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Supreme Court

Won’t Hear Challenge

to Assault Weapons Ban

in Chicago Suburb

 

DEC. 7, 2015

The New Ypork Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday refused to hear a Second Amendment challenge to a Chicago suburb’s ordinance that banned semiautomatic assault weapons and large-capacity magazines.

The decision not to hear the case has no precedential force, but was nonetheless part of a series of signals from the Supreme Court giving at least tacit approval to even quite strict gun control laws in states and localities that choose to enact them.

“The justices don’t reveal their reasons for denying review, but one thing is clear,” said Adam Winkler, a law professor at the University of California, Los Angeles. “The justices certainly aren’t eager to take up a Second Amendment case these days.”

“One has to wonder,” he said, “if the Supreme Court is having second thoughts about the Second Amendment.”

The court will sooner or later return to the subject of the scope of the Second Amendment right first recognized in 2008 in District of Columbia v. Heller, which struck down parts of an exceptionally strict local law that barred keeping guns in the home for self-defense. But the justices do not seem eager to do so even as the nation is in the midst of a sharp debate over gun control in the wake of shooting rampages in San Bernardino, Calif., and across the nation.

In dissent on Monday, Justice Clarence Thomas, joined by Justice Antonin Scalia, accused the court of abdicating its responsibility to enforce the constitutional right to keep and bear arms. (Justice Scalia wrote the majority opinion in the Heller case, which was decided by a 5 to 4 vote.)

“Roughly five million Americans own AR-style semiautomatic rifles,” Justice Thomas wrote, referring, he said, to “modern sporting rifles.”

“The overwhelming majority of citizens who own and use such rifles do so for lawful purposes, including self-defense and target shooting,” Justice Thomas wrote. “Under our precedents, that is all that is needed for citizens to have a right under the Second Amendment to keep such weapons.”

Chuck Michel, president of the California Rifle and Pistol Association, said the dissent made powerful points. “It is only a matter of time,” he said, “before the Supreme Court takes a case, sets things straight, and properly subjects this and similar unconstitutional laws to renewed challenge.”

Gun control advocates heard a different message. “The American people have had enough of gun violence and, with the exception of Justices Thomas and Scalia, in this case, the Supreme Court sided with them,” said Dan Gross, president of the Brady Campaign to Prevent Gun Violence.

Monday’s case, Friedman v. City of Highland Park, No. 15-133, concerned an ordinance in Highland Park, Ill. It was, enacted in 2013.

“Sandy Hook had just happened,” Nancy R. Rotering, the city’s mayor, recalled on Monday, referring to the mass shooting at a Newtown, Conn., elementary school. “It was a common-sense step to reduce gun violence and to protect our children and our community.”

The ordinance banned some weapons by name, including AR-15s and AK-47s. More generally, it prohibited possession of what it called assault weapons, defining them as semiautomatic guns that can accept large-capacity magazines and have features like a grip for the nontrigger hand. Large-capacity magazines, the ordinance said, are those that can accept more than 10 rounds. A federal assault weapons ban, including a prohibition on high-capacity magazines, expired in 2004.

In the Heller case in 2008, the Supreme Court found for the first time that the Second Amendment protects an individual’s right to bear arms. In 2010, the court extended the principle to state and local governments.

The Highland Park ordinance was drafted with those cases in mind, said Steven M. Elrod, a lawyer for the city and the author of the law. “The rights secured by the Second Amendment are not unlimited,” he said.

Since 2010, the Supreme Court has turned away appeals in any number of Second Amendment challenges to gun control laws. Monday’s move was telling, Professor Winkler said.

“The court’s action will encourage gun control advocates to push for bans on assault weapons,” he said. “This is one of the items at the top of the gun control agenda. Now advocates have less to fear from the courts on this issue.”

The ordinance was challenged by the Illinois State Rifle Association and Dr. Arie S. Friedman, who at his home had kept guns and magazines for self-defense that were banned by the ordinance. The term “assault weapons,” they told the justices, “is an imaginary and pejorative category.”

The Illinois rifle group and Dr. Friedman urged the Supreme Court to address what they called “the lower courts’ massive resistance to Heller and their refusal to treat Second Amendment rights as deserving respect equal to other constitutional rights.”

A supporting brief filed by 24 states said the ordinance “bans many commonly used firearms and the standard capacity magazines for many popular firearms.”

In April, a divided three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, upheld the Highland Park ordinance.

On the one hand, Judge Frank H. Easterbrook wrote for the majority, “assault weapons can be beneficial for self-defense because they are lighter than many rifles and less dangerous per shot than large-caliber pistols or revolvers.”

He added that “householders too frightened or infirm to aim carefully may be able to wield them more effectively than the pistols James Bond preferred.”

“But assault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in aggregate,” he continued. “Why else are they the weapons of choice in mass shootings?”

Justice Thomas rejected that reasoning. In general, he said, the courts have been treating the Second Amendment as a second-class citizen notwithstanding the pathbreaking decisions in 2008 and 2010.

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A version of this article appears in print on December 8, 2015, on page A19 of the New York edition with the headline: Sign of Tacit Approval as Justices Turn Away Challenge to a Local Effort to Regulate Guns.

Supreme Court Won’t Hear Challenge to Assault Weapons Ban in Chicago Suburb,
NYT,
DEC. 7, 2015,
http://www.nytimes.com/2015/12/08/us/supreme-court-will-not-hear-challenge-to-assault-weapons-ban-of-highland-park-ill.html

Cruel and Unusual Punishments

Before the Supreme Court

OCT. 13, 2015

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

On Tuesday the Supreme Court heard cases involving the two most extreme punishments in the American criminal justice system: life without the possibility of parole and the death penalty.

The capital case comes to the justices, as it often does, from Florida. Only last year the court struck down the state’s rigid, unscientific law that tried to skirt around the court’s ban on executing intellectually disabled people.

This time the issue is the jury’s role in capital sentencing. Florida, alone among the states and the federal government, allows a non-unanimous jury to vote for a death sentence — which is why a man named Timothy Lee Hurst sits on the state’s death row even though five of the 12 jurors in his case voted against the death penalty. Mr. Hurst’s situation is common: According to one study, if Florida required unanimity, there would have been 70 percent fewer death sentences handed down since 2010.

In a questionable 1972 case, the Supreme Court required jury unanimity in federal criminal trials, but not in state trials. Mr. Hurst’s lawyer, Seth Waxman, argued to overturn that ruling, “particularly in the Eighth Amendment context where the question is death.” If unanimous verdicts are required in federal criminal cases, even those with modest penalties, it is grossly unjust that a state can carry out executions with divided juries. It is past time for the court to review and overturn the 1972 ruling.

Florida law also relegates the jury in a capital case to an advisory role, and leaves to the judge the final decision on whether to impose a death sentence. It is hard to see how this does not violate a 2002 Supreme Court ruling that juries, and not judges, must find an “aggravating” factor — like a crime was especially heinous — when a state imposes a death sentence.

Florida’s solicitor general, Allen Winsor, argued to the justices that the 2002 case required the jury to decide whether someone was eligible for execution, not to impose the sentence. But that distinction is meaningless, especially where the jury’s decision is not unanimous. Once again, Florida is dodging a clear Supreme Court ruling with legal trickery. The justices should not tolerate it.

In the other case argued Tuesday, the justices are considering whether their 2012 decision banning mandatory sentences of life without parole for juveniles convicted of homicide should apply to as many as 2,000 people who were already in prison serving such mandatory sentences when the court ruled. This may seem like an odd question, since the basis of that opinion, Miller v. Alabama, was that young people are both less culpable than adults and more likely to be able to change over time. By that measure, a juvenile sentenced before the court’s decision is obviously no different from one sentenced after.

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The plaintiff in the current case, Henry Montgomery, is a 69-year-old man who was 17 when he was convicted of killing a Louisiana sheriff’s deputy in 1963 — a crime that carried an automatic sentence of life without the possibility of parole. He has been imprisoned for more than 50 years at the Louisiana State Penitentiary and has been by all accounts a well-behaved prisoner.

Although the issue sounds straightforward, the court’s approach to deciding whether its decisions are retroactive is complex, and as a result, state and federal courts have been divided on the effect of the Miller ruling.

Lawyers for Louisiana argued that because the court did not ban life without parole for juveniles convicted of homicide in all cases but only as a mandatory sentence, the 2012 ruling need not be applied retroactively.

This is too narrow a reading of the reasoning behind the Miller decision. Like the court’s earlier decisions banning the death penalty for juveniles and life without parole for juveniles for non-homicide crimes, the Miller ruling was based on a fundamental observation that juveniles are different from adults, and it required courts to take age into consideration when imposing a sentence.

The Montgomery case gives the justices an opportunity to consider the broader question: Does life without parole for juveniles violate the Eighth Amendment’s prohibition against cruel and unusual punishments? The only just and humane response is yes.

Fifteen states, along with the District of Columbia, have already eliminated the punishment entirely. Nine of those states have done so in the three years since the Miller ruling. And more than a dozen other states have five or fewer inmates serving that sentence, which is a good indication of how bizarre it is.

A ruling that the Miller decision should be applied retroactively — or one that banned life without parole categorically for juveniles — would allow inmates sentenced as juveniles to get a chance at some point to show a judge or parole board that they have earned the right to return to society.

People can change, and any justice system that is not merely about retribution would recognize that. A sentence of life without parole is particularly senseless when it comes to juveniles, whom the court has already found to have a greater capacity for transformation.

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A version of this editorial appears in print on October 14, 2015, on page A24 of the New York edition with the headline: Cruel Punishments at the Court.

Cruel and Unusual Punishments Before the Supreme Court,
NYT, OCT. 13, 2015,
http://www.nytimes.com/2015/10/14/opinion/
cruel-and-unusual-punishments-before-the-supreme-court.html

Justices Question Florida’s

Death Penalty System

OCT. 13, 2015

The New York Times

By ADAM LIPTAK

WASHINGTON — Florida’s idiosyncratic capital sentencing system appeared to be in peril at the Supreme Court on Tuesday, with several justices questioning whether it gives enough authority to jurors.

A second argument on Tuesday, about whether a 2012 ruling barring mandatory life sentences for juvenile offenders can be applied retroactively, devolved into a tangled discussion on a jurisdictional issue that may derail a ruling in the case.

The first case, Hurst v. Florida, No. 14-7505, concerned Timothy Lee Hurst, who was convicted of the 1998 murder of Cynthia Lee Harrison, a co-worker at a Popeyes restaurant in Escambia County, Fla. He was tried and sentenced to death in 2000.

After the Florida Supreme Court ordered him resentenced, a second jury in 2012 recommended a death sentence by a 7-to-5 vote. The judge then independently considered the evidence concerning the appropriate punishment and concluded that Mr. Hurst should be executed.

Seth P. Waxman, a lawyer for Mr. Hurst, listed what he said were several constitutional problems with Florida’s procedure. The jury was not required to render a unanimous verdict, to specify which factors warranted death or even to say whether the jurors in the majority agreed on which factors they had relied on, Mr. Waxman said.

“There is no other state that permits anyone to be sentenced to death other than by a unanimous determination by the jury,” he said. “And the State of Florida requires unanimity for shoplifting, just not for death.”

Only two states — Louisiana and Oregon — allow nonunanimous verdicts in most criminal cases, and even then at least 10 of the 12 jurors have to agree. The two states require unanimous verdicts in capital cases.

The Supreme Court upheld Oregon’s approach in 1972. On Tuesday, Justice Sonia Sotomayor suggested that the court should consider overruling that decision.

Justice Ruth Bader Ginsburg said that would not be necessary to rule against Florida in the case before the justices. “Does 10 to 2 automatically mean that 7 to 5 is O.K.?” she asked Allen Winsor, Florida’s solicitor general.

Mr. Winsor said a simple majority vote was acceptable thanks to another challenged feature of Florida’s approach. “Even if it’s a 7-to-5 vote, you still have the judge coming behind that jury” to make the final determination, he said.

But in 2002, in Ring v. Arizona, the Supreme Court ruled that juries and not judges must make the factual findings to support death sentences. Mr. Winsor said the state’s procedure satisfied Ring because juries did make the required threshold determination that the defendant was eligible to be executed.

Justice Elena Kagan disagreed. “The crucial death eligibility determination is being made by the judge because that’s the only death eligibility determination that the appeals court is ever going to review,” she said.

The argument in the second case Tuesday, Montgomery v. Louisiana, No. 14-280, was notable for how little time the justices spent on its central question: whether their 2012 decision barring mandatory life-without-parole sentences for juvenile killers must be applied retroactively. Instead, they wondered whether they had the authority to decide the case at all.

The case concerns Henry Montgomery, who was 17 in 1963 when he murdered an East Baton Rouge police officer. He is now 69.

There are some 2,000 people serving sentences of life without parole for murders they committed when they were not yet 18. Many of them received those sentences automatically, without individualized consideration of their youth and other factors.

In the 2012 decision, Miller v. Alabama, the Supreme Court ruled that such automatic life sentences for juvenile offenders violated the Eighth Amendment’s ban on cruel and unusual punishment. Life-without-parole sentences remained permissible, the court said, but only after individualized consideration. But the court did not say whether the decision was merely prospective or whether it required new sentencing hearings or other review for offenders whose sentences were already final.

The decision followed two others concerning harsh penalties imposed on juvenile offenders. In 2005 in Roper v. Simmons, the court eliminated the juvenile death penalty. In 2010 in Graham v. Florida, the court ruled that sentencing juvenile offenders to life without the possibility of parole was also unconstitutional, but only for crimes that did not involve killings.

S. Kyle Duncan, a lawyer for Louisiana, said those decisions could apply retroactively “because the state no longer can impose that category of penalty.” The case before the justices is different, he said, because juvenile killers are still eligible for life-without-parole sentences after their cases are considered individually.

According to the Sentencing Project, a Washington research group that favors more liberal sentencing policies, 14 state Supreme Courts have ruled that the Miller decision applies retroactively while seven have said the opposite. Six states have passed juvenile sentencing legislation that applied retroactivity.

Mark D. Plaisance, a lawyer for Mr. Montgomery, was barely able to address the question of retroactivity. Instead, the justices questioned him about whether they had jurisdiction to review a ruling from the Louisiana Supreme Court saying that their Miller ruling applied only prospectively.

The Supreme Court has no power to review state courts’ conclusions based purely on state law. Though the state Supreme Court in Tuesday’s case referred to a federal framework in considering retroactivity, some justices said that was both discretionary and provisional.

Because both sides agreed that the Supreme Court had jurisdiction to hear the case, the justices appointed Richard D. Bernstein to argue the opposite position. Several justices seemed persuaded by his suggestion that the court should await a case on the same issue arising from a federal challenge to a life-without-parole sentence.

Michael R. Dreeben, a deputy solicitor general, urged the court to act in the case before it. He said the Miller decision was precisely the sort of precedent that should be applied retroactively.

“The reasons why the court decided Miller,” he said, “had to do with the reduced culpability of youth and the capacity of youth to mature, change and achieve a degree of rehabilitation that is consistent with something less than the most harsh sentence available for youths who commit murder.”

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A version of this article appears in print on October 14, 2015, on page A15 of the New York edition with the headline: Jury’s Role Questioned in Florida Capital Cases.

Justices Question Florida’s Death Penalty System,
NYT, OCT. 13, 2015,
http://www.nytimes.com/2015/10/14/us/politics/
justices-question-floridas-death-penalty-system.html

The Supreme Court’s Secret Power

SEPT. 24, 2015

The Opinion Pages | Op-Ed Contributor

By JEFFREY L. FISHER

Stanford, Calif. — ON Monday, the Supreme Court will meet in private to perform one of its most consequential — yet least appreciated — functions: choosing the cases it will hear. The court’s nine justices hold regular conferences from late September to late June to perform this task. From the roughly 8,000 petitions that arrive at the court each year, the justices select about 75 cases. If four or more justices vote to take a case, it is added to the docket; otherwise, review is denied. Either way, an explanation for the court’s decision is almost never given, nor is it customary to indicate how the individual justices voted.

It is hard to think of a more significant power in the machinery of our democracy that is exercised more secretly. Imagine if members of Congress could propose or filibuster bills anonymously. It’s unthinkable. But that’s essentially what the court does on a regular basis: With complete discretion, it decides whether to undertake potentially major lawmaking without exposing any governmental official to public scrutiny.

The justices should lift the veil of secrecy that shrouds this power.

I am not suggesting that the justices should have to explain their votes. They are already busy enough, and there are good reasons for allowing judicial deliberations to remain private. But the Supreme Court, which has always decided for itself how to transmit its work to the public, could easily do what many other federal and state appellate courts already do: Simply announce the vote tallies — that is, how each justice voted for each petition for review — when accepting or turning away cases.

In light of the Supreme Court’s significant role in shaping so much of our national policy, it does not seem too much to ask to know which justices are putting which issues on the court’s docket. Indeed, these votes are more consequential than anything said at oral argument. If some justices regularly vote to hear appeals from corporations and never from employees, the public ought to know this. If others often vote to hear petitions from civil rights groups but never from state or local governments defending their policies, the public should know this, too.

The justices often disagree over whether certain issues warrant their attention. Should the court revisit the rules governing the legality of race-conscious admissions plans, as at least four justices have required the court to do this fall in a case involving the University of Texas? Or would the court’s time have been better spent interjecting itself into the debate in Silicon Valley (and elsewhere) concerning the extent of copyright protection for computer software, as the court declined to do on the same day it granted review in the case from Texas?

Wouldn’t it be instructive to know, in each case, what the justices’ votes were — and in so many other cases, too?

Admittedly, without including the reasons for the votes, this information about the justices’ actions would not paint a full picture. But as the Supreme Court itself has held in First Amendment cases, the fact that information is incomplete is not a valid ground for withholding it. Any argument that the public is “better kept in ignorance than trusted with correct but incomplete information,” the court has explained, “rests on an underestimation of the public.” The same wisdom applies here.

Furthermore, if the justices were required to announce their votes, they might more often volunteer their reasoning, if only in brief missives, lest their votes be misunderstood. (Indeed, many justices already occasionally explain their votes when, for example, they feel strongly that a case that was not granted review should have been — a practice known as dissent from denial of certiorari.)

When the justices do provide glimpses into their decision-making process about which cases to hear, they offer the bar and the public at large valuable opportunities to learn more about their judicial philosophies.

Consider a case that the court heard and decided last term, City and County of San Francisco v. Sheehan, which concerned whether a lower court properly exposed police officers to financial liability for their allegedly improper treatment of a mentally disabled arrestee. In dissent, Justice Antonin Scalia (joined by Justice Elena Kagan) contended that the court should never have taken the case in the first place because it presented unusual facts unlikely to recur with any frequency. Justice Samuel A. Alito Jr. responded for the majority, however, that the prospect of holding a police officer liable in any case is so important “to society as a whole” that the court ought to review such cases.

