Verdict Legal Analysis and Commentary from Justia Fri, 23 Jan 2015 19:31:43 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no Time for Madam President Fri, 23 Jan 2015 05:01:23 +0000 Continue reading →]]> Presidential SealFormer Secretary of State Hillary Clinton is going to announce early this year whether or not she will again seek the Democratic Party’s presidential nomination for 2016. Smart money is betting she will go for it. Many Democrats would like Massachusetts Senator Elizabeth Warren, who is a bit more progressive than Mrs. Clinton, to have a go at it. But smart money only sees Mrs. Warren stepping up if Hillary Clinton does not. Frankly, I think it would be great to see a Clinton-Warren ticket.

If Republicans have a woman they believe is ready for the Oval Office, it is a well-kept secret. While their new senator for Iowa, Joni Evans, may be the best woman in Washington at castrating pigs, she is clearly not ready to assume the presidency (or vice presidency). Sadly, part of the move of the GOP to more a conservative ideology has been at the expense of women, and their developing leadership skills. As the GOP takes control of the new Congress, they have given women three of forty-one committee chairs in the Senate and one meaningless chair in the House. Republican friends in Washington tell me that the former attorney general of New Hampshire, Senator Kelly Ayotte, has presidential potential, but she is not yet ready.

It wasn’t always this way in the Republican Party, and it could have been the GOP who led the way. In 2000 Elizabeth Dole (who I knew as Elizabeth Hanford when we worked together at the Nixon White House) ran for president. Elizabeth sought the GOP nomination several years after her husband Kansas Senator Bob Dole had also run for president. She is whip-smart, well-educated and knows Washington. She worked in three White Houses (Johnson, Nixon and Reagan), held two Cabinet posts (Transportation and Labor), and served as the head of the American Red Cross for eight years—not to overlook she served in the U.S. Senate for six years. In 2000 I thought she was certainly more qualified than the man who won the GOP nomination: George W. Bush.

Elizabeth Dole is no fool, and notwithstanding the fact she was polling within striking distance of defeating George W. Bush for the nomination, she withdrew in October 2000 because of lack of GOP money (read: men) which was making it impossible to run. Studies of her campaign show that she also experienced the fate of women at the time who were not taken seriously as presidential contenders, so she received far less press attention than men who were significantly behind her in the polls. As George Bush headed into the 2000 Republican National Convention in Philadelphia, reports had Mrs. Dole on his short-list to be named his vice presidential nominee, but as later became clear the man vetting her for that job—Dick Cheney—had his own ideas about who might best fill that role.

Notwithstanding Mrs. Dole’s conservative voting record in the Senate, she is not a political ideologue, rather a person of great common sense. As the former president of the Red Cross, for eight years, she knew how to deal with crisis—that is a big part of the business of the Red Cross. So it is difficult to imagine that she would have used the 9/11 terror attacks to frighten the nation into adopting the troubling laws the Bush-Cheney Administration embraced, that she would have authorized the use of torture, and promoted the Patriot Act (which have largely eviscerated Americans privacy), or taken the country to war over non-existent weapons of mass destruction in Iraq, with its resulting blowback that has kept the United States at war in the Middle East to this day. And the finance and consumer savvy Mrs. Dole would not have likely ignored the fact that American banks were gathering and selling massive amounts of worthless mortgage-backed securities that would create the Great Recession by 2008, from which we are also still recovering.

Mrs. Dole’s failed candidacy was the first occasion I began thinking seriously about the need for a woman to become president, any politically savvy and sane woman who understands the world stage. I say sane because there is one type of woman I feel strongly who should never be elevated to any office beyond Congress, if voters are so foolish as to elect such a woman to the House or Senate—and some have been elected. As it happens these women are found exclusively in the Republican Party. They are the authoritarian personalities I described in Conservatives Without Conscience who are known as right-wing authoritarian leaders and social dominators, or “double-highs.” Social science reveals that although women rarely fall into this category, it is possible. The leading scholar on right-wing authoritarianism, Robert Altmeyer, says that Margaret Thatcher was a classic “double-high.” As for currently active women in the United States, Altmeyer named Ann Coulter and Michele Bachman as prototypical authoritarian social dominators. Heaven help us if we get a female double-high authoritarian in the Oval Office, for we’ve already had a male double-high, Richard Nixon, and that did not work out so well.

As many did, I thought again about a woman being elected president when Hillary Clinton, who was more qualified and seasoned than Barack Obama, lost the Democratic presidential nomination in 2008. It seemed national guilt over racism trumped our total lack of guilt over sexism. Paradoxically, as scholars Alice H. Eagly and Linda L. Carli note in Through the Labyrinth: The Truth About How Women Become Leaders, sexism may be a more insidious form of discrimination than racism, for “sex provides the strongest basis of classifying people; it trumps race, and age, and occupation in the speed and ubiquity of categorizing others.”

In 2008, I was surprised Mrs. Clinton’s campaign took the position that she was a woman who could do a man’s job. I thought she had it backwards. If she, or any other woman, pursues our highest office, she should understand that the American presidency today requires leadership skills that are more natural to women than men.

History has made clear what type of leadership works best in the American presidency, the transformative leader as first explained in the seminal work by James MacGregor Burns, Leadership (1978), which catalogued and characterized political leaders as transforming and/or transactional. Professor Burns’s descriptive analysis of leadership styles have become the norm for the study of organizational psychology and management, not to mention history and political science. Burns later wrote The Power to Lead: The Crisis of the American Presidency in 1984 addressing the dearth of transforming leaders and the abundance of transactional leaders. Burns found most politicians to be transactional leaders, “a horse trader with his followers, offering jobs for votes, say, or support of important legislation in exchange for campaign contributions.” A transforming leader, on the other hand, “looks for potential motives in followers, seeks to satisfy higher needs, and engages the full person of the follower,” Burns explained.

There are literally hundreds of books, dissertations, and monographs examining the leadership styles Burns defined, and of particular interest for this book are the studies showing that women are natural transformative leaders. For example, when books like Why the Best Man for the Job Is a Woman (Harper Collins, 2000) and articles like Business Week’s special report with the headline “New studies find that female managers outshine their male counterparts in almost every measure,” along with a number of similar such studies, suggested women were better decision-makers than men, they provoked academics who had found little difference between men and women as leaders to take a further look at all existing studies of men versus women as decision makers, a “meta-analysis” study (statistically combining some 45 studies to answer a question) to compare women and men as leaders/decision-makers. What did they find? A study titled “Transformational, Transactional, and Laissez-Faire Leadership Styles” that concluded: “The contemporary claim that women have superior leadership skills is bolstered by our meta-analysis of 45 studies.” In brief, these researchers found “female leaders were more transformational that male leaders.”

If Mrs. Clinton decides to make the run for the presidency her campaign must get off this notion that she can do the man’s job of being president, instead feature her skills as a transformative leader, calling attention to the work of James MacGregor Burns and others who have found it has been the transformative presidents who have led the United States to greatness. Stated a bit differently it is time to understand that Mrs. Clinton, like many other women, were born for the modern American presidency.

John W. Dean, a Justia columnist, is a former counsel to the president.
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New York State Bans Tattoos of Companion Animals Wed, 21 Jan 2015 05:01:05 +0000 Continue reading →]]> Tattoo ArtistLast month, Governor Andrew Cuomo signed into law a bill that will generally prohibit the tattooing and piercing of one’s companion animals, through an amendment to New York’s Agriculture & Markets Law. According to the governor, the bill, which will go into effect in a few months, is “common sense legislation” intended to address “animal abuse, plain and simple” and “end these cruel and unacceptable practices in New York once and for all.” In this column, I will examine the impetus behind the law and what we can learn from what the law does and does not do.

What Motivated the Law?

The sponsor of the tattoo bill, Assemblywoman Linda Rosenthal, said that what first drew her attention to this issue and led her to introduce the bill was the case of a Pennsylvania dog groomer who was discovered selling kittens online. The groomer had pierced the ears and down the spines of the kittens he was selling to make them look “goth.” Another story that drew public attention to the practice of tattooing companion animals a few years later was a photo that a Brooklyn tattoo artist posted of his dog bearing a heart-shaped tattoo that included an arrow and a ribbon.

The tattoo artist asserted in his posting that his dog was “cooler” than other people’s dogs, in part because of the tattoo in question, which read “Alex” and “Mel.” Assemblywoman Rosenthal thought that instances like these highlighted the need for a law to protect animals from being harmed by the aesthetic and otherwise trivial whims of their human owners.

A potential reaction that one might have to this law is to wonder whether the tattooing of one’s companion animals is sufficiently common to merit a special law addressed to eradicating the practice. In more vernacular terms, one might ask, “Is this [the tattooing or piercing of one’s companion animals] really a thing?” To the extent that it is relatively rare, it might appear unnecessary to pass a law to prohibit and punish it (with a fine of up to $250 and a jail term of up to 15 days).

It may, however, be the very rarity of the practice targeted by the law that allows us to learn so much about people’s conflicting motivations. Let us consider what the law tells us about people’s inclinations toward nonhuman animals.

Not a Controversial Law

First, because so few people consider the tattooing (or piercing) of companion animals an important or valued entitlement, it was probably not difficult to garner enough support for the law to pass. There are not huge numbers of wealthy or powerful constituents likely to threaten to withhold campaign funding or otherwise create obstacles to the reelection of any politician, on the grounds that the “nanny state” has interfered with “pet owners’” right to tattoo messages onto their dogs and cats. Instead, most people who have any reaction to the practice of tattooing an animal are likely to view it as bizarre and deviant and, accordingly, an unjustified harm against a living being in someone’s care.

The law, then, is a “warm and fuzzy” measure that helps people to feel good about their sensitivity to nonhuman animals and their willingness to stand up to the gratuitous cruelty that some peculiar individuals choose, for reasons of vanity or other foolishness, to inflict on helpless animals.

As important, however, as the relative ease with which one might introduce and pass such legislation is the impossibility of passing legislation that applies the logic of the tattoo law to practices that involve more than just a small and uninfluential sector of the population (i.e., the few people who want the “right” to tattoo or pierce their companion animals). Consider one example of the law I have in mind.

