One of the more likely cases to move along, because the prisoner may be close to a transfer he opposes, involves an Algerian national, Ahmed Belbacha.  Last month, in a still-classified order, a federal judge in Washington, D.C., wiped out an earlier order that barred Belbacha’s transfer to Algeria until after his attorneys had a chance to pursue a challenge.  Belbacha’s attorneys are now trying to get the order put back into effect, so that the prisoner stays at Guantanamo for the time being.  (He was cleared for release by the Pentagon more than three years ago; he is now in his eighth year as a detainee.)

The Justices have the option, of course, of granting review of the new “Kiyemba II” case.  It, like “Kiyemba I,” seeks to test the power of federal judges to decide on the legal fate of Guantanamo prisoners who have been cleared for release, as those judges implement the Supreme Court’s 2008 ruling in Boumediene v. Bush on detainees’ rights.

But the new Kiyemba case  involves four of the seven Chinese Muslim Uighurs who were involved in “Kiyemba I,” and the Court decided on March 1 that lower courts should examine new factual developments involving the status of those seven, each of whom now has or previously had an offer to be re-settled somewhere other than in their homeland, China. 

When the Court considered “Kiyemba II” at its private Conference last Friday, one of the documents it had before it was a friend-of-court brief filed by ten other Guantanamo prsioners, saying that their legal fate was linked to that of the Uighurs.  Each of the ten is a national of a country that, their lawyers contended, has a  ”notorious human rights record,” so they do not want to be returned home.  They are nationals of Algeria, Libya, Russia, Syria, Tajikstan and ‘Tunisia.  Some of them, their brief told the Court, “are nationals of countries in which previously transferred detainees were in fact tortured and abused.”

One of the Algerians in that group of ten is Ahmed Belbacha.   His lawyers have said in lower court filings that he has been threatened with death by an Islamic terrorist group in Algeria, and is considered by the Algerian government to be a deserter from its army.  Moreover, in his absence, he has been tried in Algeria on what his lawyers call “spurious terrorism-related charges,” and has been sentenced to 20 years in prison.  “Caught between domestic terror groups and a government that has already decreed a harsh sanction for him, Mr. Belbacha cannot safely return to Algeria,” his attorneys told a federal District judge in a filing March 7. 

The Justice Department has been arguing in lower courts that Belbacha and other detainees have no right to advance warning before they are transferred.  Moreover, it has repeatedly argued that it has a policy against sending any detainee to a country where torture or abuse is likely.  The Department has filed a response to the attempt by Belbacha’s counsel to prevent his transfer, but that filing remains under seal.  Similarly, the document or documents that led Senior District Judge Thomas F. Hogan in February to clear the way for Belbacha’s transfer also remain under seal, so it is not clear what legal arguments were made to justify his action.  (The government does have an appeal pending at the D.C. Circuit Court on Belbacha’s status, but that is presently on hold.)

As of now, Guantanamo detainees have no right to be told (or have their lawyers told)  in advance of any plan to transfer them, because that is barred by the D.C. Circuit Court ruling last April saying that federal judges have no power to “second-guess” the federal government’s decision when or where to transfer detainees that it is prepared to release from Guantanamo.  That is the decision at issue now in the Supreme Court in “Kiyemba II.”

If the Supreme Court were now to decide to vacate that April decision by the Circuit Court (as it did in Kiyemba I with an earlier Circuit Court ruling barring judges from ordering the transfer of detainees to live in the U.S.), then it will be up to lower courts to decide in the first instance where next to go with detainee transfer issues.   Lawyers for the four Uighurs involved in Kiyemba II have suggested that, if the Court is not prepared to hear their case now, it should vacate the Circuit Court ruling on transfer notices and return that case to lower courts “to determine whether further proceedings in the district courts are necessary and appropriate.”