Or consider the 1995 case Kyles v. Whitley, which concerned the claim that New Orleans prosecutors had withheld exculpatory evidence, leading to a wrongful conviction in a death penalty case. Writing for himself and Justices Ruth Bader Ginsburg and Stephen G. Breyer, Justice John Paul Stevens noted that review of the case had been warranted “even though our labors may not provide posterity with a newly minted rule of law.” Other justices disagreed, however, arguing that the court should not try to perform “error correction” in capital cases.

In the end, the justices are public servants, and the court is a public institution. Absent a compelling reason to conceal their votes from the populace, the justices should let the country know how they each are using the enormous agenda-setting authority we have entrusted to them.

Jeffrey L. Fisher is a professor of law at Stanford.

A version of this op-ed appears in print on September 25, 2015, on page A35 of the New York edition with the headline: The Supreme Court’s Secret Power.

The Supreme Court’s Secret Power,
NYT, SEPT. 24, 2015,
http://www.nytimes.com/2015/09/25/opinion/
the-supreme-courts-secret-power.html

Talking About the Death Penalty,

Court to Court

AUG. 20, 2015

The New York Times

The Opinion Pages | Contributing Op-Ed Writer

Linda Greenhouse

The Connecticut Supreme Court could have taken an easy route to finding the state’s death penalty unconstitutional in the decision it issued last week. The State Legislature repealed the death penalty in 2012, but it made the repeal prospective, leaving 11 men on death row. The reason for the prospective-only repeal was obvious to all: Two of the death-row inmates, Joshua Komisarjevsky and Steven Hayes, had committed a horrific home-invasion triple murder that shocked the state in 2007, and the prospect of barring their execution was unpalatable to Connecticut politicians and many members of the public.

As a matter of constitutional doctrine, the State Supreme Court might simply have found the distinction between those who committed murder before and after the repeal date of April 25, 2012, to be arbitrary — a violation of due process, equal protection or both. Taking the repeal law, signed by Gov. Dannel P. Malloy, to embody the collective judgment of the people’s elected representatives that capital punishment is no longer an appropriate tool of criminal justice in Connecticut, on what basis could the state apply the death penalty to one class of murderers and spare another, with the two groups separated only by the date of offense?

The 92-page majority opinion in Connecticut v. Santiago, written by Justice Richard N. Palmer for four of the court’s seven justices, was much more ambitious than that, however, and in its ambition lies its significance.

On hearing that the Connecticut Supreme Court had invalidated the state’s death penalty, many people probably shrugged and thought, “O.K., that’s one little blue state that hardly ever executed anyone (a single execution in the past 55 years, if you’re counting) and that was already never going to add anyone new to death row. How important can this decision be?”

That was, frankly, my thought as well, and I picked up the decision — more than 200 pages, including concurring and dissenting opinions — with some reluctance and a sense of obligation. (My apartment building is across the street from the New Haven courthouse where crowds, gathered for the consecutive trials in the home-invasion murders, blocked the sidewalks for weeks in 2010 and 2011.) But I turned the pages with mounting excitement. In the breadth of its perspective on the history and current problematic state of the death penalty, in its cleareyed dissection of the irreconcilable conflict at the heart of modern death-penalty jurisprudence, the Connecticut Supreme Court not only produced an important decision for its own jurisdiction; but it addressed the United States Supreme Court frankly and directly. The decision engages the Supreme Court at a crucial moment of mounting unease, within the court and outside it, with the death penalty’s trajectory over the nearly four decades since the court permitted states to resume executions.

Next year marks the 40th anniversary of Gregg v. Georgia and the four other Supreme Court decisions that reviewed the new generation of laws the states enacted in an effort to comply with the 1972 decision that had invalidated all existing death-penalty laws. “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Justice Potter Stewart famously wrote in a concurring opinion in the 1972 case Furman v. Georgia. The new laws that the Supreme Court upheld were supposed to avoid just such arbitrariness by limiting those defendants deemed eligible for the death penalty and by channeling juries’ discretion over when to impose it.

The problem, as the Connecticut Supreme Court demonstrates, is that it hasn’t worked. Of some 200 cases in the state that might have been charged as capital murder between 1973 and 2007, prosecutors sought the death penalty in some 130 and obtained death sentences in 12. “The selection of which offenders live and which offenders die appears to be inescapably tainted by caprice and bias,” the court said, pointing to “an inherent conflict in the requirements that the Eighth Amendment’s ban on cruel and unusual punishment, as interpreted by the United States Supreme Court, imposes on any capital sentencing scheme.”

On the one hand, the death penalty can’t be automatic, but has to result from specific findings about the crime and the defendant through a process that relies on specifically identified “aggravating factors.” That’s the effort to channel discretion and treat like cases alike. On the other hand, the jury must have absolute discretion to consider any “mitigating factors” that it deems relevant. That’s the effort to treat each defendant as an individual. The United States Supreme Court deems both efforts as constitutionally essential. But to quote from the Connecticut opinion:

“The question is whether this individualized sentencing requirement inevitably allows in through the back door the same sorts of caprice and freakishness that the court sought to exclude in Furman, or, worse, whether individualized sentencing necessarily opens the door to racial and ethnic discrimination in capital sentencing. In other words, is it ever possible to eliminate arbitrary and discriminatory application of capital punishment through a more precise and restrictive definition of capital crimes if prosecutors always remain free not to seek the death penalty for a particular defendant, and juries not to impose it, for any reason whatsoever? We do not believe that it is.”

Six weeks earlier, Justices Stephen G. Breyer and Ruth Bader Ginsburg, dissenting from the decision that rejected a challenge to Oklahoma’s lethal-injection protocol, identified another inherent contradiction. Deploring lengthy delays that “both aggravate the cruelty of the death penalty and undermine its jurisprudential rationale” (the average delay between sentencing and execution is now more than 17 years, they noted), the justices said that the “special need for reliability and fairness in capital cases” means that substantial delay is inevitable. Justice Breyer, who wrote the 42-page dissenting opinion that Justice Ginsburg joined, said this: “In this world, or at least in this nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both.”

The two justices didn’t flatly declare a belief that the death penalty is unconstitutional, saying rather that it was “highly likely” to violate the Eighth Amendment; the court, they said, should invite full briefing on that question “rather than try to patch up the death penalty’s legal wounds one at a time.”

Like the Connecticut justices, these two justices went beyond the confines of the case before them to confront the deeper questions. (Along with Justice Elena Kagan, Justices Breyer and Ginsburg also signed Justice Sonia Sotomayor’s dissenting opinion, which more conventionally addressed the majority’s holding on lethal injection.) The Connecticut decision and the Breyer-Ginsburg dissent were meant for wider audiences, and to a notable degree, each found an audience in the other. The Connecticut justices cited Justice Breyer’s dissent. I have no idea whether Justice Breyer knew about the Connecticut case, which had been pending for more than two years by the time the United States Supreme Court issued its lethal injection decision, Glossip v. Gross, on June 29. (I found no mention of the Connecticut case in the briefs the court received.) But Justice Breyer did cite the same statistical evidence in the same study of the Connecticut death penalty that the Connecticut justices used, concluding that “such studies indicate that the factors that most clearly ought to affect application of the death penalty — namely, comparative egregiousness of the crime — often do not.”

Were the Connecticut justices emboldened by Justice Breyer’s invitation to grapple with the death penalty itself? Maybe they were; coming late in what by all signs was a brutally contentious process within the Connecticut Supreme Court, the Breyer dissent must have appeared to the majority justices as a gift from on high, an open door. And clearly Justices Breyer and Ginsburg mean to spur hard thinking about the death penalty by every judge in the country.

And what about the Supreme Court itself? The last member of the court to renounce the death penalty was Justice John Paul Stevens, who retired in 2010. In the ensuing five years of silence, executions plummeted to a 20-year low (35 last year, compared with a high of 98 in 1999) and public approval of the death penalty, at 56 percent earlier this year, was the lowest in 40 years. Seven states carried out executions last year, compared with 20 in 1999. It’s no exaggeration to say that there is a widespread de facto moratorium in place, even in most of the 31 states that still have the death penalty on their books. (In four of those states — Washington, Oregon, Colorado and Pennsylvania — governors have imposed an actual moratorium.)

Although a Supreme Court decision abolishing the death penalty wouldn’t shock much of the country, it’s not easy to imagine the John G. Roberts Jr. court taking that step. If the question, as it is so often, is “what would Justice Kennedy do?” it’s worth noting that he signed neither of the dissenting opinions in the lethal injection case. He silently joined the majority opinion of Justice Samuel A. Alito Jr. — the justice who during the oral argument, in one of the uglier performances that I can recall on the Supreme Court bench, asked the lawyer for the Oklahoma death-row inmates whether it was “appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty.” On the other hand, Justice Kennedy has become an outspoken advocate for reform of the criminal justice system, with a recent focus on solitary confinement.

I’m not counting the days, or the Supreme Court terms, until the court declares the death penalty unconstitutional. But from two courts, the highest in the land and the highest court of one of the smallest states, a fruitful conversation emerged this summer that will inevitably spread, gain momentum and, in the foreseeable if not immediate future, lead the Supreme Court to take the step that I think a majority of today’s justices know is the right one.

Talking About the Death Penalty, Court to Court,
NYT, AUGUST 20, 2015,
http://www.nytimes.com/2015/08/20/opinion/
talking-about-the-death-penalty-court-to-court.html

The Law That Keeps

People on Death Row

Despite Flawed Trials

 

JULY 17, 2015

The New York Times

By EMILY BAZELON

One of the more curious rulings the Supreme Court handed down last month, overshadowed by its landmark health care and same-sex-marriage decisions, concerned a death-row inmate named Hector Ayala. In 1989, Ayala was charged with participating in the execution-style murder of three men in an auto-body shop in San Diego, an apparent result of a heroin deal gone bad. During jury selection for the trial, prosecutors struck all seven of the prospective jurors who were black or (like Ayala) Hispanic.

The Supreme Court has ruled that systematically excluding jurors on the sole basis of race violates the Constitution, so Ayala’s lawyer protested. The judge asked the prosecution for an explanation for the strikes in a private session and deemed it legitimate — without letting the defense hear or challenge the rationale. Ayala was convicted and sentenced to death.

On appeal, the California Supreme Court said the trial judge had erred but deemed the error “harmless,” letting Ayala’s conviction and sentence stand. The United States Court of Appeals for the Ninth Circuit disagreed, found that Ayala’s trial was unfair and ordered the state to either retry or release him. When the case reached the United States Supreme Court this year, it mostly garnered attention for a short concurring opinion in which Justice Anthony M. Kennedy denounced solitary confinement, the form of imprisonment Ayala has endured for most of the past 25 years. But Kennedy joined the court’s four other conservative justices in ruling against Ayala in June. The majority opinion chided the Ninth Circuit for misunderstanding the role of a federal court. A federal court, Justice Samuel A. Alito Jr. wrote, was merely supposed to stand guard against “extreme” judicial malpractice by state courts — not “substitute its own opinions for the determination made on the scene by the trial judge.”

But how, exactly, do you draw the line between the two? This is a fight that is waged over and over again when federal judges try to grant relief to prisoners convicted in state courts — which handle a vast majority of criminal cases — under circumstances of questionable fairness. It’s also a fight that federal judges increasingly lose in the Supreme Court — to the point that some of them are now raising the alarm that the law is systematically failing to provide the necessary safeguards against miscarriages of justice. Congress, they say, should fix it.

This state of affairs is the product of a semi-obscure 1996 law called the Antiterrorism and Effective Death Penalty Act. Passed with bipartisan support and signed by President Bill Clinton in the wake of the Oklahoma City bombing, the law was based in part on Newt Gingrich’s “Contract With America” and was designed to limit appeals of death-penalty sentences brought via the “Great Writ,” as it’s known, of habeas corpus. As a legal concept, habeas corpus dates to medieval England. The Latin translates literally as “you have the body.” The idea is that a prisoner has a right to petition a court to show that he or she is being held illegally.

Habeas rights aren’t entirely unshakable; President Abraham Lincoln famously suspended them during the Civil War, and whether or not a similar suspension was warranted in terrorism cases after the Sept. 11 attacks was central to the challenges brought by detainees held in Guantánamo Bay. But these are exceptional circumstances; for more prosaic criminal proceedings, states provide post-conviction processes for demonstrating procedural failings in a trial. After that, a prisoner may bring a habeas petition to a federal court, which has traditionally had the power to overturn a state conviction. “Habeas lies to enforce the right of personal liberty,” Justice William Brennan wrote in 1963; “when that right is denied and a person confined, the federal court has the power to release him.”

Supporters of this approach point out that state judges, who often face re-election bids, may feel more pressure to push habeas aside in the name of being tough on crime than federal judges, whose lifetime appointments insulate them from politics. State courts also have far higher caseloads, leaving them with less time and fewer resources to spend on habeas petitions, which often leads to summary denials.

Conservative critics, on the other hand, have generally bristled at this federal oversight. They point out — as Republican congressional supporters of the Antiterrorism and Effective Death Penalty Act did in the 1990s — that the additional means of appeal the procedure provides can add years to the process. Many states don’t provide free counsel for habeas petitions unless the death penalty is involved (and sometimes not even then). That leaves courts to sort through tens of thousands of filings written by prisoners representing themselves every year.

The Antiterrorism and Effective Death Penalty Act changed the balance of state and federal power over habeas petitions, by stipulating that a federal court may step in only if the previous proceedings in state court “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law” or “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” But over the past two decades, the Supreme Court’s unsparing interpretation of this language has become an enormous source of frustration on the federal bench — to the point that two influential judges on the Ninth Circuit bench, the liberal Stephen Reinhardt and the more conservative Alex Kozinski, have each recently called for its demise. They argue that the law, as interpreted by the court’s conservative majority, trips up federal judges who try to undo unjust convictions, rendering them powerless to address procedural unfairness — and, at worst, preventing them from granting a potentially innocent person a new trial or release, or even stopping his or her execution.

In a spring article in The Michigan Law Review, Reinhardt writes that the court has fashioned “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the writ as it would be for a Supreme Court justice to strike out Babe Ruth, Joe DiMaggio and Mickey Mantle in succession.” The maze has expanded since Alito succeeded Justice Sandra Day O’Connor in 2006, moving the court to the right on criminal justice, among other issues. Over the course of the court’s 2007-13 terms, Reinhardt found that the Supreme Court had ruled against prisoners in all but two of the 28 habeas petitions it had considered.

Judge Kozinski, for his part, attacks the law in a preface to The Georgetown Law Journal’s Annual Review of Criminal Procedure, which is remarkable in the breadth of its criticism of the American criminal justice system. Kozinski, a Reagan appointee, has voted to uphold many criminal penalties, including death sentences. But viewing the law from the perspective of the federal bench, he writes, “we now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”

By way of example, Kozinski points to the Ninth Circuit’s 2006 review of the conviction of Shirley Ree Smith, who was sentenced to 15 years to life after she was found of guilty of shaking her 7-week-old grandson, Etzel Glass, to death in 1996. There was no evidence that Smith had previously mistreated Etzel in any way. And while he had subdural bleeding in his brain, it was minimal, and only one of the three symptoms classically associated with shaken-baby syndrome, a diagnosis that has become increasingly controversial.

The California Supreme Court declined to review Smith’s case. When it reached the Ninth Circuit, the three judges who reviewed her habeas petition said they approached it “with a firm awareness of the very strict limits that the Antiterrorism and Effective Death Penalty Act places” on federal courts. Still, the Ninth Circuit judges looked at new medical evidence that called into doubt the validity of Smith’s conviction, found that “there has very likely been a miscarriage of justice in this case” and released her from prison, where she had already spent 10 years. In 2011, the Supreme Court reversed the Ninth Circuit, over a strong dissent from Justice Ruth Bader Ginsburg (joined by two other justices), saying that the appeals court had run afoul of the law. The following year, Gov. Jerry Brown commuted Smith’s sentence to time served.

The Antiterrorism and Effective Death Penalty Act is also at the heart of one of the most disputed death-penalty cases of the last decade. Troy Davis was convicted in Georgia of killing an off-duty police officer who came to the aid of a homeless man in a Burger King parking lot. After the Georgia courts denied Davis’s appeals, he went to the federal courts with a habeas petition, describing new evidence of his innocence: Seven of the nine eyewitnesses who testified against Davis at trial had recanted, and new witnesses implicated someone else, whom the police ruled out as a suspect early in their investigation. Procedural rules barred Davis from bringing this evidence on appeal. The United States Court of Appeals for the 11th Circuit ruled that he could not have a hearing for his new evidence in federal court, either.

In this case, the Supreme Court did step in and order such a hearing. “Imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man,” Justice John Paul Stevens wrote. But the decision prompted a dissent from Justice Antonin Scalia, joined by Justice Clarence Thomas, that includes this protest: “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

As many commentators have pointed out, this statement is both true and stone cold. “The proper question is, and always should have been, whether the detainee has a constitutional right to be free,” Reinhardt writes of habeas corpus. But 19 years of Supreme Court decisions based on the Antiterrorism and Effective Death Penalty Act have fundamentally narrowed the scope of habeas review, from a fight over the merits of a claim of innocence or fairness to one over narrow process issues: Has the state time limit for filing a habeas petition passed? Is the petition barred by some other rule? This is what the federal courts now spend their time parsing.

It is no surprise that the Supreme Court’s interpretation of the law has lowered the rate of success for habeas petitions. But it has also failed at its stated aim of reducing time-consuming appeals. According to a 2007 study by Nancy J. King, Fred L. Cheeseman II and Brian J. Ostrom, the time courts spend processing habeas cases has actually increased on average. “To the extent that [the law’s] provisions were designed to streamline the overall processing of individual cases, that result has not been achieved,” the authors concluded.

John H. Blume, a Cornell law professor who has been tracking the law’s effects since its inception, once argued that it “has been less ‘bite’ than ‘hype.’” Now he agrees with Reinhardt and Kozinski, he told me in an email, calling the Supreme Court’s expansion of the law “agenda-driven judicial policy-making.”

This is a moment of increasing bipartisan interest in criminal justice reform, including sustained attention from President Obama and regret from Bill Clinton about mass incarceration. About the role the Antiterrorism and Effective Death Penalty Act plays, Kozinski reaches a clear and dramatic conclusion. It “is a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice,” he writes. “It has resulted and continues to result in much human suffering. It should be repealed.”

