The Yin Blog

Outrageous judge of the week

Here's a pretty ridiculous story about a traffic court judge who increased a driver's traffic fine from $39 to $100 just because the driver mailed in a $39 check on which he had scrawled "go to hell." According to the story:

Zusman declined to be interviewed, but wrote a letter telling the Tribune he would not comment on the case, explaining that, “Those who cannot express themselves in an adult, respectful way subject themselves to an enhanced fine.”

I guess Judge Zusman missed the day of Con Law on Cohen v. California, in which the Supreme Court struck down a California law used to punish a guy for wearing a jacket with the words "F--- the Draft" in the courthouse (well, the whole word was spelled out).

I remember covering, back in my brief foray into journalism, a story in Berkeley where a police officer gave a driver a ticket, ending the stop with "Have a nice day." The driver responded, "Have a nice day too, asshole," and drove off. The cop pulled the driver over again and gave him a second citation, this one for violating a Berkeley municipal ordinance for insulting a police officer. (I am not making this up.) The driver got a lawyer and challenged the second citation in traffic court, and as you might guess, the traffic commissioner dismissed the ticket on First Amendment grounds.

The ACA "Under Siege"

While reading various reactions to last week's arguments in the Supreme Court over the constitutionality of the Affordable Care Act, in particular, criticisms of the performance by Solicitor General Verilli (and compliments toward Paul Clement), I was strangely reminded of the best Steven Seagal movie, which is Under Siege (aka "Die Hard on a Battleship"). In it, Seagal played Casey Ryback, ex-SEAL and current head cook on a soon to be decommissioned U.S. battleship that gets taken over by a bunch of terrorists led by Tommy Lee Jones and Gary Busey. Jones and Busey and their henchmen have managed to capture and lock up just about every sailor on the ship, except for Seagal and a few others who hid. Seagal then wages an insurgency to take back control of the ship.

At one point, seeing the latest mayhem that Seagal has inflicted (dead terrorists, etc.), Jones turns to a henchman played by Colm Meaney (aka Chief O'Brien on ST:TNG) and says, "Daumer, Daumer, Daumer, why didn't you hire this person? I don't know what his price would have been, but it would have been worth it!"

(start at 0:22 in the video clip)

You have to wonder if team Obama felt the same way after the oral arguments. . . . I say this not as a critic of Verilli; although it's certainly possible to get a plum federal appointment without much actual qualifications as political payback, I highly doubt that's true about the SG. This is more of a reflection of how brilliant Clement is universally acknowledged to be as a Supreme Court advocate.

Anyway, you have to wonder if team Obama was thinking, if only we had Clement on our side! 

Of course, one suspects that Clement personally believes himself to have the better argument on the Commerce Clause issue. But when we had Clement here at Lewis & Clark as our Kennedy Speaker last fall, he did a lunch time presentation for our students, and one of the (many) interesting things he said was that there have been occasions when he wanted to argue one side of a case, but it was the other side that approached him for his services. He's the ultimate lawyers' lawyer in that sense -- he argues the client's cause.

So what if the Obama Administration had looked ahead to this day of reckoning before the Supreme Court, and thought, that's who we want arguing our case? Would the President have ever been willing to consider appointing Clement as the Solicitor General?

Well, for most lawyers who are Supreme Court wonks, it would be incredibly hard to turn down an offer of being the primary advocate for the United States, the so-called Tenth Justice. But since Clement has already had that experience, having served as President Bush's SG from 2004 to 2008, it would probably hold less appeal for him than for most others. And the prospect of contacting an opposition party member with such a plum prospect, only to be turned down, would no doubt be embarrassing for any administration, so I don't really think that Obama would have been willing to try even if he would've wanted Clement on his team.

Still, can you imagine, after last week's arguments, President Obama saying, "David [Axelrod], David, David, why didn't you hire Clement before the oral argument? I don't know what his price would've been, but it would've been worth it!"

Bill Stuntz's book on American criminal justice

Like many other law profs, I was saddened when Harvard law prof Bill Stuntz passed away earlier this year, given his immensely important insights into American criminal justice. I recently finished reading his book, The Collapse of American Criminal Justice, and I've put a short review on the Amazon site. I'm a little surprised that mine is, so far, the only review there of Stuntz's book, but you can go there and get a sense of what the book is about.

