Saturday, May 13, 2017

Gorsuch--Yes, Backward and Extreme (Part 3--Criminal Justice)

We've seen how the Scalia-esque approach to judicial decision-making avowed by now-Justice Gorsuch would have precluded cherished landmarks in American history. [See Part 2; Part 1.] His "focusing backward, not forward," insisting on what constitutional provisions specifically meant "at the time" they were drafted and ratified, is directly at odds with the vigorous enforcement of the overarching, fundamental principles at the heart of those provisions.

We've discussed how that Gorsuch-Scalia approach to constitutional decision-making has been employed to fight, and then to condemn, virtually every advance in the fulfillment of equal protection, of due process, and of freedom from government intrusion into private matters. Indeed, virtually every cherished advance in the protection of our civil rights and liberties.

The same is true for the rights of the accused. Those fundamental rights in our criminal justice system which we now take for granted.

Most of those cherished criminal justice rights became protected because of landmark decisions that rejected traditional, "focusing-backward" practices that were based on what the Constitution was believed to permit "at the time." In those landmarks, the Gorsuch-Scalia jurisprudence--many will object to even calling it "jurisprudence"--was repeatedly rejected in the interests of much higher constitutional values.

Of course, most of those who espouse that Gorsuch "backward-looking," "at the time" approach are actually far too embarrassed to denounce those landmarks today. But their ilk did exactly that when those landmarks were being considered and decided. And they condemned those advances in criminal justice--and some still do--using the same so-called "originalist-textualist" arguments embraced by Gorsuch and Scalia.

Here are a few of those advances in criminal justice:
  • The right to have an attorney when being criminally prosecuted, even if poor and can't afford one--the Supreme Court in Gideon v. Wainwright (1962) ruled that such a right to counsel is a constitutional guarantee because of the “noble ideal [of] fair trials," despite the absence of any specific mention in either the 6th Amendment (federal trials) or the 14th Amendment (state trials) about providing the poor with a lawyer, and despite precedent to the contrary.
  • The right to be protected from unreasonable searches into our private lives--the Court in Katz v. U.S. (1967) held that constitutional search and seizure rights protected our legitimate privacy interests, not just those very few specific places and items that happen to be mentioned in the 4th Amendment; and the Court overruled "originalist-textualist" decisions to the contrary.
  • The right to a jury trial in criminal cases--the Court in Duncan v. Louisiana (1968) ruled that to be a constitutionally guaranteed option for an accused as a necessary protection against sometimes overzealous prosecutors and callous judges; the Court overruled precedent and disregarded the absence of any specific words or meaning of words in the 14th Amendment (state trials) about guaranteeing jury trials.
  • The rights against against compulsory self-incrimination and double jeopardy--in Malloy v. Hogan (1964) and Benton v. Maryland (1969), respectively, the Court overruled a line of precedents and ruled that those rights were constitutionally guaranteed because they were among the "principles of a free government" and "fundamental to the American scheme of justice," even though those rights were not identified and not specifically meant by the words of the 14th Amendment (state trials).
  • The right to be informed of one's rights to silence and to an attorney before being interrogated--the Court in Miranda v. Arizona (1966) required the recitation of the now well known Miranda warnings to insure that persons being interrogated understood the constitutional rights they were being asked to waive; there is no mention of such warnings anywhere in the Constitution and such warnings were not intended by any words in the relevant 5th, 6th, or 14th Amendments.
  • The prosecution must prove guilt beyond a reasonable doubt--the Court in In re Winship (1970) explicitly adopted the very protective reasonable doubt standard for criminal trials, even though not explicitly stated in the Constitution or explicitly meant by the words "due process" in the 5th (federal trials) or 14th (state trials) Amendments; the Court did so because of "a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free."
  • The right to take the stand and testify on one's own behalf in a criminal prosecution--in Rock v. Arkansas (1987), the Court held that the Constitution guaranteed that right because "There is no justification today for a rule that denies an accused the opportunity to offer his own testimony [my emphasis]," notwithstanding the absence of any mention of such a right in the Constitution, and despite the historical, "at the time" refusal to permit accused persons to testify at their own trials.
Each one of these criminal justice landmarks and countless others were possible because the Supreme Court avoided the Gorsuch approach. Instead of simply "focusing-backward" and applying what the words specifically meant "at the time" they were enacted, the Court gave life to the broader principles of justice, equity, and decency that underlie the constitutional provisions dealing with the rights of the accused. In fact, the "focusing-backward," "at the time," so-called "originalist-textualist" arguments were used to oppose those landmarks and are still used today to denounce, disparage, dilute, or try to undo some of them.