A Proposed Law Prohibiting the Consumption of Animal Flesh and Hormonal Secretions

It would be impossible to pass a law prohibiting the consumption of flesh (what most people call “meat,” “poultry,” and “fish”) and hormonal secretions (what most call “milk,” “yogurt,” “cheese,” and “eggs”). Why is that? The reason is that about 98 percent of the population regularly consumes animal-derived products like these.

To introduce an anti-flesh and anti-secretions bill into the Assembly (or indeed into the legislature of any state or Congress) would represent a complete non-starter. It would mark the assemblywoman or representative sponsoring it as an enemy not only of the huge industries that supply animal products to people’s grocery stores and restaurants but also of the other enormous industries that supply “feed” for the “livestock”—that is, living and sentient property—which makes up most of the grains grown in this country and takes up most of the land used to grow crops here. A law prohibiting the consumption of animal flesh and hormonal secretions would have no chance of success in today’s climate because it would run up against the habitual, profitable, and unexamined practices of both lawmakers and their constituents.

It might be tempting to try to add another reason for the certain failure of a law of the sort that I describe above. Some might say that such a law would be confronting benevolent or justifiable behavior, by contrast to the law against companion animal tattooing, which confronts pointless cruelty. But it is useful to resist the temptation to draw this distinction and instead to take a look at how similar in logic such a law would really be to the tattoo law (and to animal cruelty laws more generally).

Pointless Cruelty

Most people consume animal-derived products, including the flesh of slaughtered pigs, cows, chickens, turkeys, and fishes, along with the lacteal secretions of baby calves, goats, and lambs (the dairy that grieving mother mammals produce after forcible insemination and the removal of their infants after birth) and the ovulatory secretions of hens (whose male chicks have all been killed at a day old). People who eat in this way get calories from these so-called “foods,” and it is true, as consumers might assert, that people need calories to live. It may thus seem to them (and to some readers) that consuming the flesh and secretions of animals has a beneficial purpose, while the tattooing of companion animals does not.

Consider, however, the fact that this argument (i.e., that supplying calories is good, because people need calories) would apply as effectively to the consumption of human flesh and human lacteal secretions (the latter of which, fascinatingly, seems to disgust people who regularly consume bovine lacteal secretions). Just because some food source, whether human or nonhuman in origin, provides calories, does not it make it “necessary” or even beneficial in any sense, so long as other, non-violent and healthful food sources exist, which they do in this case. Millions of people all over the world, including infants and children, pregnant and nursing mothers, and male and female adults, live well and thrive on a vegan diet, without having to consume any animal-derived foods.

The preference for animal-based foods is therefore exactly that, a culinary preference, rather than a need that could logically and morally trump the profound interest of every living, feeling being in avoiding the violence of confinement, mutilation, separation from one’s children, and slaughter by those to whom consumers of animal products daily delegate the cruel and bloody violence inflicted on animals in the name of food. To quote from the justification memo for the tattoo legislation, animals—including those billions living on our animal-death-rows called “farms”—are “a vulnerable population, as they have no means of expression and must live on the whim of their owners.”

As someone who used to both care about animals and simultaneously and obliviously consume the products of animal slaughter, in the form of meat, fish, dairy, and eggs, I can relate to the desire to distinguish between tattooing a companion animal and biting into a slice of dairy cheese pizza. An earlier me would have said “tattooing your pet is just stupid, but eating is necessary.” But everyone who inflicts cruelty on an animal has some reason for it, no less elevated (and no less “necessary”) than culinary habit.

For the “pet owner,” the tattoo undoubtedly has meaning and may even reflect the owner’s affection for his companion animal. One of the events highlighted in discussions of the New York bill involved the tattoo artist who thought his dog was “cool.” He tattooed a seemingly loving message on the dog while she was undergoing a medically indicated surgery, so the dog was not even conscious of the tattooing.

If the dog owner in that case were a dietary vegan, he could have convincingly argued that unlike people who—utterly unnecessarily—consume the products of animal torture and slaughter because of habit and taste preference, his act of tattooing was specifically oriented around his warm feelings for his dog, did not cause the dog any pain, and certainly did not take his dog’s life. And he would be right in making this argument, though critics of animal tattooing and piercing would be right nonetheless to regard the tattooing of animals as wrongful and unjustified.

Laws Against “Animal Cruelty”

Most laws regarding animal cruelty are somewhat more general than the tattoo law, but they all share the trait that our hypothetical dietary-vegan-tattoo-artist implicitly criticized above. They all identify some particular cruelty against animals to prohibit, because there is perhaps less of a constituency for that particular form of cruelty than for others, and they then prohibit that cruelty while not only permitting but positively endorsing the vast majority of gratuitous daily animal cruelty that supplies the consumption items that most of the population regards as “food.” At the same time, the “individual right to eat what I like” sort of claim that some people make to support their animal consumption practices would readily extend not only to the behavior of the dog tattooer or kitten piercer but to any other violent practice that people in a moral society would see fit to stop. Violence is regularly experienced by the perpetrator as an expression of his freedom; that perspective is hardly unique to the consumption of animals and their secretions.

It is when we have no personal investment of habit to defend that we are best able to see the true cruelty and violence involved in a practice in which others are still participating. That is unquestionably why so many people do support anti-animal-cruelty legislation and why so many are outraged by images of needless animal suffering in a variety of contexts. But the more challenging and more important step is realizing that there is no principled difference between the behavior that we protest and oppose, on the one hand, and the behavior in which we regularly engage, on the other.

It is all essentially pointless violence against vulnerable and innocent animals who are entitled to protection from that violence. Realizing this is what led me to become vegan just under nine years ago. And the violence can stop, if each person who finds any anti-cruelty law well founded embraces the truth, that there is cruelty in every animal-derived ingredient that people consume, and that there is no justification for any of us to be funding it through our consumption habits anymore.

Sherry F. Colb, a Justia columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book, Mind If I Order the Cheeseburger?: And Other Questions People Ask Vegans, is currently available on Amazon.
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The Supreme Court Decides Holt v. Hobbs the Way It Decided Burwell v. Hobby Lobby: With a License to Dictate Public Policy from the Bench Wed, 21 Jan 2015 05:00:00 +0000 Holt v. Hobbs, holding that the Arkansas prison system’s beard-length requirements violate the federal Religious Land Use and Institutionalized Persons Act. Continue reading →]]> U.S. Supreme CourtThe Supreme Court has held in Holt v. Hobbs that the Arkansas prison system may not impose a beard-length requirement on a Muslim inmate who invoked the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The prison asserted that ¼-inch was the maximum length for beards. He said he needed it longer and then declared that ½-inch would do. It is actually a shame the Court took this case for its first application of RLUIPA in a prison context. These facts make the prison look arbitrary and ridiculous for refusing to permit the extra ¼-inch. Yet, there are larger issues at stake, which were displaced by RLUIPA’s obsessive focus on the one, individual believer to the detriment of public policy and good prison management.

As prison administrators must do across the country, the Arkansas authorities refused to make a special rule for this one prisoner. Prison authorities have explained to me, and it makes perfect sense: Once there is one exception to a prison regulation, there will be no end to the number and creativity of the individualized requests to follow. Inmates keep constant track of how others are treated in comparison to themselves. As they also have educated me: who pays for individualized handling of each rule? Taxpayers. This case is not only about one man who wants an extra ¼-inch on his beard, but rather the plethora of demands that can be raised against prison authorities involving every conceivable faith and all aspects of the prison environment, including uniforms, food choices, free time, reading materials, and communal meetings with fellow believers.

Holt filed, on his own, a lawsuit invoking RLUIPA and demanding the right to have the exception to the general prison rule that he was denied by the authorities.

RLUIPA is the statute enacted to apply to state prisons and land use following Boerne v. Flores, in which the Supreme Court held the statute’s predecessor, the Religious Freedom Restoration Act (“RFRA”), unconstitutional. They contain the same misguided standard. RFRA and RLUIPA permit religious believers to overcome neutral and generally applicable laws by demanding that the law be tailored to their religious conduct. How? By implementing an extreme standard for free exercise that was rejected by the Supreme Court in its earlier free exercise cases.

Here is the CliffsNotes version of RFRA/RLUIPA: (1) the believer must first prove the law imposes a “substantial burden” on religiously motivated conduct; (2) the government then must show (a) that the law serves a “compelling interest” and (b) that it does so in the “least restrictive means.”

Before RFRA was enacted, religious litigants had been trying to obtain this standard in all free exercise cases. Their attempts were rejected by the Court again and again, with the most relevant rejection occurring when the Supreme Court decided Church of Lukumi Babalu Aye v. Hialeah a mere five months before RFRA. The lawyer for Church of Lukumi Babalu Aye, the very same law professor who won for Holt today, argued to the Court that the Free Exercise Clause required the Court to examine a law for whether it was the “least restrictive means” for the church. The Court rejected the standard, holding the line on a wise balance between religious liberty and the rule of law. Five months later, Congress did not.

Rewriting the Court’s Own Free Exercise History

With a misleading sleight of hand, the Holt v. Hobbs opinion, authored by Justice Samuel Alito (the very same author of Burwell v. Hobby Lobby), explains how the RFRA formula relates to its prior free exercise doctrine as follows:

RFRA was enacted three years after our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), which held that neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment. Id., at 878–882. Smith largely repudiated the method of analysis used in prior free exercise cases like Wisconsin v. Yoder, 406 U. S. 205 (1972), and Sherbert v. Verner, 374 U. S. 398 (1963). In those cases, we employed a balancing test that considered whether a challenged government action that substantially burdened the exercise of religion was necessary to further a compelling state interest. See Yoder, supra, at 214, 219; Sherbert, supra, at 403, 406.

The way this is drafted, it sounds as though Sherbert and Yoder were two of many cases that Smith supposedly repudiated. Not so—as the Smith decision accurately stated, the “vast majority” of prior cases had applied the Smith approach.

It is difficult to believe that Justice Antonin Scalia, who wrote the majority decision in Smith, signed onto this misstatement of the Court’s prior law and repudiated the core truth at the heart of his opinion. In any event, Sherbert did not actually involve a neutral and generally applicable law; the law at issue in that case was not generally applicable. And Yoder was a proverbial “derelict on the waters” as the only free exercise case in which the Supreme Court ever held that strict scrutiny should be applied to a neutral and generally applicable law.