On that Larry Tribe column . . . .

Harvard law prof Laurence Tribe says:

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

In other words, Tribe thinks it's obvious that the Affordable Care Act's individual mandate is constitutional.

This kind of reminds me of an incident from my 3L year of law school.  I was taking Jesse Choper's Supreme Court Seminar, in which pairs of students got to "play" Supreme Court Justices.  We examined actual cases before the Court that Term, voted on them, and drafted opinions.  My buddy and I were Justice Kennedy, and one of the cases that I opted to write an opinion in was United States v. Lopez.

I drafted an opinion upholding the Fifth Circuit's decision to strike down the Gun-Free School Zones Act essentially on a limitless Commerce Clause theory.  It should have been the majority opinion, but for some reason, our "Justice Thomas" voted with the liberals.  This all took place before the Supreme Court issued its decision.

Also before the actual decision came down, we had our upper class moot competition, the finals of which were judged by three well-respected U.S. Circuit judges.  I had written the bench memo for the moot court competition, and at the banquet before the final argument round, Choper introduced me to the most prominent of the three judges.  Choper mentioned that I was playing Kennedy in the Supreme Court Seminar and that I had predicted that Kennedy would strike down the Gun-Free School Zones Act.

This circuit judge -- a conservative -- told me, "You got Kennedy's vote wrong.  It's going to be 9-0 to reverse the Fifth Circuit."

Whoops.

Now, obviously, the fact that Lopez came out 5-4 the opposite way from the judge's prediction doesn't mean that the Supreme Court will similarly hold that the ACA is likewise beyond the Commerce Clause.

But it does suggest that a dose of predictive humility might be called for.  I'm not saying that I, as a 3L, was so smart that I was right about Lopez and that a prominent federal appellate judge was wrong.  After all, this was just a class assignment and maybe I knew just enough to be dangerous.  But it's a useful reminder that many people thought Lopez was going to be an easy reversal of the Fifth Circuit, and they were wrong.

A Reinhardtian victory

In Premo v. Moore (2011), the Supreme Court, as it often does, reversed a Ninth Circuit grant of habeas petition from a state prisoner.  Moore had pleaded no contest to felony-murder under Oregon law after he and co-conspirators had kidnapped the victim, during the course of which Moore claimed that his gun went off accidentally and fatally shot the victim in the head.  In his habeas petition, Moore argued that he had received ineffective assistance of counsel because his lawyer had failed to move to suppress his confession to the police and that he had therefore been induced to plead guilty erroneously.

The primary precedent in this area is Hill v. Lockhart (1985), in which the Court explained that this burden means:

[T]he defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

* * *

For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

In Moore's case, the problem with demonstrating that the predicted trial result would have changed had his confession been suppressed is that he had confessed about the killing to two other people -- a fact that every court until the Ninth Circuit found critical.

In an opinion by Judge Reinhardt, the Ninth Circuit reversed and ordered relief granted to Moore.  That's not necessarily an absurd result.  The suppression motion probably should have been granted, and a confession reported by the police might be accorded more weight than confessions to other people who might have some shady histories.  However, Judge Reinhardt went far beyond such a restrained analysis and invoked a "harmless error" case that was decided on direct appeal following a trial (and hence a much different posture than a habeas case with a guilty plea) to create a seeming new rule in evaluating the effectiveness of counsel.

The extreme distortion of law wrought by the Ninth Circuit's opinion is best demonstrated by the fact that it was reversed by an 8-0 vote (with Justice Kagan recusing herself).  There were 7 votes for Justice Kennedy's majority opinion, which was a judicial smackdown of the Ninth Circuit, with such descriptions of Judge Reinhardt's opinion as "wrong," "doubly wrong," "improper [transplantation of legal doctrine]," "no sense in which the state court's finding could be contrary to [precedent]," and "[h]indsight and second guesses are also inappropriate."

Did it have to be such a bad smackdown?  Justice Ginsburg's concurrence was much more mild:

To prevail  under the  prejudice requirement of  Strickland v. Washington, 466 U. S. 668, 694 (1984), a petitioner for federal habeas corpus relief must demonstrate “areasonable  probability that, but  for counsel’s errors, he would not have pleaded guilty and would have insisted ongoing to trial,” Hill  v.  Lockhart, 474 U. S. 52, 59 (1985). As Moore’s counsel confirmed at oral argument, see Tr. of Oral Arg. 32, Moore never declared that, better informed,he would have resisted the plea bargain and opted fortrial.  For that reason, I concur in the Court’s judgment.

