The Supreme Court

WARNING: Long post on the law.

So, sometimes a job like mine can have its benefits. Yesterday, I was able to fly to Washington, DC in order to hear today's oral argument at the Supreme Court for two cases, Black v. U.S. and Weyhrauch v. U.S. Both involve 18 U.S.C. 1346--known popularly as "honest services fraud." First, a quick summary of them both.

Black v. U.S.

Conrad Black, former CEO of Hollinger Corp. (owner at one point of over 1,000 newspapers), was charged by the government for depriving Hollinger of his 'honest services' for allegedly hiding personal profit through non-competition agreements during the sale of newspapers. Black continues to contend that (a) no economic harm was suffered by Hollinger and (b) his transactions were a legal way to lower his personal taxes. His argument is that 'honest services' is too vague a standard and much also have as an element a contemplated economic harm to the victim.

Weyhrauch v. U.S.

Bruce Weyhrauch was an Alaska state legislator. When he had decided to not run for reelection again, he began discussions with Bill Allen, CEO of VECO Corp., about a potential job. However, there was still a tax bill directly affecting VECO before the legislature. Though no incriminating statements came to light and there was no state law requiring disclosure of his conflict-of-interest, the government indicted Weyhrauch. He contends that without a state law requirement to disclose, 'honest services' simply becomes a common law crime for the courts to create. This violates the common federal principle that all crimes be clear and unambiguous so that no defendants can engage in illegal activity without the reasonable ability to understand what they did and why it broke the law.

Argument Synopsis

Entering the Court through the ticketed door (on the north side, basement), we were led through a side entrance to the courtroom. At 10 a.m., about 40 minutes after we had sat down, the clerk called out the famous "Oyez, oyez, oyez!" and the justices entered from behind the massive, velvet curtains. Chief Justice Roberts called out Black v. U.S., and Miguel Estrada, the counsel of record (who, incidentally, had been nominated by George W. Bush for the D.C. Circuit Court of Appeals but was held up because he was too conservative for Democrats in Congress) stepped forward. He was able to get reasonably far into his economic harm argument before the justices began peppering him with questions. Then it began.

Justices Ginsburg and Sotomayor seemed, at the outset, most leery of the economic harm principle, while Justices Roberts and Kennedy seemed to be asking him to flush it out a bit, though it was difficult to tell whether they support or oppose the provision. It was pretty uneventful--Estrada stumbled a few times (especially when Justice Kennedy asked him why there was no 'harmless error' in the appellate court's ruling), but he covered that in the remainder of his time, three minutes of which he saved for the end of the argument (though at one point, Justice Scalia did ask him whether he was presenting the issue of constitutionality, which he answered in the affirmative, beginning a snowball that only grew, as you'll see).

When he had sat down, Michael Dreeben from the Solicitor General's office stepped forward. Immediately, he was inundated with questions. It seemed the entire Court (except for the always silent Justice Thomas and a surprisingly quiet Justice Stevens) was arrayed pretty well against the government. Justice Breyer asked if the government felt it could charge a lazy worker who told his boss that he was doing work when he was in actuality reading racing forms with fraud, punishable by up to twenty years. Out of 150 million workers in the United States, he noted, probably 140 million would be committing federal crimes unawares. That was ridiculous, countered Dreeben--because that lacks materiality (that is, even though he lied, it didn't change the actions of the victim--the company). Justice Sotomayor then asked how it would change if it were someone who was supposed to be working (on a big account or something; she didn't specify), but instead chose to ditch work and go to a ball game. In that case, it was a material. Dreeben said that the government would never actually pursue a case like that. Justice Breyer would have none of it; it doesn't matter whether the Justice Department would actually pursue a case. What matters is that the crime itself might be unconstitutional.

That leads me into the other big issue the Court was dealing with. While both Black and Weyhrauch seek a method of interpreting honest services fraud so that the statute remains extant but less vague, the justices seemed prepared to declare the whole thing unconstitutionally vague right now. A problem in scheduling, however, means that the other honest services case, Skilling v. U.S., has neither been briefed (the initial briefs are due this Friday) nor argued (probably in late March). That case may deal with the overall constitutionality of honest services fraud. Justice Sotomayor, however, wanted to talk about that issue now, to which Mr. Dreeben continuously (and correctly) demurred.