Should we go back, before these landmarks, before the right to counsel was enforced in Gideon? Or privacy in Katz? Or protections against double jeopardy and against compulsory self-incrimination as in Malloy and Benton? Etc., etc.

And what about advances in the future? Improvements and greater fulfillment of fundamental constitutional principles? Do we really want to forego that?

Well, that going back and foregoing advances is precisely the meaning and heritage of the Gorsuch-Scalia  "focusing-backward," "at the time," so-called "originalist-textualist" approach to constitutional decision-making.

Next in this series, we'll look at some of the actual decisions and opinions authored by now-Justice Gorsuch while he was an appeals court judge.

Monday, May 8, 2017

Gorsuch--Yes, Backward and Extreme (Part 2)

It's now Justice Neil Gorsuch, having been confirmed by the Senate following the Republicans' deployment of the nuclear option. I've been tied up with (over)commitments--not that I could have affected the outcome--but let's continue with this series because Gorsuch's record is at least as important now as it was when he was a nominee.

We saw how Judge, now Justice Gorsuch's avowed approach to judicial decision-making is "focusing backward, not forward." It's viewing constitutional rights in accordance with "what a reasonable reader at the time...would have understood the law to be." Judicial decision-making is "not a forward-looking but a backward-looking authority." Those are his words. That is his judicial creed. That is what he has reaffirmed repeatedly in speeches and writings, and applied in cases.

At first blush, Gorsuch's approach might sound perfectly reasonable. You know, it's a specie of the bromide that "judges should just apply the law and not make it." But any thoughtful consideration exposes Gorsuch's judicial creed as drastically reactionary. As a prescription for undoing our nation's cherished advances in fundamental constitutional protections.

That is no exaggeration. That is just plain fact and history. That might be his and others' preference. But that is what it is.

Gorsuch's judicial creed, which had been famously professed by his predecessor, Antonin Scalia, is part of a tradition that has opposed constitutional advances and has condemned those advances after they have been made. Yes, opposed them and condemned them--at least until those advances have become part of our culture, a cherished part of our culture, and to oppose them any longer is too embarrassing.

So, for  example, as mentioned previously [See Part 1.], the Gorsuch-Scalia creed would have precluded the landmark protections of equal rights for African-Americans, for women, for gays and lesbians, etc. Consider again the consequences if the Supreme Court had adopted the Gorsuch-Scalia approach to decision-making--i.e., looking "backward" to what the constitutional provisions meant "at the time":

  •  Racial segregation would have been upheld, not outlawed--the Supreme Court in Brown v. Board of Education (1954) deliberately re-construed the 14th Amendment to prohibit segregation, contrary to what had long been permitted and to what that amendment meant "at the time" it was ratified in 1868.
  • State laws preventing women from owning property or running a business or going to law school, etc., would have been upheld, not overruled--the Supreme Court in Reed v. Reed (1971) extended "equal protection" beyond what it meant "at the time" of ratification and invalidated laws that treated men better than women.
  • State laws that discriminated against and even criminally punished gays and lesbians would have been upheld, not declared unconstitutional--the Supreme Court in Lawrence v. Texas (2003) held that "equal protection" and "due process" protected gays and lesbians, even though those constitutional provisions certainly did not mean that "at the time."
  • And so many others, such as Loving v. Virginia (1967) [invalidating laws that prohibited inter-racial marriage]; Griswold v. Connecticut (1965) [invalidating laws that prohibited birth control]; Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung (1964) [upholding civil rights laws that prohibit racial discrimination in privately owned lodging and restaurants]; West Virginia v. Barnette (1943) [upholding the right of religious-objecting Jehovah Witnesses not to salute the flag].
In every one of those landmark cases, and so many others, the Supreme Court rejected the Gorsuch-Scalia approach. Instead of confining constitutional provisions to what might have been their narrow, specific meanings "at the time" they were written and ratified, the Court gave life to the overriding, fundamental principles that those provisions reflected.