One has to wonder how much the extra admonishment resulted from Judge Reinhardt's excesses.  True, this was going to be a difficult case for Moore to prevail in, given the Hill requirement of showing that he would have gone to trial and been likely to win there.  Still, a more moderate opinion in his favor might not have triggered the Supreme Court's response, which forecloses a number of issues from being favorably decided in future cases with "better" facts.

Who did Judge Reinhardt help?  Not Moore, who now goes back to his 25 year sentence.  Not future criminal defendants who plead guilty, who, even if they have better arguments, can't raise the same ones here, since those have been decided in favor of the state.

Muddled thinking about the Commerce Clause

A letter in today's Oregonian questions the legal challenge to the individual mandate in the Patient Protection and Affordable Care Act:

A federal judge has ruled that the requirement that most Americans obtain health insurance would constitute a giant expansion of the court's traditional application of the commerce clause of the Constitution. Lawyers representing the plaintiffs argued that the insurance requirement is unconstitutional because it would require citizens to buy a commercial product.

It really wasn't all that long ago that a similar set of arguments was used for and against the mandate that all drivers of motor vehicles must purchase insurance. The irony of Republican attempts to eliminate the individual mandate could be that their actions may push the health care debate toward a public option.

The letter author unfortunately has failed to distinguish between state laws and federal laws.  State legislatures have general police powers, and the only limitations on their ability to enact laws are found in the U.S. Constitution or the state's own constitution.  The federal government, on the other hand, is a government of limited powers -- not only is it constrained by the Bill of Rights (and other provisions in the Constitution), it can legislate only pursuant to enumerated powers.  The Commerce Clause is an enumerated power, and it is augmented by the Necessary and Proper Clause.  That combination may well be deemed enough to justify the PPCA, but that is the relevant issue as to the PPCA's constitutionality.

The requirement of purchasing insurance as a condition of driving, on the other hand, is a creature of state law, thus not requiring any enumerated power; and furthermore, it is conditioned upon, activity (driving), not inactivity, which is a distinction that the PPCA challengers have made.

"You cannot be serious!"

Ann Althouse has been poking fun at Josh Marshall (and Nancy Pelosi) for what she calls "constitutional argument by laughter," the idea being that Marshall's disdain for constitutional arguments against healthcare reform's mandate could not have been serious.  Of course, a federal district judge disagreed earlier in the week.  I can't help but imagine that maybe this was Marshall's (and Pelosi's) reaction:

 

 

UPDATE: Welcome, Althouse readers!  Please check out the rest of my blog, including a lot of entries on the Portland bomb sting case.

Ann Althouse takes Obama to the woodshed on DADT

Ouch:

But, as the linked blog post (by Jane Hamsher) indicates, he doesn't have the votes in the Senate and he hasn't put the weight of the presidency behind getting Senators to vote for repeal. He seems like he's using the statute as an excuse, so that he can play both sides on this issue. I understand the political motivation for that, but it amounts to breaking his promise to end DADT.

That's just an excerpt.  There's a lot more that Prof. Althouse criticizes effectively.

At one point, President Obama had 60 votes in the Senate and a majority of the House.  He could have tried to push through statutory repeal of DADT then.  That he chose instead to push TARP, health care reform, and financial regulatory reform was neither unreasonable nor irrational.  But it does suggest a certain hierarchy of issues, and gay rights was not at the top of that hierarchy.

Does Dahlia Lithwick find President Obama's view of the courts and Congress to be weird?

Last month, Slate editor Dahlia Lithwick criticized Senate candidate Christine O'Donnell's notion that legislators should determine for themselves if they believe pending legislation to be constitutional before voting for it:

I have been fascinated by Christine O'Donnell's constitutional worldview since her debate with her opponent Chris Coons last week. O'Donnell explained that "when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional." How weird is that, I thought. Isn't it a court's job to determine whether or not something is, in fact, constitutional? And isn't that sort of provided for in, well, the Constitution?

Hmm.  The Obama Administration hasn't made a decision yet on whether to appeal a district court ruling that the "don't ask, don't tell" policy is unconstitutional.  But it sounds like it will, because "President Barack Obama has made it clear he wants Congress to repeal the policy -- rather than having it blocked by the courts."