Meanwhile, in Belbacha’s continuing legal saga in District Court, his lawyers and attorneys for the Justice Department have told Judge Hogan that they are both awaiting the Supreme Court’s action on Kiyemba II, and thus have asked for more time to file further legal papers on the question of Belbacha’s resistance to transfer.

Background

In 1998, CIGNA changed its pension plan from a “defined benefit” plan (called “Plan A”) to a “cash balance” plan (called “Plan B”).  As required by ERISA, CIGNA gave notice to its employees.  A trial court subsequently found that the disclosures were inadequate and, in some respects, misleading, in violation of the statute.  In particular, the court found that although the change could have the effect of lowering the level of benefits for some employees, CIGNA represented that the changes would maintain or improve benefit levels.

In a remedial order, the district court ordered CIGNA to recalculate all of the workers’ benefits using a so-called “A+B” approach, under which the workers would receive all of their Part A benefits previously accrued plus additional benefits under Part B as they accrued.  The court declined to order CIGNA to reinstate Part A in full, and it declined the plaintiffs’ request for additional restitution for past due payments.

The Second Circuit summarily affirmed.

The Petitions

Both parties petitioned for certiorari.  In No. 09-804, CIGNA has asked the Court to decide whether the district court was allowed to order class-wide relief without requiring any individualized showing that particular plaintiffs relied upon or were prejudiced by the disclosure violations.  CIGNA argues that the courts of appeals are divided three ways over the question.  Six circuits, it says, require a showing of reliance or prejudice; three hold that no such showing is required; and the Second Circuit requires the district court to find that there was “likely harm” caused by the violation.  CIGNA further argues that the decision below was wrong, allowing windfalls to employees who were not in fact harmed by disclosure violations and thereby discouraging employers from offering benefit plans in the first place.

In No. 09-784, the employees have petitioned to challenge the district court’s refusal to expand relief further to require CIGNA to revert to its original Plan A and to order restitution.  The question of the scope of the district court’s remedial authority in ERISA cases, they argue, is already before the Court in Conkright v. Frommert, No. 08-810, which was argued in January.  As a result, the employees ask the Court to hold their petition until Conkright is decided, for a possible remand in light of that decision.

The CVSG

On Monday the Court asked the Solicitor General to weigh in on both petitions.  The Court’s decision to ask for the SG’s views on the employees’ petition – which simply asks for a hold – is a little unusual.  It may indicate that some on the Court wonder whether the petition warrants plenary review.  But it may just as well be that because the Court decided to ask for the SG’s view on CIGNA’s petition (which is not particularly surprising) it concluded that it was worth including both petitions in the invitation (particularly since CIGNA has argued that the issues in this case and Conkright are sufficiently distinct that a hold is unwarranted).  (Justice Sotomayor took no part in the consideration of either petition.)

There is no due date for a response, but the SG likely will attempt to file her brief in time for the Court to rule on the petitions before the end of the term.

Showing some hesitancy to leave it to the State Department to decide when foreign government officials can be sued in U.S. courts for human rights abuses, the Supreme Court on Wednesday struggled to figure out what Congress wanted courts to do with such lawsuits.  Not one of three lawyers who argued in Samantar v. Yousuf, et al. (08-1555) seemed to make a convincing case, thus leaving the Justices to work out a decision, unaided by much beyond their own perceptions, in coming weeks.  The Justices’ puzzlement began in the opening minute of the argument, and remained throughout.

A former high-ranking official of the dictatorial regime in Somalia, now living in Fairfax, VA, is seeking to head off a claim for damages by members of a Somali clan and their relatives that he was responsible for torture, rape and other atrocities during years of repression in the east African nation.  For the Court to rule for him at this stage, however, it appeared that the Justices would have to accept a simple premise: his government would have been immune to a damages lawsuit, so he was, too, since what he did were official acts.  The Justices, though, appeared to regard the issue as notably more complex than that.