The Weyhrauch argument was effectively a continuation of the Black argument. Mr. Dreeben was up again, but a new counsel of record (I don't have his name in front of me) was, too. Again, the justices seemed unconvinced of the ability of the courts to meld some focus out of the 'mess'.

Overall, it was incredibly interesting, though hard to follow at some points. The transcripts have been released (see here and here).

My bets? I'm guessing the votes come in as so (and these may change with the Skilling argument):

Roberts, C.J.: overturn as unconstitutional
Stevens, J.: keep as constitutional
Scalia, J.: overturn as unconstitutional
Kennedy, J.: severely limit
Thomas, J.: overturn as unconstitutional
Ginsburg, J.: severely limit
Breyer, J.: overturn as unconstitutional
Alito, J.: overturn as unconstitutional
Sotomayor, J.: overturn as unconstitutional

Now, some of these are just educated guesses. Neither Roberts nor Alito gave away their hands too much. However, they seemed to ask more questions and have more issues with both the remedies presented by the petitioners and the statute being upheld in the way the government wants it. Stevens wrote the dissent for McNally v. United States, saying that 'intangible rights' such as honest services were definitely constitutional, even without the current statute (1346 was enacted as a response to the Court's decision in McNally). Kennedy seems reticent to ever overturn anything, though he may come out against it, since he had a lot of issues with the fuzzy line of applicability. Sotomayor explicitly said that she didn't know how to apply it, Breyer came up with five or six hypotheticals of people who would be guilty of fraud under the statute but obviously shouldn't be, and Ginsburg didn't really seem to like any of the remedies posited. That leaves Scalia and Thomas. Scalia hates honest services fraud and has made that abundantly clear. His new goal seems to be to have it purged from the tomes of the law. Thomas usually agrees with Scalia, and a textualist (like me) hates this kind of law, which begs courts to create standards from vague legislative language, effectively creating law.

So--that's where I was today. What were you up to?

Late, But Interesting

This week, I've been doing a lot of mindless busywork. Sometimes, I may be frustrated by that, but this week, I discovered the Federalist Society online.

Now, I know that most people have no idea what that is. I know that others will either think it's great or be horrified by it. For you who are going "eh?": the Federalist Society is an organization of conservative lawyers studying law and public policy from a (primarily) 'originalist' school of thought.

I have to say, their multimedia cache is really, really good. Just recently, they finished up their 2008 Supreme Court wrapup, in which they summarize every case that the Court decided. They also have a slew of conferences from months and years past that are very interesting. Today I learned about The Presidency and The Courts and Counterterrorism and the Obama Administration. If you are interested in law and public policy--even if you are a liberal or something else entirely, check it out. It's very informative.

Guns, Guns, Guns

SCOTUSBlog is reporting that the Supremes may opt to hear appeals regarding the Seventh Circuit's holding that DC v. Heller should not be incorporated. For those of you who have no idea what that means, here you go: the Supreme Court is deciding whether to hear a case arguing that limits on gun control laws apply only to the federal government or to state and local governments as well. The Seventh Circuit said it only applies to the Feds. The NRA disagrees.

Here is an article at Reason magazine arguing why the Supremes should overturn the decision in NRA v. Chicago. I pretty much agree. Only a few rights have not been incorporated (including the right to be indicted by a grand jury, the quartering of soldiers anywhere other than within the Second Circuit (good luck with that one), right to civil jury trials, and the right to not be subject to excessive bails and fines). In general, I don't particularly like the incorporation process since I prefer federalism over than centralization. I also don't believe that the 14th Amendment gives the Court a carte blanche to destroy the prerogatives of the individual states, as the jurisprudence stands today.

However, I'm on the losing side of this argument, so, if we are going to incorporate pretty much the entire Bill of Rights, we shouldn't treat the Second Amendment as some special case. If it is a right, it is a right that shouldn't be infringed upon by the states or local governments, period. That may anger gun control opponents, but I'm not going to let my personal policy preferences (for one, I don't know any reason why a private citizen would or should ever need an assault rifle, though I'm open to arguments) alter my constitutional interpretation.

