Supreme Court Rorschach Test on Voting Rights

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As state legislatures have increasingly used sophisticated computers to draw voting maps configured to their political interests, districts have taken on odder shapes and prompted cracks about Rorschach ink blots. Friday’s Supreme Court decision in the Texas voting rights case offered its own kind of Rorschach test.

Commentators disagreed about who won and who lost in the continuing dispute over Texas’ new voting districts. (Law Professor Rick Hasen of the University of California, Irvine, has a range of reaction on his blog, including here.) Texas Republicans claimed victory. But so did Democratic advocates for the Latino groups that brought the case. Republicans emphasized language in Perry v. Perez about the importance of a lower court judges deferring to legislative choices. Challengers stressed that the high Court said the GOP-controlled legislature’s map could not take effect before it is approved, according to the Voting Rights Act. (That process is underway in a separate court proceeding.)

I think the divided reaction stemmed from the backdrop of conservative justices’ past criticism of the 1965 Voting Rights Act and the fact that more serious constitutional challenges to the landmark law are moving toward the Roberts Court. In the balance is the Act’s Section 5, which requires covered jurisdictions such as Texas (with a history of discrimination at the polls) to get federal approval before making changes in voting districts or electoral procedures. The preclearance process is intended to make sure a change would not hurt racial minorities who traditionally have been disenfranchised.

Friday’s opinion was plainly a compromise between liberals and conservatives, and it seemed to me to take pains to avoid harshly criticizing either the Texas legislature, which arguably minimized Latino interests in the line drawing, or the federal district court in San Antonio, whose maps better captured the surge in Texas’ Hispanic population since the last Census. In sending the case back, the justices wrote, “Some specific aspects of the District Court’s plans seem to pay attention to the State’s policies, others do not, and the propriety of still others is unclear.” Such language is hardly an indictment (or vindication) of one side over the other.

Adding to the ambiguity, Friday’s opinion was per curiam, rather than being signed by individual justices. Latin for “by the court,” a per curiam suggests the justices believe the law is clear and they are not breaking any new ground. That’s not always the case. Bush v. Gore was a per curiam opinion.

On Friday, no one wrote a dissent and most of us presumed the ruling unanimous. But I’ve learned that sometimes dissenters in these circumstances do not make their views public. We simply do not know at this point what went on behind the scenes or the majority’s real sentiment on Section 5.

Three years ago when the justices sidestepped a constitutional challenge to Section 5, conservatives including Chief Justice Roberts suggested the provision was no longer needed. “Things have changed in the South,” the chief wrote in an opinion laced with more doubts about Section 5 than Friday’s decision voiced. In Perry v. Perez, justices said of Section 5, “This Court has been emphatic that a new electoral map cannot be used to conduct an election until is has been precleared.”

The tone was muted this time around. Signals were mixed. And a question remains about whether Section 5 will survive the real constitutional challenges percolating up from places like Shelby County, Alabama.


The Chief Justice Defends His Own

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They may be known by their 5-4 decisions, but when it comes to outside criticism, the nine justices of the Supreme Court close ranks. Chief Justice John Roberts made headlines this weekend by defending his colleagues’ recusal choices, implicitly decisions by Justice Elena Kagan and Justice Clarence Thomas to participate in the health-care litigation. See story.

Roberts’s endorsement of his fellow justices came in the annual report on the federal judiciary, a typically dreary document that rarely draws much press or public attention. (I do remember, however, Chief Justice William Rehnquist making similar headlines in the late 1990s when he blasted the Senate for delaying judicial nominations.)

In his report released on New Year’s Eve, Roberts wrote, “I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

On the broader subject of judicial ethics, Roberts warned critics they might not know what they’re talking about. He referred to “misconceptions” about the Supreme Court and its ethical guidelines. He insisted justices abide by a federal code of conduct that officially covers only lower court judges.

Roberts also reminded Congress that its authority over some judicial activity has never been deemed constitutional: “As in the case of financial reporting and gift requirements,” Roberts wrote, “the limits of Congress’s power to require recusal have never been tested.” Roberts said justices and judges follow those rules. But he wanted it on the record that, on the subject of ethics, Congress might not even have the power to tell them what to do.

