous acts of Congress,” reads the introduction to the 25-page complaint (PDF).

Lawyers for the U.S. Department of Justice filed the complaint today in U.S. District Court for the District of Arizona. The lawsuit names as defendants the state of Arizona and Gov. Janice Brewer (R), in her official capacity.

Brewer has repeatedly defended the law as a necessary response to the federal government’s failure to control illegal immigration from Mexico, and she continued to draw support from allies nationwide, including in Washington, as the lawsuit was filed.

The lawsuit makes sweeping claims about the federal government’s power to develop immigration policy. It cites the federal government’s power under the Constitution to establish a “uniform Rule of Naturalization” — translating, it says, to the regulation of aliens within U.S. boundaries and to the terms and conditions for entry and continued presence.

With the State Department joining as a plaintiff, the lawsuit also cites the president’s authority over foreign affairs. “Immigration law, policy, and enforcement priorities are affected by and have impacts on U.S. foreign policy, and are themselves the subject of diplomatic arrangements,” it says.

Together with the complaint, the department is filing a 58-page motion (PDF) for a preliminary injunction. The law is scheduled to go into effect July 29.

Legal Insurrection:

Here is a copy of the Complaint just filed by the United States against Arizona seeking to invalidate S.B 1070, the Arizona immigration bill. Copies also of the Civil Cover Sheet, Summons to the the State of Arizona, and Summons to Gov. Jan Brewer.

The U.S. also filed a Motion for Preliminary Injunction, with 10 Exhibits. Visit my Scribd site for additional documents.

The case is assigned to Judge Neil V. Wake.

Michelle Malkin

Ed Morrissey:

It seems rather clear that the DoJ intended to get state and local law enforcement involved in immigration efforts.  Arizona’s law doesn’t set up the state as an adjudicator of the complaints, but merely requires police to check status and refer suspects to ICE when circumstances warrant.  It doesn’t violate federal prerogative at all, but instead forces the federal government to act responsibly to enforce the law.

Besides, this issue of pre-emption works the other direction.  Does this mean that state and local police have no jurisdiction to enforce federal drug laws if they don’t violate state or local law?  Terrorism?  Wire fraud?  If a court rules that referrals to federal agencies from state and local law enforcement are unconstitutional on the basis of pre-emption, it will make the Gorelick Wall look like a curb.

Furthermore, this is weak tea compared to the Obama administration’s rhetoric on the subject.  They have spent the last three months declaring this unconstitutional on the basis of discrimination.  If that were true, the government would have made that its primary argument.  The fact that they’re going with pre-emption means that they’re conceding that the discrimination argument never held water — and that their accusations of bigotry against Arizonans were nothing more than demagoguery.

Mary Katherine Ham at The Weekly Standard:

Perhaps it’s a better legal argument than a political one, but the federal government does seem to be opening quite the can of worms to argue that a state-level attempt to do what the federal government claims is its sole responsibility is uncalled for while that same government is spending time and energy suing Arizona while it continues to not live up to its responsibility.

Jim Antle at The American Spectator:

It is precisely the federal government’s failure to enforce its own immigration laws — and their incomplete border fencing that has redirected illegal immigrants to Arizona specifically — that would account for such referrals. Federal action would have made the Arizona law unnecessary But the Obama-led feds would rather crack down on Arizona than illegal immigration.

EARLIER: Let’s Return To The Burning Issue Of, Oh, One Month Ago

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John Paul, Without George And Ringo

Jeffrey Toobin in The New Yorker:

John Paul Stevens, who will celebrate his ninetieth birthday on April 20th, generally bides his time. Stevens is the Court’s senior Justice, in every respect. He is thirteen years older than his closest colleague in age (Ginsburg) and has served eleven years longer than the next most experienced (Scalia). Appointed by President Gerald R. Ford, in 1975, Stevens is the fourth-longest-serving Justice in the Court’s history; the record holder is the man Stevens replaced, William O. Douglas, who retired after thirty-six and a half years on the bench. Stevens is a generation or two removed from most of his colleagues; when Roberts served as a law clerk to William H. Rehnquist, Stevens had already been a Justice for five years. He was the last nominee before the Reagan years, when confirmations became contested territory in the culture wars (and he was also, not coincidentally, the last whose confirmation hearings were not broadcast live on television). In some respects, Stevens comes from another world; in a recent opinion, he noted that contemporary views on marijuana laws were “reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student.”

Ever since last fall, when it emerged that Stevens had hired only one law clerk for the next year, instead of his customary four, there has been growing speculation that he will soon retire. Since 1994, Stevens has been the senior Associate Justice and so has been responsible for assigning opinions when the Chief Justice is not in the majority. He has used that power to build coalitions and has become the undisputed leader of the resistance against the conservatives on the Court. “For those fifteen years, John Stevens has essentially served as the Chief Justice of the Liberal Supreme Court,” Walter Dellinger, who was the acting Solicitor General in the Clinton Administration and is a frequent advocate before the Court, says. In Stevens’s absence, leadership of the Court’s liberals would fall, by seniority, to Ginsburg, but she is also elderly and has suffered from a range of health problems. Even if President Obama appointed a like-minded replacement for Stevens, that person, while taking his seat, would not fill his role.

Stevens is an unlikely liberal icon. When he was appointed, he told me recently, he thought of himself as a Republican and always had—“ever since my father voted for Coolidge and Harding.” He declined to say whether he still does. For many decades, there have been moderate Republicans on the Court—John M. Harlan II and Potter Stewart (appointed by Eisenhower), Lewis F. Powell and Harry Blackmun (Nixon), David H. Souter (Bush I). Stevens is the last of them, and his departure will mark a cultural milestone. The moderate-Republican tradition that he came out of “goes way back,” Stevens said. “But things have changed.”