So the 14th Amendment's guarantee of "equal protection" in those cherished landmarks was not confined to "separate but equal" treatment for the newly freed black slaves. Instead, overruling Plessy v. Ferguson (1896) and breaking from the "backward-looking" "at the time" meaning of the 14th Amendment, the Court in Brown gave life to the overriding principle of equality under the law to put an end to legalized segregation of the races. Likewise, repudiating a long series of precedents that permitted disparate treatment of women, including some then-recent decisions, the Court in Reed expanded "equal protection" to invalidate gender as well as racial discrimination. And so forth.

Historically, the Gorsuch-Scalia brand of "backward-looking," "at the time," so-called "originalist-textualist" jurisprudence has always reared its head--yes, its ugly head--whenever the Supreme Court has advanced equal rights for minorities or women. Whether the Court was outlawing segregation, or protecting inter-racial marriages, or upholding the civil rights laws, or requiring that women have the same rights as men, or invalidating laws that discriminated on the basis of sexual orientation, the jurisprudence embraced by now-Justice Gorsuch has always been used to oppose those advances and to denounce them as illegitimate.

Yes, the repeated condemnation of all those cherished landmarks and so many others has been the same: "That's not what the constitutional provision meant at the time; that's not its original meaning." Fortunately for our country, that "originalist-textualist" approach has historically been rejected whenever the Court has understood that fundamental equality and fairness and decency were far more important constitutional principles than some avowed method of interpretation.

And it's not just the equal rights and privacy rights landmarks. The same is true for those landmarks that gave life to the rights of the accused. The Gorsuch-Scalia jurisprudence would have precluded those advances in criminal justice as well. We'll take a look at some of those in the next part of this series.

Wednesday, April 12, 2017

Judge Sheila Abdus-Salaam, RIP

Shocking, tragic, and heartbreaking. Those are the first words that come to mind in reacting to the loss of Court of Appeals Judge Sheila Abdus-Salaam.

She was an absolutely lovely person and a magnificent judge. She was loved and admired by her colleagues and by all of us who were fortunate to get to know her.

Here she is recently with Albany Law students to whom she generously gave her time and openly shared her enthusiasm, humility, and insights about being a Judge on New York's highest court:

Judge Abdus-Salaam with Albany Law School's
 Court of Appeals Seminar students

Judge Abdus-Salaam's death is an enormous loss to the Court, to the state, to the law, and to all those who have been the beneficiaries of her wisdom, decency, and exquisite professional and personal example.

Tuesday, April 4, 2017

Gorsuch--Yes, Backward and Extreme (Part 1)

The Democrats in the Senate are right on this one. Judge Neil Gorsuch, President Trump's nominee for the Supreme Court, is indeed backward and extreme. Not necessarily him personally--I don't know him nor do I know others who do. But to be sure, his jurisprudence, as he himself has explained it and as he has applied it in deciding cases, is backward and extreme.

In fact, that is why he is supported so strongly by conservative Republicans, and other social conservatives. That is why he was placed on the list of recommended nominees from which Trump picked him. That list was produced by the Federalist Society and the Heritage Foundation, They are two very ideologically conservative organizations. They do their homework. They know his record.

Those strong supporters may not prefer the labels "backward" and "extreme." But no doubt, that is why they really like him.