A new SCOTUS term and a week of Scalia

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Chief Justice John Roberts opened the term Monday with a salute to Scalia on the 25th anniversary of his appointment. “The place has not been the same since,” Roberts said. (See story)
And as the week went on, it was all Scalia all the time. During three days of oral arguments, he cracked wise and showed himself, as often happens, particularly skeptical of claims (story) by a Death Row defendant and of lawyers’ arguments (story) in a church- state controversy.
Tuesday’s case of condemned prisoner Cory Maples, who was blocked from an appeal because of a missed deadline that was no fault of his own, drew sympathetic comments from a majority of the justices. Maples’ lawyers had left their firm without telling him, and when a court clerk sent relevant appeal papers to their office, the firm’s mailroom returned them unopened.
Expressing no surprise or outrage at the misconduct, Scalia took more of a “get over it” stance. He asked whether sanctions ever fall on lawyers deemed “inadequate” in a death penalty case: “Have you ever heard of anything happening to them? Other than they are getting another capital case?”
Then on Wednesday afternoon, in testimony with Justice Stephen Breyer before the Senate Judiciary Committee, Scalia got off another set of caustic lines and drew most attention (story): “I’m hopeful that the ‘living’ Constitution will die,” he said, referring to Breyer’s view that the Constitution should be broadly interpreted to adapt to changing times.
Scalia brushed off questions related to public complaints about a dysfunctional Washington and legislative gridlock. He said it should be difficult to pass legislation that may not be embraced by a majority. “Americans should appreciate that,” Scalia said. “They should learn to love the gridlock.”
And so it goes, 25 years and counting.

The Supreme Court decided a little reported dispute this week involving a California prisoner’s claim of deficient legal representation. It revealed justices’ competing views of when a state prisoner merits a federal hearing and how bad a childhood might have to be to make a difference in a death sentence.

By a 5-4 vote, the Court ruled against Scott Pinholster, convicted in 1984 of the brutal murders of two men, and reinstated the death sentence a lower U.S. appeals court had set aside. The issue was whether Pinholster’s trial lawyers had wrongly neglected to investigate his troubled childhood and psychiatric problems that, if related to the jury, might have gotten him a life sentence, rather than death.

Justice Clarence Thomas, joined by fellow conservatives, wrote the Court’s opinion, reversing the 9th Circuit’s view that evidence of Pinholster’s mental problems could have brought Pinholster leniency. Justice Sonia Sotomayor wrote the main opinion for liberal dissenters. In one of the more caustic verbal swaps this term, the two justices accused each other of dishonoring precedent and a “fundamental misunderstanding” of standards for a prisoner challenging the constitutionality of his case. Sotomayor questioned how fair-minded jurists could reach the “harsh” result of the majority. Thomas deemed some of her reasoning “grounded in little more than her own sense of ‘prudence.’”

And the first Hispanic justice and second African American justice, who both saw more poverty in their youth than most members of the bench, drew contrasting views of Pinholster’s childhood. This was how Thomas recounted it: “When he was very young, Pinholster suffered two serious head injuries, first at age 2 or 3 when he was run over by a car, and again at age 4 or 5 when he went through the windshield during a car accident. When he was 5, Pinholster’s stepfather moved in and was abusive, or nearly so.”

Or nearly so? That’s not how Sotomayor saw it. First, she noted that in the first car accident, Pinholster’s mother ran over him. Regarding the stepfather, Sotomayor added that he “beat (Pinholster) several times a week, including at least once with a two-by-four board. There was so much violence in the home that Pinsholster’s brother dreaded coming home each day. Pinholster’s half sister was removed from the home as a result of a beating by his stepfather.” Sotomayor also wrote that, “a relative remembered seeing the children mix together flour and water in an attempt to get something to eat.”

A key question was whether, given the mitigating evidence of his background, there was a “reasonable probability” that at least one juror would have thought Pinholster did not deserve the death sentence. Yes, insisted Sotomayor, joined in her dissenting opinion by Justices Ruth Bader Ginsburg and Elena Kagan. “Had counsel conducted an adequate investigation, the judge and jury would have heard credible evidence showing that Pinholster’s criminal acts and aggressive tendencies were attributable to a disadvantaged background, or to emotional and mental problems,” Sotomayor wrote. “They would have learned that Pinholster had the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” (Justice Stephen Breyer dissented separately.)