So has Stevens. His positions have evolved on such issues as civil rights and the death penalty, and he has led the Court’s counteroffensive against the Bush Administration’s treatment of the detainees at Guantánamo Bay. And, as Stevens’s profile has risen, and his views have moved left, so, too, has criticism of him from conservatives reached a higher pitch. “From the beginning of his time as a Justice, you could see Stevens’s roots in the New Deal Court and his willingness to justify an expanding welfare state,” Richard Epstein, a libertarian-leaning law professor at New York University, said. “On these issues, he’s been consistent and consistently wrong about everything—and highly influential.”

Still, Stevens’s views suggest a sensibility more than a philosophy. Many great judicial legacies have a deep theoretical foundation—Oliver Wendell Holmes’s skeptical pragmatism, William J. Brennan’s aggressive liberalism, Scalia’s insistent originalism. Stevens’s lack of one raises questions about the durability of his influence on the Court.

But, more than anything, his career shows how the Court has become a partisan battlefield. In that spirit, Roberts last week denounced President Obama’s criticism of the Court in his State of the Union address, saying that the occasion had “degenerated to a political pep rally.” When Stevens leaves, the Supreme Court will be just another place where Democrats and Republicans fight.


How long will Stevens remain on the Court? Good genes (one of his older brothers practiced law until he was ninety-one), a happy home, plenty of exercise, and even more luck could allow Stevens to keep up the fight into his tenth decade. Last December, he had lunch with Peter Isakoff, a Washington lawyer who was one of his early Supreme Court law clerks. “He had just played tennis that morning—singles!—and I was just kind of amazed,” Isakoff recalled. “And so I asked him, ‘Do you still run?’ And he looked at me and said, ‘Well, how else are you going to get to the ball?’ ”

With the election of Barack Obama, the question of Stevens’s retirement has become more pressing. Even though Stevens was appointed by a Republican President, many assume that he would never willingly have turned his seat over to George W. Bush. I asked Stevens about his plans.

“Well, I still have my options open,” he said. “When I decided to just hire one clerk, three of my four clerks last year said they’d work for me next year if I wanted them to. So I have my options still. And then I’ll have to decide soon.” On March 8th, he told me that he would make up his mind in about a month.

Stevens needs a little more than two years to surpass Douglas for the longest tenure on the Court, and about one year to equal Oliver Wendell Holmes as the oldest serving Justice, but he said that those numbers were irrelevant. “I’ve never felt any interest in trying to break any records,” he said. He has had a closeup view of the complexities of retirement decisions for Supreme Court Justices. William Douglas, whom Stevens replaced, stayed on the Court after a series of strokes that incapacitated him; his colleagues awkwardly forced his resignation. On the other hand, O’Connor left the Court in good health, which continues, and has watched her successor, Alito, undo part of her legacy.

Did it matter which President named his replacement?

“I’d rather not answer that,” Stevens said. The Republican Party may have moved right since 1975, but Ford himself never displayed anything but pride in his choice of Stevens for the Court. In 2005, a year before his death, Ford wrote, in a tribute to Stevens, “For I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of John Paul Stevens to the U.S. Supreme Court.”

As for Obama, Stevens said, “I have a great admiration for him, and certainly think he’s capable of picking successfully, you know, doing a good job of filling vacancies.” He added, “You can say I will retire within the next three years. I’m sure of that.”

He will not be seen again, under any circumstances, at a State of the Union address. “I went to a few of them when I was first on the Court, but I stopped,” Stevens told me. “First, they are political occasions, where I don’t think our attendance is required. But also it comes when I am on a break in Florida. To be honest with you, I’d rather be in Florida than in Washington.”

April may turn out to be a time of high drama at the Supreme Court, even if nothing of great significance happens on the bench.  On Tuesday, April 20, when the Court gathers to hear a case involving a fairly minor procedural point of criminal law, Justice John Paul Stevens will be celebrating his 90th birthday.  He will thus become the second oldest Justice ever to have served (Justice Oliver Wendell Holmes sat until he was 90 and 10 months; he retired on January 12, 1932).

But, April, it now appears, could also be the month when Justice Stevens makes up his mind whether to retire this year, or to go on serving.  In an interview apparently held on March 8, Stevens told a magazine reporter that he would make up his mind in about a month.  “I’ll have to decide soon,” he was quoted as saying. (The reporter, Jeffrey Toobin of New Yorker Magazine, has this lengthy article on Stevens’ career in the March 22 edition.)

Stevens might not make any public announcement of his plan until after the Court has completed hearing arguments for the Term; that will be on April 28.  If he should notify the White House that he is retiring, that fact almost certainly would leak out promptly, so the news might not wait until Stevens made a formal statement himself.  In the meantime, he is likely to keep his own counsel on the issue.

Tony Mauro at The BLT:

Toobin’s extensive profile of Stevens charts his youth and career, and his evolution on the Court from a Republican moderate to the leader of the Court’s liberal wing, such as it is. Asked if the Court has moved to the right, Stevens said, “There’s no doubt. You don’t have to ask me that. Look at Citizens United.” He was referring to January’s decision in Citizens United v. Federal Election Commission, which overturned precedent to rule that corporate expenditures in election campaigns were protected by the First Amendment. Stevens went on to say there are dozens of decisions he is “very unhappy with,” specifically mentioning the D.C. v. Heller gun rights case of 2008 as well as Bush v. Gore in 2000.

On another current topic, Stevens told Toobin that he does not attend State of the Union addresses in part because “they are political occasions, where I don’t think our attendance is required. But it also comes when I am on a break in Florida. To be honest with you, I’d rather be in Florida than in Washington.” When the Court is not in session, Stevens spends some of his time at his Ft. Lauderdale condominium.

American Constitution Society:

In an interview with Toobin, Justice Stevens reflects on his time on the bench, saying there are “dozens” of cases he is unhappy with. The justice signaled out Citizens United v. FEC, which overturned court precedent and found that corporations have similar First Amendment rights as individuals, at least in the area of campaign financing, District of Columvia v. Heller, which found that the Second Amendment provides a personal right to possess firearms, and Bush v. Gore, which decided the 2000 presidential election.

Stevens said the Court has lurched rightward since he joined it in 1975. “You don’t have to ask me that,” Stevens responded to Toobin’s question on the tilt of the high court. “Look at Citizens United. If it is not necessary to decide a case on a very broad constitutional ground, when other grounds are available, then doesn’t that create the likelihood that people will think you’re not following the rules?”