The ex-official from Somalia, Mohamed Ali Samantar, fled the country when the regime collapsed nine years ago.  Sued in a federal court in Virginia by Somali expatriates, Samantar is now seeking immunity under a 1976 federal law that supposedly clarified U.S. policy on when a foreign government would be given immunity from lawsuits in American courts.  The law makes no mention of the legal status of present or former officials of a foreign government, but the Supreme Court took his case to clear up a dispute among lower courts on whether, despite that silence, the Foreign Sovereign Immunities Act would insulate individual foreign officers — present or former — from liability.

Samantar’s lawyer, Shay Dvoretzky of Washington, had barely finished his opening sentence when Justice Anthony M. Kennedy wondered how the Court was to sort out that law, and one passed 15 years later (The Torture Victims Protection Act), subjecting foreign officials to lawsuits in the U.S. if they had engaged in torture. Even assuming immunity for foreign officials under FSIA, Kennedy asked, why was that not overridden by the TVPA?  Dvoretzky said the later law had to take into account the “background immunity principles” reflected in FSIA and predating it.  Congress, the lawyer contended, never took away that earlier immunity understanding.

But the response did not clear up the uncertainty that was evident on the bench.  Justice Ruth Bader Ginsburg, for example, wondered if any lawsuit against a foreign officer for wrongdoing would ever be able to survive a claim of immunity.  Dvoretzsky said there could be cases under exceptions written into FSIA, or if the foreign state waived immunity for the official — something Ginsburg suggested would never happen.

Chief Justice John G. Roberts, Jr., also protested the lawyer’s attempt to pare down the importance of the 1991 law allowing lawsuits based on torture claims.  And Ginsburg returned to the fray, suggesting that the lawsuit against Samantar was seeking money from him, not from a foreign government, so that lawsuit was not the equivalent of a suit against the government as such.  The lawyer countered that the issue was not who would pay, but whether the acts at issue were acts on behalf of a government, and that makes them legally immune.

Justice Samuel A. Alito, Jr., then questioned how courts would be able to decide whether an official’s actions were the official acts of a foreign state, Dvoretzky suggested several ways, but insisted that it was not a difficult inquiry anyway.   That led several Justices off into an exploration of other forms of legal immunity, leaving the impression that the Justices were having difficulty sorting out different levels of immunity in the diplomatic and foreign policy context, thus intimating further that Congress may not have spoken clearly enough to guide the courts.

Next, Justice Stephen G. Breyer introduced a further complexity — how to determine immunity if the foreign official no longer was in government or the foreign government simply “disappeared,” with either case perhaps changing the legal equation.   That led Dvoretzky into what seemed like a concession: if the foreign government had ceased to exist, he said, the former official probably could be sued.  He sought to explain: what immunity was all about was foreign government immunity.  That explanation, though, merely served to take Breyer and other Justices off into an exploration of another form of immunity: the so-called “act of state” doctrine.

Justice Scalia moved to bring the argument back to FSIA’s immunity concepts as embodied in its actual text, and in the process undercut Dvoretzky’s alternative argument that, if Samantar is not directly immune because he was acting as the state, he was immune because he qualified as an agent of the Somali government.  Justice Alito also challenged the lawyer’s overall argument about individual liability, noting that “it’s something of a mystery that the FSIA doesn’t say anything at all about this form of [individual] immunity: doesn’t codify it, doesn’t abrogate it, doesn’t preserve the preexisting law.”  Dvoretzky insisted that the issue went unmentioned because it was not in question in 1976.

Before Dvoretzky sat down, the argument moved on briefly to a point that would later emerge with greater clarity: what role the Court should expect, or allow, for the U.S. State Department in advising courts on the concept of foreign governments’ or individual officials’ immunity.