The Law That Keeps People on Death Row Despite Flawed Trials,
NYT, JULY 17, 2015,
http://www.nytimes.com/2015/07/17/magazine/
the-law-that-keeps-people-on-death-row-despite-flawed-trials.html

The Illusion of a Liberal Supreme Court

JULY 9, 2015

The New York Times

The Opinion Pages | Contributing Op-Ed Writer

For one, brief shining moment — that is to say, last week — there was a liberal Roberts court.

It shimmered in the afterglow of rulings on same-sex marriage, health care, housing discrimination and nonpartisan redistricting. Conservatives cried betrayal. Chief Justice John G. Roberts Jr. “is now dead to conservatives,” declared Curt Levey, president of the right-wing Committee for Justice.

Progressives, for their part, were able to breathe again, even as they struggled to reconcile this term with the past decade of conservative activism. What had saved the day? Was it the sheer power and persuasiveness of liberal arguments? A collapse on the court’s right flank? The impressive unity displayed by the four liberal justices, who deferred when necessary to Justice Anthony M. Kennedy? Whatever the explanation, there was the data, after all, with 56 percent of the term’s decisions coding “liberal.” Results speak louder than explanations, right?

As a mirage in the morning light, the “liberal Roberts court” narrative is now fading. Chief Justice Roberts is clearly no traitor; he was, in fact, in dissent in three of the four most important liberal victories, the exception being his majority opinion in King v. Burwell that saved the Affordable Care Act. And the liberal justices were unable at the end of the term to dissuade their colleagues from dragging the court back into the morass of affirmative action; the new term will revisit a now laughably moot challenge to the University of Texas admissions plan. The chance that the court’s liberals will be able to deflect a crushing defeat for public employee unions, in another case to be heard in the new term, appears vanishingly small.

It’s fading, but not fast enough. The “liberal Roberts court” theme retains its grip, and I worry that it may become the received wisdom about the 2014-15 term as public attention moves on from the Supreme Court. On the eve of the presidential primaries, it’s important that progressives not be lulled by a few welcome decisions into thinking that the court is in safe hands. The court that gutted the Voting Rights Act and hijacked the First Amendment as a deregulatory tool (remember Citizens United?) is, to paraphrase Donald Rumsfeld, the court we have. It’s not the court we might wish we had.

Explanations do in fact matter. So how to explain the seeming liberal drift? Two weeks ago, an Upshot column provided a link to one of the more illuminating academic political science articles I have read recently. The article, by Kevin T. McGuire, Georg Vanberg, Charles E. Smith Jr. and Gregory A. Caldeira, isn’t new; it was written in 2007 and published in The Journal of Politics in 2009. It doesn’t deal with the Roberts court, and its title, “Measuring Policy Content on the U.S. Supreme Court,” is not particularly inviting. It nonetheless offers an “aha!” insight worth keeping in mind as the next — and, most likely, more typical — Supreme Court term takes shape.

The authors argue that the common practice of toting up the numbers of conservative and liberal outcomes in order to assess the direction of the court has the capacity to mislead by introducing what they call systemic bias. They go beyond a more common critique of the numbers game, which is that numbers alone don’t take account of the fact that a conservative court shifts the doctrinal baseline ever rightward; a decision that codes as liberal against that baseline may objectively not be liberal at all.

Rather, the authors distinguish between Supreme Court rulings that affirm and those that overturn a lower court decision. They argue that on a conservative court, affirmances tend to be liberal and so should be discarded from a statistical snapshot of a given term’s ideology.

The conclusion that affirmances introduce a liberal bias follows an interesting chain of reasoning. Political scientists assume — and, in fact, the article quotes Chief Justice William H. Rehnquist as acknowledging — that justices vote to hear cases that they think were wrongly decided by the lower court. For this reason, reversals outnumber affirmances by a wide margin — better than two to one in the term that just ended, by my count. But what about those anomalous affirmances? (Twenty-one out of 66 signed opinions in this term.)

Given the costs of appealing to the Supreme Court, the article explains, potential petitioners calculate the odds. They will appeal when they conclude that the court wants to move the law in their direction, and will not appeal if they conclude otherwise. This certainly rings true; abortion rights groups have passed up numerous opportunities to bring cases to the Supreme Court, not willing to risk turning an unfavorable lower court decision into a devastating national rule. So liberal petitioners are not bringing cases to the Supreme Court, but petitioners seeking conservative outcomes are. Most often, the conservative calculations are correct; hence, the high reversal rate.

Affirmances thus represent “mistakes,” the authors assert. These are most often mistakes of a particular kind. It’s not that savvy petitioners have fundamentally misunderstood the court’s conservative orientation, but more likely that “they have overestimated the intensity of Supreme Court preferences.” In other words, they have over-read the court’s signals and overshot the mark. Perhaps they even took the court for granted. The authors conclude: “Ironically, a more conservative court will produce more liberal affirmances than conservative affirmances.” The lesson is clear: A term laden with affirmances in ideologically charged cases should be understood not as a liberal term, but as a hold-the-line term, the line being held by justices who have refrained from following the logical consequences of their recent decisions right off a cliff.

Seen through this lens, it’s not random that King v. Burwell, rejecting a cooked-up linguistic assault on the Affordable Care Act, affirmed a ruling by the United States Court of Appeals for the Fourth Circuit. Texas Department of Housing v. Inclusive Communities, rejecting an attack on the Fair Housing Act, affirmed a ruling by the United States Court of Appeals for the Fifth Circuit. The same-sex marriage decision, Obergefell v. Hodges, doesn’t quite fit this pattern because it overturned a ruling against marriage by the United States Court of Appeals for the Sixth Circuit. But that court was an outlier; every other circuit to reach the issue had gone the other way, so Justice Kennedy’s opinion affirmed what had become the clear majority rule in the federal courts.

The article acknowledges that the court typically takes cases in order to resolve a conflict among the lower courts, making a grant of review an essentially neutral act from which little can be concluded. Rather, it is cases like King v. Burwell and the Fair Housing Act case that tell the tale. On neither question was there a circuit conflict. Affirming the lower court decisions was a vote for the status quo at least as much as for a “liberal” result. That was especially true in the Fair Housing case. Not only the Fifth Circuit, one of the country’s most conservative courts, but every other circuit had ruled that the Fair Housing Act did not require proof of intentional discrimination. For the Supreme Court to have gone the other way, as most people expected (or else why did the court take the case?) would have manifested right-wing activism in the extreme.

The article’s authors don’t address the “why did they take the case” question, which perhaps was not as salient in the pre-Roberts era as it seems to be now. Certainly the conservative justices voted to hear King v. Burwell and the Fair Housing Act case because they thought they could prevail. The same is true of the new Fisher v. University of Texas case; there is no conflict in the circuits on the constitutionality of affirmative action in higher education because binding Supreme Court precedent has deemed it, within limits, to be constitutional. And as Adam Liptak explained this week, the public employee union case, Friedrichs v. California Teachers Association, was devised for and served up to Justice Samuel A. Alito Jr. at his invitation.

Liberals will surely win some cases in the next term. But they won’t win these, and it’s a safe bet that this time next year, there won’t be much “liberal Roberts court” chatter. Thanks for the memory.

The Illusion of a Liberal Supreme Court,
NYT, JULY 9, 2015,
http://www.nytimes.com/2015/07/09/opinion/the-illusion-of-a-liberal-supreme-court.html

Is the Death Penalty Unconstitutional?

JULY 7, 2015

The New York Times

The Opinion Pages | Contributing Op-Ed Writer

CHICAGO — On the heels of major decisions about same-sex marriage and health care, the Supreme Court closed the term that ended last week with one more extremely contentious case, Glossip v. Gross, which was about the death penalty. The narrow issue in the case was the legality of Oklahoma’s most recent method of lethal injection, using a drug called midazolam. The court upheld that execution method in a 5-to-4 ruling, concluding that the challengers had not done enough to show that it was riskier than the alternatives. But the extensive opinions in the case confronted fundamental questions about the place of the death penalty in our constitutional system.

Marking the contentiousness of the issue, four justices announced their competing opinions aloud in the courtroom. It is uncommon for more than one justice to speak in a particular case. Four is almost unheard-of.

The separate opinions of Justices Antonin Scalia and Stephen G. Breyer, in particular, are worthy of note, as they express starkly opposing views of the death penalty’s place under our Constitution. Justice Breyer basically called for the abolition of the death penalty, while Justice Scalia argued that the Constitution itself protected the death penalty from judicial invalidation. But both views are misguided; the best position lies in between them.

Let’s start with Justice Scalia, who argues that the Constitution explicitly blesses the death penalty. The Fifth Amendment says that one cannot be “deprived of life … without due process of law,” and that “capital, or otherwise infamous crime” must proceed by grand jury. Justice Scalia contends that these provisions insulate the death penalty from categorical challenge because it is “obvious” that it “is impossible to hold unconstitutional that which the Constitution explicitly contemplates.”

But this argument ignores the lesson of another constitutional amendment, the Ninth, which is designed to stop precisely the sort of inference that Justice Scalia is making here. The framers worried that codifying individual rights could be dangerous, because identifying specific limits on government power may imply that those are the only limits, with the government otherwise having a free hand. When Congress decided to propose a Bill of Rights nonetheless, James Madison included language to answer this objection — which ultimately became our Ninth Amendment — that warns that no specific right should be taken to preclude other possibly relevant rights.

Unfortunately, that is what Justice Scalia is doing. He considers the specific right to due process before execution and infers from it that the death penalty can never be a “cruel and unusual punishment,” which the Eighth Amendment prohibits. To be clear, Justice Scalia is surely correct that the framers assumed that the death penalty could be imposed without being cruel and unusual, and their assumption may well turn out to be right. But that is an assumption that has to be tested by interpreting the Eighth Amendment by its own lights.

Next let’s turn to Justice Breyer, who argues that it is “highly likely” that the death penalty as a whole violates the Eighth Amendment, because it is unreliable, arbitrary, slow and rare. This argument went well beyond the specific challenge to the use of the midazolam that was the focus of the case. Rather, Justice Breyer explained that he would stop trying “to patch up the death penalty’s legal wounds one at a time” and likely bury the whole thing. Justice Breyer (whose opinion was joined here by Justice Ruth Bader Ginsburg) is the first member of the current court to call for such a radical step.

We should not be too quick to embrace Justice Breyer’s thinking. If his conclusion is something other than a personal moral intuition, it rests on deeply contested claims about the accuracy, goals and costs of the death penalty. And while Justice Breyer’s dissent advanced extensive evidence for his claims, they are nonetheless claims that are hard for a judge, even a Supreme Court justice, to resolve dispassionately. Moreover, even if those claims are proved true, the more appropriate judicial course would be to invalidate the problematic parts of the system, not the system as a whole.

If we reject the broad legal claims of both Justices Scalia and Breyer, what is left? The court’s job is to continue resolving the fact-specific claims that a given punishment is cruel and unusual, even if that means that the court must only “patch up the death penalty’s legal wounds.” And the bigger question that Justice Breyer would have us confront — whether our death penalty system is necessary or oppressive — is best left to the states and the people.

William Baude, a contributing opinion writer, is an assistant professor of law at the University of Chicago.

Is the Death Penalty Unconstitutional?,
NYT, JULY7, 2015,
http://www.nytimes.com/2015/07/07/opinion/is-the-death-penalty-unconstitutional.html

The Activist Roberts Court, 10 Years In

 

JULY 4, 2015

The New York Times

THE EDITORIAL BOARD

What is the most useful way to understand the direction of the Supreme Court 10 years into the tenure of Chief Justice John Roberts Jr.? After a series of high-profile end-of-term rulings that mostly came out the way liberals wanted, it is tempting to see a leftward shift among the justices.

That would be a mistake. Against the backdrop of the last decade, the recent decisions on same-sex marriage, discrimination in housing, the Affordable Care Act and others seem more like exceptions than anything else. If they reflect any particular trend, it is not a growing liberalism, but rather the failure of hard-line conservative activists trying to win in court what they have failed to achieve through legislation.

And even when a majority of the justices rejected conservative arguments, the decision to hear those cases in the first place showed the court’s eagerness to reopen long-settled issues. For example, in last month’s ruling on the Fair Housing Act of 1968, the court held 5 to 4 that discrimination could be illegal under the law even if there was no evidence that it was intentional. This might seem to be a “liberal” result, except that 11 federal appeals courts had agreed on this reading for decades. There was no legal dispute, in other words, only the persistent efforts of some justices to reverse accepted law because they didn’t like it.

In this light, “the string of liberal ‘victories’ represents disasters averted, not new frontiers discovered,” wrote Garrett Epps, the Supreme Court correspondent for The Atlantic.

Yet many times over the past decade, the disaster was not averted. All too often, the conservative majority has changed the law to disfavor the less powerful. Whether the issue is racial or gender equality, voting rights, women’s reproductive freedom, access to the courts or the rights of criminal defendants, the court has often ruled against those most in need of its protection.

At the same time, the powerful are given a helping hand. As the most business-friendly court in decades, it has ruled again and again in favor of corporate interests. And in one campaign finance case after another, most notably Citizens United v. Federal Election Commission, the conservative majority has helped the wealthiest Americans raise their voices even louder in the political sphere.

Through it all, Chief Justice Roberts, who during his confirmation hearings promised judicial restraint above all else, has presided over a court that has been far too willing to undermine or discard longstanding precedent. Among the biggest examples of this are District of Columbia v. Heller, which upended the long-accepted meaning of the Second Amendment; Citizens United, which overturned decades of rulings and laws to allow unlimited campaign spending by corporations and unions; and Shelby County v. Holder, which gutted the core of the Voting Rights Act.

His votes to protect President Obama’s signature health care reform law showed he was not willing to leap into the deep end of conservative activism. But that just means he was doing his job.

This term’s health care case, King v. Burwell, was an embarrassing farce that tried to block federal health-insurance subsidies through an intentional misreading of four words. In his ruling, the chief justice seemed to run out of patience with this political attack. “In every case we must respect the role of the Legislature,” he wrote, “and take care not to undo what it has done.”

This is not a radical position, or even a liberal one. What is remarkable is not that Chief Justice Roberts wrote the opinion, but that three conservative justices refused to join him.

The next term will again reopen issues of rights and freedoms, including some that have been long settled. The court has already agreed to hear major disputes over the meaning of “one person, one vote,” the constitutionality of requiring nonunion members to pay union dues, and, for the second time in three years, affirmative action. The justices may also consider challenges to new laws passed by Republican-led legislatures making it harder for poorer people to vote and for poorer women to have access to abortion.

Justice Anthony Kennedy, who holds the key vote in most closely divided cases, may again be the one to resolve these questions. As many Americans were reminded over the past month, that is a sword that cuts both ways.
 

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A version of this editorial appears in print on July 5, 2015, on page SR8 of the New York edition with the headline: Ten Years of an Activist Court.

The Activist Roberts Court, 10 Years In,
NYT, JULY 4, 2015,
http://www.nytimes.com/2015/07/05/opinion/sunday/
the-activist-roberts-court-10-years-in.html

At the Supreme Court,

a Win for Direct Democracy

JUNE 29, 2015

The New York Times

The Opinion Pages | Op-Ed Contributor

By RICHARD H. PILDES

IN 2000, voters in Arizona adopted a state constitutional amendment that created an independent commission to draw congressional districts. But the commission immediately faced a legal challenge: the United States Constitution gives the power to state legislatures (and to Congress) to regulate national elections — not to the voters. Can the word “legislature” in the Constitution mean voters themselves?

That question eventually came before the Supreme Court, which on Monday ruled, in a 5-to-4 decision, that the Constitution permits states to let their voters use “direct democracy” — popular votes on ballot measures, known as voter initiatives — to regulate the rules for national elections.

Ten states give commissions a role in congressional districting, though aside from Arizona, only California has a fully autonomous independent commission. But the stakes go beyond the design of election districts. In 21 states, voters can initiate legislation; in 18 states, they can initiate constitutional amendments.

In recent years, for example, voters in Washington and California have used this power to adopt a new form of primary election, known as the “top two” primary, designed to give voters more choices. If the Constitution permits only state legislatures to enact such laws (or to refuse to enact them), these kinds of voter-initiated measures would be unconstitutional.

That’s because the Constitution expressly gives power over elections to the legislatures. And in some parts of the Constitution, at least, the framers certainly meant “legislatures” to exclude direct popular decision making: The Constitution originally assigned the selection of senators to the state “legislatures,” for the purpose of rejecting popular elections. It took the 17th Amendment to make direct election of senators possible.

So to uphold direct democracy as a constitutionally permissible tool for regulating elections, the court had to conclude that, when the Constitution uses the term “legislature,” it does not (in its original formulation) permit the popular election of senators but does permit popular regulation of the election process. There is no easy answer, and that conundrum is what produced a legitimate 5-to-4 divide.

How did we arrive at a point at which, at least until the court’s decision, it was unclear whether the Constitution required that the power to shape the election process be left with the most politically self-interested actors — state legislatures? The answer lies in the very success of the American Constitution.

Unlike most modern constitutions, such as those created after 1945, the American one does not create any specific, relatively unpoliticized institutions to oversee election ground rules. As the world gained more experience with constitutional democracy, societies recognized the need to take out of the hands of existing officeholders the power to control the rules under which they and their rivals compete for political power. But at the time the American Constitution was written, there was no discussion, or even any recognition, of the possibility of creating these kinds of institutions.

The failure of this system is what led the court eventually to step in during the 1960s to create the “one-vote, one-person” doctrine; before that, state legislatures were content, when it served their self-interest, to permit enormous population inequalities across districts.

Constitutional law, however, cannot police all the risks of political self-entrenchment. The main, and best, justification for direct democracy is precisely the need for this kind of check, just as the voters in Arizona exercised, on the self-interested temptations of power when legislators regulate the political process itself.

Direct democracy is hardly a panacea or a pure expression of “the popular will,” whatever that means; voters must be organized and informed, which takes resources and organizational skill. Still, direct democracy remains an important means of policing the inevitable temptations those in power have to entrench themselves more securely in power.

On Monday the court rightly recognized that, when the Constitution assigned the elections clause power to the “legislatures,” the framers were not making a judgment about whether states could create direct democratic processes as another way to regulate the national election process. Unlike their rejection of popular Senate elections, the framers did not reject popular regulation of elections: They just never considered the idea. To reject it in their name, the court wisely concluded, would have been perverse.

The Supreme Court often surprises critics who see it in simplistically ideological terms. As this term and this decision confirm, the current court remains a pragmatically minded institution that interprets legal language with an eye toward the problems that language was created to address. As a result, direct democracy will remain available to constrain partisan gerrymandering and other ways legislatures seek to manipulate democratic purposes for self-serving reasons.

