How Ricci Almost Disappeared – The Ninth Justice

National Journal

For all the publicity about the Supreme Court’s 5-4 reversal of Judge Sonia Sotomayor’s decision (with two colleagues) to reject a discrimination suit by a group of firefighters against New Haven, Conn., one curious aspect of the case has been largely overlooked.

That is the likelihood that but for a chance discovery by a fourth member of the 2nd Circuit Court of Appeals, the now-triumphant 18 firefighters (17 white and one Hispanic) might well have seen their case, Ricci v. DeStefano, disappear into obscurity, with no triumph, no national publicity and no Supreme Court review.

The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.

And if the Ricci case — which ended up producing one of the Supreme Court’s most important race decisions in many years — had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.

The 2nd Circuit and other appeals courts hear cases in three-judge panels, which almost always write full opinions in all significant cases. Those opinions, which are binding precedents, are routinely circulated to all other judges on the circuit, in part so that they can decide whether to request what is called a rehearing en banc by the entire appeals court.

Strip Searching Students – And Empathy For Whom? – The Ninth Justice

National Journal

The Supreme Court’s decision on Thursday faulting school officials’ intrusive semi-strip search of a 13-year-old Arizona girl suspected of hiding drugs that were forbidden in school, but not very dangerous, has generated spirited commentaries. See, for example, Dahlia Lithwick‘s in Slate, suggesting that Justices Ruth Bader Ginsburg and John Paul Stevens "turned this ship around, I suspect, with the power of persuasion and a public-shaming chaser."

I dwell here on fairly obscure aspects of the case. They indicate that school officials will need to buy lots of insurance if the views of Ginsburg and Stevens on the question of liability ever command a majority. They also illustrate the limitations of President Obama‘s "empathy" standard for choosing judges, and suggest a possible question for his Supreme Court nominee.

First, the basics: Acting on a tip from another student that Savana Redding might be hiding prescription-strength ibuprofen pills (and over-the-counter naproxen), school officials told her to strip in front of two women down to her bra and underpants and pull them out, thus exposing her breasts and pelvic area to some extent. No drugs were found. Savana’s mother sued the officials and the school district for invading her privacy and humiliating her in violation of her Fourth Amendment rights.

Can Only An ‘Activist’ Overturn Ricci? – The Ninth Justice

National Journal

To Josh Patashnik of The New Republic, my latest column was "a real head-scratcher." On the magazine’s blog, he refutes what he believes I argued — that "the Supreme Court should ban racial preferences because it’s what the majority of Americans want."

He concludes that "if any judicial philosophy qualifies as…

To Josh Patashnik of The New Republic, my latest column was "a real head-scratcher." On the magazine’s blog, he refutes what he believes I argued — that "the Supreme Court should ban racial preferences because it’s what the majority of Americans want."

He concludes that "if any judicial philosophy qualifies as ‘activist,’ then the one Taylor proposes — that the role of a court is to implement what it sees as the will of the public when the political branches fail to — surely qualifies."

To the contrary, a decision reversing Ricci would not stretch the meaning of the Constitution in the slightest. Rather, as my column stated, it would "vindicate the central thrust of the 1964 Civil Rights Act and the Constitution’s equal protection clause."

Remote Control: The Supreme Court’s greatest failing

National Journal

The following story originally appeared in the September 2005 issue of The Atlantic during another time of flux for the Supreme Court.

I’ve been working on some questions in case the makers of Trivial Pursuit ever decide to put forth a Supreme Court edition: Now that Sandra Day O’Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)

The answers would have been starkly different fifty years ago. Five of the nine justices who decided Brown v. Board of Education, in 1954, had once worked as trial prosecutors, and several had substantial hands-on experience in commercial litigation. More famously, that Court included a former governor, three former senators, two former attorneys general, two former solicitors general, and a former SEC chairman.

That Court, in other words, was intimately familiar with the everyday workings of the political and judicial systems, and with the beliefs and concerns of everyday Americans. Not so the Court that recessed in June, eight of whose members (in addition to their long tenure in the splendid isolation of the Supreme Court’s marble palace) have been drawn from judgeships on appellate courts, and sometimes from academic law before that — places already far removed from the hurly-burly of our judicial and political systems. The current justices are smart and dedicated. But they’re not like you and me.