The meandering nature of the argument while Dvoretzky was at the podium continued when the Somali expatriates’ lawyer, Patricia A. Millett of Washington, took her turn.  She immediately sought to use the 1991 anti-torture law as a way to bolster her clients’ claims against Samantar, but promptly encountered comments by Chief Justice and Justice Scalia suggesting that it made little sense for Congress to have barred lawsuits against foreign governments but not for the officials who acted for such a government.  “The only way a state can act,” the Chief Justice said, “is through people.”  Scalia added that it “seems very strange” to write a law giving a government immunity but not its “principal officers,” adding: “I guess you could write it that way, but I don’t know why anybody would want to write it that way.”

Justice Breyer picked up on that point, and suggested that, if a foreign official did not share his government’s immunity, all that lawyers for someone suing the official would have to do was to rewrite the lawsuit to target the individual, for the very same conduct, so the lawsuit could then go forward.  When Millett said that would put the lawsuit outside the immunity grant of FSIA, Breyer retorted that, if that is true, the FSIA law “does nothing whatsoever.”  Unsatisfied, Breyer persisted: “I cannot imagine any complaint that isn’t open to that because…a state can only act through an individual….What you are saying [is that FSIA] is only good as against a bad lawyer, because any good lawyer would simply fill in the right names.”

Breyer then moved on to test what “principle” would govern whether a given present or former foreign official was, in fact, immune to a lawsuit.  He obviously was seeking guidance on what mechanism the courts would use to settle that issue.  Millett responded with a series of variable factors to consider, but did not lay out a governing principle.  She insisted that Congress had provided “a framework” for sorting out individual liability.

The Chief Justice picked up on Breyer’s point, then moved the discussion into what Congress had in mind about the Executive Branch’s role, when courts are pondering whether immunity should be recognized in a given case against foreign wrongdoing.  Congress, Roberts suggested, passed the FSIA “to get the Executive Branch out of the business” of picking and choosing when immunity should be allowed, and when not.  He went on to note that, in this very case, the Executive Branch was arguing that courts should revive the practice of asking the State Department whether immunity existed in a given case.  “It seems to me,” Roberts told Millett, “the whole reason you have the FSIA is undermined by the position you are listing today.”

Justice Scalia joined in, suggesting that FSIA was passed in order to “take away from the Executive” the determination of immunity, and handed it to the courts.  Millett, however, said that the Executive had to remain involved, because of the “foreign relations implications” of immunity questions. Late in Millett’s argument, Justice Ginsburg probed whether she was “in sync” with the Executive Branch’s argument that it was up to that Branch to tell the courts when to acknowledge or deny immunity to a foreign official.  The courts, the lawyer said, should give “respectful deference” to the government’s view, but not “rubber-stamp” it.

Scalia then commented that “the State Department wants to be able to decide whether individuals will be held liable.”  He also said that he would “find it much more acceptable to have the State Department say that a particular foreign country should be let off the hook” than to let that Department decided whether “an individual human being shall be punished.” Justice Kennedy chimed in with a note of his own skepticism about the State Department’s role.

Those exchanges set the stage for a fairly rough time for the federal government’s lawyer, Deputy Solicitor General Edwin S. Kneedler.   He had only begun when Justice Sonia Sotomayor asked him to discuss the “practical implications” of the government’s position so far as it would allow some lawsuits against individual foreign officials with the State Department continuing to have a role in advising the courts on immunity.  If a lawsuit were filed, and the lawyer kept it alive against an immunity claim by naming specific officials,  “would not grind the courts to a halt” [presumably, while awaiting advice on whether immunity applied].

Kneedler conceded that courts would have to work out the immunity issue at the outset, in order to determine if they had authority to decide the case. When Justice Breyer took a turn probing how immunity disputes would be resolved when individual foreign officials were sued, the government lawyer sought to show that Congress did not want to oust the Executive Branch from advising courts on when immunity for an individual should be recognized.  Using the complex situation that has since developed in Somalia, where there now is no functioning government, Kneedler strove to make a case for a continuing role for the State Department in dealing with “the sensitivities of foreign official immunity.”