Richard H. Pildes is a law professor at New York University.

A version of this op-ed appears in print on June 30, 2015, on page A23 of the New York edition with the headline: A Win for Direct Democracy.

At the Supreme Court, a Win for Direct Democracy,
NYT, JUNE 29, 2015,
http://www.nytimes.com/2015/06/30/opinion/
at-the-supreme-court-awin-for-direct-democracy.html

A Divided Court on Three Big Rulings

JUNE 29, 2015

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

Is the Death Penalty Constitutional?

An interesting thing happened on the way to Monday morning’s predictable Supreme Court ruling upholding Oklahoma’s use of a controversial lethal-injection drug.

The 5-to-4 decision rejected a claim by three death-row inmates that use of the sedative midazolam would put them at risk of severe pain. It also ruled preposterously that in order to succeed the inmates had to show that there is an alternative manner of execution that is significantly less painful but readily available.

Justice Samuel Alito Jr., writing for the majority, and Justice Sonia Sotomayor, writing the main dissent, battled bitterly over both of these issues.

But it was Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader Ginsburg, that stood out above the usual noise: For 46 pages, a Supreme Court justice made the case that the death penalty most likely violates the Constitution.

In 1994, Justice Harry Blackmun announced that after a quarter century on the court he had given up on capital punishment and would no longer “tinker with the machinery of death.” It was a remarkable statement because the court has never held that the death penalty is categorically unconstitutional.

On Monday, Justice Breyer revived the issue, “rather than try to patch up the death penalty’s legal wounds one at a time.”

In a thorough, data-laden treatise, Justice Breyer explained why today’s death penalty likely violates the Eighth Amendment’s ban on cruel and unusual punishment. It is unreliable: More than 150 people sentenced to death since 1973 have been exonerated. It is arbitrary: Its application in any given case depends on factors like race or geography. Decades-long delays negate its claimed deterrent effect. And all but a very few jurisdictions have abandoned it.

All of these concerns, Justice Breyer wrote, are “quintessentially judicial matters” that demand the court’s attention. And yet his engagement with this important topic drew a one-word summation from Justice Antonin Scalia: “gobbledygook.” He mocked Justice Breyer’s challenges as having been voiced for years by death-penalty abolitionists. It did not seem to occur to Justice Scalia that the same issues surface again and again because the problem lies with capital punishment itself.

Redistricting by the People

The Supreme Court case challenging Arizona’s method of drawing election districts could have been a big win for state lawmakers who regularly abuse their power to stay in power. But the justices, by a 5-to-4 vote, handed the victory to the people instead.

The ruling protected laws in Arizona, California, Hawaii and other states that have delegated redistricting to independent commissions, and in the dozens of other states where citizens, through constitutional amendments and ballot measures, have claimed a greater say in how district maps are drawn and election rules are written.

The case involved an electoral process so hopelessly corrupted by partisan gerrymandering that Arizona’s voters approved a proposition to amend the Constitution to remove redistricting authority from the Legislature and created an independent five-member commission to draw congressional and state legislative district lines. The lawmakers sued to get the mapmaking pen back.

The majority opinion, written by Justice Ginsburg, is plain and persuasive in arguing that Arizona’s citizens acted properly to protect the integrity of their elections. Under Arizona’s system, she wrote, “initiatives adopted by the voters legislate for the state just as measures passed by the representative body do.”

Chief Justice John Roberts Jr., writing in dissent, sided with the legislators’ restrictive reading of the Constitution’s elections clause, which they read to mean that only Congress or a state “legislature” can make a state’s election laws.

In practice, in statehouses across the land, legislators and lobbyists, armed with ever more sophisticated map-drawing programs, have created systems of permanent incumbency and control. Had the court’s minority prevailed, the voice of voters who have fought to end such practices would have been silenced.

Direct citizen democracy is not a substitute for elected representatives who do their jobs. But the majority ruling is a timely reminder that rank partisan gerrymandering is incompatible with democratic principles — and “that the people themselves are the originating source of all the powers of government.”

Micromanaging the E.P.A.

The Environmental Protection Agency has a complicated job: It must make rules to protect the nation’s air and waterways from toxic pollutants — like the mercury emitted by coal-burning power plants — while weighing a wide range of factors, including how harmful the pollutants are to human health and the environment, and how much it would cost polluters to comply with the rules.

The agency considers those costs at many stages in the rule-making process, as the Clean Air Act requires it to do. In the case of mercury and other harmful pollutants, it determined that for a cost of about $10 billion in well-established cleaner-coal technologies, the nation would enjoy benefits valued at between $37 and $90 billion, including the prevention of as many as 11,000 premature deaths a year.

This is exactly the sort of complex, balanced determination that highly experienced regulators are entrusted to make — and to which courts generally defer.

But five justices ruled that the E.P.A. had failed to follow the law because it did not consider the costs of its mercury rule at the start of the process.

Writing for the majority, Justice Scalia rejected the agency’s argument that it considered costs at a later stage. The law requires regulations to be “appropriate and necessary,” he wrote, so the agency cannot completely ignore costs at the outset.

The problem, as Justice Elena Kagan explained in a sharp dissent, is that the E.P.A. considered the costs connected to the emissions rule “over and over and over again.” After finding that these harmful pollutants had to be regulated, it set standards, considered how to make them as inexpensive as possible for different types of plants, and did a thorough cost-benefit analysis. And yet the majority opinion focused on only the initial decision to regulate, she wrote, “with barely a glance at all the ways in which E.P.A. later took costs into account.”

This “micromanagement” of rule making “runs counter to Congress’s allocation of authority between the agency and the courts.”

The rule remains in place while it is reconsidered by a federal appeals court in Washington that has already upheld it once. Meanwhile, there is no good argument for the delinquent power plants to delay any longer.
 

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A version of this editorial appears in print on June 30, 2015, on page A22 of the New York edition with the headline: A Divided Court on Three Big Rulings.

A Divided Court on Three Big Rulings,
NYT, JUNE 29, 2015,
http://www.nytimes.com/2015/06/30/opinion/a-divided-court-on-three-big-rulings.html

Supreme Court Allows

Use of Execution Drug

 

JUNE 29, 2015

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court ruled on Monday against three death row inmates who had sought to bar the use of an execution drug they said risked causing excruciating pain.

In the process, two dissenting members of the court — Justices Stephen G. Breyer and Ruth Bader Ginsburg — came very close to announcing that they were ready to rule the death penalty unconstitutional. This gave rise to slashing debate with Justices Antonin Scalia and Clarence Thomas about the reliability and effectiveness of the punishment, a dispute that overshadowed the core issue in the case.

The 5-to-4 decision on the execution drug broke along familiar lines, with Justice Anthony M. Kennedy joining the court’s more conservative members to allow its use.

Justice Samuel A. Alito Jr., writing for the majority, said the inmates had failed to identify an available and preferable method of execution and failed to make the case that the challenged drug entailed a substantial risk of severe pain.

In dissent, Justice Sonia Sotomayor, who joined the other three members of the court’s liberal wing, said, “The court’s available-alternative requirement leads to patently absurd consequences.”

“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive,” Justice Sotomayor wrote. “But under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake.”

Justices Breyer, Ginsburg and Elena Kagan joined Justice Sotomayor’s dissent.

In a second, more sweeping dissent, Justice Breyer, joined by Justice Ginsburg, said it was time to consider a larger issue.

“Rather than try to patch up the death penalty’s legal wounds one at a time,” Justice Breyer wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”

In a 46-page dissent that included charts and maps, he said that “it is highly likely that the death penalty violates the Eighth Amendment,” which bars cruel and unusual punishments. He said that there was evidence that innocent people have been executed, that death row exonerations were frequent, that death sentences were imposed arbitrarily and that the capital justice system was warped by racial discrimination and politics.

Justice Breyer added that there was scant reason to think that the death penalty deterred crime and that long delays between death sentences and executions might themselves violate the Eighth Amendment. He noted that most of the country did not use the death penalty and that the United States was an international outlier in embracing it.

Justice Scalia responded to what he called “Justice Breyer’s plea for judicial abolition of the death penalty” by calling it “gobbledygook.” The punishment is contemplated by the Constitution, Justice Scalia said, and disingenuously opposed on grounds created by its opponents.

Criticizing the death penalty on the ground that it is not carried out fast enough, for instance, Justice Scalia said, “calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan.”

“We federal judges,” Justice Scalia continued, “live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem ‘significant’ reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the people decide how much incremental deterrence is appropriate.”

In a second concurrence, Justice Thomas described several cases in which the Supreme Court had spared the lives of killers.

“Whatever one’s views on the permissibility or wisdom of the death penalty,” Justice Thomas wrote, “I doubt anyone would disagree that each of these crimes was egregious enough to merit the severest condemnation that society has to offer. The only constitutional problem with the fact that these criminals were spared that condemnation, while others were not, is that their amnesty came in the form of unfounded claims. Arbitrariness has nothing to do with it.”

The challenge to the execution drug was brought by four condemned inmates in Oklahoma, who said it did not reliably render the person unconscious and so violated the Eighth Amendment. Lower courts disagreed.

Oklahoma and several other states started to use midazolam in executions after manufacturers in Europe and the United States refused to sell them the barbiturates that were traditionally used to produce unconsciousness.

Justice Alito suggested that condemned inmates should not benefit from the shortages, saying that “anti-death-penalty advocates pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences.”

Chief Justice John G. Roberts Jr. and Justices Scalia, Kennedy and Thomas joined the majority opinion.

In dissent, Justice Sotomayor said the shortages had produced real risks.

“The execution protocols states hurriedly devise as they scramble to locate new and untested drugs,” she wrote, “are all the more likely to be cruel and unusual — presumably, these drugs would have been the states’ first choice were they in fact more effective.”

Lawyers for the Oklahoma inmates, with the support of experts in pharmacology and anesthetics, said midazolam, even if properly administered, was unreliable. They pointed to three executions last year that seemed to go awry.

In April 2014, Clayton D. Lockett regained consciousness during the execution procedure, writhing and moaning after the intravenous line was improperly placed. In Ohio in January 2014 and in Arizona in July, prisoners appeared to gasp and choke for extended periods.

The Supreme Court last considered lethal injections in 2008, in Baze v. Rees, when it held that what was then the standard three-drug combination, using the barbiturate sodium thiopental as the first agent, did not violate the Eighth Amendment.

The new case, Glossip v. Gross, No. 14-7955, originally included a fourth inmate, Charles F. Warner. But he was executed on Jan. 15 after the Supreme Court denied his request for a stay by a 5-to-4 vote.

A little more than a week later, the court agreed to hear the remaining inmates’ appeals, and a few days after that it stayed their executions.

They are Richard E. Glossip, who was convicted of arranging the beating death of his employer; John M. Grant, who was convicted of stabbing a prison cafeteria worker to death; and Benjamin R. Cole Sr., who was convicted of breaking his 9-month-old daughter’s spine, killing her.

“While most humans wish to die a painless death,” Justice Alito wrote for the majority, “many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”
 

A version of this article appears in print on June 30, 2015, on page A1 of the New York edition with the headline: Justices Approve Execution Drug in a 5-to-4 Vote.

Supreme Court Allows Use of Execution Drug,
NYT, JUNE 25, 2015,
http://www.nytimes.com/2015/06/30/us/supreme-court-execution-drug.html

A Profound Ruling

Delivers Justice on Gay Marriage

JUNE 26, 2015

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

To the list of landmark Supreme Court decisions reaffirming the power and the scope of the Constitution’s guarantee of equal protection under the law — from Brown v. Board of Education to Loving v. Virginia to United States v. Windsor — we can now add Obergefell v. Hodges.

In a profound and inspiring opinion expanding human rights across America, and bridging the nation’s past to its present, Justice Anthony Kennedy wrote: “The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”

As news of the ruling came out on Friday morning, opponents of same-sex marriage struggled to fathom how the country they thought they understood could so rapidly pass them by. But, in fact, the court’s decision fits comfortably within the arc of American legal history.

As Justice Kennedy explained, the Constitution’s power and endurance rest in the Constitution’s ability to evolve along with the nation’s consciousness. In that service, the court itself “has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”

For gays and lesbians who have waited so long for the court to recognize their relationships as equal to opposite-sex relationships, it was a remember-where-you-were-when-it-happened moment.

Addressing what he called “the transcendent importance of marriage,” Justice Kennedy wrote that “through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”

Justice Kennedy’s focus on dignity and equality has been central to his majority opinion in each of the court’s three earlier gay rights cases. In 1996, the court held that states cannot deny gays, lesbians and bisexual people legal protection from discrimination. In 2003, it held that states cannot ban consensual sexual relations between people of the same sex. And in 2013, it struck down the heart of a federal law defining marriage as between one man and one woman.

In Friday’s ruling, Justice Kennedy emphasized the dignity and equality not only of same-sex couples, but of their families and children. “Without the recognition, stability, and predictability marriage offers,” he wrote, the children of these couples “suffer the stigma of knowing their families are somehow lesser.”

President Obama, who opposed same-sex marriage in his first presidential campaign but announced in 2012 that he had changed his mind, said the decision “affirms what millions of Americans already believe in their hearts: When all Americans are treated as equal, we are all more free.”

And yet, in the midst of all the hard-earned jubilation surrounding the decision, it was difficult not to think of the people who did not live to see this day.

People like John Arthur, who died in October 2013, only months after he married his partner of more than 20 years, Jim Obergefell, on the tarmac of Baltimore-Washington International Airport. They lived in Cincinnati, but Ohio would not let them marry; voters there had passed a constitutional ban on same-sex marriage in 2004. As Mr. Arthur lay on a stretcher, dying of amyotrophic lateral sclerosis, he and Mr. Obergefell took a private medical jet to Maryland, where same-sex marriage is legal. They were married in a brief ceremony and then flew home.

When Ohio officials refused to put Mr. Obergefell’s name on his husband’s death certificate, he sued. Last November, the United States Court of Appeals for the Sixth Circuit ruled against him and other couples challenging bans in Michigan, Kentucky and Tennessee. Same-sex marriage, the court said, is a “social issue” for voters, and not the courts, to decide. Friday’s decision reversed that ruling.

The humane grandeur of the majority’s opinion stands out all the more starkly in contrast to the bitter, mocking small-mindedness of the dissents, one each by Chief Justice John Roberts Jr., and Justices Clarence Thomas, Samuel Alito Jr. and Antonin Scalia.

Faced with a simple statement of human equality, the dissenters groped and scratched for a way to reject it.

The chief justice compared the ruling to some of the most notorious decisions in the court’s history, including Dred Scott v. Sandford, the 1857 ruling holding that black people could not be American citizens and that Congress could not outlaw slavery in the territories; and Lochner v. New York, a 1905 case that is widely rejected today as an example of justices imposing their own preferences in place of the law.

He invoked the traditional understanding of marriage, which he ascribed to, among others, Kalahari bushmen, the Carthaginians and the Aztecs. But Justice Kennedy had a ready reply: “The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest.”

Justice Scalia mocked the ruling as a “judicial Putsch” and a threat to American democracy. “This is a naked judicial claim to legislative — indeed, super-legislative — power,” he wrote. “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

But that rant is wholly wrong. In American democracy, the judicial branch is the great bulwark against a majority’s refusal to recognize a minority’s fundamental constitutional rights. As Justice Kennedy wrote, “An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”

And within minutes of the ruling, there was resistance by some officials around the country. Louisiana’s attorney general, James Caldwell, said his state, one of 13 that still bans same-sex marriage, is not required to issue licenses to same-sex couples because the Supreme Court has not yet released an explicit order. Gov. Scott Walker of Wisconsin, a Republican presidential candidate, called for a constitutional amendment allowing states to ban same-sex marriage.

Meanwhile, the dwindling number of Americans who oppose same-sex marriage have shifted tactics to rely on so-called religious-freedom laws, which they say allow them to, among other things, decline to provide business services for same-sex weddings.

Justice Kennedy said that Americans who disagree with same-sex marriage, for religious or other reasons, have the freedom to believe and to speak as they wish. “But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the state itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.”

Still, the court did not give sexual orientation a special status, like race or gender, which would provide stronger protection against discriminatory laws.

More than four decades ago, a male couple in Hennepin County, Minn., applied for a marriage license and was denied. When their lawsuit reached the Supreme Court, the justices dismissed it “for want of a substantial federal question.”

In the years since, Americans’ attitudes toward gays and lesbians and the right to marry have changed dramatically. Before Friday’s ruling, same-sex marriage was already legal in 36 states and the District of Columbia, representing more than 70 percent of all Americans. A solid and growing majority now believes in marriage equality; among those ages 18 to 29, support is at nearly 80 percent.

Around the world the change has come even faster. Since 2000, 20 countries — from Argentina to Belgium to South Africa — have legalized same-sex marriage. In May, an Irish referendum on legalization won the support of nearly two-thirds of voters.

Justice Kennedy’s opinion will affect the course of American history, and it will change lives starting now.
 

A version of this editorial appears in print on June 27, 2015,
on page A20 of the New York edition with the headline: Marriage Equality in America.

A Profound Ruling Delivers Justice on Gay Marriage,
NYT, JUNE 26, 2015,
http://www.nytimes.com/2015/06/27/opinion/
a-profound-ruling-delivers-justice-on-gay-marriage.html

Supreme Court Ruling

Makes Same-Sex Marriage

a Right Nationwide

 

JUNE 26, 2015

The New York Times

By ADAM LIPTAK

WASHINGTON — In a long-sought victory for the gay rights movement, the Supreme Court ruled by a 5-to-4 vote on Friday that the Constitution guarantees a right to same-sex marriage.

“No longer may this liberty be denied,” Justice Anthony M. Kennedy wrote for the majority in the historic decision. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were.”

Marriage is a “keystone of our social order,” Justice Kennedy said, adding that the plaintiffs in the case were seeking “equal dignity in the eyes of the law.”

The decision, which was the culmination of decades of litigation and activism, set off jubilation and tearful embraces across the country, the first same-sex marriages in several states, and resistance — or at least stalling — in others. It came against the backdrop of fast-moving changes in public opinion, with polls indicating that most Americans now approve of the unions.

The court’s four more liberal justices joined Justice Kennedy’s majority opinion. Each member of the court’s conservative wing filed a separate dissent, in tones ranging from resigned dismay to bitter scorn.

In dissent, Chief Justice John G. Roberts Jr. said the Constitution had nothing to say on the subject of same-sex marriage.

“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Chief Justice Roberts wrote. “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

In a second dissent, Justice Antonin Scalia mocked the soaring language of Justice Kennedy, who has become the nation’s most important judicial champion of gay rights.