Ashby Jones at WSJ:

Even more than Chief Justice John Roberts or the irrepressible Justice Antonin Scalia, Justice Stevens has in recent days become the Justice To Watch, namely because rumors continue to swirl that the 89-year old will soon step down, paving the way for another President Obama appointment. Toobin’s piece is a good one, providing insight into the thoughts and inner workings of the fourth-longest-serving justice in the court’s history

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J. Edgar Hoover, Call Your Office

John Solomon and Carrie Johnson in WaPo:

The FBI illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply persuading phone companies to provide records, according to internal bureau memos and interviews. FBI officials issued approvals after the fact to justify their actions.

E-mails obtained by The Washington Post detail how counterterrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.

A Justice Department inspector general’s report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.

The records seen by The Post do not reveal the identities of the people whose phone call records were gathered, but FBI officials said they thought that nearly all of the requests involved terrorism investigations.

FBI general counsel Valerie Caproni said in an interview Monday that the FBI technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records.

“We should have stopped those requests from being made that way,” she said. The after-the-fact approvals were a “good-hearted but not well-thought-out” solution to put phone carriers at ease, she said. In true emergencies, Caproni said, agents always had the legal right to get phone records, and lawyers have now concluded there was no need for the after-the-fact approval process. “What this turned out to be was a self-inflicted wound,” she said.

Justin Elliott at TPM:

The crux of the lawbreaking was the FBI’s use of so-called “exigent circumstances letters” to get phone records. That’s was a post-9/11 tool created to allow quick searches of phone records in case of emergency.

After using such an emergency letter, the bureau was legally required to get an after-the-fact national security letter — the traditional authorization for obtaining phone records, which must be OKed by top officials. But in the cases described by the Post, the FBI simply didn’t bother to get a national security letter, often because there was no real emergency.

The Blog Of Legal Times

Matthew Yglesias:

The FBI’s general counsel assures us that this was all “good-hearted.” And those reassurances keep coming down the pike. After each revelation of illegal surveillance, we’re assured that these abuses aren’t that kind of abuse—like the kind where J Edgar Hoover (who remains an honored figure in the FBI, with the headquarters building named after him) spied on Martin Luther King Jr, or Richard Nixon used counterterrorism powers against domestic political enemies. We’re talking about some whole other kind of innocuous, good-hearted abuses.

And who knows, maybe they are. But how many times does “good-hearted” abuse need to go unpunished before something more insidious happens? I find the political complacency in the face of these surveillance abuses to be really stunning. I get that many people figure that the whole arbitrary detention and torture thing is something that’s supposed to happen to other, browner people with funny names. But we don’t need to guess about what happens when the government has unrestricted surveillance power—it’s a story we’ve seen already.


Call me crazy, but since we know the FBI and NSA were illegally wiretapping organizations like al-Haramain in 2004, you have to wonder whether this was an attempt to clean up poison fruit from earlier, even more illegal surveillance.

Then there’s the detail that the FBI “shut down” this program when the IG started investigating.

Phone record searches covered by exigent letters ended in November 2006 as the Justice Department inspector general began investigating.

I can’t help but recall that Section 215 of the PATRIOT Act–which would allow for the collection of phone records–started to be used for a classified collection program in 2006.

Finally, there’s the way this story feels like a limited hang-out. The story notes that this will all be revealed in an IG report coming out later this month.

A Justice Department inspector general’s report due out this month is expected to conclude that the FBI frequently violated the law with its emergency requests, bureau officials confirmed.

So this just tells us what Glenn Fine will presumably tell us in a matter of weeks?

Steve Benen:

Bush administration officials used the cloak of counter-terrorism to abuse civil liberties, ignore the law, and violate Americans’ privacy? Imagine that.

Remind me again, conservatives, about how the public is worried about President Obama increasing the size of government and infringing on the public’s rights.

Post Script: The WaPo article was co-written by John Solomon, up until recently the editor of the far-right Washington Times. He’s listed as a “freelance journalist,” but I have to admit, I didn’t expect to see him be welcomed back into the fold so quickly.

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Filed under GWOT, Surveillance

Accompanying Art Not Provided

Robert Barnes at Washington Post:

It was a hastily written ruling by Supreme Court standards, and it carried a dissent almost equal in length to the majority’s opinion. But the 5 to 4 decision the court issued late Wednesday blocking the broadcast of a federal trial about the constitutionality of same-sex marriage is being scoured by legal analysts and activists for deeper meaning.

Many are finding a hint of sympathy for those who oppose same-sex marriage. An unmistakable worry about how cameras could transform what the ruling called the “orderly, decorous, rational traditions” of the courts. Some even detect a whiff of Bush v. Gore.

“It is almost classic Freudian,” said Andrew Koppelman, a law professor at Northwestern University, “in that it is talking about one thing, but really seems to mean something else.”

Although the ruling went out of its way to emphasize its own limits — “Our review is confined to a narrow legal issue,” the majority said — the ideological split in voting drew speculation about what it portended for a court that is likely to decide the constitutionality of same-sex marriage.

“If there had been a mixture of ideologies on each side, this would have been less remarkable,” said Dale Carpenter, a civil rights and constitutional law professor at the University of Minnesota.

The court held that federal judges in California had violated their own rules by allowing video feeds from a San Francisco trial examining a challenge to California’s Proposition 8, which voters approved in 2008 to amend the state constitution to forbid same-sex marriages.

The majority said the presiding judge, Vaughn R. Walker, and the chief judge for the U.S. Circuit Court of Appeals for the 9th Circuit, Alex Kozinski, had pushed through “eleventh-hour” changes to the court’s rules to transmit the proceedings to five courthouses around the nation and, perhaps, to post video on the court’s Web site.


Although the main opinion was unsigned, the facts that the order divided the Court 5-4, and that the dissenters were identified, indicated that Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas made up the majority.  Justice Stephen G. Breyer, the only member of the Court to dissent from Monday’s order, wrote the dissenting opinion Wednesday, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and John Paul Stevens.   Thus, the ruling split the Court along the customary conservative-liberal divide.