But, when Justice Ginsburg tried to nail down whether the U.S. government now considered Samantar to be immune, Kneedler said the government was not taking a position on that now, and noted that further proceedings remain in lower courts.

The Supreme Court on Tuesday seemed poised to require state and local governments to obey the Second Amendment guarantee of a personal right to a gun, but with perhaps considerable authority to regulate that right.  The dominant sentiment on the Court was to extend the Amendment beyond the federal level, based on the 14th Amendment’s guarantee of “due process,” since doing so through another part of the 14th Amendment would raise too many questions about what other rights might emerge.

When the Justices cast their first vote after starting later this week to discuss where to go from here, it appeared that the focus of debate will be how extensive a “right to keep and bear arms” should be spelled out: would it be only some “core right” to have a gun for personal safety, or would it include every variation of that right that could emerge in the future as courts decide specific cases? The liberal wing of the Court appeared to be making a determined effort to hold the expanded Amendment in check, but even the conservatives open to applying the Second Amendment to states, counties and cities seemed ready to concede some — but perhaps fewer — limitations. The eagerly awaited oral argument in McDonald, et al., v. Chicago, et al. (08-1521) found all members of the Court actively involved except the usually silent Justice Clarence Thomas.  And, while no one said that the issue of “incorporating” the Second Amendment into the 14th Amendment had already been decided before the argument had even begun, the clear impression was that the Court majority was at least sentimentally in favor of that, with only the dimensions of the expansion to be worked out in this case and in a string of likely precedents coming as time went on.

An attempt by an attorney for the cities of Chicago and Oak Park, Ill., defending local bans on handguns in those communities, to prevent any application of the constitutional gun right to states, counties and cities looked forlorn and even doomed.  The nub of that argument by James A. Feldman of Washington was that, unlike other constitutional rights that the Court has extended to the state and local level, the right to a gun recognized by the Court two years ago in District of Columbia v. Heller pitted the threat that guns pose to human lives against a constitutional right, so the balance should be struck differently.  So far as the hearing Tuesday showed, Justice Stephen G. Breyer was the only member of the Court attracted to that approach.

Justice Breyer drew only thinly veiled ridicule from conservatives on the Court when he suggested that there be a constitutional “chart” drawn up to rank the higher and lower priorities of rights that would be protected against state and local infringement — perhaps the highest rank safeguarding the right to have a gun in community self-defense (as with a “militia”) but with a decidedly lower rank for a right to “shoot burglars.”  While that idea drew no support, the notion that the Second Amendment right restricting state and local gun laws would not be an absolute right had significant appeal, it appeared.

The first argument to collapse as the hearing unfolded was the plea by the lawyer for gun rights advocates, Alan Gura of Alexandria, Virginia, that the Court should “incorporate” the Second Amendment into the 14th Amendment through the “privileges or immunities” clause.   In the first comment from the bench after Gura had barely opened, Chief Justice John G. Roberts, Jr., noted that the Court had essentially scuttled that argument with its ruling in the SlaughterHouse Cases in 1873.  And within a few minutes, Justice Antonin Scalia — the author of the Heller opinion and the Court’s most fervent gun enthusiast — was sarcastically dismissing the “privileges or immunities” argument.

“Why,” Scalia asked Gura, “are you asking us to overrule 140 years of prior law….unless you are bucking for a place on some law school faculty.”  The Justice said the “privileges or immunities” argument was “the darling of the professorate” but wondered why Gura would “undertake that burden.”  And Scalia noted that the “due process” clause — an open-ended provision that he has strongly attacked on other occasions–  was available as the vehicle for incorporation, and added: “Even I have acquiesced in that.”   Gura somewhat meekly said “we would be extremely happy:” if the Court used the “due process” clause to extend the Second Amendment’s reach.