The Holt Court, however, does hew to the fact that RLUIPA and RFRA provide much more expansive protection for religious litigants challenging a law that applies to everyone else than does their previous doctrine.

Burying the Earlier Prison Free Exercise Cases in Which the Federal Courts Deferred to Prison Authorities and the Re-alignment in the Separation of Power Between the Courts and the Executive and Legislative Branches

When the Court held RFRA unconstitutional in Boerne, one of the stated reasons was that it violated the separation of powers. Holt v. Hobbs, along with Hobby Lobby, beautifully illustrates how RFRA and RLUIPA re-align the separation of power between the unaccountable judiciary and the accountable legislative and executive branches. Judges become law and policy makers.

Under the First Amendment’s Free Exercise Clause, the prison cases before RFRA and RLUIPA were decided such that the judiciary deferred to the executive branch’s security and policy decisions in the prison context. That healthy deference between the branches in my view was set out in O’Lone v. Estate of Shabazz and Turner v. Safley. Those cases established a balance of power between the courts and the executive branch in the prison context that left most policy decisions to the administrators, unless there was a serious violation of the prisoner’s fundamental rights. Not anymore, with RLUIPA and RFRA.

Judges and Justices are now stepping into the shoes of the executive and legislative branches and unilaterally determining what would be a better policy for this institution that will accommodate this one religious believer. Where do they obtain this power? Through RFRA/RLUIPA’s “least restrictive means” analysis.

The “Least Restrictive Means” Test and the New Lochner Era: Judges Unilaterally Setting Public Policy

Holt, like Hobby Lobby before it, shows how the RFRA formula transforms judges into executive policy and legislative lawmakers. The element of the formula that hands judges this power is the “least restrictive means” test.

In Hobby Lobby, Justice Alito, writing for a 5-member majority, addressed the Affordable Care Act and the contraception mandate in a way that put the Justices in the policy driving seat. The Court there, and here, skates through the “substantial burden” and “compelling interest” elements of the analysis to then slow down and savor the power to establish national or state policy based on their lights.

In Hobby Lobby, the majority took “least restrictive means” analysis to give them latitude to land on a lesser restrictive means that Congress will never enact due to economic and political realities, as I discuss here. Hobby Lobby confirmed that when the policymaker is ensconced in a courtroom, rather than the hurly burly of the legislative or executive processes, implausible alternatives become plausible. As Justice Powell pointed out long ago, this test is limited only by the scope of a Justice’s imagination.

The same analysis occurred in Holt. Suddenly, the Justices became experts on what length beard is consistent with a prison’s security concerns. It is obviously not even a ½-inch, they reasoned. How did they know? Because they do. Then the best part follows in which the Court theorizes about the ways in which the authorities can achieve security without this beard-length limitation: (1) prison guards can simply search the beards of prisoners rather than this silly blanket rule or (2) have prison guards run a comb through the beard. I imagine prison guards are standing in line for those jobs.

Even more implausible is the response to Arkansas’ argument that it is concerned about longer beards, because they make it more difficult to identify an inmate when he shaves. The Court responded that if the prison is worried about the guards being able to identify each prisoner by sight when they change their appearance through beard-growth or shaving, require them not to have a beard on entrance and take their pictures without the beard when they arrive!

This latter point totally escapes me. They are holding that Holt has a right under RLUIPA to have a beard in prison. Didn’t that right exist when he walked through the door? The Court is strangely setting up the next RLUIPA case, where the religious prisoner will argue that he can’t be required to shave in the first place, and, therefore, there can be no pictures of him without his beard. But the prison cannot require him to keep a beard he does not want and, therefore, if and when his appearance changes, apparently too bad for the guards.

Plus, according to the Court, hair is fungible: hair on the head should be considered identically with hair on the face. So if the prison permits longer hair on the head, well, it must permit it on the face.

The reasoning also obliterates any concerns about federalism, which was also a reason that RFRA was held unconstitutional in Boerne. There are 50 state prison systems, and ordinarily, they are primarily under the control of each state, because the power to punish for criminal violations is a mark of sovereignty. Apparently not with RLUIPA. The Court fell for the bait that if other prisons handle the issue (beard-length) in a different way, that shows that this prison should be able to do what they are doing. In other words, we are now facing a nationalization of prison security rules skewed toward the specific needs of individual religious prisoners, without reference to the budget, prison population, or law of the state in which the prison sits. Note in future cases: prison authorities need to include their budgets and budget cuts in the record so the Court will take the taxpayers’ money seriously as opposed to its flip charge of the prison being merely “bureaucratic.”

What is truly mindlessly bureaucratic is mandating the same rules for every prison in each of the 50 states under a religious liberty statute, given the huge number of religious sects in the United States and particularly in the prisons. It is sometimes difficult to keep up with the permutations of faith in the prisons. The state of Washington actually instituted a rule that permits prisoners to claim up to three religions each.

This Is a New Lochner Era: Unaccountable Judges Stepping into Lawmakers’ Shoes

While it is true that the courts have not unilaterally chosen to become policymakers, but rather the RFRA/RLUIPA formula has nudged them down that primrose path, the institutional incompetence of judges to make the “least restrictive means” assessment cannot be overstated. Judicial imagination is no substitute for being in the thick of accountability where legislators and the executive branch exist.

The Supreme Court thought it was capable of making policy judgments about labor conditions in the early part of the twentieth century, when it created the so-called “liberty of contract” out of the Due Process Clause and invalidated the increasing amount of legislation mandating better and safer working conditions in the wake of the Industrial Revolution. The lead case was Lochner v. New York, in which New York had enacted a law to limit the hours bakers could work. The Court invalidated the law based on the right of bakers to choose to work in a bakery, to accept lengthy hours voluntarily, and because there was no public interest implicated: “Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week.” Talk about missing the point!

To interpret the newly created right to contract, the Court adopted an early version of strict scrutiny, which puts the courts in the business of second-guessing the legislature. The Lochner Court invalidated the New York law because it was not “necessary or appropriate.” Necessity is a rough equivalent of the standard now imposed under RFRA and RLUIPA.

What happened? The Court rushed in to cast its judgment regarding laws regulating working conditions. But then no reliable, principled constitutional standard emerged that would guide judges in their assessments of each law. The doctrine simply invited judges and Justices to be super-legislators, which is not their forte. The doctrine was abandoned.

With respect to RFRA and RLUIPA, the solution is not as easy. The problem, however, is increasingly apparent.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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The Essential Role of Civilian Authorities In Law Enforcement Tue, 20 Jan 2015 05:01:48 +0000 Continue reading →]]> NYPD2After a dramatic slowdown in policing activity in New York City over the past few weeks, The New York Times reported yesterday that things are now pretty much returning to normal. What could have festered and become a full-blown crisis, therefore, seems at least temporarily to have subsided. This is, of course, very good news.

Even so, the confrontation between the head of the police union (and others in the law enforcement community, egged on by certain politicians) and New York City Mayor Bill de Blasio has highlighted a truly frightening aspect of the divide between police officers and the people whom they have sworn to serve and protect. If that divide becomes too wide and unbridgeable, the consequences for a free society could be severe.

In his column on Justia’s Verdict last week, Professor Michael Dorf began by noting the importance of civilian control of police forces. Drawing on the history of the Roman Empire, Professor Dorf began his column by noting that the civilian leaders of Rome claimed to draw legitimacy from the Senate, “but in practice their authority depended on support from the legions and the Praetorian Guard.” That is, if the military did not support the civilian leadership, then the civilian leaders would be hopelessly weakened. What looked like an early form of democracy was actually a dictatorship, supported by the force of arms and controlled by the men who commanded those armed men.

In today’s column, I will extend the analysis that Professor Dorf’s column offered, and I will then discuss some groups in our society who, like the police, at least appear to have a similar us-against-them attitude about the people whom they serve. Although there are many analogies between the police and other professions, however, possibly the greatest danger to our freedom is the increasing sense of social alienation felt by some of our law enforcers, and their apparent willingness to act upon it.

Who Really Runs the Country, Politicians or the People With the Guns?

In response to my claim above, that the most dangerous threat to a free society is a walled-off police force, one could object that surely the military has a greater potential to threaten freedom in a very direct way. After all, notwithstanding the increasing realization in this country that local police forces have been given ever more military-style weaponry, surely the military has more military-style weaponry than anyone else does.

Indeed, the dangers posed by powerful militaries can be seen throughout history and into the present day, with power-hungry generals frequently engaging in military coups, overthrowing civilian officials. The most recent change in government in Egypt is a prominent example. Surely, if a country were to find that its military leaders were hell-bent on replacing the government, it would be difficult indeed to stop that from happening. The better approach is to prevent those leaders from even imagining that they could try to depose the government in the first place.

This is why it has been so important in the United States and other liberal democracies to separate domestic policing from national defense. In countries that combine the two, the presence of armed soldiers on the streets is considered a normal part of life, making it that much easier to mobilize such personnel to take over the streets and the government on behalf of a would-be dictator or oligarchy.

In the United States, although there is plenty of reason to worry about the divide between military personnel (and their families) from civilians, those personnel are not (except in the case of natural disasters) permitted to serve in law-enforcement roles. Thus, if a broad swath of the military decided to engage in a slow-down, or in some other way refused to follow orders, the effects might be important, but it would not as a matter of course be easy to turn such insubordination into a military coup.

In addition, the rivalries among military branches end up serving a salutary role, by making an ambitious general in, say, the Air Force less likely to want to join up with the Navy and the Army to take over the government. Similarly, well known rivalries between the CIA and the FBI, and between the FBI and local law enforcement (with police officers sometimes referring derisively to FBI agents as “feebs”), have the effect of reducing the likelihood of conspiracy among these different groups of law enforcers.

In short, even though there are places in the world where the military poses the most direct threat to upending the social order, the United States already has structures and norms in place that significantly reduce the likelihood of a military coup.

Of course, there are many ways in which a government can be inappropriately influenced, even if there is no actual coup. And that is where the concern about the slowdown in New York City becomes important. No one imagines that the New York Police Department (or a significant fraction of its officers) would actually depose the mayor, but there is serious concern that this recent confrontation has exposed a willingness by officers to act upon their grievances by refusing to do their jobs, in an effort to extract concessions from City Hall.