The main opinion sought to portray the Court’s action as limited in scope.  Aside from saying that it was not taking any position “on the propriety of broadcasting court proceedings generally,” it said it was only blocking the streaming of video and audio of the trial proceedings to federal courthouses other than the one in San Francisco where the trial is being held.  Thus, it added, it was not ruling on plans — not yet finalized — to permit broadcast on the Internet, through YouTube or otherwise, since “this may be premature.”

The ruling touched off a basic dispute within the Court over its power to take the action that it did.  The majority opinion found the authority under its own Rules and under a more general “supervisory power” over lower courts.  The Court said that it “may use its supervisory authority to invalidate local rules that were promulgated in violation of an Act of Congress.”  The majority suggested that the trial judge had violated a law that requires public notice and a time to comment before federal court rules may be changed.

Prior to Wednesday’s decision, the only entity within the federal judiciary that had tried to stop the TV broadcasts of the trial was the U.S. Judicial Conference, through two of its officers, citing an anti-TV policy the Conference adopted years ago.  But the main opinion of the Court conceded that Judicial Conference policies “may not be binding in the lower courts.”  Even so, it added, those policies “are at the very least entitled to respectful consideration.”  On Wednesday, the Court used its “supervisory authority” to make the anti-TV policy binding at least in this one instance.

The dissenters on Wednesday directly questioned whether the Court had the authority to block the broadcasting plan.  Justice Breyer wrote that the new ruling was a move to “micromanage district court administrative procedures in the most detailed way.”  He added that “it is inappropriate as well as unnecessary for this Court to intervene,” and went on to argue that there were other entities within the U.S. judiciary that should be handling such matters, “not this Court.”

Contending that the move was without precedent, Breyer wrote: ”I have not been able to find any other case in which this Court has previously” intervened in such matters of local court administration.  He quoted a comment made in an earlier case by Justice Scalia, saying “I do not see any basis for any direct authority to supervise lower courts.”

The majority and dissent, of course, disagreed fundamentally on whether the Prop. 8 proponents had at this point made the case for even a temporary order to block the televised viewing outside the San Francisco federal courthouse.  The majority found strong support for the claim, and the dissenters found none.

The Blog Of Legal Times:

But the high court did accept the controversial claim by opponents of broadcasting the California trial that “irreparable harm” would result from wide broadcast of the trial, because of possible witness harassment and intimidation. Proponents of Proposition 8, who opposed the telecast, based their request for a stay on the potential harm to witnesses who they say have already been threatened for publicly opposing gay marriage. “It would be difficult — if not impossible — to reverse the harm from the broadcasts,” the Court wrote.

The Court noted that in 1996, the last time the Judicial Conference addressed the issue of cameras in the federal courts, it concluded that potential intimidation of witnesses and jurors was “cause for concern.”  While the conference’s policy against broadcast of trials is not binding on the lower courts, the Supreme Court said, it was at least entitled to “respectful consideration” before the district court changed its rules.

Because of these observations among others in the Court’s ruling, it would be hard to interpret it as anything other than a setback for advocates of broadcast access to federal courts — except for the fact that four justices dissented.

Justice Stephen Breyer dissented, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor. Breyer wrote that the district court had given ample notice of its proposed rules, and received more than 130,000 comments in recent weeks favoring the plan to televise the trial. Breyer said it was “inappropriate as well as unnecessary” to interfere with local judicial administration. He also dismissed the Court’s claim of irreparable harm to witnesses, noting that 42 states and two federal trial courts have allowed broadcast of trials without empirical evidence of substantial harm.

“The public interest weighs in favor of providing access to the courts,” wrote Breyer, asserting that the public is interested in “observing trial proceedings to learn about this case and about how courts work.”

Dahlia Lithwick at Slate:

To be sure, there have been claims that some of the witnesses defending Proposition 8 have been harassed and embarrassed. But some of them are paid experts, and some have appeared on television. All will be named and quoted in the newspaper, radio, live-blogging, and Twittering that has poured out of Walker’s courtroom. And the law provides that any witness who feels particularly vulnerable about television broadcast has recourse to judicial protections. But the Supreme Court’s wholesale acceptance of the argument that every last one of these witnesses is a victim-in-waiting is daft—as well as bristling with hostility toward the American public.

Putting aside the merits of the gay-marriage trial itself, in this new decision the Supreme Court has revealed something profound about its view of the American people. One cannot argue that the majority of California citizens wanted to ban gay marriage and should be respected while also claiming that supporters of such an initiative are a fragile, oppressed minority who must testify in dark sunglasses in dark rooms. Opponents of gay marriage can’t have it both ways. If they want to say that unelected federal judges cannot subvert the will of John Q. Voter, then they cannot also insist that John Q. Voter be banned from witnessing federal judges at work. In the campaign over this ballot initiative, both sides spent close to $74 million on competing ads to “educate” voters about gay marriage. In many ways, broadcast and the masses caused Proposition 8 itself. It’s awfully late now to claim that there’s no place for broadcast television in this fight.

Marjorie Cohn at Jurist:

In my opinion, it is no accident that the five majority justices are the conservatives who, in all likelihood, oppose same-sex marriage. Why don’t those who oppose same-sex marriage want people to see this trial?

Perhaps they are mindful of the sympathy engendered by televised images of another civil rights struggle. “It was hard for people watching at home not to take sides,” David Halberstam wrote about Little Rock in The Fifties. “There they were, sitting in their living rooms in front of their own television sets watching orderly black children behaving with great dignity, trying to obtain nothing more than a decent education, the most elemental of American birthrights, yet being assaulted by a vicious mob of poor whites.”

The conservative justices may think that televising this trial will have the same effect on the public. Witnesses are describing their love for each other in deeply emotional terms. Religious fundamentalists who oppose them will testify about their interpretation of scripture. Gay marriage is one of the hot button issues of our time. Passions run high on both sides. This is not a jury trial in which jurors might be affected by the camera or a criminal case where the life or liberty of the defendant is at stake.