Justice Ruth Bader Ginsburg, one of the dissenters in Heller, then moved in to press Gura on just what “unenumerated rights” would be protected if the Court were to revive the “privileges or immunities” clause. It was a theme that would recur often thereafter, solidifying the appearance that the argument had virtually no chance of succeeding.  (In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause.  He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?”  It was obvious that it troubled the Court.)

When Gura’s argument moved on to the general question of “incorporation” of the Second Amendment, Justice John Paul Stevens explored whether such an extension would “apply to all of the Second Amendment” — including any court interpretations that ensued — or only “a homeowner’s right to protect against intruders in the home” — the specific right that Heller recognized.  Gura responded that the Second Amendment “was not so limited.”  Stevens then asked whether the right would include “a right to parade around in the streets with a gun.”  Gura said that the states and cities would have to obey a right that was fully equal to all rights embraced by the right to keep and bear arms.

Justice Kennedy soon joined in that exchange, and asked whether “incorporation” would embrace “all of the refinements” that courts would make in interpreting the right, or “just the core of the right.” Gura left no doubt that gun rights advocates were seeking the full panoply of whatever gun rights the Amendment were found to cover.

The remainder of Gura’s time was spent amid an exchange between Breyer and Scalia over whether courts should give the Second Amendment lesser scope based on statistics about the social cost that would result in people killed from others’ use of gun rights.   Gura was essentially a bystander as the two Justices jousted over that issue.

The Court then got the focus that a majority seemed to be hoping for: a full-scale plea, by former Solicitor General Paul D. Clement, to use the “due process clause” as the vehicle for extending gun rights to the state and local level.  And it was during Clement’s time at the podium that the Court’s liberal bloc began making a case — which Clement essentially resisted — to limit the “incorporated” right to, at most, some core guarantee, without all of the variations that would later develop.  Clement noted that there were “not a lot” of variations of the gun right yet, since Heller was the only precedent so far, and that was limited to gun rights for self-defense in the home.

Clement, however, said that the Court should allow a “carryover” into the 14th Amendment of all of the jurisprudence that develops on the Second Amendment’s scope.  There should not be a Second Amendment right and then a mere “shadow” of it that applied to state and local government, he argued.  He did concede, though, that constitutional gun rights might be allowed to develop differently at the state and local level than at the federal level.  But that, he said, is different from creating only a “shadow” right applied to state and local laws.

The Court’s strong leanings in the case became even more evident during questioning of Feldman, the lawyer for the two cities involved in the case.  Although he absolutely needs the vote of Justice Kennedy if his plea is to prevail, he almost immediately frustrated Kennedy by arguing that gun rights were not an essential attribute of “ordered liberty,” thus questioning whether such rights qualify as fundamental.  If they are not, Kennedy shot back, then the Heller decision was wrongly decided.   And Chief Justice Roberts told Feldman that there was no way to read the Heller opinion to make the Second Amendment seem a less important right.

Tellingly, however, the Chief Justice commented that “we haven’t said anything about what the content of the Second Amendment is,” so that, over time, it may develop that state and local governments may well be allowed to impose restrictions, such as bans on carrying concealed weapons.  And Scalia reminded Feldman that the Court in the Heller decision had left room for some regulation of guns even though the Second Amendment now embraced a personal right to have a gun.  Kennedy also noted that “there are provisions of the Constitution” that allow states to have “significant latitude” in regulating what those provisions seek to protect.

Feldman made no headway with an argument that state and local political processes should be left to develop gun control policy, unimpeded by the Second Amendment or its equivalent.  Some cities, he said, might conclude that “a ban on handguns is the best way to protect people,” and yet Heller says that the Second Amendment forbids such a ban.  That was, in essence, a total rejection of the idea of “incorporation,” and it was by then more than evident that there was no majority for such a rejection.   He also scored no points with a complaint that “incorporation” of the Second Amendment would go a long way toward establishing a national constitutional right of “self-defense,” which he said the Court has never mandated and should not now.  For 200 years, he said, it has been up to state and local government to sort out when self-defense was justified.  No member of the Court seemed persuaded that that was now at stake in the Second Amendment context.