And if enough officers were to refuse to follow civilian authority, the mayor’s hands would be tied. Would he dare to fire some fraction of the city’s police force? This might further alienate the other police officers who otherwise would not have been willing to confront the mayor. Moreover, the mayor would open himself up to blame for any tragedies that would ensue, because he would be personally responsible for reducing the presence of peace officers in a city where crime could rise suddenly.

No matter the merits of any grievances that the police might harbor against the mayor or other politicians, the danger is that the police could suddenly realize as a group that they could effectively take charge of the city. If the police force can essentially threaten to make or break a mayoralty, then true democracy would be at risk.

Resentment Against Civilian Authority

In thinking about the recent confrontation between police and City Hall in New York, it would thus be plausible to say that it does not matter whether the police officers’ grievances are legitimate or unwarranted, at least when it comes to a decision to defy the mayor’s authority. At its core, the relationship between the police force and its civilian bosses is arguably beyond the merits of any particular complaints.

As Professor Dorf’s column pointed out, after all, we generally do not allow police officers to go on strike. The leverage that such a mass action could have on the political process is simply too great to be tolerated. Surely, the uncertainty about how long the recent slowdown would continue in New York City, and the concern over the genuine threat to public safety posed by such inaction, has vividly reminded us what is at stake.

At the same time, we need to understand how and why the police might come to feel aggrieved, believing themselves to be somehow beyond the limitations that mere politicians and lawyers would like to impose upon them.

One problem, however, is that the cause of the outrage that led to the very public expression of police scorn toward Mayor de Blasio is so hard to trace. None of the reasons discussed in news reports even came close to explaining the ferocity of the anger that was aimed at the mayor after two NYPD officers were murdered last month. The anger is all too real, but the reported reasons for that anger do not add up, either in degree or in kind. Instead, there is a kind of gestalt at work, with resentment at the mayor’s supposed “anti-police attitude” (for which I can find no actual evidence) having metastasized into a general rage against the mayor.

It does not have to be this way. Indeed, one might have imagined that a typical police officer would have been delighted by the policy changes wrought after the election of a new mayor, who then hired a highly respected police commissioner. It cannot be pleasant for officers on the beat to engage in the kind of in-your-face tactics that Mayor de Blasio’s predecessors championed. No matter a particular officer’s opinions about the necessity for public safety of the stop-and-frisk or “broken windows” policies, those policies increased the number of fraught confrontations between police and citizens. Some officers have apparently conceded that they are relieved no longer to have to “make quota” on stops, arrests, and so on, but that relief has not translated into a sense that police officers are happy about their new working conditions.

It appears that the working condition, if one can call it that, that most bothers police officers nationwide is the requirement that they be disciplined by people who are not police officers. Mere “civilians” just don’t get it, we are told, because only police officers know what it is like to put oneself in danger on a regular basis.

When politicians and lawyers try to push back against lawless behavior, even the police officers who are not subject to such discipline apparently bristle at the very idea that they could be subject to the judgment of people who have not walked in their shoes. Channeling the famous scene from the film “A Few Good Men” (again showing the close similarities between police and military forces) the argument seems to be something like this: “I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, and then questions the manner in which I provide it! I would rather you just said ‘thank you,’ and went on your way.”

The Nature of Closed Professional Groups and the Dangers of Us-Against-Them Mentalities

Although it might seem to be quite bizarre to imagine oneself above the law, in fact it is common in many professional situations for people to view themselves as somehow not bound by the rules that others must follow.

The United States Supreme Court, for example, is frequently faulted for giving itself the right to live under different rules from everyone else. The justices have, for example, maintained tight restrictions on protesters on the Court’s steps that are beyond what it allows elsewhere. Similarly, the justices trust themselves to know when they should recuse themselves from cases, and they often seem to reject the idea that they should live by the rules that they enforce on others. Similarly, state legislators who gladly reduce restrictions on the weapons that people can carry in public nevertheless maintain tight weapons restrictions in their capitol buildings and offices.

For a somewhat different analogy, consider the priesthood in the Roman Catholic Church. For decades, far too many men in the church’s hierarchy were willing to shield lawless predators from civilian authorities, somehow convincing themselves that they maintained the ability and the right to make decisions about whether men in their ranks should be punished for even the most horrific crimes against children and the public trust. Even after the scandals were exposed, too many church leaders—supported, amazingly, by many lay people who were all too willing to say that the church and its holy men could do no wrong—said that these violations were beyond the reach of any secular authorities.

On a much less serious matter, even in the world of sports we often hear of athletes who reject being controlled by “guys who never played the game,” and who thus apparently are not in a position to say that, for example, paying bounties to injure other players is beyond the pale. This attitude, moreover, continues even though the crime in question actually makes the players’ lives more dangerous, shortening their already quite brief careers.

None of these other examples, however, presents nearly the degree of danger that would be presented if a critical mass of law enforcement officers were to decide that they will not allow themselves to be controlled by their civilian supervisors. As influential as judges, priests, athletes, and others are in society, each in their own ways, only law enforcement officers—the people on whom we depend to maintain social order and security—could abuse their position in a way that could so profoundly affect our society. That is power in its purest form.

A society can decide whether it will allow the enforcers of the law to live only by rules that the enforcers themselves think they should live by, or whether it is legitimate for civilian authorities to police the police. This country has (like every other stable democracy in the world) always chosen the latter, as it must. Although it is certainly important to give police due process in enforcing the rules by which they must live and work, those rules must be adopted by civilian leaders, and they must be enforced.

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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Why the Supreme Court Should Reject the Arizona Legislature’s Challenge to the Arizona Independent Redistricting Commission Fri, 16 Jan 2015 05:01:03 +0000 Continue reading →]]> ArizonaOne of the important Supreme Court cases currently being briefed (with oral argument set for March), Arizona Legislature v. Arizona Independent Redistricting Commission, involves the question whether the U.S. Constitution and congressional statutes permit the people of a state to implement an initiative creating an independent redistricting commission (IRC)—i.e., one that is not controllable by the elected state legislature—to devise congressional districts. Arizona voters passed just such an initiative in 2000, and the elected Arizona legislature (acting as a body) has now brought the case to the Supreme Court, arguing primarily that the so-called Elections Clause of Article I of the Constitution (Article I, section 4) prevents a state from divesting district-drawing power from the elected state legislature. The Arizona legislature (represented by former Solicitor General Paul Clement) has filed its brief in the Court, and the IRC (also represented by a former Solicitor General, Seth Waxman) will file its written argument very soon. In the space below, I analyze the merits portion of Mr. Clement’s brief on behalf of the Arizona legislature, and point out why I think it fails to demonstrate that the IRC’s creation and powers violate federal law. (Another part of Mr. Clement’s brief, addressing whether the Arizona legislature has “standing” in federal court to assert a challenge to the IRC at all, raises interesting questions of its own, but those will have to await another day.)

What the Constitution and Federal Statutes Say, and What Mr. Clement’s Brief Argues

The Elections Clause of the Constitution reads in relevant part: “The [districts for] Representatives . . . shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .”

And an important federal statute says that “u]ntil a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in [a particular way].” 2 U.S.C. § 2a(c) (emphasis added).

Mr. Clement’s argument against the IRC is pretty straightforward. He contends that the term “legislature” in Article I refers, as a matter of constitutional text, history, and policy, specifically to the elected body of regular legislators of the state, and if another body—the IRC—is empowered to do the districting instead, the elected legislature has been improperly divested of its constitutionally conferred prerogative. As the brief observes, quoting from a case (Hawke v. Smith), “[t]he term ‘the legislature’ . . . ‘was not a term of uncertain meaning when incorporated into the Constitution,’ and ‘what it meant when adopted it still means,’ namely, ‘the representative body which made the laws of the people.’” The brief adds that this precise wording by the framers was motivated by their “admiration for representative democracy and skepticism for other forms of government, including direct democracy.” The brief then goes on to explain why “the IRC is not ‘a legislature’ at all [and is certainly] not ‘the Legislature’ in Arizona.”

Mr. Clement does have to deal with two Supreme Court cases that seem to support the IRC. In Ohio ex. rel. Davis v. Hildebrant, in 1916, the Court upheld Ohio’s use of the referendum (a popular vote veto by the people directly) to oversee the congressional districting done by the elected state legislature. The Court specifically rejected a challenge to the referendum based on Article I, section 4 of the Constitution, finding that “to include the referendum into the scope of the legislative process was [not] to introduce a virus which destroys that power,” and also that Congress expressly chose language to include in a federal statute (the one quoted above) in order to make clear its desire that where under state law “the referendum was treated as part of the legislative power, the power as thus constituted should be held and treated to be the state legislative power for the purpose of” the Elections Clause (emphasis added).

And in Smiley v. Holm, in 1932, the Court upheld Minnesota law’s inclusion of the governor in the districting process through the power of the veto, holding that there is nothing in the federal Constitution that suggests “an attempt to endow the Legislature of the state with the power to enact laws in any manner other than that in which the Constitution of the state has provided that all laws shall be enacted.” As a result, a redistricting passed by the elected legislature but vetoed by the governor was not allowed to go into effect.

Mr. Clement argues that these two cases “do not aid the IRC” because “both decisions clearly contemplate a continuing role—indeed, a continuing preeminent role—for the state legislature in prescribing congressional districts,” insofar as the referendum power and the gubernatorial veto at issue in those cases did not obviate the need for the elected legislature to itself agree on any districting plan that would go into effect. Because Arizona’s IRC scheme totally replaces—rather than supplements—the power of the elected legislature, these cases, argues Mr. Clement, are readily distinguishable.

As to the federal statute that the IRC invokes to support it—2 U.S.C. § 2a(c)—Mr. Clement argues that a recent ruling by the Supreme Court (Branch v. Smith) that discusses that provision does not mention that it embodies a congressional blessing of all districting done pursuant to state law. Moreover, Mr. Clement argues, if Congress “ever passed a statute purporting” to “authorize states to oust from the congressional redistricting process the very state legislatures to which the Constitution delegates primary power,” then such a law would “be plainly unconstitutional.”