In spite of what the conservative majority claims, the professional witnesses are not likely to be cowed by the camera. Modern broadcast technology would allow the telecast without affecting the proceedings in the courtroom.

There is overwhelming public interest in this case. It will affect the daily lives of millions of people. The decision denying limited broadcast coverage at this point effectively eliminates any possibility that it will be allowed before the trial is over. The conservative judges are using procedural excuses to push this critical issue back into the closet.

Ed Whelan at The Corner:

I’ll have more to say on the broader ramifications of this order on Bench Memos once I’ve reviewed it and the accompanying opinion.  For now, I’ll just observe that this is a significant, and well-deserved, victory for counsel for the sponsors of Proposition 8, led by Charles J. Cooper of Cooper & Kirk.

Update:  I’ve now read the excellent per curiam majority opinion.  The majority (the Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito) rules that Judge Walker’s broadcast order should be stayed “because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting” and because irreparable harm would result from the denial of the stay.  I’m pleased to say that the Court’s analysis is very much along the lines that I’ve spelled out in my recent NRO essay—“Staging a Show Trial on Same-Sex Marriage”—and in my Bench Memos posts.  (Those lines were, of course, developed much more elaborately in the brief filed by counsel for the sponsors of Proposition 8.)

UPDATE: Orin Kerr

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Filed under Gay Marriage, Supreme Court, The Constitution

Hey Joe, Where You Going With That Gun In Your Hand?

Randy James in Time:

He likes to call himself “America’s toughest sheriff” and even used that moniker as the title of his autobiography. It’s a claim few people would challenge — but whether that makes Maricopa County, Ariz., sheriff Joe Arpaio an effective law-enforcement officer or, as his critics say, a flagrant human-rights violator remains an open question. The stern law-and-order advocate has declared war on illegal immigration in his sprawling jurisdiction, which includes Phoenix, but now the Federal Government is reining him in. Arpaio, who gained national attention for housing his inmates in tents when jails reached capacity and forcing prisoners to wear pink underwear, said earlier this month that U.S. Immigration and Customs Enforcement has revoked his deputies’ authority to arrest people on immigration violations in the field (they can still check immigration status and make arrests in county jails). A final decision by the Department of Homeland Security is expected to be made public on Oct. 14. Though Arpaio’s severe tactics are popular among Arizonans, his deputies have attracted widespread criticism in their pursuit of illegal immigrants for harassment and the racial profiling of Latinos. Just a small fraction of the 33,000 arrests he has overseen have been based on documentation checks in the field, but Arpaio says the program to allow field checks is symbolically important: “This is a crime-deterrent program, too.”

There’s no shortage of opinion on whether Arizona sheriff Joe Arpaio has done anything wrong. Almost ignored, however, are the Justice Department lawyers investigating him. Yet their conduct raises serious questions — namely, have their liberal bias and apparently unethical tactics caused fundamental flaws in their investigation?

The Department’s Civil Rights Division is investigating how Arpaio, the Maricopa County sheriff, treats illegal immigrants when he arrests them. Meanwhile, the Department of Homeland Security is auditing his participation in a federal program — commonly referred to by its statutory citation, “287(g)” — that allows local police departments to enforce federal immigration laws. Arpaio, whose office is the largest participant in the DHS program, has been accused of improperly launching “crime sweeps in areas around Phoenix with high concentrations of Hispanics” as well as “separating” illegal immigrants from other inmates that he has arrested.

It’s impossible to know at this point whether any of the criticisms of Arpaio have merit. Maricopa County Attorney Andrew Thomas, who wrote the legal guidelines for Arpaio’s crime-suppression operations, insists that that he isn’t “aware of any racial profiling in Arpaio’s crime and immigration sweeps” and notes that Arpaio has simply saturated neighborhoods deemed to be high-crime areas. Regardless, the Justice Department may have a lot more to answer for than Arpaio.

Arizona is on the front lines of the immigration crisis confronting the American Southwest. As thousands of illegal immigrants flood across the border — many engaging in violent and drug-related crimes, choking the local court systems and otherwise imposing heavy economic costs on Arizona communities — Arpaio has been a visible force in local enforcement of federal immigration laws.

Not surprisingly, Arpaio has incurred the wrath of those on the left who oppose immigration enforcement in general, and especially local enforcement of federal immigration laws. Many would like to see the 287(g) program terminated. Unfortunately, the Civil Rights Division’s Special Litigation Section (SPL), which initiated the investigation of Maricopa County, appears hell-bent on aiding these groups’ efforts. SPL has a bad track record enforcing poorly defined and constitutionally questionable legal standards, and it has already been accused of unethical conduct in this case.

Several Radley Balko posts at Reason, here, here and here.

Huffington Post:

Joseph Arpaio, the Arizona sheriff known for his brutal tactics to little effect, is at the center of yet another controversy.

Arpaio is under investigation by the Justice Department’s Civil Rights Division for alleged illegal profiling in his immigration crackdowns. The federal government recently took away some of his power to enforce immigration laws — Arpaio cited a non-existent law to claim he could keep arresting illegal immigrants on the street anyway.

Now, Telemundo 52 is reporting on the case of a woman named Alma Minerva Chacon, who says she was detained while nine months pregnant and forced to give birth while shackled to a bed. Chacon said she was not allowed to hold her baby and was told that if no one came to pick up the child within 72 hours, the baby would be turned over to state custody.

Matthew DeLong at The Washington Independent:

Here are some stark — if not entirely surprising — numbers from the latest Rasmussen Reports poll of the 2010 Arizona gubernatorial race. Out of four potential Republican contenders, anti-illegal immigration crusader and Maricopa County Sheriff Joe Arpaio is the only one who leads the likely Democratic front-runner Terry Goddard, the state’s popular attorney general, in a head-to-head match-up.

A new Rasmussen Reports telephone survey of Arizona voters finds Arpaio, famed for his crackdowns on illegal immigrants, leading Goddard, the state’s current attorney general, by 12 points – 51% to 39%. Seven percent (7%) prefer some other candidate, and four percent (4%) are undecided.