Sotomayor Confirmed

Vote just finished a few minutes ago. 68-31 (I'm assuming that Kennedy was the final vote not to be present). Congrats to her. I look forward to the new term, beginning in October. I hope Justice Souter enjoys his retirement.

UPDATE: I was right; Kennedy was not present.

Thought for the Day...On Substantive Due Process

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.

- Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes, J. dissenting)

I Kind of Agree with Dahlia Lithwick (for once)

Dahlia Lithwick, in her own vaguely insulting, stab-in-the-back sort of way, tells liberals that they should stop calling Clarence Thomas stupid, since he's not. She also says that therefore, since he's not stupid, Sotomayor isn't either. I'm not sure that follows (though I'm also not doubting Sotomayor's intelligence). The statement is simply illogical, though from a woman who usually disheartens me both in her mean, ad hominem commentary about conservatives and her constant Obama-slobbering, it's a breath of fresh air.

Does Sotomayor Believe in Objectivity?

The wagons are beginning to circle around Sonia Sotomayor, and it looks like the weapons, too, have been chosen. Those will be the case Ricci v. DeStefano, currently before the Supreme Court, and Judge Sotomayor's statement about how she hoped a Latino female would be able to come to a wiser judgment than a white male.

Pundits have been all over about it, from left, from right, from speechwriters, and from Court-watchers. What hasn't so much been discussed is the very interesting, and very important issue that her statement raises for our entire political system, and that is: can, and should, judges render objectively impartial verdicts? To say it another way: is it even possible for judges to put their personal beliefs aside when making decisions?

Effectively, Judge Sotomayor says 'no' to those questions. But she then commits the cardinal sin: she says that partiality is a good thing.

Now, many on the left are running in circles and trying to act as though it has all been 'taken out of context'. However, if anything, the most discussed sentence doesn't do the entire message of the speech justice. Her words are a direct response to Sandra Day O'Connor's statement that she believed a wise old woman and a wise old man would reach the same, impartial decision. That, if anything, is a statement that there is an absolute objective standard to be reached and that one with enough wisdom and experience will be able to reach it. The statement certainly doesn't make a subjective claim to the value of that decision (whether it is good or bad), but makes clear that a (one, a single, only one) decision will be reached. Judge Sotomayor's comment says (paraphrasing and editorializing) "No, I'm sorry, but that is not possible and not desirable. There are certain voices that are not heard in your standard of 'objectivity.' A Latina should be able to speak to that, challenging your definition, which will be better for the law." She is saying that subjectivity is a natural part of a judge's role and that it should be celebrated.

That is a major difference form the past. For years, even Democratic appointees have harped on about the limited role of judges in our system and the importance of the rule of law. Chief Justice Roberts is famous (to those who actually pay any attention to confirmation hearings) for his analogy of the Court to an umpire in baseball. The notion of judicial restraint and its fundamental precept of objectivity has always received airtime. Never has a potential justice said that subjectivity ('empathy' is the President's favorite word for it) is desirable. Usually, it is brought up as something that exists and will certainly inform the decisions of judges because we are human. Rarely has it been celebrated.

As the hearings move on, we'll see if this is brought up. It's a bit too philosophical for senators to debate the nature of objectivity, so I'll guess there will just be a lot of grandstanding instead. It would be a good question, though, to raise.

Do you, Judge Sotomayor, believe that there is an objective, impartial decision that exists for each case? Do you believe that it is possible for judges to find that? Do you think it is worthwhile for them to try?

I wonder...

Cameras in the Court?

Congress asks Breyer and Thomas about it.

Should they have them? Good question. I don't tend to like the idea of live arguments, and as evidence, I submit the chaos of the O.J. trial. At least those who view the Court in the flesh are either (a) lawyers admitted to the Supreme Court Bar or (b) tourists wanting to see the justices and staying in the two-minute rotation line. They aren't pundits who are ready to jump on any two-second soundbite that can be taken out of context. Maybe that's just my cynicism against pundits.

Either way, Clarence Thomas shouldn't really care.

Ginsburg Stirs the Pot

Ruth Bader Ginsburg argues for the use of persuasive foreign law in citations by the Supreme Court (you need a free NYT-online subscription to read the piece). Some people howl about this. I think that it is a slippery slope, but when trod carefully, can be effective.

