David Cole

Race at the Supreme Court

David Cole on June 24, 2013 - 2:14 PM ET

(AP Photo/Evan Vucci)

In a trio of decisions on race discrimination, the Supreme Court today stepped back from the precipice of invalidating affirmative action in university admissions, but made it harder for victims of discrimination and harassment to sue their employers. In Fisher v. University of Texas, one of the most important and closely watched cases of the term, the Court reached a nearly unanimous compromise decision that essentially leaves intact the constitutional status quo, which permits affirmative action for diversity purposes. But the decision may make it easier for disappointed white students to challenge affirmative action plans and therefore invites further litigation.

In the two employment discrimination cases, the Court upended longstanding federal agency interpretations of Title VII, the statute prohibiting discrimination in employment, and issued a pair of 5-4 decisions that will make it more difficult for victims of employment discrimination to seek redress. The Title VII decisions, however, are subject to being “corrected” by Congress, as Justice Ruth Bader Ginsburg pointed out in reading her dissents in both cases from the bench.

The vote in Fisher v. University of Texas was, surprisingly, 7-1, with only Justice Ginsburg dissenting, and doing so in only four pages. (Justice Elena Kagan was recused.) The Court achieved that unanimity by forging a narrow decision that did not change existing law and did not invalidate Texas’ affirmative action plan. The Court merely held that the lower court had applied an insufficiently rigorous standard in reviewing Texas’ plan. It remanded the case back to the lower courts so that they could apply the more stringent standard required. But it seems quite possible that the University of Texas will be able to satisfy the standard the Court set forth, thereby saving its program. The bottom line is that affirmative action has survived, for now.

When the Supreme Court agreed to hear the Fisher case, many feared that the Court might be ready to end affirmative action. The Court had narrowly upheld a University of Michigan Law School affirmative action plan in 2003 in Grutter v. Bollinger, but Justice Sandra Day O’Connor had cast the deciding vote in that case. She has since been replaced by Justice Samuel Alito, no fan of affirmative action. It appeared that there might well be five votes to overturn Grutter, which had established that while affirmative action triggers “strict scrutiny,” it may satisfy such scrutiny where it is narrowly tailored to further a compelling interest in achieving the educational benefits of diversity. Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy had dissented in Grutter, and Chief Justice John Roberts and Justice Alito seemed likely to agree with these three.

The Texas plan, however, was quite modest—race was only “a factor of a factor of a factor” in a holistic consideration of all aspects of an individual’s application. It set up no racial quotas and made the consideration of race a marginal factor at best. But the university adopted the program after the state legislature had achieved a degree of racial diversity through a purportedly race-neutral “Ten Percent Plan,” under which all Texas students in the top 10 percent of their graduating high school classes would be guaranteed admission to the University of Texas. (This plan was only purportedly race-neutral, as Justice Ginsburg pointed out in dissent, because it was adopted with the knowledge and intent that given racial segregation, it would be an indirect way to achieve some measure of diversity). The question in Fisher was whether the university’s consideration of race to achieve diversity beyond that provided by the Ten Percent Plan, was warranted.

All eyes rested on Kennedy, who, while dissenting in Grutter, agreed that diversity was a compelling interest that might, under some other circumstances, justify affirmative action. Kennedy, however, had never found a racial classification that he could accept, so in order to win, the University of Texas would have to satisfy Kennedy. It modeled its plan on that used by the University of Michigan, while tweaking it to ensure that each of the factors Justice Kennedy did not like in the Michigan plan was not present in the Texas program.

Kennedy has still not found a race-based plan that he could uphold. But he didn’t vote against the Texas plan, either. Instead, he wrote a narrow opinion that merely found that the court below had erroneously deferred to the university’s judgment that its consideration of race was necessary to achieve the educational benefits of diversity. Where universities discriminate on the basis of race in the name of diversity, Kennedy wrote, it is appropriate to defer to their judgment that diversity is a compelling state interest, but not on their judgment that a race-based program is a necessary means to achieve that diversity. As the Court wrote, “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

But this hardly clarifies matters. The university, the Court said, does deserve deference in its assessment that diversity provides compelling educational benefits. Because the state interest in diversity is a matter of educational judgment as to which the courts have no real basis for second-guessing, it is difficult to see how the “narrow tailoring” requirement can be applied with much more teeth. If a state program must be narrowly tailored to a specific and measurable end, that’s one thing. But the Court has never really been able to say what narrow tailoring to the end of diversity actually means, other than a holistic consideration of each individual applicant, in which no racial quotas are used and race does not become a “defining feature,” whatever that means. The University of Texas seems to have complied with those requirements. In the end, what Fisher is likely to beget is more consideration by universities as to whether they can achieve the ends of diversity through race-neutral means. But that seems unlikely to change much in terms of outcomes, unless you think that universities are ignoring race-neutral means to achieve diversity now, a conclusion that is counterintuitive and wholly unsupported.