According to the survey, Goddard leads Republican Gov. Jan Brewer by a comfortable nine-point margin, and Goddard is virtually tied with State Treasurer Dean Martin. Brewer is the only one of the possible candidates who is officially in the race.

With numbers like this, could Arpaio be enticed to run for governor? And could he win?

Radley Balko:

It’s gotten so surreal out in Arizona, I’m a little lost in the details. But as I understand it, here’s what’s happened since our last update:

  • Judge Lisa Flores says the Maricopa County Sheriff’s Department hast stopped bringing inmates into her court for hearings.
  • Sheriff Joe Arpaio and Maricopa County Attorney Andrew Thomas filed a bizarre federal lawsuit alleging a wide-ranging conspiracy among the county’s judges and supervisors against Arpaio, Thomas, and Arpaio’s department.
  • Thomas indicted two Maricopa County supervisors on corruption charges.
  • Then it gets weird. Yesterday, Arpaio and Thomas criminally charged Judge Donahoe (the judge who held Arpaio’s document-swiping deputy in contempt) on bribery charges. Except there was apparently never any actual bribe. They didn’t like how Donahoe had ruled on some motions related to Arpaio’s investigation into the construction of a new tower for the county courthouse. Apparently, Donahoe’s “bribe” was merely his employment with the court system that benefits from the tower. Oh, and he’s also retiring soon.
  • Bonus: The indictment documents Thomas released to the press apparently “mistakenly” included Donahoe’s home address.
  • Conor Friedersdorf at Sully’s place:

    If any public official in America deserves the contempt of all citizens, it is Sheriff Joe Arpaio, the Maricopa County lawman who has forced innocent men to march down the street in pink underwear, reportedly forced a Latina woman to give birth while shackled to a bed, and is now trumping up bribery charges against a local judge. That Arizonans repeatedly elect this man is a mark against their polity.

    The Los Angeles Times reports:

    He recently filed a racketeering lawsuit against the entire Maricopa County power structure. On Thursday night, the Arizona Court of Appeals issued an emergency order forbidding the Maricopa County Sheriff’s Office from searching the home or chambers of a Superior Court judge who was named in the racketeering case.

    Last year, when Phoenix Mayor Phil Gordon called for a federal investigation of Arpaio’s immigration enforcement, the Sheriff’s Office demanded to see Gordon’s e-mails, phone logs and appointment calendars.

    When the police chief in one suburb complained about the sweeps, Arpaio’s deputies raided that town’s City Hall.

    A local television station, KPHO, in a 10-minute-long segment last month, documented two dozen instances of the sheriff launching investigations of critics, none of which led to convictions.

    The most notorious case involves county Supervisor Don Stapley, a Republican who has sometimes disagreed with Arpaio’s immigration tactics. Last December, deputies arrested Stapley on charges of failing to disclose business interests properly on his statement of economic interest.

    Stapley’s alarmed supervisor colleagues had their offices swept for listening devices. Arpaio contended the search was illegal and sent investigators to the homes of dozens of county staffers to grill them about the sweep.

    And see the tireless Radley Balko here for another example of this man’s penchant for obstinate lawlessness.

    Given all that, can a reader from Arizona please explain this to me: “PHOENIX — The most popular choice for governor among Republicans is someone who isn’t running now — and may not run at all: Maricopa County Sheriff Joe Arpaio.” There is no instance I know of in America where the grassroots of the Republican Party could do more damage to liberty than to elect this man governor.

    E.D. Kain at The League:

    Hey now.  ”Arizonans” don’t repeatedly elect Sheriff Joe into office – the citizens of Maricopa County do.  The rest of us have nothing to do with it. Careful with that big paint brush, Conor, someone could lose an eye….

    UPDATE: Zachary Roth at TPM

    UPDATE #2: Washington Times

    Hans Von Spakovsky at The Corner

    Will at The League

    UPDATE #3: James Joyner

    UPDATE #4: Julian Sanchez

    UPDATE #5: Zachary Roth at TPM

    UPDATE #6: Alex Pareene at Gawker

    UPDATE #7: Jerry Markon and Stephanie McCrummen at WaPo

    UPDATE #8: David Ingram at the Blog of Legal Times


    Filed under Crime, Immigration, Political Figures

    Executive Privilege Beyond The M & M’s On Air Force One


    Charlie Savage in NYT:

    The Justice Department is preparing to impose new limits on the government assertion of the state secrets privilege used to block lawsuits for national security reasons. The practice was a major flashpoint in the debate over the escalation of executive power and secrecy during the Bush administration.

    The new policy, which could be announced as early as Wednesday, would require approval by Attorney General Eric H. Holder Jr. if military or espionage agencies wanted to assert the privilege to withhold classified evidence sought in court or to ask a judge to dismiss a lawsuit at its onset.

    “The department is adopting these policies and procedures to strengthen public confidence that the U.S. government will invoke the privilege in court only when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests,” says a draft of a memorandum from Mr. Holder laying out the policy and obtained by The New York Times.

    Adam Sewer in Tapped:

    If that sounds, familiar, it’s because it’s exactly what Holder told Feingold in February, that he would “review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.” The difference between the new policy and the old policy is that the old way was “more informal,” according to Charlie Savage. In other words, the new policy seems to formalize the process by which we got the results that had civil liberties groups crying foul in the first place.

    As for the timing of this announcement, bmaz points out that oral arguments are scheduled soon for the al-Haramain v. Obama case, in which the administration is attempting to block judicial scrutiny into the use of warrantless wiretapping–a case in which the plaintiff, an Islamic charity that was wiretapped by the NSA, is wiping the floor with the administration. If anything, the “new policy” seems designed to obscure the fact that the government intends to invoke the privilege again very soon.

    Bmaz at Emptywheel:

    Now why, lo after all these months, would the Administration suddenly announce their “new policy” at this instant? One reason certainly might be the fact that oral argument on plaintiffs’ motion for summary judgment in the absolutely critical state secrets case of al-Haramain v. Obama are scheduled for this morning in front of Judge Vaughn Walker in the Northern District of California.