“The opinion is couched in a style that is as pretentious as its content is egotistic,” Justice Scalia wrote of his colleague’s work. “Of course the opinion’s showy profundities are often profoundly incoherent.”

Thousands, including parents, babies and dogs, flocked to the Supreme Court after its ruling on same-sex marriage. Supporters spoke about how they thought the ruling helped maintain and support families. By Channon Hodge on Publish Date June 26, 2015. Photo by Albert Cesare/The Montgomery Advertiser, via Associated Press.

As Justice Kennedy finished announcing his opinion from the bench on Friday, several lawyers seated in the bar section of the court’s gallery wiped away tears, while others grinned and exchanged embraces.

Justice John Paul Stevens, who retired in 2010, was on hand for the decision, and many of the justices’ clerks took seats in the chamber, which was nearly full as the ruling was announced. The decision made same-sex marriage a reality in the 13 states that had continued to ban it.

Outside the Supreme Court, the police allowed hundreds of people waving rainbow flags and holding signs to advance onto the court plaza as those present for the decision streamed down the steps. “Love has won,” the crowd chanted as courtroom witnesses threw up their arms in victory.

In remarks in the Rose Garden, President Obama welcomed the decision, saying it “affirms what millions of Americans already believe in their hearts.”

“Today,” he said, “we can say, in no uncertain terms, that we have made our union a little more perfect.”

Justice Kennedy was the author of all three of the Supreme Court’s previous gay rights landmarks. The latest decision came exactly two years after his majority opinion in United States v. Windsor, which struck down a federal law denying benefits to married same-sex couples, and exactly 12 years after his majority opinion in Lawrence v. Texas, which struck down laws making gay sex a crime.

In all of those decisions, Justice Kennedy embraced a vision of a living Constitution, one that evolves with societal changes.

“The nature of injustice is that we may not always see it in our own times,” he wrote on Friday. “The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

This drew a withering response from Justice Scalia, a proponent of reading the Constitution according to the original understanding of those who adopted it. His dissent was joined by Justice Clarence Thomas.

“They have discovered in the Fourteenth Amendment,” Justice Scalia wrote of the majority, “a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”

“These justices know,” Justice Scalia said, “that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry.”

Justice Kennedy rooted the ruling in a fundamental right to marriage. Of special importance to couples, he said, is raising children.

“Without the recognition, stability and predictability marriage offers,” he wrote, “their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”

Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion.

In dissent, Chief Justice Roberts said the majority opinion was “an act of will, not legal judgment.”

“The court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs,” he wrote. “Just who do we think we are?”

The majority and dissenting opinions took differing views about whether the decision would harm religious liberty. Justice Kennedy said the First Amendment “ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” He said both sides should engage in “an open and searching debate.”

Chief Justice Roberts responded that “people of faith can take no comfort in the treatment they receive from the majority today.”

Justice Samuel A. Alito Jr., in his dissent, saw a broader threat from the majority opinion. “It will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” Justice Alito wrote. “In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

Gay rights advocates had constructed a careful litigation and public relations strategy to build momentum and bring the issue to the Supreme Court when it appeared ready to rule in their favor. As in earlier civil rights cases, the court had responded cautiously and methodically, laying judicial groundwork for a transformative decision.

It waited for scores of lower courts to strike down bans on same-sex marriages before addressing the issue, and Justice Kennedy took the unusual step of listing those decisions in an appendix to his opinion.

Chief Justice Roberts said that only 11 states and the District of Columbia had embraced the right to same-sex marriage democratically, at voting booths and in legislatures. The rest of the 37 states that allow such unions did so because of court rulings. Gay rights advocates, the chief justice wrote, would have been better off with a victory achieved through the political process, particularly “when the winds of change were freshening at their backs.”

In his own dissent, Justice Scalia took a similar view, saying that the majority’s assertiveness represented a “threat to American democracy.”

But Justice Kennedy rejected that idea. “It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process,” he wrote. “The issue before the court here is the legal question whether the Constitution protects the right of same-sex couples to marry.”

Later in the opinion, Justice Kennedy answered the question. “The Constitution,” he wrote, “grants them that right.”

Correction: June 26, 2015

An earlier version of this article misstated the time period since Justice Anthony M. Kennedy wrote the majority opinion in Lawrence v. Texas, which struck down laws making gay sex a crime. It is 12 years, not 10.

Julie Hirschfeld Davis and Nicholas Fandos contributed reporting.

A version of this article appears in print on June 27, 2015, on page A1 of the New York edition with the headline: ‘Equal Dignity’.

Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide,
NYT, JUNE 26, 2015,
http://www.nytimes.com/2015/06/27/us/
supreme-court-same-sex-marriage.html

Hooray for Obamacare

JUNE 25, 2015

The New York Times

The Opinion Pages | Op-Ed Columnist

Paul Krugman

Was I on the edge of my seat, waiting for the Supreme Court decision on Obamacare subsidies? No — I was pacing the room, too nervous to sit, worried that the court would use one sloppily worded sentence to deprive millions of health insurance, condemn tens of thousands to financial ruin, and send thousands to premature death.

It didn’t. And that means that the big distractions — the teething problems of the website, the objectively ludicrous but nonetheless menacing attempts at legal sabotage — are behind us, and we can focus on the reality of health reform. The Affordable Care Act is now in its second year of full operation; how’s it doing?

The answer is, better than even many supporters realize.

Start with the act’s most basic purpose, to cover the previously uninsured. Opponents of the law insisted that it would actually reduce coverage; in reality, around 15 million Americans have gained insurance.

But isn’t that a very partial success, with millions still uncovered? Well, many of those still uninsured are in that position because their state governments have refused to let the federal government enroll them in Medicaid.
Continue reading the main story
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President Obama and Vice President Joseph R. Biden Jr. in the White House on Thursday after the Supreme Court’s decision.

Beyond that, you need to realize that the law was never intended or expected to cover everyone. Undocumented immigrants aren’t eligible, and any system that doesn’t enroll people automatically will see some of the population fall through the cracks. Massachusetts has had guaranteed health coverage for almost a decade, but 5 percent of its nonelderly adult population remains uninsured.

Suppose we use 5 percent uninsured as a benchmark. How much progress have we made toward getting there? In states that have implemented the act in full and expanded Medicaid, data from the Urban Institute show the uninsured falling from more than 16 percent to just 7.5 percent — that is, in year two we’re already around 80 percent of the way there. Most of the way with the A.C.A.!

But how good is that coverage? Cheaper plans under the law do have relatively large deductibles and impose significant out-of-pocket costs. Still, the plans are vastly better than no coverage at all, or the bare-bones plans that the act made illegal. The newly insured have seen a sharp drop in health-related financial distress, and report a high degree of satisfaction with their coverage.

What about costs? In 2013 there were dire warnings about a looming “rate shock”; instead, premiums came in well below expectations. In 2014 the usual suspects declared that huge premium increases were looming for 2015; the actual rise was just 2 percent. There was another flurry of scare stories about rate hikes earlier this year, but as more information comes in it looks as if premium increases for 2016 will be bigger than for this year but still modest by historical standards — which means that premiums remain much lower than expected.

And there has also been a sharp slowdown in the growth of overall health spending, which is probably due in part to the cost-control measures, largely aimed at Medicare, that were also an important part of health reform.

What about economic side effects? One of the many, many Republican votes against Obamacare involved passing something called the Repealing the Job-Killing Health Care Law Act, and opponents have consistently warned that helping Americans afford health care would lead to economic doom. But there’s no job-killing in the data: The U.S. economy has added more than 240,000 jobs a month on average since Obamacare went into effect, its biggest gains since the 1990s.

Finally, what about claims that health reform would cause the budget deficit to explode? In reality, the deficit has continued to decline, and the Congressional Budget Office recently reaffirmed its conclusion that repealing Obamacare would increase, not reduce, the deficit.

Put all these things together, and what you have is a portrait of policy triumph — a law that, despite everything its opponents have done to undermine it, is achieving its goals, costing less than expected, and making the lives of millions of Americans better and more secure.

Now, you might wonder why a law that works so well and does so much good is the object of so much political venom — venom that is, by the way, on full display in Justice Antonin Scalia’s dissenting opinion, with its rants against “interpretive jiggery-pokery.” But what conservatives have always feared about health reform is the possibility that it might succeed, and in so doing remind voters that sometimes government action can improve ordinary Americans’ lives.

That’s why the right went all out to destroy the Clinton health plan in 1993, and tried to do the same to the Affordable Care Act. But Obamacare has survived, it’s here, and it’s working. The great conservative nightmare has come true. And it’s a beautiful thing.

A version of this op-ed appears in print on June 26, 2015, on page A27 of the New York edition with the headline: Hooray for the A.C.A.

Hooray for Obamacare,
NYT, JUNE 25, 2015,
http://www.nytimes.com/2015/06/26/opinion/paul-krugman-hooray-for-the-aca.html

The Roberts Court’s Reality Check

JUNE 25, 2015

The New York Times

The Opinion Pages | Contributing Op-Ed Writer

Linda Greenhouse

Sometimes the Supreme Court moves in mysterious ways. The health care decision was not one of those times.

A case that six months ago seemed to offer the court’s conservatives a low-risk opportunity to accomplish what they almost did in 2012 — kill the Affordable Care Act — became suffused with danger, for the millions of newly insured Americans, of course, but also for the Supreme Court itself. Ideology came face to face with reality, and reality prevailed.

The 6-to-3 vote to reject the latest challenge means that one or perhaps two of the justices who grabbed this case back in November had to have jumped ship. Here’s why: It takes at least four votes to add a case to the court’s docket. Given that the decision to hear this case, King v. Burwell, was entirely gratuitous — the Obama administration had won in the lower court, and an adverse decision in a different appeals court had been vacated — we can assume the votes came from the four justices who nearly managed to strangle the law three years ago in National Federation of Independent Business v. Sebelius.

This whole exercise was unnecessary, the outcome too close for comfort. But there is cause for celebration in a disaster narrowly averted.

These four were Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Maybe Chief Justice John G. Roberts Jr., excoriated in right-wing circles for having saved the statute with a late vote switch last time, also agreed to hear the new case. Or maybe his four erstwhile allies were trying to put the heat on him. It’s a delicious question without, at least for now, an answer.

When I think of this case on its trajectory toward the court, the image that comes to mind is of the great white shark in “Jaws,” swimming silently under the water, its lethal teeth bearing down on the statutory language freshly discovered by the administration’s enemies: “Exchange established by the State.”

Do “words no longer have meaning,” as Justice Scalia put it in his angry dissenting opinion? What, after all, could be clearer? The state, not the federal government. The two are not the same. They are different! So poor and middle-class people in the 34 (mostly red) states that refused to set up their own insurance exchanges, defaulting that task to the federal government, are just out of luck. They aren’t eligible for tax subsidies to help them buy insurance, subsidies that are critical to making the law work. End of story, end of case, end of the Affordable Care Act (or Scotuscare, as Justice Scalia said the law should be re-named).

The chief justice’s masterful opinion showed that line of argument for the simplistic and agenda-driven construct that it was. Parsing the 1,000-plus-page statute in a succinct 21-page opinion, he deftly wove in quotations from recent Supreme Court opinions.

Who said that we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”? Why, it was Justice Scalia (actually quoting an earlier opinion by Justice Sandra Day O’Connor) in a decision just a year ago.

And who said that “a provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme” because “only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law”? Why, Justice Scalia again.

“In this instance,” Chief Justice Roberts wrote, “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” He concluded: “A fair reading of legislation demands a fair understanding of the legislative plan.” Among the chief justice’s silent partners in the six-justice majority opinion was Justice Kennedy, by most accounts the driving force behind the near miss three years ago.

What happened between November and now was no accident. Ordinarily, as a party in a major Supreme Court case, the federal government doesn’t bother to do what private parties do routinely: mobilize organizations and well-credentialed individuals to support the position from different perspectives in briefs filed as “friends of the court.” But this time, fully aware of the stakes, the government rounded up dozens of such friends. The chief justice cited two of those briefs in his opinion, one from the health insurance industry and the other, which he referred to several times, from the country’s leading experts on the economics of health care.

The government’s side spoke not only with authority but also with a sense of urgency about the consequences of the law’s failure. Outside the court — inside the Beltway, especially — voices rose in what both The Hill and Politico properly called a frenzy. The Supreme Court’s marble walls are thick, but they aren’t that thick.

And so a case that once looked easy, almost cost-free, became a trap. Justice Scalia derided the majority opinion as a “defense of the indefensible.” But what would be truly indefensible, I believe the chief justice and Justice Kennedy came to understand, was the Supreme Court itself, if it bought a cynically manufactured and meritless argument and thus came to be perceived as a partisan tool.

This whole exercise was unnecessary, the outcome too close for comfort. But there is cause for celebration in a disaster narrowly averted — for the country and the court, which is to say, for us all.
 

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A version of this op-ed appears in print on June 26, 2015, on page A27 of the New York edition with the headline: The Roberts Court’s Reality Check.

The Roberts Court’s Reality Check,
NYT, JUNE 15, 2015,
http://www.nytimes.com/2015/06/26/opinion/the-roberts-courts-reality-check.html

A Turning Point for Health Care

— and Its G.O.P. Opponents

JUNE 25, 2015

The New York Times

The Opinion Pages | Op-Ed Contributors

By THEDA SKOCPOL

and LAWRENCE R. JACOBS

FOR the second June in four years, the Supreme Court, led by its conservative chief justice, John G. Roberts Jr., has affirmed the legal framework of the Affordable Care Act of 2010 — the signature achievement of the Obama-era Democratic Party and a national social policy landmark. In so doing, the Roberts court assured the permanent expansion of social protections in America, and also saved the Republican Party from a no-win explosion its own extreme right-wingers tried to ignite.

For health reform, it is now steady as it goes, with wind at its back. The court’s June 2012 ruling that the Affordable Care Act was constitutional came at the price of a detour, because that ruling said states could choose whether or not to take federal money to expand their Medicaid programs to cover the near-poor.

However, this new Supreme Court decision, rejecting an ultraright challenge to the nationwide subsidies that allow lower-middle-income Americans to buy affordable private health insurance on state-level exchanges established by the federal government, will speed the already remarkable implementation of health reform. And that progress has been truly rapid by historical standards.

After Social Security was enacted in 1935, it faced a major revamp in 1939. Its taxes were stalled throughout World War II. Social Security remained politically vulnerable until the 1950s and did not become broadly popular or embedded in economic life until reforms under President Richard M. Nixon raised benefits for the poor and the middle class. In contrast, since full implementation of President Obama’s health law started in 2014, some 16 million additional Americans have gained health insurance coverage, and the national “uninsurance rate” has dropped to under 12 percent from 18 percent.

The Affordable Care Act would have survived even if the Supreme Court had decided King v. Burwell the other way, but insurance markets would have trembled in dozens of states. And millions would have faced threats to new coverage that most consumers report liking. Now sign-ups on the exchanges will continue and many more Republican-led states will decide to take federal money to pay for Medicaid expansion. By the time President Obama leaves the White House in January 2017, as many as 34 million will be covered by the exchanges and Medicaid, and the uninsurance rate could drop below 10 percent.

Of course the partisan clamor is not over. In coming months, many congressional Republicans and presidential contenders will continue to make loud promises about repeal (or “repeal and replace,” with replacements never specified), because the “Obamacare” label is unpopular with a majority of Republicans. But in 2016 general election campaigns the sound and fury will be muted, because most independents and Democrats do not want repeal or big disruptions and majorities of rank-and-file Republicans favor the tangible benefits. Even if a Republican takes the presidency and that party holds both houses of Congress in 2017, it will not be able to get rid of the insurance regulations in the Affordable Care Act with bare majorities — and it will not dare abolish coverage for tens of millions of Americans or slash profits for insurance companies and hospitals.

This brings us to the second turning point wrought by the Roberts court ruling: a shift within the Republican Party itself. Again and again over the past century, Republicans and Democrats have gone to partisan war over major social programs — Medicare and Medicaid as well as Social Security — and over federal interventions like the Civil Rights Act that promise new gains for minority Americans. The wars over the Affordable Care Act from 2009 have been similarly infused with racial overtones, because the new benefits mostly help Americans of modest means, disproportionately minorities. And the battles have been unusually fierce, because partisan and ideological divisions are now more closely aligned than they were between the 1930s and the 1960s.

But now, Republicans are going to move steadily toward the same sort of grudging adaptation they previously had to make to Social Security and Medicare/Medicaid, with pro-business interests pushing back against ideological purists and Tea Partiers. For Affordable Care Act politics, this shift has been underway in many states for some time, as Republican governors in Ohio, Nevada, Michigan, Indiana and beyond have parried ideological right wingers to find ways to accept the Medicaid expansion that so greatly benefits their white and black poor citizens and the bottom lines of hospitals. Now Chief Justice Roberts has abandoned ultras to his right, upholding subsidies in federal-run exchanges by pointing to the need to avoid throwing insurance markets into turmoil.

As the King ruling came down on Thursday morning, we can be sure that sighs of relief spread among non-Tea Party Republican officeholders and in the halls of the Chamber of Commerce. Sure, the ruling assured the survival of Mr. Obama’s main domestic policy achievement, unhappily for Republicans now and in the future. But it also signaled a real setback for right-wing ideological bomb-throwers and gave a boost to Republicans who would like to get on with the business of winning government power to serve practical business interests. In the spirit of Justice Scalia, long live ObamaScotusCare.
 

Theda Skocpol is a professor of government and sociology at Harvard and director of the Scholars Strategy Network. Lawrence R. Jacobs is a professor of political studies at the University of Minnesota. They are the authors of “Health Care Reform and American Politics: What Everyone Needs to Know.”

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A Turning Point for Health Care — and Its G.O.P. Opponents,
NYT, JUNE 25, 2015,
http://www.nytimes.com/2015/06/26/opinion/
a-turning-point-for-health-care-and-its-gop-opponents.html

The Supreme Court

Saves Obamacare, Again

 

JUNE 25, 2015

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

On Thursday morning, for the second time in three years, a majority of the Supreme Court rightly rejected a blatantly political effort to destroy the Affordable Care Act. The case challenging the law, King v. Burwell, was always an ideological farce dressed in a specious legal argument, and the court should never have taken review of it to begin with.

Its core claim — that an ambiguous four-word phrase buried deep in the 900-page law eliminates health insurance for millions of lower-income Americans — was preposterous. The entire point of the law, as embodied in the title of its first chapter, is “Quality, affordable health care for all Americans.”