12 Points To Consider In Replacing Souter

National Journal

Editor’s Note: I have been persuaded that I was unfair to Judge Sonia Sotomayor, who is widely seen as a possible Supreme Court nominee, in this article posted on May 1. I regret calling her "exceptionally controversial," which was an overstatement. I also regret citing anonymous claims that she has been "masquerading as a moderate," which I do not know to be true. — Stuart Taylor Jr., May 5

Random thoughts on Justice David Souter, his expected retirement and next steps for President Obama:

• Souter was a stealth nominee when he was named by President George H. W. Bush in 1990 — many liberals at the time denounced him as a closet right-winger, and he was privately touted as such by then-White House Chief of Staff John Sununu. Souter’s fulsome praise of Justice William Brennan (whom he succeeded) at his confirmation hearing suggested that he might lean more left, and he has been consistently left of center since he got to the court.

He moved in his first few years from moderate-liberal to liberal — most notably in joining the Sandra Day O’Connor-Anthony Kennedy-Souter swing opinion that reaffirmed (but slightly narrowed) Roe v. Wade in the big 1992 decision in Planned Parenthood v. Casey. Souter became a reliable member of the liberal bloc on every major issue and most, if not all, minor issues. The major issues — abortion, race and affirmative action, presidential war powers versus civil liberties, gay rights, church-state issues and campaign finance. But unlike Harry Blackmun, and to some extent Warren Burger and John Paul Stevens, this is not a guy who started out conservative or centrist and then "evolved" — he was never conservative.

• With such a big Democratic majority in the Senate, Obama could get just about anyone confirmed easily. But the Republicans could bleed him some politically if he made an exceptionally controversial pick.

The Long Arm of the Law


Harold Hongju Koh is a tweedy, brainy legal scholar who writes brilliant law-review articles that are carefully reasoned, if more or less impenetrable to non-lawyers. He will likely be confirmed by the Senate as the top legal adviser to the State Department, and he should be. But his rather abstruse views on what he calls "transnational jurisprudence" deserve a close look because-taken to their logical extreme-they could erode American democracy and sovereignty.Koh is "all about depriving Amer

Harold Hongju Koh is a tweedy, brainy legal scholar who writes brilliant law-review articles that are carefully reasoned, if more or less impenetrable to non-lawyers. He will likely be confirmed by the Senate as the top legal adviser to the State Department, and he should be. But his rather abstruse views on what he calls "transnational jurisprudence" deserve a close look because-taken to their logical extreme-they could erode American democracy and sovereignty.

Koh is "all about depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites," says Edward Whelan, a lawyer and head of the Ethics and Public Policy Center, a conservative Washington policy group. Whelan’s tone is alarmist, but he raises legitimate questions. Koh is well within the mainstream of the academic establishment at elite law schools like Yale-but the mainstream runs pretty far to the left. At his confirmation hearings, Koh, who is in "no comment" mode until then, will find himself defending some statements that irk centrists and conservatives.

A Judicial Decision That Plagues Obama

National Journal

Before 9/11, judges had no power to entertain writs of habeas corpus (petitions for release) by enemy fighters taken into custody by U.S. forces overseas.

Justice Robert Jackson spelled out this rule in a landmark 1950 decision, Johnson v. Eisentrager: "We are cited to no instance where a court, in this or any other country where the writ [of habeas corpus] is known, has issued it on behalf of an alien enemy who at no relevant time and in no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."

That might still be the law had the Bush administration given the hundreds of suspected "enemy combatants" whom it sent to its Guantanamo Bay prison camp in and after 2002 a fair opportunity to show that they were innocents seized and held by mistake, as many apparently were, an almost inevitable feature of this war against terrorists who masquerade as civilians.

But instead, the Bush team seized on its presumed freedom from judicial oversight, spurned the advice of military lawyers, and denied the detainees any semblance of due process, while subjecting some of them to brutal interrogations.

These bad policies have led to muddled law. Understandably offended by President Bush’s approach and the black eye that it was giving America overseas, the Supreme Court deep-sixed Johnson v. Eisentrager and ruled for detainees in three cases culminating in a 5-4 decision last June asserting broad judicial power to hear petitions for release from Guantanamo.

In the process, the justices struck down parts of two recent acts of Congress and assumed unprecedented, open-ended, and potentially disruptive power to oversee the elected branches’ conduct of war. They left it to the U.S. District and Appeals Courts in the District of Columbia to make up detailed rules on an ad hoc basis.

Barbarians on the Bench?

National Journal

At the Supreme Court, the right-wingers are always up to no good, and almost always in charge. Or so it seems to the sizable slice of the journalistic-academic-cosmopolitan world typified by The New York Times‘ editorial page.