The employment discrimination cases do change the status quo, and both do so along the usual 5-4 lines. In both cases, the conservative majority sided with business by making Title VII claims more difficult to prevail on, while the liberals dissented and urged Congress to reverse the Court. In University of Texas Southwestern Medical Center v. Nassar, the Court overturned a longstanding Equal Employment Opportunity Commission (EEOC) interpretation and imposed a new, demanding standard on “retaliation” claims. Title VII provides that an employment decision that is motivated by race or other impermissible factors is illegal, even if other factors also played a role in the action. The Court held, however, that to prevail on the related claim of retaliation for bringing a race discrimination claim, the employee must show not just that the retaliation was motivated by race but that it was the “but-for” cause of the retaliation, a much tougher threshold. Under this approach, the employer who retaliates in part because of an individual’s filing of a race discrimination claim will escape any liability if it can show that it acted for multiple motives, only one of which was to retaliate. As Justice Ginsburg pointed out in dissent, this double standard makes little sense. Congress and the Court have long recognized that to protect against discrimination, one must equally protect against retaliation for filing discrimination complaints; they are part and parcel of the same problem, and the same liability standard should govern both.

In Vance v. Ball State University, the Court adopted a similarly employer-friendly interpretation of Title VII. Under Title VII’s anti-harassment provisions, employers have greater liability for the racial and sexual harassment of supervisors than of co-workers. The idea is that the supervisor’s authority over an employee empowers him or her to engage in harassment, and therefore employers should be held more strictly accountable for the actions of their supervisors. Here, too, the Court’s conservative majority rejected the view of the EEOC, which had sensibly defined “supervisor” as one who has authority to direct an employee’s daily activities. The 5-4 majority instead adopted a stricter standard, limiting supervisors to those who have the authority to take tangible employment actions—such as hiring, firing, or denial of promotion—against an employee. Again, Justice Ginsburg persuasively noted that this more stringent standard does not square with the statute’s language and purpose, much less the reality of the working world, in which those who can direct one’s daily activities are, as a result, clothed with the employer’s authority, an authority that can be abused for harassment purposes. Here, too, Justice Ginsburg urged Congress to correct the Court’s error—and it can do so, as the decision rested only on an interpretation of a statute, and not on the Constitution.

In the end, Monday was a neutral day for affirmative action, which in this climate was almost certainly the best advocates of affirmative action could hope for. But it was a decidedly bad day for workers, who will almost certainly now face more racial and sexual harassment and retaliation, without legal recourse.

Supreme Court Delivers a Win for First Amendment Rights

David Cole on June 20, 2013 - 5:03 PM ET

Supreme Court building. (AP Images)

In an important victory for First Amendment rights, the Supreme Court today recognized that free speech in the era of big government requires more protection than a mere prohibition on direct suppression of speech. Governments can effectively silence disfavored ideas not only by directly prohibiting their expression, but also by hinging access to government benefits on conditions that prohibit or require espousal of specific ideas. In Agency for International Development v. Alliance for Open Society, the Supreme Court held that Congress violated the First Amendment when it required providers of AIDS services, as a condition of government funding, to profess their opposition to prostitution. The decision is critically important because in the modern era, virtually every forum of public speech is funded in some way by the government, so if the government could control speech as a condition of its financial support, the marketplace of ideas could easily be transformed into a marketplace of officially approved ideas.

The case involved a law that required groups that receive federal funding for AIDS prevention work to adopt a “policy explicitly opposing prostitution.” American organizations that receive billions of dollars annually from the US government to do AIDS prevention and other work sued, maintaining that adopting such a policy would undermine their ability to work effectively in reducing HIV transmission by prostitutes. (The groups do not affirmatively promote prostitution, but maintain a position of neutrality on the issue, in part because they consider that central to their effectiveness in working with prostitutes.)

The Obama administration, defending the statute, argued that the requirement that recipients profess their opposition to prostitution did not violate the First Amendment because it did not prohibit or coerce any speech at all. Any group that objected to adopting such a policy, the administration argued, could simply not seek federal funding in the first place. Justices Antonin Scalia and Clarence Thomas agreed with this view, expressing doubt that funding conditions could ever violate the First Amendment so long as they were relevant in some way to the program. But importantly for the vitality of free speech, only Scalia and Thomas took that view.

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Chief Justice John Roberts wrote the opinion for the majority, joined by Justices Samuel Alito, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. (Justice Elena Kagan was recused.) The majority took the view that funding conditions violate the First Amendment when they go beyond defining how government funds can be used, and instead impose restrictions on what the recipient of the funding can say with its own resources and on its own time. The requirement that an organization adopt as its policy the government’s belief crosses that line, because it seeks to control the recipient’s own speech and ideas, and not merely what can be done with the government’s funds.

Thus, Congress was free to require that its funds not be used for the promotion of prostitution, but it could not go further and require all funding recipients to profess a belief in opposition to prostitution. The Obama administration argued that the distinction between permissible restrictions on how government funds are actually spent and impermissible restrictions on recipients makes no sense because money is fungible. If a recipient took the government’s funds and abided by its mandate not to use them to promote prostitution, but at the same time used private funds to do exactly that, the government contended, the federal funds could be seen as “freeing up” private resources to advocate in favor of prostitution. The Court rightly rejected that argument as proving too much. If one accepted that view, there would be no restriction on the government’s ability to control all of an entity’s speech simply by funding one part of what the entity does. The Court held that it will not assume that federal funding subsidizes private speech, and instead suggested that the government must actually prove that the recipient is funneling the federal funds toward impermissible activities.