Writing for a six-member majority, Chief Justice John Roberts Jr. agreed that this clear, overriding purpose was the guiding principle. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

In all the years leading up to the law’s passage, no one questioned that purpose. Not a single person involved in passing or interpreting the law — including members of Congress, health-care journalists, and Supreme Court justices themselves — ever expressed a belief that subsidies would not be available on federally-operated exchanges. But the current challenge, brought to you by some of the same tireless conservative and libertarian activists who tried and failed to kill the health reform law in 2012, fabricated an alternate history out of thin air.

Their argument, based on an intentional misreading of four words, was that the tax-credit subsidies that make the law work are available only in the 13 states that fully run their own health care exchanges. Because a sub-sub-subsection of the law dealing with the calculation of those tax credits refers to an exchange “established by the state,” the challengers argued, no subsidies are available to the millions of Americans who live in the 34 states where the federal government runs the exchange.

It was a grandly orchestrated charade sold to people who were already furious about the law and just needed a legal rationale, however far-fetched, to try to gut it.

And it worked on the three justices whose disdain for the law has always been clear: Antonin Scalia, Samuel Alito Jr. and Clarence Thomas. In a dissent laced with outrage and mockery, Justice Scalia called the court’s decision “quite absurd,” and quipped, “We should start calling this law Scotus-care.” But of course it was the justices’ choice to hear challenges to the law in 2012 and this term, even though both were legally frivolous.

But as Chief Justice Roberts explained in detail, the health reform law depends on tax-credit subsidies to make health care affordable for more than six million Americans. Eliminating subsidies “could well push a state’s individual insurance market into a death spiral,” he wrote, since fewer people would enroll and premiums for everyone would shoot up — the very result Congress designed the reform law to avoid. To drive the point home, he quoted the dissenting justices’ own words in the 2012 case, in which they openly admitted that without federal subsidies, “the exchanges would not operate as Congress intended and may not operate at all.”

Thursday’s decision was a powerful defense of the law, stronger than observers might have expected from this court. The justices could have upheld the provision on subsidies to federal as well as state-run exchanges as a reasonable exercise of discretion by a government agency — in this case, the Internal Revenue Service, which issued the challenged regulation. But in that case, a future president could simply have ordered the I.R.S. to change the regulation. Instead, the court focused on the broader structure of the law itself, preserving the proper reading of it regardless of the politics of the next administration.

“In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined —‘to say what the law is,’” Chief Justice Roberts wrote, quoting the Supreme Court’s foundational 1803 ruling in Marbury v. Madison. “In every case we must respect the role of the Legislature, and take care not to undo what it has done.”

Putting aside for the moment the rank politics swirling around the Affordable Care Act — the partisan grandstanding and the questions about President Obama’s legacy — consider what the law has already managed to accomplish.

It has been a remarkable success. Today, a larger proportion of working-age Americans have health insurance than at any time since record-keeping began in 1997. The number of people under 65 who were uninsured dropped to 16.3 percent in 2014, down four points from 2013. The drop was significantly greater in states that expanded Medicaid through the health reform law than in those that did not.

This is one of the things government was built to do: provide all Americans with access to quality, affordable and often-lifesaving health care. And this is what those who are determined to gut the law have been trying to dismantle. It is to the Supreme Court’s credit that in this case, the majority of justices managed to stay above the politics of this issue and do their job — which is to interpret the law Congress wrote in its entirety, not to rewrite it.
 

A version of this editorial appears in print on June 26, 2015, on page A26 of the New York edition with the headline: Wisdom From the Supreme Court.

The Supreme Court Saves Obamacare, Again,
NYT, JUNE 25, 2015,
http://www.nytimes.com/2015/06/26/opinion/
the-supreme-court-saves-obamacare-again.html

Supreme Court Allows

Nationwide Health Care Subsidies

JUNE 25, 2015

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court ruled on Thursday that President Obama’s health care law allows the federal government to provide nationwide tax subsidies to help poor and middle-class people buy health insurance, a sweeping vindication that endorsed the larger purpose of Mr. Obama’s signature legislative achievement.

The 6-to-3 ruling means that it is all but certain that the Affordable Care Act will survive after Mr. Obama leaves office in 2017. For the second time in three years, the law survived an encounter with the Supreme Court. But the court’s tone was different this time. The first decision, in 2012, was fractured and grudging, while Thursday’s ruling was more assertive.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice John G. Roberts Jr. wrote for a united six-justice majority. In 2012’s closely divided decision, Chief Justice Roberts also wrote the controlling opinion, but that time no other justice joined it in full.
Photo
Demonstrators expressed their support for the Affordable Care Act outside of the Supreme Court on Thursday. Credit Doug Mills/The New York Times

In dissent on Thursday, Justice Antonin Scalia called the majority’s reasoning “quite absurd” and “interpretive jiggery-pokery.”

He announced his dissent from the bench, a sign of bitter disagreement. His summary was laced with notes of incredulity and sarcasm, sometimes drawing amused murmurs in the courtroom as he described the “interpretive somersaults” he said the majority had performed to reach the decision.

“We really should start calling this law Scotus-care,” Justice Scalia said, to laughter from the audience.

In a hastily arranged appearance in the Rose Garden on Thursday morning, a triumphant Mr. Obama praised the ruling. “After multiple challenges to this law before the Supreme Court, the Affordable Care Act is here to stay,” he said, adding: “What we’re not going to do is unravel what has now been woven into the fabric of America.”

The ruling was a blow to Republicans, who have been trying to gut the law since it was enacted. But House Speaker John A. Boehner vowed that the political fight against it would continue.

“The problem with Obamacare is still fundamentally the same: The law is broken,” Mr. Boehner said. “It’s raising costs for American families, it’s raising costs for small businesses and it’s just fundamentally broken. And we’re going to continue our efforts to do everything we can to put the American people back in charge of their health care and not the federal government.”

The case concerned a central part of the Affordable Care Act that created marketplaces, known as exchanges, to allow people who lack insurance to shop for individual health plans. Some states set up their own exchanges, but about three dozen allowed the federal government to step in to run them. Across the nation, about 85 percent of customers using the exchanges qualify for subsidies to help pay for coverage, based on their income.

The question in the case, King v. Burwell, No. 14-114, was what to make of a phrase in the law that seems to say the subsidies are available only to people buying insurance on “an exchange established by the state.”

A legal victory for the plaintiffs, lawyers for the administration said, would have affected more than six million people and created havoc in the insurance markets and undermined the law.

Chief Justice Roberts acknowledged that the plaintiffs had strong arguments about the plain meaning of the contested words. But he wrote that the words must be understood as part of a larger statutory plan. “In this instance,” he wrote, “the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

This was challenging, he said, in light of the law’s “more than a few examples of inartful drafting,” a consequence of rushed work behind closed doors that “does not reflect the type of care and deliberation that one might expect of such significant legislation.”

But he said the law’s interlocking parts supported a ruling in favor of the subsidies, particularly given that a contrary decision could have given rise to chaos in the insurance markets. A ruling rejecting subsidies in most of the nation would have left in place other parts of the law, including its guarantee of coverage regardless of pre-existing conditions, its requirement that most Americans obtain insurance or pay a penalty, and its expansion of Medicaid.

Without the subsidies, many people would be unable to afford insurance, and healthier consumers would go without coverage, leaving insurers with a sicker, more expensive pool of customers. That would raise prices for everyone, leading to what supporters of the law called death spirals.

“The statutory scheme compels us to reject petitioners’ interpretation,” Chief Justice Roberts wrote, referring to the challengers, “because it would destabilize the individual insurance market in any state with a federal exchange, and likely create the very ‘death spirals’ that Congress designed the act to avoid.”

In dissent, Justice Scalia wrote that the majority had stretched the statutory text too far.

“I wholeheartedly agree with the court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections,” Justice Scalia wrote. “Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.”

“Reading the act as a whole leaves no doubt about the matter,” he wrote. “ ‘Exchange established by the state’ means what it looks like it means.”

Justice Scalia said the decision had damaged the court’s reputation for “honest jurisprudence.”

The court, he said, had taken into its own hands a matter involving tens of billions of dollars that should have been left to Congress.

“The court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery,” Justice Scalia wrote.

“It is up to Congress to design its laws with care,” he added, “and it is up to the people to hold them to account if they fail to carry out that responsibility.”

Justices Clarence Thomas and Samuel A. Alito Jr. joined Justice Scalia’s dissenting opinion.

Chief Justice Roberts rejected the argument that Congress had limited the availability of subsidies in order to encourage states to create their own exchanges, a notion that had occurred to almost no one at the time the law was enacted.

Sixteen states and the District of Columbia have established their own exchanges. Under the law, the federal government has stepped in to run exchanges in the rest of the states.

“The whole point of that provision,” Chief Justice Roberts wrote, “is to create a federal fallback in case a state chooses not to establish its own exchange. Contrary to petitioners’ argument, Congress did not believe it was offering states a deal they would not refuse — it expressly addressed what would happen if a state did refuse the deal.

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan joined the majority opinion. In the 2012 case, Justice Kennedy was in dissent.

The case started when four plaintiffs, all from Virginia, sued the Obama administration, saying the phrase meant that the law forbids the federal government to provide subsidies in states that do not have their own exchanges.

The plaintiffs challenged an Internal Revenue Service regulation that said subsidies were allowed whether the exchange was run by a state or by the federal government. They said the regulation was at odds with the Affordable Care Act.

In July, the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., ruled against the challengers.

Judge Roger L. Gregory, writing for a three-judge panel of the court, said the contested phrase was “ambiguous and subject to multiple interpretations.” That meant, he said, that the I.R.S. interpretation was entitled to deference.

The Supreme Court’s ruling was more forceful. “This is not a case for the I.R.S.,” Chief Justice Roberts wrote. “It is instead our task to determine the correct reading.”

Julie Hirschfeld Davis and Michael D. Shear contributed reporting.

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A version of this article appears in print on June 26, 2015, on page A1 of the New York edition with the headline: Justices Give Obama Another Health Care Victory.

Supreme Court Allows Nationwide Health Care Subsidies,
NYT, JUNE 25, 2015,
http://www.nytimes.com/2015/06/26/us/obamacare-supreme-court.html

The Supreme Court

Keeps the Fair Housing Law Effective

 

JUNE 25, 2015

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

Housing discrimination doesn’t have to be intentional to be illegal. That is the point of the Supreme Court’s ruling on Thursday interpreting the Fair Housing Act of 1968 in accord with clear congressional intent, and preserving a well-established and critical tool in the long-running battle to ensure a more integrated society.

By a vote of 5-4, Justice Anthony Kennedy, joined by the four more liberal justices, ruled that the law allows plaintiffs to challenge government or private policies that have a discriminatory effect, without having to show evidence of intentional discrimination.

Explicit, legally sanctioned racial segregation in housing may be over, Justice Kennedy wrote, but “its vestiges remain today, intertwined with the country’s economic and social life.” From discriminatory lending practices to zoning laws that favor higher-income home buyers, persistent patterns work to hurt minorities and other vulnerable groups the law was written to protect.

And over the long term, the effects of housing segregation can alter future incomes and opportunities. A Harvard study released in May found that young children whose families had been given housing vouchers that allowed them to move to better neighborhoods were more likely to attend college — and to attend better colleges — than those whose families had not received the vouchers. The voucher group also had significantly higher incomes as adults.

The current case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, involved a dispute over whether housing for lower-income, mostly black residents in Dallas should be built in the inner city or in the suburbs. The federal government provides tax credits to encourage developers to build such housing, and a Texas group that favors racially integrated housing complained that Texas was giving out too many of those credits to developers to build in poor neighborhoods. The group sued under the fair-housing law, which makes it illegal to refuse to sell, rent “or otherwise make unavailable” housing to anyone because of race, sex or other protected categories.

This wording, Justice Kennedy wrote, tracks other civil rights laws that the court has found to prohibit racially disparate impacts, even if a challenged policy appears race-neutral.

As he explained, “Congress’s use of the phrase ‘otherwise make unavailable’ refers to the consequences of an action rather than the actor’s intent” and this “results-oriented” language supports disparate-impact liability. Recognition of such liability, he added, also plays a crucial role in uncovering discriminatory intent by allowing plaintiffs to challenge unconscious or disguised prejudices and prevent segregated housing patterns that result from those biases.

This has been the accepted meaning of the fair-housing law for decades. Since the act was passed in 1968 as the last major piece of the country’s civil-rights legislation, every federal appeals court in the country has read it to permit claims of discriminatory effect. When Congress amended the law in 1988, it did not question that unanimous interpretation.

In dissent, Justice Samuel Alito Jr., joined by Chief Justice John Roberts Jr. and Justices Clarence Thomas and Antonin Scalia, warned that the majority’s ruling would discourage programs intended to help lower-income people get better housing.

But as Justice Kennedy explained, a claim of discriminatory impact is only the first step in getting redress. People who bring fair-housing lawsuits still must show a “causal connection” between the challenged policy and the discriminatory effect. And government officials or private businesses can overcome a challenge by showing that there is a legitimate business reason for the policy or practice, and that there is not a less discriminatory alternative.

The broad interpretation of the fair-housing law endorsed by the court on Thursday has been a big part of the law’s success. “Against the backdrop of disparate-impact liability in nearly every jurisdiction, many cities have become more diverse,” Justice Kennedy wrote, but he also acknowledged that “much progress remains to be made in our Nation’s continuing struggle against racial isolation.” Keeping the Fair Housing Act responsive to discrimination in all its forms is critical to that progress.
 

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A version of this editorial appears in print on June 26, 2015, on page A26 of the New York edition with the headline: Keeping the Fair Housing Law Effective.

The Supreme Court Keeps the Fair Housing Law Effective,
NYT, JUNE 25, 2015,
http://www.nytimes.com/2015/06/26/opinion/
the-supreme-court-keeps-the-fair-housing-law-effective.html

Justice Kennedy on Solitary Confinement

JUNE 19, 2015

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

The Supreme Court’s decision in the case of Hector Ayala, who has been on California’s death row for 25 years, turned on the question of whether a judge could hear a prosecutor’s reasons for dismissing people from the jury pool without the defendant’s lawyer being present. On Thursday, the court ruled 5-4 that excluding the lawyer was a harmless error.

That result was perhaps not surprising from the court’s conservative majority. What was remarkable, however, was Justice Anthony Kennedy’s remarks, in his concurring opinion, about Mr. Ayala’s decades in solitary confinement. While he agreed with the majority on the result, Mr. Kennedy wrote separately to address what has become one of his most pressing concerns: America’s broken criminal justice system in general, and prolonged solitary confinement in particular.

It is likely, Mr. Kennedy wrote, that Mr. Ayala “has been held for all or most of the past 20 years or more in a windowless cell no larger than a typical parking spot for 23 hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone.” The Supreme Court has rarely mentioned this practice, and it has never ruled on whether the practice violates the constitutional ban on cruel and unusual punishments. But as Justice Kennedy wrote, this sort of “near-total isolation exacts a terrible price,” long understood by courts and commentators.

In making his point, he quoted Dostoyevsky: “The degree of civilization in a society can be judged by entering its prisons.” He cited the case of Kalief Browder, a young New York City man who killed himself this month after being held as a teenager at Rikers Island without trial for three years, two of them in solitary. And he noted research showing that solitary confinement is most harmful to young people and the mentally ill, who often end up in prison.

This is not the first time Justice Kennedy has aired his concerns about solitary confinement — he spoke out against the practice during testimony before Congress in March. But in addressing the brutality of this punishment at length in an opinion, he raises a constitutional question even if some of his colleagues would rather avoid it.

In a brief, sour retort that read more like a comment to a blog post, Justice Clarence Thomas quipped that however small Mr. Ayala’s current accommodations may be, they are “a far sight more spacious than those in which his victims, Ernesto Dominguez Mendez, Marcos Antonio Zamora, and Jose Luis Rositas, now rest.” It was a bizarre and unseemly objection. The Eighth Amendment does not operate on a sliding scale depending on the gravity of a prisoner’s crime.

Justice Kennedy seemed eager to consider whether prolonged solitary confinement is unconstitutional. If faced with a lawsuit raising this issue, he wrote, the courts may have to decide “whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.” In other words, he was saying, bring us a case.
 

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A version of this editorial appears in print on June 20, 2015, on page A18 of the New York edition with the headline: Justice Kennedy on Solitary Confinement.

Justice Kennedy on Solitary Confinement,
NYT, JUNE 19, 2015,
http://www.nytimes.com/2015/06/20/opinion/
justice-kennedy-on-solitary-confinement.html

The Court and Online Threats

 

JUNE 1, 2015

The New York Times

The Opinion Pages | Editorial

By THE EDITORIAL BOARD

If you post violent thoughts about someone on Facebook, does it matter what you intended to convey when you wrote the words?

In a 8-1 decision issued on Monday morning, the Supreme Court said yes.

If the government wants to criminally prosecute someone for his or her words, the court ruled, it must do more than show that a reasonable person would have interpreted those words as threats.

“Wrongdoing must be conscious to be criminal,” Chief Justice John Roberts Jr. wrote for a seven-member majority. In the age of the Internet, when anyone can post anything for the world to see, it was an important affirmation of the need to protect speech, and to require the government to meet a stricter legal standard when trying to punish people for their words alone.

The case involved a man named Anthony Elonis, who wrote a series of violent Facebook posts to express his anger after his wife left him in 2010, taking their two children with her.

“There’s one way to love ya but a thousand ways to kill ya,” he wrote in one post. “I’m not gonna rest until your body is a mess, soaked in blood and dying from all the little cuts.”

Mr. Elonis posted many other messages with violent imagery involving bombing a police station, slitting the throat of an F.B.I. agent who visited him to ask about the posts, and shooting up a classroom of local kindergarten students. Several mimicked rap lyrics, or included references to the First Amendment.

Mr. Elonis was convicted under a federal law that makes it a crime to send a message threatening harm to others. He said he never intended to threaten anyone, and appealed on the grounds that the judge instructed the jury not to consider his intent. He claimed that his posts were simply a part of his “on-line persona” and were “therapeutic” only.

He lost, and spent more than three and a half years in prison before being released in 2014.

In reversing the conviction, Chief Justice Roberts wrote that it mattered what Mr. Elonis was thinking as he wrote his posts. The decision rejected the rule used in 9 out of the country’s 11 federal appeals courts, which applied the lenient “reasonable person” standard to the vaguely worded anti-threat law. But while that standard is appropriate for civil cases, the chief justice wrote, “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.”

The court did not decide the First Amendment issues raised by Mr. Elonis. Nor did it establish what mental state must exist to convict someone under the law, prompting Justice Samuel Alito Jr., who agreed with the outcome, to warn that the ruling “is certain to cause confusion and serious problems” for lawyers and judges around the country.

But the majority opinion said that the court could reconsider other, stricter standards after lower courts had had a chance to apply them.