    The al-Haramain case is a perfect storm of problems for the government, there is warrantless wiretapping, the surveillance invaded an attorney-client relationship, there is known proof in the form of the sealed surveillance log under the protective custody of the court, and at least some of the surveillance is known to have occurred during the period after the infamous “John Ashcroft hospital scene” when Jim Comey and other DOJ officials revolted and the Bush Administration was unquestionably illegally operating their program under the insufficient signature of White House Counsel Alberto Gonzales.

    But the monster problem that may be lurking beneath even this surface is that when Bush’s DOJ submitted declarations to the court describing their program and why state secrets were being invoked in 2006, they did not describe the underlying process by which they picked targets, to wit data mining. And the existence of data mining is a huge problem, because all activities in that regard had been rendered illegal and were specifically defunded by Congress in the Appropriations bill for that year.

    Blog of Legal Times:

    Holder’s proposal could head off an effort by Congress to legislate restrictions on the privilege. Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, has sponsored legislation to do just that, but he held off acting on his bill this summer in order to give Holder time to finalize an internal Justice Department plan.

    Within minutes of the plan’s release, Leahy’s office sent out a statement largely supporting it. The new policies “bring a higher degree of transparency and accountability to a process previously shrouded in darkness,” said Leahy (D-Vt.). But, he added, Congress will have to monitor how the policies work and whether the government makes a “substantial evidentiary showing” when it invokes the privilege.

    Holder’s memo promises periodic reports to Congress, and it sets out a procedure for invoking the privilege that would involve a large chunk of the Justice Department leadership. A State Secrets Review Committee “consisting of senior Department of Justice officials designated by the Attorney General” would make a recommendation to the deputy attorney general after an evaluation, and the deputy attorney general would then make a recommendation to the attorney general.


    The problem is that the people deciding whether “significant harm to national defense or foreign relations is at stake” remains the same Justice Department who decides to invoke the state secrets privilege in the first place. We are still expected to trust that judgment, and it’s not that I don’t trust Eric Holder or the review committee tasked with making this determination, I don’t trust who comes after him. Case in point – Alberto Gonzales with this power would have used the same state secrets privilege to shut down lawsuits.

    It’s not enough for the executive branch to police itself. Congress should act.

    Glenn Greenwald:

    On a different note, the so-called “new state secrets policy” which the Obama DOJ is set to unveil is such a self-evident farce — such an obvious replica of all the abuses that characterized the Bush/Cheney use of that privilege which Obama himself has spent the last eight months embracing — that I couldn’t even bring myself to write about it.  It would not have altered a single one of the controverisal uses and is a complete non-sequitur to the objections raised to its abuses (including, once upon a time, by Obama himself).

    Jonathan Adler:

    This change may have been a long time coming, but that is not a surprise. Federal policies of this sort cannot be changed overnight — at least not without substantial cost. Specific policy guidelines and supporting memoranda must be drafted and approved after input from affected agencies. This can be a lengthy process, particularly when key offices in the relevant agency are vacant and the Administration has other pressing priorities on its plate. While I suppose the President could have immediately suspended reliance on the privilege, he took a more responsible course: ordering a review of how the privilege is used and tasking Justice Department attorneys with developing a new policy that will safeguard vital government interests in a less intrusive fashion.

    Based on these news reports, it sounds like the new policy is a significant improvement. The state secrets privilege should be used quite sparingly, and only then as a last resort. It should not be a ready tool to make embarrassing or inconvenient litigation go away. Developing more formal guidelines is also an improvement, as the lack of clear rules makes it easier to invoke the privilege unnecessarily. It is only natural for government attorneys to seek any and all means of dismissing unwanted litigation — after all, their goal is win for their client (which, for most governemnt attorneys, is the government). Therefore, clear rules and procedures limiting the privilege will reduce this potential for abuse. Even if the new policy would have allowed invocation of the privilege in the recent cases that sparked the controversy, it should provide greater assurance that the privilege is only invoked when it serves a legitimate purpose.

    Daphne Eviatar at Washington Independent

    Kevin Drum

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    Filed under Executive Branch, Go Meta, Political Figures

    The Ebbing Tide Sinks All Boats (If You’re Rich Enough To Have A Boat)

    David Leonhardt and Geraldine Fabrikant in NYT:

    The rich have been getting richer for so long that the trend has come to seem almost permanent.

    They began to pull away from everyone else in the 1970s. By 2006, income was more concentrated at the top than it had been since the late 1920s. The recent news about resurgent Wall Street pay has seemed to suggest that not even the Great Recession could reverse the rise in income inequality.

    But economists say — and data is beginning to show — that a significant change may in fact be under way. The rich, as a group, are no longer getting richer. Over the last two years, they have become poorer. And many may not return to their old levels of wealth and income anytime soon.

    For every investment banker whose pay has recovered to its prerecession levels, there are several who have lost their jobs — as well as many wealthy investors who have lost millions. As a result, economists and other analysts say, a 30-year period in which the super-rich became both wealthier and more numerous may now be ending.

    The relative struggles of the rich may elicit little sympathy from less well-off families who are dealing with the effects of the worst recession in a generation. But the change does raise several broader economic questions. Among them is whether harder times for the rich will ultimately benefit the middle class and the poor, given that the huge recent increase in top incomes coincided with slow income growth for almost every other group. In blunter terms, the question is whether the better metaphor for the economy is a rising tide that can lift all boats — or a zero-sum game.

    Daniel Indiviglio in the Atlantic:

    The article explains that for the rich to recover their earnings quickly, they usually rely on bubbles. For example, after they lost wealth in the tech bubble of the late 1990s, the real estate bubble began, so they shifted investments to that market. If we can avoid a bubble going forward, then we might also avoid the wealth gap increasing. Of course, that might be hard to do.