This is entirely consistent with the Obama Administration's decision to appeal a different district court's ruling that the federal Defense of Marriage Act was unconstitutional:

Although Obama opposes the law, a Justice Department spokeswoman said that the administration was defending the statute because it was obligated to defend federal laws when challenged in court.

But wait, "don't ask don't tell" is essentially codified at 10 USC s 571, which makes it a federal statute.  So presumably the same principle applies -- the Justice Department must defend it.

In any event, notice how "weird" this all is under Dahlia Lithwick's mindset.  President Obama disagrees with "don't ask don't tell" and with DOMA.  Courts have come to his rescue and struck both of those down.  Yet, President Obama opposes what the courts have done because he thinks Congress should have the last word.

True, there's a difference -- he wants Congress to decide on a policy basis, not because it thinks the statutes are unconstitutional.  But to take the decision away from the courts and to give it to Congress . . . doesn't that imply that he either disagrees with the merits of the decisions of the courts, or that he believes in legislative supremacy over the courts? That is, it sounds like President Obama is saying to the federal courts, "You may think these are unconstitutional, but these decisions are for us politicians to make, not you judges."

Obviously, I think Lithwick's criticism of O'Donnell is silly.  Marbury v. Madison does (more or less) stand for the proposition that when the Supeme Court strikes down a statute as conflicting with the Constitution, the political branches can't undo that decision except by constitutional amendment.  It does not, however, stand for the proposition that the legislators are thereby freed from the obligation or powerless to make their own determination of whether to vote in favor of legislation they believe to be constitutionally invalid.

Goodwin Liu's "unnecessarily flowery" language

Boalt law prof Goodwin Liu was raked over the coals last week for, among other things, his testimony against then-Judge Alito during Alito's confirmation hearings for the Supreme Court.  This particular statement from Liu's testimony drew a lot of attention:

Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won't turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some. Mr. Chairman, I humbly submit that this is not the America we know. Nor is it the America we aspire to be.

When I read that paragraph, it reminded me of a couple of things -- the infamous "Robert Bork's America" diatribe delivered by the late Sen. Ted Kennedy (and which I use as a focal point in my short paper on legal blogs and the Supreme Court confirmation process), as well as the letter opposing John Roberts that was written by Dean Erwin Chemerinsky and signed by 160 lawprofs (which I criticized here).  The block quote above from Liu sounds like little more than a personal attack on Alito, bereft of any demonstration of analytical shortcomings in Alito's analysis.  While the idea of an all-white jury sentencing an African-American male to death for killing a white man sounds pretty bad, there's nothing in there about the context of the case to suggest that Alito was upholding or even urging on something racially malicious.

So I went and looked for the entire text of Liu's speech, which is here.  This is what Liu had to say about the jury selection case:

In 2001, Judge Alito sided with the state against a black man, James Riley, convicted of killing a white man by an all-white jury in Kent County, Delaware, whose population is 20 percent black. Before trial, the prosecutor had struck all three prospective black jurors from the jury pool. Riley challenged this action as racially discriminatory under Batson v. Kentucky, which forbids prosecutors from removing potential jurors based on race. To support his claim, Riley showed that the prosecution had struck black but not white jurors who had given the same testimony at voir dire. He also showed that the prosecution had struck every prospective black juror in the three other capital murder trials in Kent County within the prior year. 

Judge Alito refused to infer racial discrimination from this pattern, stating that "a careful multiple-regression analysis" would be necessary to determine whether the strikes were based on race or some other variable. To support his point, he said: "Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections. . . . But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?" The Third Circuit en banc disagreed with Judge Alito and upheld the Batson claim, criticizing his analogy for "minimiz[ing] the history of discrimination against prospective black jurors and black defendants."

That strikes me as quite different from the Kennedy speech or from the Chemerinsky letter, as Liu actually provides his own analytical criticism of Alito's decisionmaking process.  Now, I'm not suggesting that Liu is right and that Alito is wrong, or the reverse; merely that I think criticism of Liu's attack needs to take into account the full context of his testimony.  Yes, the summary of his analysis of his perceived problems with Alito's judicial decisionmaking comes across as more personal (and obnoxious) than necessary, but it's a summary of legal analysis conducted earlier.