The principle that even government funding must honor First Amendment freedoms is essential to a robust exchange of ideas. Virtually every area of important communication today is supported by government subsidies. The print media receive subsidized mailing rates; radio and television broadcasters receive a subsidy in access to the public airwaves; nonprofit organizations receive a tax subsidy by virtue of their tax-exempt status; public universities receive taxpayer dollars; and virtually all private universities also receive significant government support in the form of grants, fellowships and scholarships. Indeed, it is difficult to identify a single forum of public debate that is not subsidized in some way by public funds. If Scalia and Thomas’s view were accepted, and the government were free to demand professions of belief in specific government viewpoints as a condition of access to public funding, free speech would be easily bought off. The Court’s decision in Alliance for Open Society, by recognizing that the state can censor with its purse as well as its sword, and ruling that funding conditions must adhere to First Amendment limits, will help ensure the continued viability of freedom of speech in our increasingly interdependent public-private world.

Read Melissa Gira Grant's take on the impact the Supreme Court decision will have on organizations fighting HIV/AIDS internationally.

Secret NSA Program Gives the Agency Unprecedented Access to Private Internet Communications

David Cole on June 6, 2013 - 9:49 PM ET

(AP Photo/Pablo Martinez Monsivais)

What you don’t know can hurt you, it turns out. In back-to-back revelations this week, Americans learned that their electronic communications are subject to massive monitoring by the National Security Agency, without any individualized basis for suspicion. On Wednesday, The Guardian published a secret court order requiring Verizon Business to turn over to the NSA phone “metadata” regarding all calls between the United States and other countries and all local calls within the United States. The data includes the originating number, the number called and the date, time and duration of the calls. In some instances, it includes the location of the callers. According to Senator Dianne Feinstein, this was a renewal of an order that has been in place for many years, unbeknownst to the American public. And as there is nothing unique about Verizon, it seems virtually certain that similar orders govern all phone service providers. In the wake of the disclosure, the Obama administration sought to deflect criticism, stressing that the order does not require transmission of the content of phone calls. But it is no small matter to know that every time you pick up the phone and call, the NSA knows it.

As if that weren’t disturbing enough, on Thursday The Washington Post reported that the NSA has entered into agreements with nine Internet service providers—including Google, YouTube, Facebook, Yahoo, Skype, Apple and AOL—to allow the NSA to obtain from them all sorts of private information communicated over their networks. Dropbox, the Post reports, is said to be “coming soon.” According to the Post, the top-secret program, PRISM, allows the FBI and the NSA to extract “audio, video, photographs, e-mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time.”

The PRISM program, unlike the NSA phone records program, does not sweep up all data in a vacuum. Rather, it enables government analysts to search the private Internet company’s own data for key terms that are supposed to make it more likely than not that the target is “foreign.” But this requirement of only 51 percent certainty means that much of the information disclosed will inevitably concern Americans. The extent of the information available to the government is extraordinary. The Post reports that, according to a PRISM “User Guide,” Skype “can be monitored for audio when one end of the call is a conventional telephone and for any combination of 'audio, video, chat, and file transfers' when Skype users connect by computer alone. Google’s offerings include Gmail, voice and video chat, Google Drive files, photo libraries, and live surveillance of search terms.”

By combining information from both programs, the government can rather quickly paint a detailed picture of the private life of almost anyone. The persons with whom one communicates, the documents one saves in the “cloud,”—photographs, e-mails, Facebook postings and even audio Internet calls—are all available.

The government claims this is useful in fighting terrorism. Sure it is. But it would also be useful in fighting terrorism if all of us were required to open our homes, luggage, wallets, purses, computers and private communications to the government at its direction, without a warrant based on probable cause of criminal activity. Privacy makes it easier for terrorists and other criminals to pursue bad ends. But privacy also makes it possible for the rest of us to live our lives with intimacy, to develop our personalities and ideas and associations without fear of government oversight, and to think and act for ourselves. Privacy is the life blood of a vibrant democracy and a free society.

But in Silicon Valley and the NSA, those values seem increasingly old-fashioned, victims of the technological advances that make it easy to track almost every move a person living in the twenty-first century makes. Every phone call we dial; every Internet site we browse; every credit card purchase we make; every bank deposit or withdrawal; every e-mail we send and, if we carry a smart phone, even every step we take is shared with some private third party—the phone company, the Internet service provider, the bank, credit card company, etc.

In the 1970s, when no one could foresee the digital age we now take for granted, the Supreme Court decided that information we share with third parties is not protected by the Fourth Amendment from government efforts to obtain it from that third party. As a result, the Fourth Amendment’s warrant and individualized suspicion requirements do not apply, and the government is free to obtain information without any suspicion at all on any or, as in the Verizon example, all of us. That “third party disclosure” rule is the single greatest threat to the continued protection of privacy in the digital age, and it desperately needs reconsideration.