Foreign law can be useful in understanding how the rest of the world views their own statutes and constitutions. If good reasoning is used on similar cases to American ones, then there is no harm in referring to those decisions. What is harmful, however--and here's where it gets tricky--is the notion that foreign decisions can be binding in America. They cannot and should not be. As Chief Justice Roberts is quoted as saying:

If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge, and yet he’s playing a role in shaping the law that binds the people in this country.

That would be a bad outcome. Foreign law should be looked at for the value of the argument, like any other argument, but not to be binding in any way on Americans.

Will We Soon Have a Vacancy on the Court?

Dahlia Lithwick (with whom I rarely agree and for whom I rarely oft provide a link) ponders that very thing in an excellent article.

My only issue is that he thinks Obama will appoint a "like-minded liberal centrist" to fill the next spot. Now I agree that Obama will certainly find someone who is like-minded (especially to Ginsburg--the only Democrat-appointed member of the liberal wing who may be retiring soon), but not that the person will be a 'liberal centrist'. Lithwick would contend that there is no Scalia of the left--the progeny of a William Brennan or Thurgood Marshall--but that doesn't mean the liberals on the Court are centrists. The difference between Brennan and Ginsburg is that Ginsburg doesn't make a big production out of it when she shreds the Constitution to fit her politics.

Anyway, it's worth the read.

"The Problem of Religious Learning"

Marc O. DeGirolami has written in an interesting and insightful Boston College Law Review article about the constitutional issues involved in government sponsorship of 'religious' learning.

I place 'religious' in quotations, of course, because, legally, the term is so ill-defined, as noted by the author. In the (in)famous School District of Abington Township v. Schempp, 374 U.S. 203, a dichotomy was created: schools could teach about the effects and the merits of religion and religious texts, but they could not promulgate the doctrines within those texts. That seems simple enough, until one considers the fact that it still doesn't give any clue as to what is meant by 'religious' and what is meant by 'secular'. All teaching will extol different virtues and abhor certain vices. Do we choose to fund education that says the Crusades were a noble and faithful attempt to save the Holy Land from infidels or one that says it was a barbarian and self-glorifying slaughter of thousands? Does the government then have the right to begin interpreting which beliefs it finds sufficiently 'religious' and which aren't? This is the first point that he considers.

The second point is, in many ways, more interesting to consider and more damning against the status quo. For any true understanding of history, science, philosophy, and the arts--in fact, for any true and well-rounded liberal arts education--one must have a deep understanding of religion. One cannot understand John Locke's Second Treatise on Government, which is the backbone of our Declaration of Independence without first understanding his First Treatise on Government. The issue? The Second Treatise's theories rest upon the First Treatise's claim that man is made equal through Adam and his progeny--a fundamentally religious belief. The argument, of course, stems off a bit, but for its full understanding, the Creation account must be considered.

And it is not simply Locke. We must understand religion (and by now, I hope it is obvious that by 'religion' I'm almost exclusively referring to Christianity) to understand the great Western thinkers: Augustine, Aquinas, Dante, Hobbes, Rousseau, Nietzsche. The list goes on and on. Some are hostile to Christian beliefs, while some are apologists. Some simply display their (and their fellows') understanding of doctrines in a given era.

What it all means is that a full-bodied liberal education must include a full-bodied education into and understanding of religious thought, and an understanding of Western thought presupposes an understanding of Christianity.

DeGirolami argues that constitutional law on religion in schools is fundamentally flawed because it is mostly piecemeal--opinions decided layer upon layer, never considering how each fits into a cohesive hole. Religion and government aims cannot be so simply separated. Government desires a populace that is civic minded, selfless, sacrificial, and 'morally responsible'. He says:

[T]he citizen must be able to think about the relevant public issue from a perspective different from his or her own and to reason about the desirability of the proposed government action from within a different world view. Teaching about religion promotes these abilities by broadening students' fund of knowledge.
Yet these perspectives, including the Supreme Court's, fail to recognize that religious learning, as part of the study of history and social studies, contributes to the conversation at the heart of civic and moral learning. (internal quotations and citations omitted)

Religious learning, then, can be beneficial to the polity as whole, leading to both an educated (and therefore more productive) citizenry and a civic-conscious people.