Why the Constitutional Reading Offered by the Arizona Elected Legislature Is Unpersuasive

Mr. Clement’s argument on behalf of the Arizona elected legislature is flawed in several respects. Sometimes the argument frames questions improperly, and sometimes the argument’s conclusions are not logically supported. At a relatively high level of abstraction, the brief misdescribes the relevant inquiry: the question is not whether the IRC can be considered a “legislature” within the meaning of the federal Constitution; the question is whether the Arizona electorate—which passed the measure creating, empowering and directing the IRC—can be considered the state’s “legislature” for Article I, section 4 purposes. To see this, ask yourself whether the elected Arizona legislature could—if it wanted to—create and appoint a body like the IRC, and charge it with the task of actually drawing the district lines, without the need for formal ratification or approval of the final boundaries by the elected legislature. That is precisely what five other states do, and no one—even the Arizona elected legislature—seems to quarrel with that. In other words, no one argues that an elected legislature is violating Article I, section 4 by making use of a commission to help draw the lines. (The same is true for Congress; no one believes that the clause empowering “Congress” to “regulate commerce among the several states” is violated when Congress creates, empowers, and directs federal agencies to craft the specific commercial regulations in the name of the federal government.)

So if the people of Arizona can be considered a legislature for Article I, section 4 purposes, then it matters not whether the IRC is a legislature. The IRC is the tool of the popular legislature, just as commissions are the tools of the elected legislatures in states like Montana, Idaho, New Jersey, Washington, and Hawaii.

And when we turn to the question whether the people of a state can properly be considered the legislature of the state for these purposes, we see that the brief’s treatment of the Hildebrant and Smiley cases is quite incomplete at the very least. The brief’s claim that, as far as the facts go, the devices at issue in those cases did not completely displace the role of the elected legislature is true. But it is also true that the affirmative legal argument the brief makes—that the text, history and policy behind Article I, section 4 require that the word “legislature” be understood to mean the elected legislature and only the elected legislature—simply cannot be squared with the outcome, let alone the reasoning, of those cases. To put the point is quasi-mathematical terms, if “legislature” equals elected legislature and no more and no less, then “legislature” cannot equal “legislature plus people” or “legislature plus governor.”

Indeed, what strikes me most in reading the brief is that its drafters make bold assertions without seeming to realize that these assertions conflict directly with Hildebrant and Smiley, the cases Mr. Clement argues pose no problems for him. For example, the brief asserts—in a section heading, no less—that “The Text of the Elections Clause Unambiguously Vests State Authority . . . in the State’s Representative Lawmaking Body Alone” (emphasis added). The inclusion of the word “alone” is puzzling. If it is true that Article I, section 4 vests power in the elected legislature “alone,” the how could a veto by the people (in the form of a referendum) be countenanced? (Similarly puzzling is the brief’s insistence that the word “prescribe” in Article I, section 4 means “establish authoritatively” or “dictate.” If the redistricting work product of the elected legislature can be made subject to a requirement of popular approval, as Hildebrant says it can, in what sense is the elected legislature “authoritatively establishing” or “dictating” anything?)

In a related vein, the brief observes that “the framers knew the differences between ‘state legislatures’ and the ‘executive . . . branch[]’” and that “[t]hose contemporary understandings and usages are critical.” Why would you make this (tangential) textual argument concerning the difference between “legislature” and “executive” when Smiley—a case whose relevance you are trying to minimize—expressly permits executive involvement in Article I, section 4 district drawing?

It is true that Mr. Clement’s brief is able to quote, as noted earlier, language from one Court case, Hawke v. Smith (decided in 1920), to the effect that the meaning of the term “legislature” is the same now as it was in 1787—the elected representatives. What the brief does not mention, however, is that this language in Hawke did not involve Article I’s Election Clause, but the word “legislature” as it appears in Article V’s amendment process. The Hawke Court rejected the applicability of the referendum device in Article V. But Hildebrant explicitly permits the use of the referendum in congressional district drawing, which strongly suggests that the Court has a different conception of the what “legislature” means in Article I, section 4—a conception that focuses not on a specific elected body but on the lawmaking power of the state more generally and the democratically accountable legislative process that is being employed.

That the Court interprets Article I, section 4’s reference to “legislature” in terms of a democratic legislative process, rather than in terms of a particular body, was made explicit by the Court in Smiley (the case involving a gubernatorial veto of an elected legislature’s redistricting bill.) Responding directly to and rejecting the Hawke Court’s “a legislature is a particular elected body” reasoning employed in Article V, the Smiley Court said: “The question [in the present case] is not with respect to the ‘body’ . . . but as to the function to be performed. The use in the Federal Constitution of the same term in different [parts] does not always imply the performance of the same function.” So while Mr. Clement is able to quote language from Hawke, the brief doesn’t explain that Hawke’s interpretive approach has been overtly rejected by the Court in the Elections Clause context.

Just as Mr. Clement’s textual arguments are in tension with the results and reasoning of case law, so too are his historical claims. If the framers of Article I, section 4 were so “skeptical” of direct democracy, and if such pure democracy “results in ‘spectacles of turbulence and contention,’” as the brief argues, then how to explain the Court’s decision in Hildebrant to permit a state to subject an elected legislature’s districting plan to a popular referendum?

Overall, it almost seems as if one person wrote the first part of the brief—laying out an aggressive textual and historical argument—and then another person was tasked with trying to deflect potentially damaging cases, and no one realized that the proffered distinctions of cases had to mesh with the affirmative reading of Article I, section 4 offered in the main argument.

Why the Brief’s Treatment of the Role of Congress in This Dispute Is Even Weaker

Putting aside what the word “legislature” means in Article I, section 4, the least persuasive part of the brief might well be its treatment of the crucial congressional statute. As noted above, one reason the Hildebrant Court gave for upholding the use of the referendum in district drawing was its view that Congress, when it was modifying a key federal statute regarding redistricting, replaced a reference to the “legislature” of a state with the phrase “in the manner provided by the law” of a state, specifically in order to convey its approval of any state redistricting that made use of the referendum, so long as the referendum was consistent with state law. Mr. Clement’s brief does not deny that the Hildebrant Court read the statutory language this way (the brief never even refers specifically to the passage in Hildebrant.) Instead, the brief simply says that a more recent case, Branch v. Smith, discussing the same statutory provision, did not reiterate what Hildebrant said, and that some Justices in Branch believed that the statutory provision at issue had been implicitly repealed by other statutes.

But the brief does not mention that five Justices in Branch explicitly expressed their view that the provision at issue had not been implicitly repealed. Nor does the brief mention that while Branch does not reiterate the reading Hildebrant gave, neither does it pull back from Hildebrant’s reading in any way. Indeed, the Branch Court had no occasion to even discuss the Hildebrant interpretation at all because although the statute at issue in Branch was the same one involved in Hildebrant (or, more specifically, a later rendition of the same law), the legal question presented in Branch had nothing to do with whether Congress has approved of state redistricting that is accomplished, consistent with state law, through the use of direct democracy. Hildebrant’s interpretation thus is not called into question by Branch, and statutory stare decisis is, of course, supposed to be very strong.

Probably because its drafters sense vulnerability here, the brief does say Congress cannot constitutionally authorize state laws that cut elected state legislatures out of the district-drawing loop. But in making this assertion the brief is on very weak ground. Congress is explicitly empowered to override any state districting and do the districting itself. That is precisely why the Hildebrant Court found congressional endorsement of Ohio’s scheme so relevant—because Article I, section 4 “expressly gave [Congress] the right to” decide. In exercising its power, Congress might have passed a law creating the very identical Arizona IRC to do the districting within the state, and that would be completely permissible. If Congress could have enacted the IRC law itself (or incorporated it by reference into binding federal law shortly after the Arizona voters approved it), then why can’t it simply approve any districting approach that satisfies whichever requirements, such as compliance with state law procedures, that Congress thinks are important? That is the key question Mr. Clement brief’s never begins to address. And while one could make noises that even though Congress can do something itself in this realm it cannot prospectively authorize a state to do it instead, any such arguments are unlikely to be convincing, especially in light of the use to which Hildebrant put the statute.

Perhaps it is possible to read the federal statute as approving the use of the referendum, as in Hildebrant, but not the use of the initiative, as in the present case. But the text of the statutory phrase relied on by Hildebrant—“in the manner provided by the law” of a state—would not seem to permit such a distinction. Neither would the statute’s legislative history (also relied on by the Hildebrant Court), which mentioned a desire to permit states to use both the initiative and the referendum in districting processes.

In the end, this congressional blessing, coupled with Congress’s broad override powers in the Elections Clause, might be the easiest, and narrowest, ground on which to decide the case and reject the Arizona legislature’s attack. There would then be no need to decide whether, in the absence of the federal statute, a state could cut an elected legislature out of the districting process or whether such an effort would be foreclosed by a strict reading of the word “legislature” in Article I, section 4.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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Torture and Myth, Part Two: The Politics of Torture Thu, 15 Jan 2015 05:01:44 +0000 Continue reading →]]> Torture ConceptIn my last column, I described a cherished American myth: When we imagine our security threatened, we lose our collective heads and engage in reprehensible behavior, which affords us the calming illusion that a strong hand is at the helm. Years later, after the damage is done, we ritualistically express our regret and vow to do better next time, until the next time comes and the process repeats.

I call it the myth of deviation and redemption. Like all civic myths, it plays an important national role. This particular myth relieves actors of responsibility for their misdeeds. No one actually does anything. Madness simply overtakes us. Among other virtues, the myth serves our perennial ambition of contributing to national unity by sanding down the rough edges of American history.

After the Senate Select Committee on Intelligence released the torture report, the Obama Administration, abetted by most of the mainstream media, dutifully repeated this myth. Mistakes were made, bad things happened. We lost our bearings and rushed to embrace torture in the terrifying wake of 9/11. Why? Because that’s what we do. Fortunately for us, that was then and this is now. We’ve redeemed ourselves.

As I demonstrated in my last column, this is simply not what happened. Contrary to the myth, “we” did not demand that suspects be tortured in the immediate wake of 9/11. Bad things did not “just happen.” For more than 7 years after the attacks, including the first fraught months when the great majority of Americans believed they or their loved ones were likely to be the victims of a terrorist attack, both elites and the mass public opposed torture, and support for it was consistently quite low.

But that has all changed. Now, when the risk of a terror attack in this country is quite low and fear has receded, support for torture is at record levels. For that, we can thank the politics of torture.