———————–

Amid rising claims around the world of human rights abuses, the Supreme Court examines whether U.S. law permits lawsuits in U.S. courts against present or former officials of foreign governments who are accused of torture or other atrocities in foreign lands.  The case seeks to clear up a conflict among lower courts on the scope of a law dating back to 1789 — the Alien Tort Statute — as well as an anti-torture law passed in 1991, the Torture Victims Protection Act. The federal government has entered the case to argue against blanket legal immunity for such officials, while seeking to keep a major role for the Executive Branch in monitoring and perhaps limiting such lawsuits.

Background

In Somalia, a strife-torn country in the Horn of Africa, the government under dictator Maj. Gen. Mohamed Siad Barre collapsed in 1991.  Most of the time since then, Somalia has had no functioning government or central authority.  With the overthrow of the Barre regime, most high officials of the government fled the country.  The Barre regime has been accused by human rights activists of alleged torture of native Somalis, especially members of a specific clan that was targeted for severe abuse, including torture, rape and other atrocities.  After some of those Somalis had come to the U.S., they discovered that a former high-ranking official of the regime was now living in Virginia.

That was Mohamed Ali Samantar, who had served in the Barre regime in the 1980s and 1990s as first vice president, prime minister and defense minister.  The expatriate Somalis claimed that Samantar was directly responsible as a member of the regime for the harms done to their clansmen — themselves and relatives tortured or killed during the Barre years.  Bashe Abdi Yousuf, a member of the Isaaq clan, claimed that agents of the government subjected him to electric shock and other torture after accusing him of opposing the regime.  Another member of that clan, a student identified only as Jane Doe, claimed she was repeatedly tortured, sexually mutilated, raped and beaten.  Another clansman identified only as John Doe II, a former member of the Somali army, survived a firing squad mass execution by hiding under a pile of bodies.

They, along with relatives of other Somalis allegedly tortured or killed by the regime, sued Samantar personally for money damages, in federal District Court in Alexandria, Va., relying on the Alien Tort Statute, which gives U.S. District Courts authority to hear any civil action by an alien for a tort committed overseas in violation of the law of nations or of a U.S. treaty, and the Torture Victim Protection Act, which supplies a specific basis for an ATS lawsuit, making those responsible for torture or killing liable for damages in U.S. courts when filed by victims or their family members.

A federal District judge held up the case while waiting to see if the State Department would enter the case to take an Executive Branch position on whether Samantar had immunity from the lawsuit.  After waiting two years for a response, and getting none, the judge went ahead and ruled.  She found that the Foreign Sovereign Immunities Act, a 1976 law barring lawsuits in U.S. courts against a “foreign state” and an agency or “instrumentality” of a foreign state, gave Samantar immunity as a former official of a “foreign state.”

The Fourth Circuit Court reversed, and held in general that present or former officials of foreign states were not immune; the Act, it concluded, was not written to protect individuals.  But, even if the Act did protect current officials, the Circuit Court added, it did not insulate former officials for their prior official acts.  It ordered the case returned to District Court to consider Samantar’s other claims of immunity.   Samantar then took the case on to the Supreme Court.

Petition for Certiorari

Samantar, in a petition filed in June 2009, asked the Supreme Court to grant him immunity from the lawsuit, based solely on the Foreign Sovereign Immunities Act.  His first question posed the immunity claim on the theory that any actions he took were in his official capacity, thus allowing him to share in the foreign state’s immunity.  In the second question, Samantar claimed immunity as a former official at the time the lawsuit was filed, based on acts he allegedly took in his official capacity.