Now, this does not mean, he notes, that religious learning is without its difficulties. One of the ultimate problems with religious belief is that oftentimes, one of its fundamental precepts is that it should be evangelized (or, if you prefer, proselytized) to the largest possible audience. A teacher in command of teaching notions of faith may either proselytize the students for a certain belief or against a certain belief, neither of which is acceptable in a system that prizes freedom from coercion. Additionally, parents must play a role in the development of their children's beliefs, and the law must consider whether the school has any right over the beliefs of a child that a parent does not expressly condone

In the end, he concludes that

The Supreme Court has perennially reaffirmed...the core obligation of public schools is 'to teach that our strength comes from people of different races, creeds, and cultures, uniting in commitment to the freedom of all." That theme has been a cornerstone of the Supreme Court's jurisprudence of public education, and it has intimated that teaching about religion can promote that theme constitutionally, Yet in order to reconcile its sweeping and lofty statements about the virtures of civic and moral education with its Establishment Clause jurisprudence, the Surpeme Court must confront the problem of religious learning--the problem that religious learning must be, but cannot be, separated from public education--more rigorously and sensitively than is possible within its current dichotomous methodology. That binary approach--promotion or non-promotion; the "secular" or the "sectarian"--is conceptually inadequate to account for the broad and often subtle effect that religious learning has on the cultivation of civic and moral ideals....[R]eligious learning is a sphere of understandings and meanings whose particular expressions offer insights of widely divergent value for an enriched conversational engagement. To access these insights is to participate in the external and internal discursive mode of learning about and contemplating the religious voices that have come before. Liberal learning, in public schools no less than anywhere else, occurs in the perpetual achievement of tentative, temporary, and perhaps agnostic beliefs. (citations omitted)

The article is long, but it is certainly worth the read.

Elena Kagan's Confirmation Hearing

Today, unreported (as are most important legal issues), Elena Kagan, President Obama's choice for to be the next Solicitor General had her first confirmation hearing before the Senate Judiciary committee. This is important for many reasons.

First, Kagan is extremely liberal, which will mean a significant shift in government positions, both in the cases it chooses to appeal and in the amicus briefs it chooses to file. I, of course, as a more 'conservative' (read: textualist) interpreter of law, don't so much like that. Some others will. I have some other issues with her, not the least of which is that she has never argued a case before any appeals court (including the big 'c' Court). Given that the entire job of the solicitor general is to argue cases on behalf of the government before the Court, it doesn't seem to be the best of ideas to give her the big guns. I in no way doubt her intelligence, though. She is certainly capable, having clerked for Justice Thurgood Marshall and been dean of the Harvard Law School. In some ways, though, especially in the rough-and-tumble world that is Supreme Court oral argument, it is probably best to have a least a little experience before advancing to the Big Leagues. Maybe she'll turn out to be excellent in oral argument; I'll certainly be paying attention.

The second, and possibly more important, reason that this is important is that she has been mentioned as being on the short list for a possible Supreme Court vacancy. Given Ruth Bader Ginsburg's recent pancreatic cancer diagnosis (though caught early, the disease still has only a 5% survival rate within five years), this is especially pertinent. If Ginsburg were to go, Obama would almost certainly appoint another woman (sorry, Cass Sunstein; you'll have to wait until Stevens dies or Souter resigns). Kagan may be the one. Again, however (though this may be putting the cart before the horse), I have a pretty major issue with someone who has never been a judge being appointed to the Supreme Court. Remember Harriet Miers? The woman was certainly a fine attorney (you don't become White House Counsel without knowing something). However, she bombed, and I mean bombed, her pre-confirmation meetings with senators. She had never been a judge or argued before the Supremes so was caught unaware with her nomination. Every member on the current court had been a judge before becoming a justice. There is a reason for expecting the ultimate arbiters of the constitutionality of law to be experienced, and we'd be fools not to demand that.

I have little doubt that Kagan will be confirmed as SG. I have graver doubts about whether she could win appointment to the Court, if a vacancy should arise before she can establish herself much within the Justice Department. I don't know how close of a rein Eric Holder will hold 'er to (ha, puns), but it will be interesting to see where the SG goes from here.