A new wrinkle in this summer’s assessments is that the conservative cabal appears to have co-opted liberal Justices Stephen Breyer, David Souter, and John Paul Stevens. Beyond that, even Barack Obama, who has one of the most liberal voting records in the Senate, was somehow seduced into siding with conservative Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts in two big cases.

To explain, let’s examine a July 3 Times editorial, "A Supreme Court on the Brink." It began by lamenting "highly conservative rulings on subjects like voting rights and gun control"; the former showed that the Court had "abandoned its special role in protecting voting rights when it rejected a challenge to Indiana’s harshly anti-democratic voter-ID law," and the latter will add to gun violence by recognizing a right to keep guns for self-defense at home. The editorial went on to decry the "cold-hearted decision" allowing Kentucky to use a particular lethal injection method to execute capital murderers and the decision reducing to a $500 million "pittance" the $2.5 billion punitive damages award against ExxonMobil for the 1989 Exxon Valdez oil spill. The main bright spots, the editorial noted, were the Court’s "third rebuke to the Bush administration on Guantanamo" and the decision striking down the six state laws that made the most vicious rapists of children eligible for the death penalty.

Reforming the State Secrets Privilege

National Journal

Among the legal issues over which the Bush administration and its congressional critics are stalemated in the war on terrorism is the so-called state secrets privilege. The case of one Khaled el-Masri illustrates the need for carefully balanced congressional reforms during the next administration to mitigate the privilege’s harsh effects on deserving plaintiffs-and on the national image.

In a petition filed on April 9 with the Inter-American Commission on Human Rights, this apparently innocent German citizen of Lebanese extraction described a harrowing five-month ordeal at the hands of Macedonian and then U.S. agents who mistook him for a Qaeda operative. While el-Masri was on a vacation trip, according to the petition (drafted by the American Civil Liberties Union), Macedonian agents abducted, isolated, and harshly interrogated him for 23 days, then brutally beat him while handing him over to a CIA "rendition team." The CIA agents in turn allegedly beat, stripped, and drugged el-Masri and flew him to a secret prison in Afghanistan, where he was held incommunicado for more than four months, harshly interrogated, and treated inhumanely. Finally he was blindfolded again, flown to Albania, and released in the dead of night. El-Masri’s allegations draw plausibility from the government’s failure to deny his factual claims.

The second apparent victimization of el-Masri came when the government denied him compensation or apology for this grotesque mistreatment. It chose instead to hide behind the state secrets privilege, persuading the courts to dismiss el-Masri’s lawsuit against former CIA Director George Tenet and other officials because it would require the agency to admit or deny the existence of a clandestine CIA activity, including highly classified details such as the persons, companies, or governments involved. The Supreme Court declined in October to take up el-Masri’s last appeal.

Supremes Whack World Court – and Bush

National Journal

It’s not every case in which the Bush administration is aligned with the World Court, human-rights groups, the American Bar Association, the European Union, other death-penalty opponents, and a vicious murderer now sitting on death row against Bush’s home state of Texas and tough-on-crime groups.

Nor is it every case in which Bush-appointed Chief Justice John Roberts and his four most conservative colleagues (plus liberal John Paul Stevens) rebuff the president for making an excessive claim of presidential power.

That’s what happened on March 25, in Medellin v. Texas, a complex but fascinating case that has become a global cause celebre. The Supreme Court ruled 6-3 that neither the World Court nor the president could require Texas courts to give the murderer, a Mexican national named Jose Ernesto Medellin, a new hearing on whether he was denied a fair trial by the state’s violation of his right under a multilateral consular treaty to seek help from the Mexican consulate after his arrest. Texas courts have refused because Medellin’s attorney did not raise the state’s violation of the Vienna Convention on Consular Relations in his trial or initial appeal.

The Court issued two important rulings: 1) U.S. courts may not use vague treaty provisions to override state or federal laws without explicit authorization from Congress, a point on which Bush agreed; and 2) The president lacks the sweeping and unprecedented power that he claimed unilaterally to require judicial enforcement of such vague treaty provisions.

The Court was right on both points, in my view. But the decision, widely denounced by internationalists, does carry heavy costs. As Roberts acknowledged, it may hurt relations with foreign governments, may be seen as undermining the nation’s "commitment to international law," and may make it harder for Americans arrested abroad to get access to U.S. consular officials.