Let's consider Gorsuch's own words.
Judges, he has said, should apply the law "focusing backward, not forward," in accordance with "what a reasonable reader at the time...would have understood the law to be."
And again, "judicial power" is "not a forward-looking but a backward-looking authority." In short, apply what the words originally meant.

Ah, no wonder social conservatives like him so much. Looking "backward," applying what constitutional provisions meant "at the time," as Gorsuch urges, just happens to produce decisional results that social conservatives would prefer. It's also no wonder why some of the most socially and politically conservative judges--and politicians and commentators who support them--embrace this so-called "originalism" and "textualism."

So, for example, consider the Constitution's "equal protection of the laws" guarantee. That provision has long been a major battleground between conservatives and liberals. It became part of the Constitution after the Civil War, with the ratification of the 14th Amendment in 1868.

Looking "backward," to what it meant "at the time," would certainly exclude equal rights for gays and lesbians. Certainly, in 1868, the ratification of the 14th Amendment was not meant to protect gays and lesbians. Applying the equal protection guarantee in a "backward""at the time" manner, as Gorsuch urges, would still permit laws that criminally punish private, consensual, same-sex intimacy between adults--let alone same-sex marriage. It would also permit laws that intentionally discriminate against gays and lesbians in employment, housing, restaurants, hotels, etc., etc.

That's right. The Constitution's equal protection guarantee says nothing about gays or lesbians or transgenders. And those persons were absolutely not--looking "backward"--what equal protection was about "at the time" in 1868.

Indeed, Judge Gorsuch's hero, the late Antonin Scalia--the foremost proponent of this so-called "originalist-textualist" approach that Gorsuch has ardently embraced--took exactly that position. The Supreme Court modern era decisions that have extended equal protection to gays and lesbians and same-sex couples were among the most hated and denounced by Scalia. What was Scalia's claimed reason? That the equal protection guarantee did not mean that in 1868. [Scalia on gay rights.]

But this looking "backward" and "at the time" approach goes well beyond allowing discriminatory treatment of gays and lesbians. How about women?

The equal protection guarantee was certainly not intended, in 1868, to insure equal rights for women. It would never have been ratified in 1868 if its purpose was to require that women be treated equally with men. That laws treating women differently and unequally were no longer valid. Looking "backward," equal protection of the laws for women was not what was meant "at the time." In fact, it was not until 100 years later that the Supreme Court finally did give equal protection that meaning and outlaw gender discrimination.

Again, Gorsuch's hero, the "originalist-textualist" Scalia, openly insisted that constitutional equal protection did not apply to women. And why? Because that's not what it meant when it was ratified. [Scalia on women's rights.]

Then there's racial segregation.

Equal protection was certainly not intended to end racial segregation when added to the Constitution in 1868. It would never have been ratified if its purpose was to require that African-Americans be allowed to share the same schools, restaurants, hotels, spaces on the bus and railroads, etc., with white persons. At most, "separate but equal" was as far as equal protection was intended to go "at the time." Indeed, it was not until 1954 that the Supreme Court expanded the meaning of equal protection to abandon "separate but equal' and to outlaw segregation.

So, should the Supreme Court really have looked "backward" and applied the law according to what it meant "at the time"--really? And allowed racial segregation to continue? And should judges today look "backward" and restore the racial segregation that was allowed "at the time" the 14th Amendment was ratified in 1868?

Well, of course, almost all self-avowed "originalist-textualist" judges, politicians and commentators are far too embarrassed to endorse a return to racial segregation. They will attempt to rationalize how their approach would not necessarily support that result. But it does do just that. Just as that "originalist-textualist" approach would deny equal protection of the laws to women. And--as most "originalist-textualist" devotees still do acknowledge--would undo all the gay rights and same-sex rights decisions of the Supreme Court in recent years. That "originalist-textualist" approach, looking "backward," supports a return to allowing racial segregation because it was allowed "at the time."