Of course, nothing in the ruling stops prosecutors from bringing charges when they believe they can make the case that messages were sent with the intent to threaten or with a reckless disregard for that probability. On the other hand, if the court had upheld the lower standard used in the Elonis case, it would make it easier to criminalize all sorts of violent speech that flies around the Internet every day, much of it not intended to threaten anyone.

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A version of this editorial appears in print on June 2, 2015, on page A18 of the New York edition with the headline: The Court and Online Threats.

The Court and Online Threats,
NYT, JUNE 1, 2015,
http://www.nytimes.com/2015/06/02/opinion/the-court-and-online-threats.html

Muslim Woman Denied Job

Over Head Scarf Wins in Supreme Court

 

JUNE 1, 2015

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Monday revived an employment discrimination lawsuit against Abercrombie & Fitch, which had refused to hire a Muslim woman because she wore a head scarf. The company said the scarf clashed with its dress code, which called for a “classic East Coast collegiate style.”

“This is really easy,” Justice Antonin Scalia said in announcing the decision from the bench.

The company, he said, at least suspected that the applicant, Samantha Elauf, wore the head scarf for religious reasons. The company’s decision not to hire her, Justice Scalia said, was motivated by a desire to avoid accommodating her religious practice. That was enough, he concluded, to allow her to sue under a federal employment discrimination law.

The vote was 8 to 1, with Justice Clarence Thomas dissenting.

Ms. Elauf had been awarded $20,000 by a jury, but the United States Court of Appeals for the 10th Circuit, in Denver, overturned the award, saying the trial judge should have dismissed the case before trial. “Ms. Elauf never informed Abercrombie before its hiring decision that she wore her head scarf, or ‘hijab,’ for religious reasons,” Judge Jerome A. Holmes wrote for the appeals court.

The Supreme Court sent the case back to the appeals court for further consideration, but Monday’s ruling suggests that Ms. Elauf is likely to prevail.

Justice Scalia, writing for seven justices, said Ms. Elauf did not have to make a specific request for a religious accommodation to obtain relief under Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in hiring.

“Title VII forbids adverse employment decisions made with a forbidden motive,” Justice Scalia said from the bench, “whether this motive derives from actual knowledge, a well-founded suspicion or merely a hunch.”

Justice Scalia elaborated on this point in his written opinion. “An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions,” he wrote.

Groups that represent religious minorities, including Muslims, Sikhs and Jews, applauded the ruling. They said it would help protect their members against employment discrimination based on their members’ religious attire, head coverings or beards.

“The decision by the Supreme Court today affirmed the basic right to practice one’s faith freely without fear of being denied the opportunity to pursue the American dream,” said Gurjot Kaur, senior staff attorney of the Sikh Coalition, a national advocacy group.

The case started in 2008 when Ms. Elauf, then 17, applied for a job in a children’s clothing store owned by Abercrombie & Fitch at Woodland Hills Mall in Tulsa, Okla. She wore a black head scarf but did not say why.

The company declined to hire her, saying her scarf clashed with the company’s “Look Policy,” or dress code. After the Equal Employment Opportunity Commission sued on Ms. Elauf’s behalf, the company said it had no reason to know that Ms. Elauf’s head scarf was required by her faith.

In its Supreme Court brief in the case, E.E.O.C. v. Abercrombie & Fitch Stores, No. 14-86, the company argued that job applicants should not be allowed “to remain silent and to assume that the employer recognizes the religious motivations behind their fashion decisions.”

Carlene Benz, an Abercrombie spokeswoman, said the company had altered its dress code since 2008, allowing workers “to be more individualistic.” She added that the company “has a longstanding commitment to diversity and inclusion” and “has granted numerous religious accommodations when requested, including hijabs.”

At the trial, Ms. Elauf said she loved movies, shopping, sushi and the mall. “It’s like my second home,” she said.

Her experience with Abercrombie made her feel “disrespected because of my religious beliefs,” she said. “I was born in the United States, and I thought I was the same as everyone else.”

Justice Samuel A. Alito Jr. voted with the majority to reverse the appeals court’s decision, but he did not adopt the majority’s reasoning. “I would hold,” he wrote, “that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason.” He added that in this case there was “ample evidence” that “Abercrombie knew that Elauf is a Muslim and that she wore the scarf for a religious reason.”

In dissent, Justice Thomas wrote that the company’s dress code was a neutral policy that could not be the basis for a discrimination lawsuit.

Laurie Goodstein contributed reporting from New York.

A version of this article appears in print on June 2, 2015, on page A8 of the New York edition with the headline: Justices Rule Against Retailer in Clash Over Applicant’s Head Scarf.

Muslim Woman Denied Job Over Head Scarf Wins in Supreme Court,
NYT, JUNE 1, 2015,
http://www.nytimes.com/2015/06/02/us/
supreme-court-rules-in-samantha-elauf-abercrombie-fitch-case.html

At Supreme Court,

Eric Holder’s Justice Dept.

Routinely Backs Officers’ Use of Force

 

APRIL 21, 2015

The New York Times

By MATT APUZZO

and ADAM LIPTAK

WASHINGTON — Teresa Sheehan was alone in her apartment at a mental health center, clutching what her lawyers said was a small bread knife and demanding to be left alone. San Francisco police officers, responding to a call from a social worker, forced open the door, blinded her with pepper spray and shot her.

It was the kind of violent police confrontation that Attorney General Eric H. Holder Jr. has frequently criticized in Cleveland, Albuquerque, Ferguson, Mo., and beyond. But last month, when Ms. Sheehan’s civil rights lawsuit reached the Supreme Court, the Justice Department backed the police, saying that a lower court should have given more weight to the risks that the officers faced.

At the Supreme Court, where the limits of police power are established, Mr. Holder’s Justice Department has supported police officers every time an excessive-force case has made its way to arguments. Even as it has opened more than 20 civil rights investigations into local law enforcement practices, the Justice Department has staked out positions that make it harder for people to sue the police and that give officers more discretion about when to fire their guns.

Police groups see Mr. Holder as an ally in that regard, and that pattern has rankled civil rights lawyers, who say the government can have a far greater effect on policing by interpreting law at the Supreme Court than through investigations of individual departments.

“There is an inherent conflict between people at the Justice Department trying to stop police abuses and other people at the Justice Department convincing the Supreme Court that police abuses should be excused,” said Ronald L. Kuby, a Manhattan civil rights lawyer.

To some extent, conflict is built into the system. The Justice Department’s core mission is law enforcement. It oversees the Federal Bureau of Investigation, the Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives, among others. In every administration, it is in the government’s interest for federal agents to have as much leeway, and as little liability, as possible.

“It’s natural that the instinctive reaction of the department is to support law enforcement interests, even when a particular case may have compelling facts for the individual defendant,” said Neal K. Katyal, a former acting solicitor general in the Obama administration. He said the Justice Department had a duty to tell the court what effect a ruling could have for federal law enforcement agencies.

When police abuse cases make it to the Supreme Court, even if they have nothing to do with federal agents, the Justice Department often weighs in. Last year, the department sided with police officers in West Memphis, Ark., who shot a driver and passenger 15 times, killing them at the end of a chase.

John F. Bash, a Justice Department lawyer in that case, told the justices that “there is some level of reckless driving in response to a police pursuit that authorizes the use of deadly force.” What was certain, he added, was that the officers were entitled to qualified immunity, which shields them from civil rights lawsuits. The Supreme Court unanimously agreed.
Continue reading the main story

Every such victory makes it harder for citizens to prevail when they believe they have been mistreated by police officers. It also adds obstacles for the Justice Department’s own civil rights investigators when alleging police misconduct. That has led to some tense debates inside the department, current and former officials say, as the government’s civil rights and appellate lawyers discussed when the department should weigh in, and on which side. Those debates have led the Justice Department to take more nuanced positions than government lawyers might have otherwise, the officials said.

“Law enforcement officers are routinely called upon to face grave dangers and to make often-unheralded sacrifices, and the law must give them the room to make real-time judgments to protect public safety,” said Emily Pierce, a Justice Department spokeswoman. “At the same time, building trust between law enforcement and the communities they serve and protecting human life and human dignity requires accountability for law enforcement officers. The department recognizes — and is committed to striking — that balance.”

Mr. Holder has called the civil rights division the crown jewel of the department, and it has rarely had such a high profile. Even before it garnered national attention with a scathing rebuke of the Ferguson Police Department after the fatal shooting of an unarmed black teenager by a white officer last summer, the division issued similar reports on other departments, including those in Seattle, Albuquerque, Newark and New Orleans.

Those efforts, along with deeply personal remarks from Mr. Holder about racial profiling, have drawn criticism from police officers who say he has not supported them. But Darrel W. Stephens, the executive director of the Major Cities Chiefs Association, said many officers probably did not know how often Mr. Holder’s Justice Department stood with them at the Supreme Court. “He’s sincere,” Mr. Stephens said. “He is supportive of the police.”

Private civil rights lawyers, though, have been frustrated that the Justice Department’s aggressive stance in civil rights reports does not extend to its positions before the Supreme Court. “A report can have an impact on a department for a time,” said Gary Smith, the lawyer for the driver in the Arkansas case. “But case law touches every officer in every department in the country.”

Eventually, he predicted, police departments facing civil rights investigations will challenge the Justice Department on its apparently contradictory positions. “You’re telling the Supreme Court it’s O.K., and you’re doing this to us?” Mr. Smith said.

When Justice Department lawyers argue before the Supreme Court, they typically draw fine distinctions and avoid outright contradictions. But such cases can send seemingly mixed messages. For example, the civil rights division said in December that police officers in Cleveland were too quick to use force against mentally ill people. For support, it cited the federal appeals court decision in the case of the mentally ill woman in San Francisco — the same decision that Justice Department lawyers would argue against a few months later.

Similarly, the Justice Department criticized the sheriff in Franklin County, Ohio, in 2010 for using stun guns on inmates while they were handcuffed and posed no threat, or when they committed minor rule violations. In a Supreme Court case to be heard later this month, the Justice Department has sided with Wisconsin jail officials who used a stun gun on an inmate after he was handcuffed and taken from his cell for refusing to remove a piece of paper covering a light fixture in his cell.

The Justice Department sees those cases as evidence not of conflict but of how its lawyers strike a balance. In the Sheehan case from San Francisco, despite siding with the police, they argued that officers must make some accommodation for a person’s mental illness when making an arrest. And in the Wisconsin case, they agreed with the inmate about the legal standard needed to prove abuse, even as they again supported the police.

For Mr. Holder, altering the department’s approach to police abuse cases would amount to a major policy change, one that F.B.I. agents and other federal investigators would surely oppose, said William R. Yeomans, an American University law professor who served in senior roles in the civil rights division during the Clinton administration. So when tensions arise, protecting federal agents almost always wins. “Obviously it’s a problem,” he said. “The institutional interests in support of law enforcement are very powerful and very real.”

Because of that history, Steven R. Shapiro, the legal director for the American Civil Liberties Union, said it was unfair to criticize Mr. Holder’s tenure too harshly. The Justice Department has always advocated its law enforcement authority, he said. And the A.C.L.U. often opposes those efforts. But he said no administration had done more to curb police abuses or to force a national debate over the issue.

“Civil rights has a voice at the table more often and more prominently under this administration than in previous administrations. It’s not merely symbolic,” he said. “To the extent there is dissonance, we’re noticing the dissonance because the civil rights voice is more prominent than in the past.”

At Supreme Court, Eric Holder’s Justice Dept. Routinely Backs Officers’ Use of Force,
NYT, APRIL 21, 2015
http://www.nytimes.com/2015/04/22/us/at-supreme-court-holders-justice-dept-routinely-backs-officers-use-of-force.html

The Supreme Court’s Secret Decisions

FEB. 3, 2015

The New York Times

The Opinion Pages | Op-Ed Contributor

By WILLIAM BAUDE

CHICAGO — A CONVICTED murderer, Charles F. Warner, was executed in Oklahoma last month after the United States Supreme Court denied his request for a last-minute stay. Mr. Warner and other death-row inmates had challenged the state’s lethal injection procedures as unconstitutional. In a strange twist, the court agreed to hear his claims — a week after Mr. Warner had been executed.

Traditionally, the court postpones an execution once it has decided to hear an inmate’s case. Why did the court wait to accept the case until it was too late for Mr. Warner? Did it decide for some reason to depart from tradition? The court gave no explanation. Four justices dissented from the refusal to stay the execution, but the majority issued only a one-sentence order stating that the application for a stay had been denied.

Mr. Warner’s execution illustrates the high stakes in a crucial part of the court’s work that most people don’t know anything about: its orders docket.

Work at the Supreme Court is divided into two main categories. One is deciding the cases it hears on the merits: the 70-some cases each year that the court selects for extensive briefing, oral argument and a substantial written opinion, sometimes with dissents. These are the cases we hear about in the news.

The orders docket includes nearly everything else the court must decide — which cases to hear, procedural matters in pending cases, and whether to grant a stay or injunction that pauses legal proceedings temporarily. There are no oral arguments in these cases and, as in Mr. Warner’s situation, they are often decided with no explanation.

This docket operates in such obscurity that I call it the “shadow docket.” (I was a law clerk for Chief Justice John G. Roberts Jr. in 2008-9, but these views are solely mine.)

Despite their obscurity, these orders — there are thousands each year, if you count decisions not to hear cases — are significant. Consider the flurry of orders issued in the month before the 2014 election. The court stopped Wisconsin from implementing a strict voter identification law while it allowed a similar law to be implemented in Texas, and it also stopped lower courts from expanding early voting in Ohio or voter registration in North Carolina.

Different groups of justices dissented in some of the cases, but the court did not explain any of them. Richard L. Hasen, an authority on election law, has argued that there is a common legal thread in these decisions, but the court could have explained its own reasoning rather than leaving it to him to surmise what it did.

Or consider the strange situation of same-sex couples who have sought to marry while the court debated whether to hear a case about whether the Constitution required marriage equality. Last summer, the court temporarily stopped some lower courts from authorizing marriages while various constitutional challenges were pending, but then in the fall the court decided not to hear any of the challenges. It let marriages go forward without any explanation for the apparent change of heart. Then, last month, it decided to hear a case after all. It’s as if the court were playing “red light, green light” with same-sex couples.

This lack of transparency has a practical impact. Because the court doesn’t issue opinions in these cases, lawyers don’t know what legal standards to apply when litigating the issue again in the future. (What if there’s something that Mr. Warner’s lawyers could have said to stay his execution, but they didn’t know what it was?) And because we don’t even know which justices have joined most of the orders, we don’t know which justices are responsible, and we don’t know whether the justices are being consistent and principled from case to case.

These procedural issues also affect the lower courts, which are supposed to follow Supreme Court precedent. But because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s nonpronouncements. The orders can influence the substance of litigation, too, because a key factor in procedural cases is whether the claim has merit.

To be sure, there are good reasons for the court to proceed quickly and without much explanation in many of these cases. These disputes happen fast, and the justices may not want to commit to a public explanation that they haven’t had time to fully consider. But even modest changes would provide valuable guidance.

What could the court do? First, it could provide more written explanations. It would not need to do so in every case. It could, however, briefly explain its decision when it either reversed a lower court decision, or when it proceeded in the face of a written dissent. In both cases, the presence of a thoughtful written opinion on the other side shows that the court’s decision is not so obvious as to go without saying. In many cases these explanations would take only a paragraph or two — but they would be a big improvement over our current, murky practices.

In the context of opinions on the merits, the justices have recognized the importance of individual accountability. Justice Antonin Scalia has said that writing separate opinions “forces them to think systematically and consistently about the law,” while Justice Ruth Bader Ginsburg has said that it “puts the judge’s conscience and reputation on the line.” The court should extend this logic to the orders docket.

A second, even more modest step toward transparency would be to at least reveal which justices have voted on which side of an orders decision, which the court does not do consistently. Again, the court would not have to do this in every case; it could announce that it would do so whenever there was a dissent, or whenever a dissenting justice requested it. Even knowing which decisions were controversial would enable us to better judge and predict the court.

The court is in the spotlight more and more. Transparency in all its decisions is vital to its continued legitimacy.
 

William Baude is an assistant professor of law at the University of Chicago.

A version of this op-ed appears in print on February 3, 2015, on page A23 of the New York edition with the headline: The Supreme Court’s Secret Decisions.

The Supreme Court’s Secret Decisions,
FEB 3, 2015,
http://www.nytimes.com/2015/02/03/opinion/the-supreme-courts-secret-decisions.html

Oklahoma Asks Supreme Court

to Delay Executions

 

JAN. 26, 2015

The New York Times

By TIMOTHY WILLIAMS

Oklahoma officials asked the United States Supreme Court on Monday to stay the execution of three inmates on death row until the court rules on the constitutionality of the state’s lethal injection process. The court agreed on Friday to decide a case on the constitutionality of the new combinations of drugs that some states are using to execute prisoners, which critics say cause intense suffering.

In a filing with the court on Monday, the attorney general of Oklahoma, Scott Pruitt, said the application to delay the executions was necessary to provide clarity as the state sought to resume its execution schedule. Oklahoma wants the right to resume executions if it finds a different suitable combination of drugs.

The state’s Constitution allows the governor to grant a 60-day reprieve. But because the Supreme Court case probably will not be resolved in that time frame, Mr. Pruitt sought the stay, said his spokesman, Will Gattenby. The Supreme Court is not scheduled to hear the case until late April and is unlikely to issue a decision before June 1.

“Likewise, the application must be filed with the Supreme Court instead of the Oklahoma Criminal Court of Appeals because there is no pending case in the Oklahoma court,” Mr. Gattenby said.

Dale Baich, a lawyer representing the three inmates, said on Monday that his legal team agreed “that it is appropriate that executions in Oklahoma should be stayed while the U.S. Supreme Court reviews the case.”

Oklahoma has scheduled executions for the inmates, who have each been convicted of murder. They are Richard E. Glossip, who has been sentenced to die on Thursday; John M. Grant, on Feb. 19; and Benjamin R. Cole Sr., on March 5. On Jan. 15, the state executed another inmate, Charles F. Warner, after the Supreme Court declined to issue a stay.

Mr. Pruitt said Monday that he believed Oklahoma’s lethal injection practices were constitutional.

“The families of the victims in these three cases have waited a combined 48 years for the sentences of these heinous crimes to be carried out,” Mr. Pruitt said in a statement. “Two federal courts have previously held the current protocol as constitutional, and we believe the United States Supreme Court will find the same. We thus support stays until a decision in the state’s favor is final or until viable alternative drugs can be obtained.”

In April, Oklahoma botched the execution of Clayton D. Lockett, who appeared to moan and struggle after the drug cocktail was administered. He died in the execution chamber 43 minutes after the injections had begun.