But in the meantime, Congress should act. The absence of constitutional protections does not mean that Congress cannot create statutory protections. It has done so in the past, creating statutory safeguards, for example, for bank and credit records, and for the real-time collection of phone data. But this week’s revelations make clear that the protections are outmoded and insufficient. To be sure, the government needs the authority to track individuals suspected of criminal or terrorist activity. But does it really need to be able to track us all in such a sweeping manner?

Somewhere along the way after 9/11, we lost our bearings on the balance between privacy and security. Because it largely happened through secret orders and secret programs, Americans did not even know what we had sacrificed. We are beginning to get an inkling. If privacy is going to survive, Congress needs to launch a full investigation, with the aim of informing Americans about the intrusions on our privacy, and imposing reasonable limits to ensure that those of us who are not engaged in criminal or terrorist activity are not innocent casualties of the modern surveillance state.

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It’s Worse Than You Thought: NSA Spying and the Patriot Act

David Cole on June 6, 2013 - 11:01 AM ET

(AP Photo/Amy Sancetta, File)

“Just because you’re paranoid doesn’t mean they aren’t after you.” Never has Joseph Heller’s observation from Catch-22 been more apt than today, as news spreads that the National Security Agency has been using the Patriot Act to sweep up phone call data on every Verizon Business Network customer in the nation—and presumably on residential and cell phone customers as well. Last night, The Guardian published a secret court order, issued under Section 215 of the Patriot Act, that requires Verizon Business Network Services to provide “on an ongoing daily basis” phone records for all “communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” The data to be provided includes the numbers called, the length and time of calls and other routing information, but does not include the actual content of the calls. But the government can learn an awful lot about an individual simply by tracing whom he or she is calling, how often and for how long.

This is a stunningly broad order, and there’s every reason to believe that similar orders exist for other phone providers in the United States. Verizon itself is not the focus of the investigation, so Sprint, AT&T and others almost certainly are under similar orders. An expert interviewed by The Washington Post said the order appeared to be a routine ninety-day renewal of what has effectively been a standing order for all such data. In other words, the federal government is apparently sweeping up records on every phone call any of us makes, without any specific basis for suspicion about any of us.

How can it do so? The Supreme Court long ago ruled that such information enjoys no Fourth Amendment protection, on the theory that when one shares information with a third party, one has no “reasonable expectation of privacy” with respect to the government obtaining information from the third party. Supreme Court Justice Sonia Sotomayor has suggested that this doctrine needs to be reconsidered, but until that happens there are no constitutional impediments to such wholesale vacuuming up of data without any individualized basis for suspicion.

Congress has placed some limits on the gathering of such data, but as this order reveals, they are largely meaningless. A controversial provision of the Patriot Act, Section 215, allows the government to demand “business records” from any business, so long as they are “relevant to an authorized investigation…to obtain foreign intelligence information…or to protect against international terrorism.” Section 215 orders are granted in secret, as this one was, and until now little was known about how extensively the government relied upon them, or how “relevant” was interpreted. By this single order, however, the NSA has been given access to records on literally millions of customers, without suspicion about any of them. We don’t know the government’s theory, but it appears that it may be arguing that in order to protect against international terrorism, it is “relevant” to sweep up phone call data about all of us all of the time.

Last year, Senators Ron Wyden and Mark Udall warned, in a letter to Attorney General Eric Holder, “We believe most Americans would be stunned to learn the details of…these secret court opinions. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows.” Count me as one of those stunned. The leak of this secret court opinion certainly narrows the gap in our knowledge that secrecy permitted. But it does so by confirming that those most paranoid about government spying were right after all.

Obamacare Upheld: How and Why Did Justice Roberts Do It?

David Cole on June 28, 2012 - 3:09 PM ET

Supreme Court, Affordable Care Act, Obamacare
An artist rendering shows Chief Justice John Roberts, center, speaking at the Supreme Court in Washington, Thursday, June 28, 2012. From left are, Justices Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Roberts, Anthony Kennedy, Ruth Bader Ginsburg and Elena Kagan. (AP Photo/Dana Verkouteren)

The Supreme Court closed out its 2011–12 term today in dramatic fashion, upholding the Affordable Care Act by a sharply divided vote. The Court’s bottom line, reasoning and lineup of justices all came as a shock to many. While I had earlier cautioned doomsayers that the law was “not dead yet” after an oral argument that others deemed disastrous for the law’s defenders, I don’t think anyone predicted that the law would be upheld without the support of Justice Anthony Kennedy, almost always the Court’s crucial swing vote. And while most of the legal debate focused on Congress’s power under the Commerce Clause, the Court ultimately upheld the law as an exercise of the taxing power—even though President Obama famously claimed that the law was not a tax. The most surprising thing of all, though, is that in the end, this ultraconservative Court decided the case, much as it did in many other cases this term, by siding with the liberals.

Justice Kennedy, on whom virtually all hope for a decision upholding the law rested, voted with Antonin Scalia, Samuel Alito and Clarence Thomas. They would have invalidated all 900 pages of the law—even though the challengers had directly attacked only two of the law’s hundreds of provisions. But Chief Justice John Roberts sided with Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Elena Kagan to uphold the law as a valid exercise of Congress’s power to tax.