Of course, the same could be said for so many other constitutional guarantees--e.g., the right to the assistance of counsel, search and seizure protections, free "speech," the right to private sexual choice (even between married couples), etc., etc. Looking "backward" to what they meant "at the time," these were not the rights we enjoy and cherish today as Americans. They were much narrower, much more limited, and didn't mean then what they mean now.

We'll look at some of them in the next post.

But for now, even without looking further, it should be clear that Judge Gorsuch's approach to the law is backward--the term he himself uses--and extreme.

Friday, February 10, 2017

The 9th Circuit's Ruling Against Trump: An Outline

9th Circuit Judges
Canby, Clifton, Friedland
The decision in one sentence:
The Trump administration failed to show that the country was in grave danger unless the Executive Order was allowed to go into effect immediately.



A step by step outline of the 9th Circuit Decision:
  • What does President Trump's executive order do? It suspends for 90 days the entry of non-citizens from seven countries; suspends for 120 days the United States Refugee Admissions Program; and suspends indefinitely the entry of all Syrian refugees.
  • Do the states (Washington and Minnesota) have a right to challenge the executive order? YES. The states have "standing" because non-citizens who live and work in those states will be seriously harmed by the executive order, and so will educational, business, and other institutions in those states that rely on those non-citizens.
  • Does the President have the power to issue such an executive order? YES. On matters of immigration and national security, the President has wide-ranging authority, and the judicial branch should almost always defer to presidential judgments in these matters.
  •  But is the President's executive order entirely immune from judicial review? NO. To quote from the decision, the "fundamental structure of our constitutional democracy" provides for a judicial check on the other branches of government to insure that they do not violate the Constitution, and executive orders such as this one are no exception.
    District Judge Robart
  • What did the trial judge do in this case? The trial judge, Federal District Court Judge James Robart (appointed by President George W. Bush) issued a temporary restraining order (TRO)--i.e., a temporary suspension of the enforcement of the executive order--until there is a full hearing to determine whether the executive order is constitutional.
  • What specifically had to be decided when the Trump administration appealed from that TRO? The Federal Court of Appeals for the 9th Circuit had to decide whether to overturn that temporary restraining order (TRO), not whether the executive order is ultimately constitutional or unconstitutional.
  • What determines whether the TRO should be overturned on appeal as sought by the Trump administration? That depends on the answer to 2 questions: 1) whether the Trump administration can show that it will probably win after a full hearing on the constitutional merits of the executive order, and 2) whether it can show that the country is in grave danger because of the TRO (i.e., if the executive order is not in effect).
  • What did the 9th Circuit decide on those 2 questions? The 9th Circuit held that 1) the Trump administration failed to demonstrate that it would probably win the case on the constitutional merits (i.e., the court found that the states' due process and non-establishment of religion claims are substantial), and 2) the Trump administration failed to demonstrate that the TRO placed the country in grave danger of a terrorist attack.
  • What precisely was the 9th Circuit's order? In a unanimous 29 page per curiam (for the court) opinion, a 3-Judge panel of the 9th Circuit denied the Trump administration's "emergency motion" to undo the TRO.
  • Who were the 9th Circuit Judges who unanimously decided this appeal? The 3 judges who decided this appeal are: William Canby (appointed by President Carter), Richard Clifton (by George W. Bush), and Michelle Friedland (by Obama).
  • What happens next? There are several possibilities. The Trump administration could ask the entire 9th Circuit (en banc) to hear this appeal; the administration could ask the Supreme Court for an emergency ruling to overturn the TRO [That would go to Justice Kennedy who would almost certainly ask the entire Supreme Court to make that decision.]; or the administration could simply return to the district court judge who originally issued the TRO for a full-blown hearing on the constitutional validity of the executive order.
Well, hope that helps.

[What I did not mention originally is a possible option outside the scope of these legal proceedings. That, of course, is for the Trump administration to simply go back to the drawing board and more carefully craft a new executive order which doesn't raise as many legal questions as the current one. VMB 2/11/17]