Torture, American Style

The road to the current state of play began in earnest when President Obama ended the Bush administration’s torture program in late January, 2009. Almost immediately, the right leapt into action. The issue could now be reframed from whether the Bush administration was correct to start the program to whether the Obama administration was correct to end it.

The right was relentless in its attacks on the president. Among the earliest critics was former Vice President Cheney, who denounced Obama’s decision as “recklessness cloaked in righteousness.” The “enhanced” techniques, he said, “were used on hardened terrorists” and only “after other efforts failed. They were legal, essential, justified, successful, and the right thing to do” and “prevented the violent death of thousands, if not hundreds of thousands, of innocent people.”

But it is essential to understand that the partisan attacks on the president, by themselves, would not have been enough to produce the current state of play. Far more important, but less appreciated, was the determined effort to align torture with national values.

Though a number of arguments in defense of torture can be heard in the public square, one now dominates the field and can be stated with frightening clarity: some prisoners were tortured, but the agents were acting in good faith and thought it was necessary.

Thus, rather than try to suggest that suspending a prisoner naked for hours at time from hooks in the ceiling while periodically dousing him with cold water is somehow humane, or that “rectal infusions” can be justified as an interrogation technique, the people in this camp accept that the CIA deliberately tortured prisoners. But at the same time, they insist it was a necessary evil—no less evil because it was necessary, but no less necessary because it was evil.

Having decided that torture was done in good faith, the argument then finds indispensable solace in American values by insisting that the United States restricted the use of torture in ways that continue to demonstrate American exceptionalism. In that way, “our” torture is much better than “their” torture.

Unlike torture as they practice it, the United States tortured only when absolutely necessary. Our motives were as pure as the nation itself. Unlike the barbarians we face, we tortured only to gather lifesaving intelligence, and not simply to gratify our sadistic nature.

While they torture for any reason or no reason—simply because they were savages—we tortured only because they had forced us into an impossible dilemma: either torture or allow innocent men, women, and children to be slaughtered. In short, we tortured because we were civilized; they because they were not. We were motivated and constrained by our values, which continued to distinguish “us” from “them.”

We now see this line of “reasoning” everywhere. Consider, for instance, the remarks of former CIA agent and frequent Fox News guest Wayne Simmons. As I noted in my first column, shortly after September 11, when torture remained taboo, Fox News invited Eric Haney to its programs. Haney, the retired founder of the elite army special operations unit, Delta Force, emphatically rejected all “strong arm tactics” and cautioned that some prisoners just don’t respond to interrogation. But after the right embraced torture, Haney made no additional appearances on Fox.

Instead, Fox came to rely on the much more dramatic Simmons, who was asked in one interview whether torture should ever be used by American personnel to get information. “What I can tell you,” he answered, “is we’re not going to slice someone’s arm open and dump salt in the wound. That’s preposterous, we don’t do that.”

On the other hand, “am I going to make someone very, very uncomfortable? I’m absolutely going to do that, especially if I know that the intel is time-sensitive. That’s what it comes down to. If . . . I know that somebody’s planted some bombs in Manhattan and we have 24 hours to find them, you can bet that 99.99 percent of Americans would tell me to do whatever I had to find those bombs.”

When asked whether making someone “very, very uncomfortable” might constitute torture, Simmons was more explicit. “Listen,” he said, “waterboarding is acceptable; hooding is acceptable; putting people in freezers, quite frankly, until they’re very uncomfortable is acceptable. What I consider torture . . . is if we’re lopping off heads, if we’re cutting off digits, if we’re using hammers on fingers like the enemy does to our people, but no one seems to care about that.”

Sharpening the lines between our torture and theirs is abetted by the next step in the process. The Americanization of torture demands also that we be granted moral authority. Because of both the nature of the war on terror and the nature of terrorists, any sovereign would be justified in doing much more than the United States had done.

“Let’s put it right on the table,” Simmons once said. “These are sub-humans. These are very, very smart sub-humans. Their sole goal in life is to kill us, to kill the West, to kill your children, to take us down.” “And I might add, once these barbarians against humanity have decided to become terrorists, their lives as they know it is over. All bets are off against these guys.”

“I lived with these animals,” he said on another occasion. “This is a sub-human species of somehow a deviation of the human, of the true human. They care for nothing. They kill everything in their path. . . . I lived with them. I ate with them. I slept with them. I drank with them. I have watched them slice the throats of human beings two feet from me, pull their eyes out, cut their fingers out.”

Simmons’s view, though perhaps more colorfully put, is typical among those who defend torture. As the conservative commentator Charles Krauthammer put it, “Anyone who blows up a car bomb in a market deserves to spend the rest of his life roasting on a spit over an open fire. But we don’t do that because we do not descend to the level of our enemy. We don’t do that because, unlike him, we are civilized. Even though terrorists are entitled to no humane treatment, we give it to them because it is in our nature as a moral and humane people.”

Thus, though the United States was morally authorized to do much more than it had done, it acted with deliberate and appropriate restraint, or so the argument goes. Unlike “their” torture, which was meant only to prolong a prisoner’s agony before he was killed in some gruesome fashion, every technique employed by the United States had been carefully and exhaustively vetted.

Because we are dedicated to the rule of law, every method, whether applied in isolation or in combination, had been carefully studied by a small army of elite lawyers to ensure compliance with both domestic and international law. Because we are humane, every interrogation was supervised and monitored by psychologists and medical personnel to ensure that the prisoner was in no real danger. And because we are committed to the dignity of the individual, no interrogation went farther than was absolutely necessary. There would be no greater assault on human dignity than circumstances required.

And when the interrogators were done, the prisoners were given the best American care—far beyond what they deserved and far better than they received in their home countries. Speaking on the Senate floor in February 2009, Senator James Inhofe (R-OK), expressed a common sentiment on the right when he said of the prison at Guantánamo, “I can say without any doubt in my mind that I have never seen a prison where people are cared for better than they are there. . . . None of these detainees would ever have treatment like that back in their country of origin.” In any other country, their fate would be far worse. As Fox News’s Bill O’Reilly put it, “every nation in the world does 30 times worse than we do.”

Finally, because we are a nation of laws, if an interrogator ever broke the rules—and supporters of torture admit that such things happened occasionally—there were consequences. “Isolated individuals here and there may abuse their authority and violate existing laws and policies by their treatment of prisoners,” Thomas Sowell wrote in Human Events, “but the point is that these are in fact violations.”

At this point in the defense, the infamous torture memo assumes particular importance. In a country that routinely confuses “legal” with “morally legitimate,” the torture memo provides an important source of public legitimacy. Its turgid, heavily footnoted prose is precisely the sort of almost impenetrable gibberish that many associate with erudition. The memo looks like impressive legal reasoning, just as a blackboard covered with equations and esoteric symbols looks like higher mathematical reasoning, even though to a trained eye it may be nonsense.

The great majority of people will never read the memo itself, any more than they would read the empirical evidence on the economic effect of deficit spending. Instead, they will rely on the judgment of others whom they trust, who use the memo to support one view or another. “I have read the memo about waterboarding,” Karl Rove once told Sean Hannity on Fox News, “and [determined that the enhanced techniques] are not torture. And so did a lot of lawyers who have great expertise in these issues, and the Justice Department and the Defense Department and the State Department.”

Torture’s Bipartisan Appeal

Today, torture is no longer outside the range of acceptable opinion. Indeed, for some audiences, a failure to support torture comes close to apostasy. During the 2012 primary campaign, nearly every Republican candidate endorsed the “enhanced” techniques, including waterboarding:

  • Mitt Romney (“I do not support torture, but I do support enhanced interrogation techniques to learn from terrorists what we need to learn to keep the bombs from going off”)
  • Michele Bachmann (“If I were president, I would be willing to use waterboarding. I think it was very effective”)
  • Herman Cain (“I don’t see it as torture. I see it as an enhanced interrogation technique”)
  • Rick Perry (“I am for using the techniques, not torture, but using those techniques that we know will extract the information to save young American lives. And I will be for it until I die”)
  • Rick Santorum (“Some of this information that . . . led to Osama bin Laden actually came from these enhanced interrogation techniques”).

Nor should any Republican candidate fear that support for torture will cost him votes among the rank and file. The most recent poll on this matter, taken in December 2014 after the release of the Senate report, shows that more than eight in ten Republicans think torture can be appropriate.

Moreover, this endorsement is not confined to Republicans. The same poll found widespread support among independents and moderate Democrats. Compared with polling results during the Bush era, support for torture is now remarkably widespread.

Torture and Myth

The imagined difference between our torture and theirs is more than mere words. Embedded within this distinction is an entire story that a great many people have come to believe in an effort to make wretched behavior congenial to national values. They inflict gratuitous pain because they are savages; we seek lifesaving information to protect the innocent. They show no restraint or respect; we remain within the law and make every effort to preserve even a terrorist’s dignity.

For those who now support torture, theirs conjures up mental pictures that can never be confused with ours. An entire world can be made to fit within this imaginary space. Contrary to the myth of deviation and redemption, Americans embraced torture only after the fear of another attack had all but disappeared, only when torture became politically charged, and only after torture apologists recast torture as the American way.

Joseph Margulies is a Visiting Professor of Law and Government at Cornell University. He is the author of What Changed When Everything Changed: 9/11 and the Making of National Identity (Yale 2013), and is also counsel for Abu Zubaydah, for whose interrogation the torture memo was written.
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Civilian Control of the Police in NYC Wed, 14 Jan 2015 05:01:34 +0000 Continue reading →]]> NY Police DepartmentRoman emperors formally staked their power on Senate recognition, but in practice their authority depended on support from the legions and the Praetorian Guard. Despite its republican traditions, in its imperial phase, Rome was a dictatorship—sometimes a benevolent one, but a dictatorship nonetheless—because truly representative government demands civilian control of state force. For that reason, Article II of the U.S. Constitution makes the President, a civilian, Commander in Chief of the armed forces.

As with the nation, so with its parts. Thus, recent actions by a not inconsiderable number of New York Police Department (NYPD) officers to challenge the authority of Mayor Bill de Blasio by refusing to enforce the law should raise loud alarms. Police officers are entitled to express pointed disagreement with their civilian leaders, but when that disagreement crosses the line into defiance, democracy itself is threatened.