The Individual Mandate As a Tax

What led Roberts to cast his lot with the law’s supporters? The argument that the taxing power supported the individual mandate was a strong one. The mandate provides that those who can afford to buy healthcare insurance must do so, but the only consequence of not doing so is the payment of a tax penalty. The Constitution gives Congress broad power to raise taxes “for the general welfare,” which means Congress need not point to some other enumerated power to justify a tax. (By contrast, if Congress seeks to regulate conduct by imposing criminal or civil sanctions, it must point to one of the Constitution’s affirmative grants of power—such as the Commerce Clause, the immigration power, or the power to raise and regulate the military.)

The law’s challengers—and the Court’s dissenters—rejected the characterization of the law as a tax. They noted that it was labeled a “penalty,” not a tax; that it was designed to encourage people to buy health insurance, not to raise revenue; and that Obama himself had rejected claims that the law was a tax when it was being considered by Congress. But Roberts said the question is a functional one, not a matter of labels. Because the law in fact would raise revenue, imposed no sanction other than a tax and was calculated and collected by the IRS as part of the income tax, the Court treated it as a tax and upheld the law.

Chief Justice Roberts did go on to say (for himself, but not for the Court’s majority) that he thought the law was not justified by the Commerce Clause or the Necessary and Proper Clause, because rather than regulating existing economic activity it compelled people to enter into commerce. When one adds the dissenting justices, there were five votes on the Court for this restrictive view of the Commerce Clause. But that is not binding, because the law was upheld on other grounds. And while some have termed this a major restriction on Commerce Clause power, it is not clear that it will have significant impact going forward, as the individual mandate was the first and only time in over 200 years that Congress had in fact sought to compel people to engage in commerce. It’s just not a common way of regulating, so the fact that five justices think it’s an unconstitutional way of regulating is not likely to have much real-world significance.

Limiting the Medicaid Expansion

The other provision challenged conditioned state’s receipt of Medicaid funding on their implementation of the Act’s greatly expanded Medicaid coverage. Where Medicaid initially covered only several discrete categories of persons, under the ACA it extends to all adults earning less than 133 percent of the poverty level. The states argued that threatening them with loss of all their Medicaid funding was a coercive condition on the funding. Seven members of the Court agreed that if the law were enforced to take away state’s existing Medicaid funds it would be unconstitutional, but the majority upheld the provision as a condition only on the funds provided for the expanded Medicaid program. It seems unlikely that states will turn down those funds. Under the ACA, the federal government initially covers 100 percent of all new Medicaid costs, and while the federal contribution diminishes over time, it never falls below 90 percent of the program’s cost, so any rational state will likely take the money and expand its coverage.

All in all, then, the decision marks a major victory for President Obama and the backers of health insurance reform. As many Nation readers know, a single-payer system would have been much better, and the ACA is far from perfect, but the question here was not whether this was the best of all possible policies but only whether the Court would strike down the best healthcare insurance program that Congress could realistically enact. As Roberts put it, “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

So why did Roberts do it? In part, the outcome reflects the fact that the truly radical position in this dispute was that of the challengers. Even very conservative lower court judges, including Jeffrey Sutton of the Sixth Circuit and Laurence Silberman of the DC Circuit, had concluded that the law was valid (although on Commerce Clause, not taxing power, grounds). But in addition, I cannot but think that at the back of Roberts’s mind was the Court’s institutional standing. Had the law been struck down on “party lines,” the Court’s reputation would be seriously undermined. In May, the Pew Research Center reported that favorable views of the Supreme Court as an institution had reached an all-time low. Sharply divided partisan decisions like Bush v. Gore and Citizens United appear to have done damage to the Court’s legitimacy—and ultimately, its legitimacy is the source of the Court’s power. Today’s result, which upholds the actions of the democratically elected branches on a major piece of social welfare legislation that affects us all against a challenge that was always a real long shot, driven more by politics than legal principle, may help repair the Court’s tarnished image.

A Good Year for Liberals Before a Conservative Court

Indeed, it is worth noting, as the term draws to a close, that this conservative Court issued a surprising number of liberal decisions this term. It struck down mandatory life sentences without parole for juveniles; invalidated a penalty imposed on broadcasters for “indecent” speech; struck down a law making it a crime to lie about one’s wartime honors; extended the right to “effective assistance of counsel” to plea bargaining; invalidated most of Arizona’s anti-immigrant SB 1070; ruled that installing a GPS to monitor an automobile’s public movements requires a warrant; retroactively applied a liberalized crack cocaine sentencing regime to persons who had committed their crimes before the reforms were introduced; and held that the Sixth Amendment right to a jury trial requires the state to prove to a jury beyond a reasonable doubt all facts that increase a criminal fine. All in all, not a bad year for liberals before a conservative Supreme Court. But stay tuned, because next year it is likely to take up affirmative action, the Voting Rights Act and gay marriage.

Read more of The Nation's coverage of the ruling on the Affordable Care Act:
George Zornick on how the ruling makes it easier for Republicans to deny Medicaid coverage to millions.
Ben Adler on the Republicans' renewed attacks on Obamacare.
John Nichols on the ongoing push for Medicare-for-all.