Justice Thomas (joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito) concluded Pinholster should never have won a new hearing in federal court. Thomas said that that telling the jury about all the Pinholster family problems might, in fact, have backfired. Wrote Thomas: “The new evidence relating to Pinholster’s family — their more serious substance abuse, mental illness, and criminal problems — is … by no means clearly mitigating, as the jury might have concluded that Pinholster was simply beyond rehabilitation.”

 Two views: simply beyond reconciliation.

The Supreme Court case of Snyder v. Phelps, brought by a bereaved father against anti-gay demonstrators who protested the funeral of his Marine Corps son, was heard the first week of the term, on October 6, and we still don’t have a decision. So a recurring question as I visited law schools this February recess was: What’s holding up Snyder v. Phelps?

I recall several possible sticking points from oral arguments (transcript here; story here) but have been reminded of one particular issue at the heart of this free speech dilemma by a fascinating new paper (“They Saw a Protest”) using Westboro Church video. Yale Law Professor Dan Kahan and his colleagues who wrote the paper showed Westboro protest video to people but edited it so that half of their subjects thought they were seeing an anti-abortion protest at a health clinic and half thought they were seeing a protest against “don’t ask, don’t tell” in front of a campus recruitment center. At the core of the study — part of the Cultural Cognition Project — was the notion that people tend to form perceptions and to process facts based on their own values. And Kahan and his four co-authors found in their new experiment that what people might “see” in a video depends on their own views and values.

As they wrote, “Our subjects all viewed the same video. But what they saw – earnest voicing of dissent intended only to persuade, or physical intimidation calculated to interfere with the freedom of others – depended on the congruence of the protestors’ positions with the subjects’ own cultural values.”

In the real case at the Court, involving a 2006 protest by fundamentalist pastor Fred Phelps and his Westboro followers, Albert Snyder is trying to win reinstatement of a $5 million jury verdict for the distress he suffered from the demonstration at his son’s funeral.

One major sticking point for Snyder arises from a 1988 precedent, Hustler Magazine v. Falwell, that warns about jurors’ values and subjective assessments of offensive speech — and that applied a standard making it difficult to obtain damages for the infliction of emotional distress.

During oral arguments, Justice Elena Kagan referred to Huster‘s caution about jurors’ views of “outrageousness in the area of political and social discourse.” She highlighted “one sentence [in Hustler] that is key to the whole decision” that cautions against allowing “a jury to impose liability on the basis of the jurors’ tastes or views.”

Snyder’s lawyer tried to steer the justices away from the Hustler framework and, to questions from Kagan and others, emphasized the context of a military funeral and the “targeted nature of the attack on the Snyder family.”

The justices return to the bench next week and we may soon see in a decision (and dueling opinions) just what consumed the justices over the past several months and what exactly they saw in this protest.

When he dissented, Supreme Court Justice David Souter, who served 1990-2009, tended to do it quietly. He rarely read a dissenting opinion from the bench, as fellow liberal Stephen Breyer increasingly does. He never engaged in hyperbole, as conservative Antonin Scalia has (e.g., Scalia said the 2009 Boumediene decision “will almost certainly cause more Americans to be killed”). Yet several of Souter’s dissents endure, notably his 2007 protest in Bowles v. Russell, which will be back before the justices this week.

On Monday the Supreme Court will hear a case that tests a 120-day deadline for wounded veterans to appeal denial of Veterans Affairs benefits (my story setting up the case of Henderson v. Shinseki is here). The new case goes directly to the scope of Bowles v. Russell, in which a five-justice conservative majority said judges could not bend certain deadlines set by Congress, no matter how compelling the situation. The majority opinion by Justice Clarence Thomas rejected arguments from a prisoner who had filed an appeal a few days late because of erroneous instructions from a judge. Souter, joined by three liberals, wrote “It is intolerable for the judicial system to treat people this way.”

The new case is more sympathetic, involving not a convicted murderer but a Korean War vet, David Henderson, who was 100 percent disabled with paranoid schizophrenia from his service. The case began after the VA denied his 2001 request for monthly compensation related to home care. Henderson was then shut out of Veterans Court review because he was 15 days late in filing an appeal. His lawyers say he was late because of the very illness for which he was seeking benefits. Justice Department lawyers counter that the deadline is firm and that vets are made aware of the time limit.