Oklahoma, along with several other states, uses midazolam in executions as the first medication administered to the condemned as a three-part drug cocktail. The sedative is intended to render the prisoner unconscious before the injection of a paralytic and then a caustic heart-stopping agent. Midazolam was also involved in prolonged and what witnesses said appeared to be painful executions last year in Arizona and Ohio.

Oklahoma and other states have switched to the drug in recent years because the manufacturers of pentobarbital and sodium thiopental, which had been used commonly in executions in the past, have refused to sell the drugs to be used for executions.

After the bungled execution of Mr. Lockett last year, Oklahoma temporarily suspended lethal injections. But after a review, the state restarted its execution program while continuing to use midazolam, at a higher dosage.

Mr. Warner’s execution this month was the first since Mr. Lockett’s to be carried out using midazolam.

According to journalists who witnessed the 18-minute procedure, it did not appear that Mr. Warner suffered great pain, and he appeared to lose consciousness quickly. As the injections began, however, he said, “My body is on fire.” Intravenous lines were inserted into his arms, and he called out that he had been “poked five times.”

Mr. Warner was convicted of raping and killing an 11-month-old girl in 1997.

A version of this article appears in print on January 27, 2015, on page A11 of the New York edition with the headline: Oklahoma Asks Justices to Delay Executions.

Oklahoma Asks Supreme Court to Delay Executions,
JAN 26, 2015, NYT,
http://www.nytimes.com/2015/01/27/us/oklahoma-asks-justices-to-delay-executions.html

One Couple’s Unanticipated Journey

to Center of Landmark Gay Rights Case

JAN. 24, 2015

The New York Times

By JULIE BOSMAN

HAZEL PARK, Mich. — On a snowy night in 2011, April DeBoer, Jayne Rowse and their three children were driving in their minivan down a rural road when a truck, attempting to pass another vehicle, came barreling toward them.

“At the last second, he swerved off the road and veered into a field,” Ms. DeBoer recalled. “I don’t think Jayne and I would have survived the impact. It was that moment, that realization, that we needed to get things in order.”

They figured they could draw up wills and assign custody of their children during a quick meeting with a lawyer. Instead, they are headed to the United States Supreme Court.

After talking to a lawyer in Detroit, Ms. Rowse and Ms. DeBoer were stunned to discover that, as a gay couple living in Michigan, they were unprotected under the law: Michigan does not allow two unmarried people to jointly adopt a child, so their children were technically adopted by a single parent, either Ms. Rowse, 50, or Ms. DeBoer, 43. Each parent legally had no claim to the children her partner had legally adopted.

If either parent died, they realized, the survivor would not just face the devastation of losing a loved one. A judge could easily order any child adopted by a deceased parent to live with a distant relative or in foster care. The survivor would face the disintegration of the couple’s family.

“It was scary,” Ms. DeBoer said. “All along we thought we could protect our children, and we couldn’t.”

On Jan. 16, the Supreme Court agreed to hear their federal lawsuit challenging Michigan’s ban on same-sex marriage, as well as cases brought by couples in Ohio, Tennessee and Kentucky. The court is expected to decide by June whether all 50 states must allow gays and lesbians to marry.

Its ruling will come on the heels of Supreme Court victories for supporters of same-sex marriage. Last fall, the court let stand appeals court rulings that allowed same-sex unions in five states, and in 2013, a landmark decision on same-sex marriage, United States v. Windsor, struck down a section of the Defense of Marriage Act that banned federal benefits for same-sex couples who were married in states that allowed the unions.

Days after they received word that the Supreme Court would hear their case, they were still marveling at the twists and turns that had gotten them there.

The couple met in 1999 through mutual friends. Ms. DeBoer had just endured a bruising divorce — asked how many years she was married, she said, “Too many years” — and had not come out to her family and friends. Ms. Rowse and Ms. DeBoer began attending nursing school around the same time, encouraging each other through the grueling work, and dating off and on.

After they finally became a couple, they celebrated their union in 2008 with a commitment ceremony attended by some 30 relatives and friends. And they tentatively spoke of their wishes to be parents. “We talked more about starting a family and having kids,” Ms. DeBoer said, “with the possibility of maybe someday we’d be able to get married.”

They first tried to conceive naturally, with the help of a sperm donor, and it worked: Ms. DeBoer became pregnant with triplets. But joy turned to despair when she had a miscarriage, losing all three babies in the first trimester.

After that, they moved to adoption. “It was too much,” Ms. DeBoer said. “I couldn’t go through the physical or emotional stuff again.”

They have adopted four children. On paper, Ms. Rowse adopted Nolan, 6, and Jacob, 5; Rylee, 2, and Ryanne, 4, legally belong to Ms. DeBoer. Two of the children have developmental disabilities and require special care.

One morning last week, their sunny living room was packed with the furniture of family life. A portable crib was set up near the fireplace, picture books were scattered on the floor and a dog snoozed in the corner.

Until a few years ago, the couple were too busy managing their lives and their children to get too involved in the debate in the United States over gay rights.

“We belonged to one gay and lesbian parent group,” Ms. Rowse said as Rylee wriggled onto her lap. “That’s it.”

Their close call with the truck that day in 2011 led them to a lawyer, Dana Nessel, who advised them that she could draw up guardianship papers, but that they would be nearly worthless legally. She urged them instead to file a federal lawsuit challenging the adoption law in Michigan. When Ms. Nessel, a co-counsel for the family, went to gay rights groups asking for their support, they all declined, telling her that she would lose the case.

“None of the organizations were interested in doing challenges of this sort,” Ms. Nessel said. “But I thought their story was so compelling. And I thought the adoption code was appalling and needed to be rectified.”

Undeterred, they filed a lawsuit and went before a United States District Court judge, Bernard A. Friedman, a Reagan nominee who in 2001 had ruled that the University of Michigan Law School’s affirmative action policies were unconstitutional.

In Judge Friedman’s courtroom that day in 2012, he suggested that Ms. DeBoer and Ms. Rowse radically change course. Amend your claim to take on Michigan’s law banning same-sex marriage, he said, referring to the measure that voters approved in 2004.

“We felt the judge’s implication was clear — either amend the proceedings to challenge the marriage ban, or the entire case could be dismissed,” Ms. Nessel said, recalling her shock. “April and Jayne, as much as they wanted to get married and adopt their kids, never set out to challenge the marriage ban.”

After a two-week trial last March, Judge Friedman ruled in their favor, setting off a brief window of time when more than 300 gay and lesbian couples were married in Michigan.

Ms. Rowse and Ms. DeBoer were not among them. They wanted to wait until the law was perfectly clear and every same-sex couple in Michigan had the right to be married. (The United States Court of Appeals for the Sixth Circuit overturned Judge Friedman’s ruling in November, halting same-sex marriages in Michigan and three other states.)

Lawyers for the state are expected to argue that decisions on same-sex marriages are best left to the popular vote and that children benefit from having parents in heterosexual relationships. But if the Supreme Court rules in Ms. Rowse and Ms. DeBoer’s favor, their wedding day may come soon.

They are nervously awaiting their trip to Washington — their first visit to the nation’s capital.

“I think that’s just going to be overwhelming, seeing the justices,” Ms. Rowse said. “We’re optimistic and hopeful that they’re going to be on the right side of history.”

One Couple’s Unanticipated Journey
to Center of Landmark Gay Rights Case,
JAN 24, 2015,
http://www.nytimes.com/2015/01/25/us/one-couples-unanticipated-journey-to-center-of-landmark-gay-rights-case.html

Justices to Hear Case

Over Drugs Used in Executions

 

JAN. 23, 2015

The New York Times

By ADAM LIPTAK

and ERIK ECKHOLM

WASHINGTON — The Supreme Court on Friday agreed to decide a case on the constitutionality of the new combinations of drugs that some states are using to execute prisoners and that critics say cause intense suffering.

The court will hear a challenge to Oklahoma’s choice of drugs even though the justices declined last week to stop an execution there that used the contested chemicals.

With the addition of this case, the court’s term seems likely to end with three major decisions — on same-sex marriage, on the fate of the Affordable Care Act and, now, on the administration of capital punishment.

In April, Oklahoma botched the execution of Clayton D. Lockett, who appeared to moan and struggle after the drugs were administered, then died in the execution chamber 43 minutes after the injections had begun.

That led the state to suspend lethal injections and try to improve its procedures. Oklahoma decided to continue using the sedative now under legal challenge, but at a higher dosage.

The case will provide the Supreme Court’s first evaluation of lethal injections during a time when the customary drugs have become scarce and states have tried new combinations and refused to identify the sources of the lethal chemicals.

“Lethal injections are a subject on which everyone deserves clarity, but the law has been thoroughly chaotic for the last seven years,” said Eric M. Freedman, a law professor at Hofstra University. “The court’s decision to address the confusion at last is welcome.”

The case the court agreed on Friday to hear, Glossip v. Gross, No. 14-7955, involves three inmates who said Oklahoma’s three-chemical procedure violated the Eighth Amendment because it posed a significant risk of terrible suffering.

The case originally included a fourth inmate, Charles F. Warner. He was executed on Jan. 15 after the Supreme Court denied his request for a stay by a 5-to-4 vote. Journalists who witnessed the 18-minute execution said that Mr. Warner did not seem to suffer great pain and that he appeared to lose consciousness quickly.

Mr. Warner, 47, was sentenced to death for sexually assaulting and murdering an 11-month-old girl in 1997.

It takes the vote of five justices to stay an execution, but only four to agree to hear a case.

“We’re excited that the court took the case,” said Dale Baich, a lawyer for the condemned prisoners.

Another Oklahoma prisoner and plaintiff in the case, Richard Glossip, who was convicted of a 1997 contract murder, is scheduled for execution on Thursday.

“Our immediate concern now is to try to get a stay for Mr. Glossip,” Mr. Baich said. “The argument will be that since the court has decided it will hear the case, that’s a new circumstance that would warrant a stay.”

“The time is right for the court to take a careful look at this important issue, particularly given the bungled executions that have occurred since states started using these novel and experimental drugs protocols,” Mr. Baich said.

Justice Sonia Sotomayor dissented from the denial of a stay for Mr. Warner, saying the case presented two questions worthy of the court’s consideration.

The first, she said, was whether the inmates should be required to specify an alternative method of execution, as courts have demanded in Oklahoma and elsewhere, before challenging the method to be used by the state.

“It would be odd if the constitutionality of being burned alive, for example, turned on a challenger’s ability to point to an available guillotine,” Justice Sotomayor wrote.

The second issue, she wrote, was whether the state should be using midazolam, a sedative, as its first chemical. Medical experts testifying on behalf of the inmates at an evidentiary hearing said the effects of high doses of midazolam, which Oklahoma adopted, were too unpredictable to justify its use.

Midazolam was also involved in prolonged, possibly painful executions last year in Ohio and Arizona. The drug has also been used by Florida in a dozen executions at the start of a three-drug combination, similar to that used in Oklahoma. The sedative is intended to render the prisoner unconscious before injection of a paralytic and then a caustic heart-stopping agent. If it does not do so, medical experts say, the inmate will suffer excruciating pain, which could go undetected because the prisoner would be paralyzed and unable to communicate.

Those states have switched to midazolam because companies making the traditional barbiturates, which have a longer track record and deeper anesthetic properties, have refused to provide them for executions.

In the Supreme Court brief defending Oklahoma’s drug protocol, state officials said, “Oklahoma chose midazolam because the state has a sacred duty to enforce its criminal judgments, and the protocol pioneered by Florida represents the best available mechanism to carry out these judgments.”

An expert witness for the state had defended the chemical, but Justice Sotomayor wrote that his testimony was open to question. He “cited no studies,” Justice Sotomayor wrote, “but instead appeared to rely primarily on the web site www.drugs.com.”

She expressed surprise that a Federal District Court judge had ruled for the state, allowing executions to proceed.

“It is true that we give deference to the district courts,” Justice Sotomayor wrote. “But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed.”

“We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain,” she added. “Here, given the evidence before the district court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.”

Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the dissent on the denied stay last week.

In its order on Friday, the Supreme Court offered no explanation for agreeing to review the issue.

The Supreme Court last considered lethal injection protocols in 2008 in Baze v. Rees, which upheld Kentucky’s use of what was then the three-drug mixture used in most executions.
 

Adam Liptak reported from Washington, and Erik Eckholm from New York.

A version of this article appears in print on January 24, 2015, on page A1 of the New York edition with the headline: Justices to Hear Case on Drugs Used to Execute.

Justices to Hear Case Over Drugs Used in Executions,
JAN 23, 2015,
http://www.nytimes.com/2015/01/24/us/justices-to-hear-case-on-execution-drugs.html

Supreme Court

Set to Decide Marriage Rights

for Gay Couples Nationwide

 

JAN. 16, 2015

The New York Times

By ADAM LIPTAK

WASHINGTON — The Supreme Court on Friday agreed to decide whether all 50 states must allow gay and lesbian couples to marry, positioning it to resolve one of the great civil rights questions in a generation before its current term ends in June.

The decision came just months after the justices ducked the issue, refusing in October to hear appeals from rulings allowing same-sex marriage in five states. That decision, which was considered a major surprise, delivered a tacit victory for gay rights, immediately expanding the number of states with same-sex marriage to 24, along with the District of Columbia, up from 19.

Largely as a consequence of the Supreme Court’s decision not to act, the number of states allowing same-sex marriage has since grown to 36, and more than 70 percent of Americans live in places where gay couples can marry.

The cases the Supreme Court agreed to hear on Friday were brought by some 15 same-sex couples in four states. The plaintiffs said they have a fundamental right to marry and to be treated as opposite-sex couples are, adding that bans they challenged demeaned their dignity, imposed countless practical difficulties and inflicted particular harm on their children.

The pace of change on same-sex marriage, in both popular opinion and in the courts, has no parallel in the nation’s history.

Gay rights advocates hailed the court’s move on Friday as one of the final steps in a decades-long journey toward equal treatment, and they expressed confidence they would prevail.

“We are finally within sight of the day when same-sex couples across the country will be able to share equally in the joys, protections and responsibilities of marriage,” said Jon W. Davidson, the legal director of Lambda Legal.

Supporters of traditional marriage said the Supreme Court now has a chance to return the issue to voters and legislators.

“Lower court judges have robbed millions of people of their voice and vote on society’s most fundamental relationship — marriage,” said Tony Perkins, the president of the Family Research Council, a conservative policy and lobbying group. “There is nothing in the Constitution that empowers the courts to silence the people and impose a nationwide redefinition of marriage.”

The Supreme Court’s lack of action in October and its last three major gay rights rulings suggest that the court will rule in favor of same-sex marriage. But the court also has a history of caution in this area.

It agreed once before to hear a constitutional challenge to a same-sex marriage ban, in 2012 in a case called Hollingsworth v. Perry that involved California’s Proposition 8. At the time, nine states and the District of Columbia allowed same-sex couples to marry.

When the court’s ruling arrived in June 2013, the justices ducked, with a majority saying that the case was not properly before them, and none of them expressing a view on the ultimate question of whether the Constitution requires states to allow same-sex marriage.

But a second decision the same day, in United States v. Windsor, provided the movement for same-sex marriage with what turned out to be a powerful tailwind. The decision struck down the part of the Defense of Marriage Act that barred federal benefits for same-sex couples married in states that allowed such unions.

The Windsor decision was based partly on federalism grounds, with Justice Anthony M. Kennedy’s majority opinion stressing that state decisions on how to treat marriages deserved respect. But lower courts focused on other parts of his opinion, ones that emphasized the dignity of gay relationships and the harm that families of gay couples suffered from bans on same-sex marriage. In a remarkable and largely unbroken line of more than 40 decisions, state and federal courts relied on the Windsor decision to rule in favor of same-sex marriage.

The most important exception was a decision in November from a divided three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati. Writing for the majority, Judge Jeffrey S. Sutton said that voters and legislators, not judges, should decide the issue.

That decision created a split among the federal appeals courts, a criterion that the Supreme Court often looks to in deciding whether to hear a case. That criterion had been missing in October.

The Sixth Circuit’s decision upheld bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee. The Supreme Court agreed to hear petitions seeking review from plaintiffs challenging those bans in each state.

The court said it will hear two and a half hours of argument, probably in the last week of April. The first 90 minutes will be devoted to the question of whether the Constitution requires states “to license a marriage between two people of the same sex.”

The last hour will concern a question that will be moot if the answer to the first one is yes: whether states must “recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.”

The court consolidated the four petitions, not all of which had addressed both questions.

Two cases — Obergefell v. Hodges, No. 14-556, from Ohio, and Tanco v. Haslam, No. 14-562, from Tennessee — challenged state laws barring the recognition of same-sex marriages performed elsewhere.

“Ohio does not contest the validity of their out-of-state marriages,” the plaintiffs seeking to overturn the ban wrote in their brief seeking Supreme Court review. “It simply refuses to recognize them.”

State officials in Ohio had urged the justices to hear the case. “The present status quo is unsustainable,” they said. “The country deserves a nationwide answer to the question — one way or the other.”

Gov. Bill Haslam of Tennessee, a Republican, took a different approach from those of officials in the other states whose cases the Supreme Court agreed to decide. He did what litigants who have won in the lower court typically do: He urged the justices to decline to hear the case.

The Michigan case, DeBoer v. Snyder, No. 14-571, was brought by April DeBoer and Jayne Rowse, two nurses. They sued to challenge the state’s ban on same-sex marriage.

In urging the Supreme Court to hear their case, they asked the justices to do away with “the significant legal burdens and detriments imposed by denying marriage to same-sex couples, as well as the dignity and emotional well-being of the couples and any children they may have.”

Gov. Rick Snyder, a Republican, joined the plaintiffs in urging the Supreme Court to hear the case.

The Kentucky case, Bourke v. Beshear, No. 14-574, was brought by two sets of plaintiffs. The first group included four same-sex couples who had married in other states and who sought recognition of their unions. The second group, two couples, sought the right to marry in Kentucky.

In his response to the petition in the Supreme Court, Gov. Steven L. Beshear, a Democrat, said he had a duty to enforce the state’s laws. But he agreed that the Supreme Court should settle the matter and “resolve the issues creating the legal chaos that has resulted since Windsor.”
 

A version of this article appears in print on January 17, 2015, on page A1 of the New York edition with the headline:
Justices to Decide Marriage Rights for Gay Couples.

Supreme Court Set to Decide Marriage Rights for Gay Couples Nationwide,
NYT,
JAN 15, 2015,
http://www.nytimes.com/2015/01/17/us/
supreme-court-to-decide-whether-gays-nationwide-can-marry.html