Anti-Immigrant Forces Lose Big in Supreme Court

David Cole on June 25, 2012 - 12:31 PM ET

The Supreme Court in Washington, Monday, June 25, 2012. (AP Photo/Evan Vucci)

Arizona’s campaign to implement its own anti-immigration law and enforcement policy—a campaign emulated by several other states since—came to a virtual dead end today, as the United States Supreme Court ruled that immigration law is the prerogative of Congress and the Executive, and that states may not adopt laws or enforcement policies that conflict with the federal scheme. Although many people predicted after oral arguments that much of Arizona’s law would be upheld, the Court struck down three of the four provisions at issue as inconsistent with federal law. Even in regards to the fourth provision, the so-called “show me your papers” rule authorizing Arizona police to check the immigration status of persons they have stopped or arrested, the Court merely said that it was too early to tell whether it was valid or invalid. It said that a ruling on its legality would have to wait and would depend on how it is interpreted and applied. If, as seems highly likely, this provision is enforced in a way that invites racial profiling, it may well be invalidated yet. In short, the decision, written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Ginsburg, Breyer and Sotomayor, was a virtually complete victory for the federal government, and a huge loss for anti-immigrant forces.

In some respect, this should not have come as a huge surprise. While the politics of immigration is deeply divided, both conservative and liberal justices have long been united on one thing: immigration law is a federal matter. The immigration power is expressly assigned to Congress by the Constitution, and it obviously implicates basic questions of federal sovereignty and foreign relations. To allow each state to enforce its own immigration law would be a total disaster. Today’s ruling reinforces that principle, holding that Congress has plenary power over how to legislate on immigration, and that the Executive has authority over how to enforce immigration law (as President Obama illustrated two weeks ago in announcing that he would exercise his discretion to stop deporting certain young illegal immigrants).

Two of the four provisions at issue made it a crime under Arizona law to be in the United States in violation of federal immigration law. Arizona argued that since it was only adding state penalties to conduct that federal law already made illegal, it was acting within its authority. The Court rejected that argument, holding that it is Congress’s decision how to punish violations of the immigration law, not Arizona’s. Arizona made crimes out of infractions that Congress chose to treat only as civil immigration law matters. That, the Court said, is flatly inconsistent with the federal immigration scheme. Under this part of the decision, all copycat state laws that add criminal penalties to federal immigration infractions will almost certainly be impermissible.

A third provision authorized Arizona police to make warrantless arrests of persons they have probable cause to believe were here in violation of federal immigration law. Again, Arizona said it was just “cooperating” with federal authorities, by arresting people who appeared to be violating federal law. But again, the Court dismissed the contention, pointing out that Arizona had given its officers greater power to arrest immigrants than Congress had given its own federal officers. Congress has said that state officers may cooperate with the federal government on immigration, the Court noted, but only where invited to do so (and under current law, only where first trained in the complexities of immigration law). Whatever “cooperation” means, the Court reasoned, it cannot possibly encompass the “unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.”

Some civil rights and immigrants’ rights groups have expressed disappointment that the Court left standing a fourth provision. It requires Arizona officers to check the immigration status of all persons they stop or arrest for some other purpose, where they have “reasonable suspicion” that they might be here in violation of federal immigration law, and bars release of any arrested person before his status is determined. This provision, critics rightly assert, is bound to invite racial profiling in its enforcement—it seems highly likely that Arizona officers’ “reasonable suspicion” will be based on racial or ethnic appearance (even though in a state like Arizona, with a substantial Latino citizen population, that’s hardly a reasonable basis for suspicion). But contrary to some of the civil rights groups’ criticisms, the Court did not actually uphold the provision. It simply ruled that it’s too early to tell. And in so ruling, it warned that if it’s enforced in ways that many fear, it very well might be invalid.

Here’s what the Court actually said about the “show me your papers” law. First, it noted that the law was challenged before it went into effect, and that on its face it includes several important limitations. The law says that showing an Arizona drivers’ license or similar identification is presumed to establish legal status. It prohibits consideration of race or ethnicity except as permitted by the Constitution and it says it must be implemented consistent with federal law. Moreover, the Court said, there is nothing inherently inconsistent with federal law for a state official who has lawfully stopped someone for some other purpose to merely check his or her status. The decision about what to do with that person would remain a federal matter.

At the same time, the Court warned that “detaining individuals solely to verify their immigration status would raise constitutional concerns,” and that delaying release to determine status would “disrupt the federal framework.” But as the law was enjoined by the lower federal courts before going into effect, it had not yet been interpreted by the state courts. The state courts, the Supreme Court speculated, might interpret the provision to avoid direct conflict with federal law—such as, by holding that it requires officers only to institute checks but not to actually complete them before an arrested person is released. And it stressed that once the law goes into effect, “other preemption and constitutional challenges” could be pursued. Thus, if this provision leads to racial profiling, or to detentions that are initiated or extended for status checks, it can be challenged again—and under this opinion, very likely would be invalidated.

In short, the Arizona decision was almost a complete victory for those who have been fighting the efforts of many states to use their state laws to make life miserable for immigrants. It concluded with a heartfelt reminder that we are a nation of immigrants, almost as if the Court were pleading with the country for compassion and reason in an area that has been dominated by vitriol and demagoguery. We can and should celebrate the decision for the roadblock it has erected to the state law anti-immigration movement. Comprehensive immigration reform remains essential at the federal level, but this decision means that efforts to use states to target immigrants are likely to fail.