The Underlying Dispute

In considering where to draw the line between permissible protest and mutiny, it is important to set aside the substance of the underlying disagreement. That may be difficult to do in this instance, because the position of protesting NYPD officers is, not to put too fine a point on it, ugly.

Consider the now-infamous statement of NYC Patrolmen’s Benevolent Association President Patrick Lynch that Mayor de Blasio had “blood on his hands” for the murder of officers Rafael Ramos and Wenjian Liu by a man who may have drawn some inspiration from anti-police-brutality protesters but was clearly a dangerous and deranged criminal.

What, exactly, did de Blasio do to render himself culpable in the killing of Ramos and Liu in the eyes of Lynch and his supporters? In the wake of a Staten Island grand jury’s failure to issue an indictment for the choking death of Eric Garner, de Blasio had the temerity to speak the indisputable truth that young African American men like his own son are at elevated risk in encounters with the police. De Blasio has repeatedly acknowledged the difficult and dangerous work that police do, but that was not enough to satisfy Lynch, who sees police–civilian interactions in Manichean terms: Because de Blasio does not offer all NYPD officers 100 percent backing in everything they do, Lynch denounces him.

Legitimate Speech

Police Chief William Bratton and some supporters of Mayor de Blasio have criticized the NYPD officers who turned their backs on the mayor at the funerals for Ramos and Liu on the ground that they were exploiting a tragedy to make a political point. That is a legitimate criticism of the officers’ judgment, but the officers were within their rights to exercise bad judgment or even to give offense. Although not entirely analogous, the Supreme Court’s 2011 ruling in Snyder v. Phelps underscores the proposition that the First Amendment protects offensive speech, even offensive speech that aims to use a funeral for political purposes.

More broadly, police officers have a right to speak out on matters of public concern, even if doing so could be seen as somewhat undermining the authority of their civilian leaders.

As a Justice of the Massachusetts Supreme Judicial Court, Oliver Wendell Holmes, Jr. wrote in the 1892 case of McAuliffe v. Mayor of New Bedford that a plaintiff who had been fired from his position as a police officer “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” Yet constitutional law long ago rejected the Holmesian view that the state may, as a condition of employment, suppress otherwise protected speech.

Under the modern employee speech doctrine, public employees do not forfeit their right to speak as citizens on matters of public concern simply by virtue of accepting a government job. Government may not suppress such speech by its employees unless doing so is necessary to the effective provision of services.

The NYPD officers who turned their backs on Mayor de Blasio were expressing an odious view, but they were nonetheless “speaking” as citizens on a matter of public concern. And while the incidents caused embarrassment to the mayor, the police commissioner, and others, they did not interfere with the provision of police protection in any clear way.

To see why the First Amendment protects NYPD officers in expressing their displeasure with the mayor, imagine that they were making a different point. Suppose that in the wake of the Garner non-indictment, the mayor gave a public speech praising the NYPD for its aggressive use of force, and that some officers turned their backs at that speech. Surely many of the people who now condemn the NYPD officers for their treatment of Mayor de Blasio would praise the hypothetical officers for their courage in confronting their leaders, for speaking truth to power.

An Illegal Strike

Police officers also have a legal right to another kind of speech. They can organize to form a union that, in turn, can collectively bargain on their behalf. Some of the issues that are legitimately subject to collective bargaining are also matters of public policy. For example, whether police must be outfitted with body cameras is both a matter of working conditions for the police and civil rights of the public.

But New York law generally denies to public employees the right to strike. Whatever the merits of the general provision, the reason for the prohibition of police strikes is obvious. A strike in some other sector may cause financial losses and public inconvenience, but a strike by the police threatens the very foundation of government.

The NYPD are not formally on strike, but over the last several weeks, the number of arrests and tickets for relatively minor offenses as well as some not-so-minor offenses (such as gun possession and drunk driving) reportedly declined substantially. Although there is no clear evidence of a coordinated refusal by police to enforce the law, the same report (a New York Times story) indicates at least informal coordination. Call it a stealth strike.

Whether overt or covert, a police strike is dangerous and illegal. Where, as appears to be true here, the tacit strike threatens the public safety unless elected leaders give in to the strikers’ policy demands, democracy itself is under attack. There is no place in New York or America for a Praetorian Guard.

Michael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at
]]> 0 0:06:42 Cornell University law professor Michael Dorf discusses the extent to which various forms of protest by NYPD officers do (and don’t) threaten to undermine civilian control of the police. Cornell University law professor Michael Dorf discusses the extent to which various forms of protest by NYPD officers do (and don’t) threaten to undermine civilian control of the police. Government no no
The President’s Power to Waive the Immigration Laws Mon, 12 Jan 2015 05:01:25 +0000 Continue reading →]]> Social Security CardsWe all know that over the past two years, the President has emphasized that he does not have the power to change the immigration laws on his own. He iterated and reiterated that fact 22 times. Then, in November 2014, he announced that he does have the power waive the immigration laws for some classes of people. Pursuant to his direction, the Department of Homeland Security issued a new “policy” that reads like a statute; it is six single-spaced pages, with sections, subsections, provisos, arbitrary dates, and the notice of its effective date (January 5, 2015).

Immigration, undocumented aliens, and charges of amnesty raise deeply felt issues for many people. I favor increased immigration into the United States. Remember, if American Indians had strict immigration laws, none of us would be here. People want to come here for the same reason that my parents, both immigrants, came here. This country is the land of opportunity and freedom.

My parents did not know the language; they did not know the customs. They were strangers in a strange land. Years later, my mother told me that when she first arrived, she was a little girl well past the age of toilet training, but she was so excited her first night in the United States that she had an accident. When my father fought in WWII, he was proud that the U.S. Army used him as a spy because he spoke Italian, well, like a native. When he was in his 90s, there came a time when I brought him to the VA hospital for a check-up. The doctor looked at his name and asked if he was Italian. He said, in a halting voice, “No, I am an American.” His mind had deteriorated by then. He did not know what year it was; he did not know who was President. He did not know my name. Nevertheless, he knew that he was an American.

In general, I favor reform along the lines that the President has proposed. Whether Congress enacts “comprehensive” immigration reform or moves one-step at a time, the important thing is reform. The government tells us that there are over 11 million undocumented aliens. We will not march 11 million people across our border. Democracies do not engage in mass deportations. I think we also agree on the need to secure our borders. If a 15-year-old child can cross our borders without papers, an al Qaeda operative can surely do the same.

Hence, the issue is not whether one agrees with the President’s goals. (I share them.) The issue is whether it is constitutional for the President, unilaterally, to rewrite our immigration laws and change the status of about 5 million people. If the President can waive any law (by claiming prosecutorial discretion), future Presidents will be able, for example, to rewrite other laws. For example, if the next President does not favor the Affordable Care Act, he or she can simply grant a waiver to all of that law, just as the present President has already granted a waiver to important parts of the Affordable Care Act.

The Office of Legal Counsel, an office within the Department of Justice, functions as the lawyer to the President. It issues “Legal Opinions” to the President and the Executive Branch. The OLC Opinion now argues that the President does have the authority, using “prosecutorial discretion” to make certain changes in the law. President Obama, however, does not seem to rely on that Opinion, although he referred to it in his major speech on the issue. Instead, he said, forthrightly, “what you are not paying attention to is the fact that I just took an action to change the law.” Nor does he argue that he is acting because he does not have the resources to enforce the law. Instead, he argues that he is acting because, “Congress has failed.”

As for resources, shortly after the President’s speech, the Department of Homeland Security announced it was hiring 1,000 new people, some at salaries over $150,000 per year, to implement the President’s new program. That does not sound like the President is facing a shortage of funds. The Government will also be issuing social security cards, and one wonders how that relates to prosecutorial discretion.

However, I would like to focus on a different issue, the OLC Legal Opinion. An Opinion Letter is not a court brief. While a brief can make any nonfrivolous legal argument, an Opinion Letter is supposed to be a more dispassionate and candid analysis of the law. In the past, when the OLC has issued its legal opinions, it has discussed, distinguished, and sometimes withdrawn its prior opinions. Let us turn the OLC Opinion and measure it by that standard—the standard that the OLC uses to measure its own Legal Opinions.

The Office of Legal Counsel, in a Legal Opinion it issued in 1980 made this point quite clear:

The President has no “dispensing power.” If he or his subordinates, acting at his direction, defy an Act of Congress, their action will be condemned if the Act is ultimately upheld. Their own views regarding the legality or desirability of the statute do not suspend its operation and do not immunize their conduct from judicial control. They may not lawfully defy an Act of Congress if the Act is constitutional. (Emphasis added.)

This same Legal Opinion also said that the President had no power to dispense or grant waivers to any civil law that the President did not claim was constitutional. “[T]he 17th century dispute between Parliament and the Stuart kings over the so-called ‘dispensing power’ [is] directly relevant to the questions you have raised. The history of that dispute was well-known to the Framers of the Constitution, and it is clear that they intended to deny our President any discretionary power of the sort that the Stuarts claimed.”

What does the Nov. 19, 2014, OLC Opinion say of its earlier 1980 Opinion? Nothing. It never mentions it.

A decade later, the OLC said that the President does not have carte blanche to refuse to enforce law that is constitutional. This Legal Opinion, titled Issues Raised by Section 102(c)(2) of H.R. 3792, explained:

Finally, we emphasize that this conclusion does not permit the President to determine as a matter of policy discretion which statutes to enforce. The only conclusion here is that he may refuse to enforce a law which he believes is unconstitutional. Obviously, the argument that the President’s obligation to defend the Constitution authorizes him to refuse to enforce an unconstitutional statute does not authorize the President to refuse to enforce a statute he opposes for policy reasons. (Emphasis added.)

What does the Nov. 19, 2014 OLC Opinion say of its own 1990 Opinion? Nothing.

Half a decade later, the OLC issued another Opinion, Constitutional Limitations on Federal Government Participation in Binding Arbitration. The OLC said, “The Supreme Court and the Attorneys General have long interpreted the Take Care Clause as standing for the proposition that the President has no inherent constitutional authority to suspend the enforcement of the laws, particularly of statutes.” (Emphasis added.) In that same Opinion, the OLC said, “The Supreme Court and the Attorneys General have long interpreted the Take Care Clause as standing for the proposition that the President has no inherent constitutional authority to suspend the enforcement of the laws, particularly of statutes.” (Emphasis added.)