When the U.S. Court of Appeals for the Federal Circuit ruled 9-3 against Henderson last year, it said it was bound by Bowles v. Russell and firm deadlines. Dissenting judges, led by Haldane Robert Mayer, said that reliance was wrong because of the distinct veterans context. “No legal system can function without deadlines, but the majority’s eradication of equitable tolling in proceedings before (the Veterans Court) creates a Kafkaesque adjudicatory process in which those veterans who are most deserving of service-connected benefits will frequently be those least likely to obtain them.”

Judge Mayer highlighted Souter’s (“it is intolerable”) dissent and then added a few memorable words of his own: “The facts here are far more compelling. Bowles was a convicted murderer, and had a jury trial, a direct appeal and a federal district court review of his habeas application. … Acting (without a lawyer), Henderson filed an action challenging the (VA) board’s decision denying him monthly compensation for at-home care, but his complaint was dismissed because it was filed a mere fifteen days outside the 120-day filing period… . … So while Bowles, a convicted murderer, had several opportunities to present his case in a court of law, Henderson will have none.”

That was written in December 2009. Henderson has since died (on October 24 of this year). His appeal is being carried on by his wife, Doretha.

Among the first judicial nominees I ever tracked was Vaughn Walker, when I was working for Congressional Quarterly’s weekly magazine and covering the Judiciary Committees on the Hill. In 1989, key Democratic senators, led by California Sen. Alan Cranston, along with several liberal interest groups, opposed President George H.W. Bush’s nomination of Walker to a U.S. district court in San Francisco. It was primarily because of Walker’s membership in a men-only private club.

Walker, then 45, ended up leaving the club and getting confirmed and became little more than a footnote in a year of successive battles between a Republican president and Democratic Senate over judgeships and Justice Department positions. That summer, the Senate Judiciary Committee rejected nominee William Lucas, a Detroit lawyer who worked primarily in law enforcement, to head the Justice Department’s important civil rights division, and some senators tried in vain to derail Clarence Thomas, who Bush first tapped for the U.S. Court of Appeals for the D.C. Circuit. (Thomas was confirmed in early 1990; Bush then nominated him for the Supreme Court in July 1991.)

With liberals now applauding Walker for his decision this month declaring California’s ban on same-sex marriage unconstitutional, it’s hard not to recall his nomination and be reminded of the difficulty of predicting judges based on early records or the appointing president. Ronald Reagan first nominated Walker, but the nomination stalled in 1988.

The usual pattern is that appointees meet expectations that reflect a president’s views. That’s why the liberalism of Justice David Souter (1990-2009), another Bush appointee, was so notable – and infuriating to conservatives.

We now have a new justice, Elena Kagan, whose relatively scant paper trail has spawned competing forecasts. Her time in the Clinton and Obama administrations leads some observers, including me, to believe she will be at least as liberal as the justice she succeeds, John Paul Stevens.

But it is worth observing the assessment this summer of Stanford Law Professor Michael McConnell, a conservative who previously was a U.S. appeals court judge (appointed by George W. Bush). McConnell, a thoughtful scholar respected across ideological lines, has known Kagan for twenty years, since they were on the faculty at the University of Chicago law school. “I think she will be more conservative than liberals hope, and less liberal than conservatives fear,” McConnell wrote in a detailed eight-page letter of endorsement to the Senate Judiciary Committee.

 He reviewed her writings on free speech, religion and executive power and said, “Obviously, any nominee of this (Obama) Administration will reflect the progressive political outlook of the president … . Much in Elena Kagan’s record demonstrates that outlook. But this must not be exaggerated. On a significant number of important and controversial matters, Elena Kagan has taken positions associated with the conservative side of the legal academy. … No one can foresee the future, but I would not be surprised to find that Elena Kagan, as a justice, serves more as a bridge between the factions on the Court than as a reliably progressive ideological vote.”

Justice Kagan is 50 years old. If she serves to 90, Stevens’ age, she will have four long decades to fulfill the vision of President Obama – or not.