Looking for more coverage of recent Supreme Court decisions? Read Liliana Segura on the Supreme Court’s ruling against life without parole for juveniles.

Whatever Happened to the Minimalist Supreme Court?

David Cole on June 21, 2012 - 3:27 PM ET

The Supreme Court today did not decide either of the two cases in which public interest is greatest—the challenges to the Affordable Care Act and to Arizona’s anti-immigrant law, SB 1070. It did, however, issue four important decisions. In all four, the Court sided against the government and with private citizens or entities. In three, that translated into a victory for liberal values; in the last, however, the Court’s five conservative members reached out to impose new liabilities on unions’ abilities to use dues for political purposes—even though the issue had not been briefed or argued. The results, in other words, were mixed, except for one theme—this is not a Court shy about exercising its power. That may bode ill for healthcare.

In Dorsey v. United States, the Court ruled that Congress’s 2010 reduction in the disparity in sentencing for crimes involving crack and powder cocaine (from 100:1 to 28:1) applies not only to persons who commit those crimes after Congress changed the laws but also to those who committed their crimes before the change but were sentenced after the change took place. Congress reduced the disparity in light of overwhelming evidence that it had vastly disproportionate effects, because most of those sentenced for crack cocaine crimes are black, while many more whites are sentenced for powder cocaine. The Court’s bottom line means that some of the predominantly African-American defendants now serving unconscionably long sentences for relatively small amounts of crack cocaine will have their sentences reduced.

Dorsey involved no constitutional principles but only a question of how to interpret a statute. But it nonetheless divided along ideological lines, with Justice Kennedy joining the Court’s four more liberal justices in concluding that the statute is best read to reach all persons sentenced after its enactment, not only those who committed their crimes thereafter. (The Obama administration supported that position in the case, so the Supreme Court appointed an amicus to defend the sentences upheld below). The statutory construction arguments are complex, but at the end of the day, the result is salutary, as it extends the benefits of a law designed to reduce racial disparities to more African-American defendants. The tragedy of mass incarceration, of course, remains.

In a second decision, FCC v. Fox Television Stations, the Court invalidated fines imposed on Fox Television and ABC for “indecency” for broadcasting brief expletives during the 2002 Billboard Music Awards, and brief nudity during an episode of NYPD Blue. The instances in question—Cher and Nicole Richie saying “fuck” and “shit” during impromptu remarks during the awards ceremony, and a scene that showed a woman’s buttocks for seven seconds and the side of her breast for a moment—seem quaint by the standards of what is routinely available on cable and Internet in American homes today. But the Federal Communications Commission still bans “indecency” on broadcast television, a ban upheld in 1978 against Pacifica for broadcasting comedian George Carlin’s “seven dirty words” sketch. In 1978, the Court upheld that ban on the ground that the television is uniquely intrusive into the home and available to minors. That argument no longer holds, of course, given the ubiquity of screens in private homes. And the broadcasters asked the Court to strike down the “indecency” rules on that ground.

The Court ruled for the broadcasters, but on somewhat a narrower ground. It found that the “indecency” rules were unconstitutionally vague, and failed to give broadcasters fair notice that brief expletives and nudity would indeed be deemed a violation of the “indecency” standard. By so ruling, the Court reaffirmed the important principle that government rules penalizing speech must be especially clear, but left for another day the larger question of whether there is any rationale left for subjecting broadcast television to different constitutional freedoms than those enjoyed by other forms of entertainment and expression. Defining “decency” in non-vague terms has always been difficult, so it is possible that this could mark the beginning of the end of an unwise censorship policy.

A third case, Southern Union v. United States, held that juries, not judges, must make findings of fact that result in increased criminal fines, extending a 2000 decision regarding the Sixth Amendment jury trial right and criminal sentencing. This means that prosecutors must prove facts that influence the amount of fines to the jury beyond a reasonable doubt, and cannot simply assert them after trial to a judge in a pre-sentencing report.

The final case involved unions’ ability to engage in political advocacy. The Court famously freed up corporations to do so in Citizens United, where it struck down restrictions on corporations’ freedom to spend money on political campaigns, thereby unleashing the Super PACs on the American electoral scene. This case involved the rights of unions to engage in political action, particularly where, because of “agency shop” rules, they represent all workers at a particular site, and not just those who voted for the union. The Court has recognized that the unions in such circumstances bargain for all, and therefore should be able to charge all workers dues to cover its operational costs. At the same time, it has recognized that nonmembers have a constitutional right not to be compelled to support the political views of a union they have not joined. In prior opinions, the Court had said that unions could address that issue by issuing refunds to those who “opt out.”

In Knox v. SEIU, however, the Court ruled that in some circumstances, unions engaged in political speech “may not exact any funds from nonmembers without their affirmative consent,” essentially imposing, as a constitutional matter, an “opt-in” requirement where the default hurts rather than helps the union. This is essentially the political strategy that anti-union forces have employed in getting twenty-three states to pass so-called “right to work” laws. But in this instance, the Court has imposed the requirement as a constitutional matter, thereby placing the Constitution on the side of anti-union forces. Justices Sotomayer, Ginsburg, Breyer and Kagan all dissented, noting, among other things, that this issue had not even been briefed or argued, and was contrary to precedent.