What does the Nov. 19, 2014, OLC Opinion say of its own 1995 Legal Opinion? Nothing.

What do the people think of the OLC claim that the President is “prioritizing deportation?” They seem to think that handing out social security cards has little to with prioritizing deportation. Right now, voters by a 60% to 38% margin, object to the President bypassing Congress to change the immigration laws. Over two-thirds are concerned that the President’s executive orders and unilateral actions may be “permanently altering” our system of checks and balances. Among independents, that figure is 72%; for Republicans, it is 90%. Even 42% of Democrats express the same concern. They are right to be concerned.

Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.
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Musing on a Belated Visit with California Justice Mildred Lillie Fri, 09 Jan 2015 05:01:31 +0000 Continue reading →]]> U.S. Supreme CourtAlthough four decades have passed, I still shudder at the shameless gender discrimination that confronted California Superior Court Justice Mildred Lillie when her name was sent to the judicial evaluation committee of the American Bar Association (ABA) to pass on her qualifications to sit on the U.S. Supreme Court. President Nixon would never have sent her name if she was not clearly qualified. In October, 1971, Justice Lillie was the first woman to ever to be seriously considered by a president for the Supreme Court, but the all-male ABA evaluation committee mugged her on her way to being nominated, baselessly impugning her qualifications and effectively delaying for another decade the placement of a woman on the nation’s most important court. When President Ronald Reagan later nominated Sandra Day O’Connor he wisely did not ask the ABA for its advice before sending her nomination to the Senate, and Mrs. O’Connor had the support of Associate Justice William Rehnquist, a Stanford Law classmate and long-time Arizona friend. (During her confirmation hearings the ABA was still only lukewarm to having a woman on the High Court, testifying that O’Connor’s experience “has not been as extensive or challenging as that of some other persons [read: men] who might be available for appointment.”)

President Richard Nixon had made his decision on Mildred Lillie reluctantly, and the ABA’s action embarrassed him and forced him to abandon a notion he had struggled to embrace. It embarrassed me too, for I had vetted Justice Lillie for the White House, assuring all that she was not only qualified, but the president would “do himself proud naming her.” It had never occurred to me that this ABA panel—twelve eminent attorneys drawn from each of the federal circuits throughout the country to privately advise the Attorney General of the United States of the suitability of potential nominees for the federal bench—was composed of eleven chauvinists (one man remained neutral), men who were misogynist to the bone.

After I recounted this wretched incident in The Rehnquist Choice (2001), I learned that at least two, and probably more, members of this ABA panel had received word directly from Chief Justice Warren Burger that he did not want a woman on his Court. Before passing that information to the ABA panel, Burger had threatened President Richard Nixon with resigning if he sent a woman to the High Court. Nixon had rebuffed the Chief Justice, however, telling him to send his resignation if he was not happy with any of Nixon’s selections. Unable to stop the president, Burger had used his considerable influence with the bar to block the first woman from joining his bench, which is not to say that they would not have acted as they did without being encouraged by Burger. This entire episode was despicable.

In the summer of 2002 I spoke with Justice Lillie on the telephone, after one of her law clerks sought me out to tell me how much Justice Lillie had enjoyed my book, and suggested I give her a call. When we spoke I shared the additional information I had learned about her nomination since publishing my book. It was the first time we had talked since October 14, 1971, my thirty-third birthday, thirty years earlier. She was still on the bench as the Presiding Justice of Division Seven of the California Court of Appeals. At 87 years of age she was very sharp, her voice strong, and her sense of humor conspicuous. She was intrigued by my information. She shared a bit of what the episode had been like for her, and invited me to come down to her court for lunch so we could talk about it all. We set a date, but her office soon called to reschedule when she unexpectedly was hospitalized. We never finished our conversation because she passed away on October 27, 2002.

But we did have a belated visit of sorts. I recently found Justice Lillie’s oral history online, and reading it did provide a bit of a reunion. Reading her lengthy oral account (actually it is rather short given her 55 years on the bench), which was recorded in 1989 and 1990, and publicly released in 2010, I was struck by the fact she never mentioned her experience in being considered for the U.S. Supreme Court. But based on our last telephone conversation, I have the impression she did not regret being a Nixon appointee, given the way his presidency ended. Also she said she had dined out for three decades on stories about the experience: A favorite that still made her chuckle was that “the lanky and pleasant young man at the Justice Department who had carried her suitcase was now Chief Justice of the United States,” Bill Rehnquist.

In an introduction to the transcript of Justice Lillie’s oral history, one of her colleagues, Justice Earl Johnson, Jr., noted her many “firsts” as a woman at the bar, along with a string of honors recognizing her remarkable public service and her above-the-norm contributions to California jurisprudence. He also reported that she had learned from my book in 2001 why she was not “to be the first woman on the U.S. Supreme Court,” and how Chief Justice Burger and the ABA committee had feared “the disruptive effect a woman justice would have on the collegiality and deliberations of the Supreme Court.” Justice Johnson noted it would take a revolution in the legal profession to change this thinking, which began in the 1970s. To which I would add it is still just getting started.

I was pleased to discover that many of her obituaries in 2002 appropriately addressed the 1971 comment by the ABA evaluation committee calling her “unqualified” for the High Court by describing this calumny as a “scurrilous characterization” based on “blatant sexism.” Justice Lillie’s five decades on the bench, with 44 years on appellate courts (including an occasional case when she had been designated to sit on the California Supreme Court), resulted in thousands of learned written opinions notable for their intelligence, clarity and logic, further putting the lie to the ABA committee’s smear to keep her off the U.S. Supreme Court.

Needless to say we now have three woman on the High Court, but we need at least two more – a clear majority. After all, women are a majority of the American population, and it will take several centuries with women in control of the High Court to balance the many centuries of precedents of “man-made law,” and someday creating a jurisprudence truly and fully reflective of the thinking of both men and women.

John W. Dean, a Justia columnist, is a former counsel to the president.
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Leading Into the 2016 Presidential Election Battle, “Religious Liberty” Has Become Code for a License to Discriminate Against the LGBTQ Community (and Women) Thu, 08 Jan 2015 05:01:23 +0000 Continue reading →]]> Bible, Constitution, FlagWith the 2016 presidential election battles looming, the conservative Republicans are arming themselves with deceitful rhetoric to fight for the nomination. They seek a platform focused on abortion, “religious liberty,” and same-sex marriage. That is really only a two-issue platform, because the “religious liberty” they want most is to (1) discriminate against the LGBTQ community in the law and the private sphere and (2) outlaw abortion and make contraception as hard to obtain as possible, putting women at a medical and health disadvantage. Thus, the generic “religious liberty” in the middle is really just rhetoric.

In fact, the conservative Republicans’ “religious liberty” is not liberty for all. Just for them. So if your faith takes you down different paths—for example, if it requires (1) fair and equal treatment of all regardless of sexual orientation; or (2) sensible and responsible family planning in the best interests of the family and children; or (3) a loving home for all children, regardless of the sexual orientation of the couple; or (4) that the mother’s life and health be preserved in the abortion context—you are out of luck. Conservative Republicans will not be fighting for your rights under cover of their glorious mantle of “religious liberty.”

The Evidence in the States

Where is the evidence for my thesis that “religious liberty” is being used to sanitize a drive to discriminate? Simply look at the fight for state RFRAs across the United States last year and already this one, including Arizona (2014), Kansas (withdrawn), Michigan (no action in state senate), Indiana (pending), and Georgia (pending). They were sponsored by Republicans opposed to same-sex marriage, and many of them expanded the existing RFRA formula to include rights for private business owners to refuse business based on their faith. Who, in this era, is agitating to refuse to do business with anyone? Answer: Conservative Christian business owners who do not want to provide products or services for gay marriages, and, in many cases, who simply don’t want to serve the LGBTQ community at any level.

While the RFRA bills did not explicitly refer to same-sex marriage, it was obvious, in the political climate, what was really going on. Because the civil rights community has mobilized against these threats, the only one that passed was in Mississippi.

The Federal RFRA Was a Product of a Drive to Discriminate

What few people know, especially those pushing the state RFRAs, is that the federal RFRA was not born out of some magnificent re-incarnation of the founding of our country. The Mom and Apple Pie part of the RFRA history is Discrimination and Baloney. In fact, it was motivated in no small part by the Christian Legal Society, and other conservative religious groups, seeking to overcome state fair housing laws, which were making it more difficult to pick and choose tenants based on faith. These believers did not want to have to rent apartments to unwed mothers, unmarried couples, and, later, same-sex couples. Thus, the RFRA movement can be traced from a religiously-motivated desire to discriminate. So it should come as no surprise that a statute that began with discriminatory motives has transmogrified into a tool for further discrimination.

How Does Intentional Discrimination Become a Right to “Religious Liberty?”

The mantra of the anti-same-sex marriage contingent is that their constitutional rights are being violated, because their religious beliefs do not permit them to aid or abet in any way the same-sex marriage movement. Of course, the First Amendment has never provided support for the notion that one’s faith gives one a license to impose it on others to their detriment. American religious liberty simply does not include a right to impose one’s beliefs on others. When it edges in that direction, as it does with the RFRAs, it starts this country on a path toward a theocracy. Surely no one needs me to remind them of the terrors of the Tower of London, where the wrong believers were put to death by one monarch after another (bouncing back and forth between Catholicism and Protestantism) or of the Islamic State now in operation (who just this week killed French journalists who dared to criticize their religion)? Do not tell me that Christians are not capable of horrific acts when they have too much power. Every human is, and that is the core insight that the Framers embedded in the Constitution and which we forget at our peril.

The anti-same-sex marriage movement players also say that their constitutional rights are being harmed, because they cannot speak out against same-sex marriage and homosexuals without being attacked. This is more misleading rhetoric. They have the right to speak out as loudly as they choose on any issue they choose. The First Amendment protects a robust marketplace of views. The problem for them is that it protects their critics as well, and their argument they cannot speak is really only a complaint that they don’t like the criticism leveled against them when they say such things. That is the American way. The attacks this week in France remind us of the perils of theocrats who believe their religion should not be criticized, and of the preciousness of our respect for vigorous and robust debate on all issues.

Any party platform that includes within it the extreme and discriminatory “religious liberty” that these believers seek is a betrayal of all that is best about this great country.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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