    Few may have sympathy for wealthy Americans losing some money if they’re still comparatively quite rich. But as the rich get poorer, so does everyone else. Even if you don’t believe in the trickle down effect, the wealthiest Americans affect the economy in many ways. If they have less money, then business investment and charity will also suffer. So will the arts. Government tax revenue will also take a major hit. Less money for the government from the rich will make social programs and entitlements more difficult to pay for.

    That’s not to say it’s good for the wealth gap to widen to infinity. Obviously it isn’t. But for the rich to get poorer without the rest of the population getting richer isn’t a positive trend either.

    Joe Weisenthal at Clusterstock here and here.

    But the people who got super-rich during the housing bubble weren’t the dot-com billionaires, and the dot-com billionaires weren’t the billionaires of the early 90s. These populations change, and to the extent that people aren’t likely to ‘bounce back,’ it’s probably the case that most people never bounce back. If you’re insanely lucky you get one good run — streak of luck — and that’s it. And if you lose everything, no rising tide will make you super-rich again.

    The same goes for discussions of the poor. You frequently hear about how “the poor” haven’t made strides in decades, but it assumes that the poor today are the same people who were poor in the 1970s. But the poor population is always  being replenished by new immigrants and others, and so this stat is misleading. People do jump around all the time.

    Measuring economic mobility is important, and perhaps it’s not as good in the US as we’d like it to be. But just measuring “the poor” or “the rich” as a static block doesn’t get us very far.

    Reihan Salam at National Review:

    Again, we could see the return of ruinously high marginal tax rates, but it’s important to note that the Democratic coalition depends on a small number of affluent voters who, as we saw during the debate over the proposed income tax surcharge in the House health bill, are tax-sensitive. While progressive activists want significantly steeper progressive taxes, the Democratic donor base does not.

    More Salam

    The Blog of Legal Times

    James Pethokoukis


    This economy is just terrible on so many people. The stories are just heart breaking, with people losing their life savings, their homes, their jobs, their health insurance, everything.

    Thank the Good Lord for the NY Times or we wouldn’t hear about the absolute worst of the news. This one hurts so much:
    Rise of the Super-Rich Hits a Sobering Wall

    [E]conomists say — and data is beginning to show — that a significant change may in fact be under way. The rich, as a group, are no longer getting richer. Over the last two years, they have become poorer. And many may not return to their old levels of wealth and income anytime soon.

    For every investment banker whose pay has recovered to its prerecession levels, there are several who have lost their jobs — as well as many wealthy investors who have lost millions. As a result, economists and other analysts say, a 30-year period in which the super-rich became both wealthier and more numerous may now be ending.

    The individual stories will make you cry:

    In one stark example, John McAfee, an entrepreneur who founded the antivirus software company that bears his name, is now worth about $4 million, from a peak of more than $100 million. Mr. McAfee will soon auction off his last big property because he needs cash to pay his bills after having been caught off guard by the simultaneous crash in real estate and stocks.

    Auction his last big property? Down to his last four million? Dear God, where will it stop?

    Can’t we do something to help these people? Oh, right. Well, something more, then?

    Are we not our brother’s keepers?

    UPDATE: Greg Mankiw

    Matthew Yglesias

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    Filed under Economics

    The Confirmation Hearings Just Got More Interesting

    The Supreme Court reverses Ricci.


    The Court has released the opinion in Ricci, et al. v. DeStefano, et al. (07-1428 and 08-328), holding for the plaintiff firefighters that the City of New Haven cannot be sued for disparate liability. The decision below is reversed and remanded in a 5-4 opinion by Justice Kennedy. Justice Scalia filed a concurring opinion. Justice Alito filed a concurring opinion, in which Justices Scalia and Thomas joined. Justice Ginsburg filed a dissenting opinion, in which Justices Stevens, Souter, and Breyer joined.  The opinion is available here.

    Michelle Malkin

    Ed Morrissey:

    This creates a big problem for Obama and the Democrats in Congress.  They certainly have the votes to confirm Sotomayor, but their big sell — that she was one of the appellate court’s most brilliant minds — just took a body blow on this decision.  Most people want to move past the old arguments on race and hiring, feeling that forty years of affirmative-action policies have run their course.  Having to defend a jurist who attempted to impose them in a court case will not make Sotomayor seem moderate or reasonable at all, but extreme and perhaps less than competent.

    Erick Erickson at Redstate

    Jennifer Rubin at Commentary:

    Those who saw a great injustice in dismissing Ricci’s claim are heartened that he received a clear and definitive win. The proponents of identity politics and defenders of Sotomayor have their work cut out explaining how Ricci couldn’t manage to find a full resolution of his claim in the Second Circuit and why we should have confidence in Sotomayor’s ability to spot, let alone resolve correctly, important discrimination issues.

    The Blog Of Legal Times

    Ann Althouse

    UPDATE: James Joyner:

    It’s worth noting that the Justice that Sotomayor would replace, Souter, ruled in the way she would reasonably have been expected to and that the outcome of this case would presumably have been the same were she on the Court.

    On it’s face, however, Ginsburg’s dissenting opinion is absurd.  The firefighters in question certainly had a right to be promoted under the extant rules of the game.  Promotions were based partly on a test. They did well on the test and would have been promoted but for racial discrimination.  The fact that fear, doubt, and uncertainty yielded a situation where nobody was promoted does not in any way mitigate the harm done to them.

    UPDATE: Joe Klein in Swampland

    At National Review’s The Corner, Peter Kirsanow

    At Bench Memos:

    Ed Whelan

    Wendy Long

    There is nothing moderate, mainstream, or nonideological about that. This demonstrates that the White House spin on this nominee is a pure fabrication.

    Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.

    What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One.

    UPDATE: Another SCOTUSBlog post

    Steve Benen

    Two posts from Paul Mirengoff, here and here.

    UPDATE: At The Corner:

    Ramesh Ponnuru

    Andy McCarthy

    Ponnuru again

    Stuart Taylor

    Doug J. on Taylor

    Jennifer Rubin in Commentary, quoting Taylor

    David Frum

    Matthew Yglesias


    Filed under Political Figures, Race, Supreme Court, The Constitution