At the end of the day, it’s a mixed bag, politically. But one thing is clear—this is not a shy or minimalist Court. And that may not bode well for healthcare, where challenges are asking the Court to depart from generations of constitutional precedent to strike down a law affecting literally every American. On that, tune in next week.

DOMA Declared Unconstitutional; Next Stop, Supreme Court

David Cole on June 1, 2012 - 10:20 AM ET

Reuters/David McNew

Gay rights advocates secured another milestone victory on Thursday, when the US Court of Appeals for the First Circuit unanimously declared unconstitutional a federal law denying benefits to same-sex married couples that are otherwise available to opposite-sex married couples. This is the first federal law ever declared unconstitutional by an appellate court for discriminating against gays and lesbians, and it’s almost certainly headed for the Supreme Court. That’s a scary destination for any progressive legal claim these days, but for a variety of reasons, this case is a much better vehicle for gay rights advocates and the Supreme Court alike than the constitutional challenge to California’s ban on same-sex marriage, which the US Court of Appeals for the Ninth Circuit declared unconstitutional in February. Which case gets to the Court first may be a matter of luck. The Ninth Circuit decision is now awaiting a decision on a request for en banc review by a larger panel of that court, and will not be ripe for a petition for Supreme Court review until the Ninth Circuit resolves the en banc request. The First Circuit case, by contrast, could go directly to the Supreme Court. That’s good news for all concerned.

The law struck down in Massachusetts v. U.S. Dep’t of Health and Human Services, the Defense of Marriage Act, or DOMA, was enacted in the wake of a 1993 Hawaii Supreme Court decision declaring that Hawaii’s denial of marriage to same-sex couples might be unconstitutional. In a panic, Congress in short order and by large majorities passed DOMA, which among other things denies federal tax and Social Security benefits to same-sex married couples, reserving those benefits for marriages between a man and a woman, even where states recognize same-sex marriage on equal footing with opposite-sex marriage.

The challengers to the law maintain that it impermissibly discriminates on the basis of sexual orientation, and interferes with a realm traditionally reserved to the states—family law and the definition of marriage. The federal government initially defended the law, but, under President Obama, switched sides and argued that it is unconstitutional. Republican members of the House of Representatives, represented by former Solicitor General Paul Clement, intervened to defend the law. A unanimous panel comprised of judges appointed by Presidents Clinton, Reagan and George H.W. Bush, in a moderate, carefully reasoned and restrained opinion, found that the law did indeed violate equal protection.

The Justice Department and the plaintiffs had argued that because it discriminated on the basis of sexual orientation, the law should be subjected to more skeptical scrutiny than laws drawing other kinds of distinctions. The statute’s defenders maintained that it need only satisfy “rational basis” review, a highly deferential standard that upholds any law as to which one can imagine any rational justification.

The panel adopted neither view. It considered itself bound by an earlier decision of the First Circuit, which, in a challenge to the military’s “don’t ask, don’t tell” policy, declined to treat gays and lesbians as a “suspect class” warranting categorically heightened scrutiny. But the panel noted that the Supreme Court has on several occasions applied “rational basis” review with special care to laws that discriminate against historically disadvantaged groups and whose justifications were “thin, unsupported, or impermissible.” And it noted that because this federal law interfered with a traditional state domain, Congress should be obliged to offer justifications for its actions with “special clarity.”

In the end, the debate over the standard of review was less determinative than the simple fact that here, as with many laws treating gays and lesbians differently, there simply was no rational justification for the law. Congress said it sought to (1) defend traditional heterosexual marriage, (2) defend traditional notions of morality and (3) conserve scarce resources. But neither Congress nor the law’s defenders could explain how denying Social Security benefits to same-sex married couples would defend heterosexual marriage. As the court said, there is no reason to believe the denial of benefits would “affect the gender choices of those seeking marriage.”

The Supreme Court in Lawrence v. Texas, which declared unconstitutional Texas’s criminal ban on homosexual sodomy, said that mere moral disapproval is an insufficient justification for discrimination on the basis of sexual orientation. And the Court has also ruled that “saving money” is not a good enough reason for discriminating against a historically disadvantaged group.

The First Circuit recognized that its decision was virtually certain to be reviewed by the Supreme Court, and stayed the effect of its ruling until that time. I have written in detail in The New York Review of Books why this case would be a better case for Supreme Court review than the California gay marriage case. Suffice it to say here that the First Circuit’s reasoning is straightforward and moderate, has the assent of two Republican-appointed judges and, most importantly, does not call into question the validity of the many state laws restricting marriage to opposite-sex couples. Gay rights advocates are justifiably nervous about the Supreme Court addressing the ultimate question of gay marriage now, when only about six states recognize gay marriage, and more than thirty have laws affirmatively precluding its recognition. Historically, the Supreme Court has been a follower, not a leader, when it comes to expanding rights. That is all the more likely to be the case given the conservative makeup of the Court today. But as the First Circuit’s unanimous decision shows, even conservatives can find a lot not to like in this law.