The petition contended that the federal appeals courts were divided on the issue, with the Second, Fifth, Sixth, Ninth and D.C. Circuit Courts extending FSIA immunity to foreign officials, while the Fourth and Seventh Circuits had denied such immunity.   The petition argued that the Fourth Circuit decision “threatens to open the floodgates to claims concerning extraterritorial conduct by foreign nations.”   The exposure of present or former foreign officials to lawsuits in U.S. courts, it added, “threatens to eviscerate FSIA altogether by allowing plaintiffs to obtain federal jurisdiction over virtually any action by a foreign state, simply by suing the responsible officer instead of the state itself.”

The Somali clan members and their relatives countered that the Fourth Circuit was the first, and so far the only, federal court to have decided whether — assuming immunity for government officials — that immunity was lost after they had left their official positions.  Noting that the U.S. State Department had “remained studiously silent” toward the lawsuit for two years, the Somalis asserted that the case “does not strongly implicate the usual concerns that animate the doctrines of governmental and sovereign immunities — international comity and the United States’ ability to conduct foreign policy.”

Without asking the U.S. government for its views, and thus apparently relying on the split in the lower courts, the Supreme Court granted review on Sept. 30 after the Justices’ initial pre-Term Conference.

Merits Briefs

The simple fact, addressed in the two sides’ main briefs on the merits, is that the FSIA says nothing, either way, about whether Congress intended to provide an immunity shield for individuals.  That fact strongly influenced the content of the briefs, with Samantar making mainly policy-based arguments, and the Somalis relying on the text’s omission of individuals as the strongest clue to Congress’s intent.

Samantar’s brief contended that the 1976 law was intended to embrace immunity not only for foreign nations as such, but for those parts of their government that act on behalf of the state.  The twin objectives of the Act — to promote comity among nations and to ensure reciprocal treatment overseas for U.S. interests — can only be served, he argued, by widening the concept of foreign state to include entities through which such a state actually operates.  Any lawsuit against a present or former official, it asserted, must be understood as a suit against the foreign government.

If one finds ambiguity in the wording of the Act’s immunity grant, the Samantar brief went on, it is overcome by reference to the common law as it existed before Congress passed FSIA.  The understanding of the common law was that, acting on behalf of the state, an official shared the immunity that the state itself enjoyed, it contended.

The brief also found confirmation for individual officials’ immunity in laws that Congress passed after FSIA in 1976.  In 1996, it noted, Congress took away the immunity of foreign states that sponsored terrorism, and made clear that this withdrawal applies to officials.  That approach was solidified by a 2008 law, the brief said.  Those two enactments, it concluded, would not have been necessary if FSIA had not conferred immunity on officials.

Since an official’s acts are necessarily the acts of a state when undertaken, the brief went on, the proper timing to judge immunity is when the official took those actions.  Thus, if an official has left the foreign government by the time he is sued, the lawsuit is still an attack on official acts, and thus on the foreign state, it argued.

Finally, the Samantar brief said that taking away FSIA immunity for officials would not leave foreign officials, present or former, with any real protection, under the common law — a potential that the Fourth Circuit implied might exist, although it did not rule on that, referring it back to the District Court.  Resorting to a regime of common law immunity would revive the pre-FSIA diplomatic pressures for recognizing immunity on an individual basis, thus resulting in a lack of uniformity, it argued.

Relying on the FSIA’s silence about individual officials, the Somali expatriates’ merits brief said that Congress had no intention of enlarging immunity beyond a foreign state and its governmental agencies.  That gap in the law’s immunity grant, the brief went on, cannot be filled by a judicial supplement.   Since it is constitutionally a matter for the political branches to decide upon immunity for foreign officials, as part of their management of foreign policy, the only immunity is that which those branches explicitly conferred: that is, on states as states, the brief asserted.

If the Court were inclined to enlarge the immunity grant to cover officials, too, the Somalis contended, that would open a plethora of questions about the type and breadth of immunity, who is eligible for it, what limitations or conditions attach to it, when it is triggered and when it ceases, and whether executives of government-owned corporations were immunized.  “Every one of those decisions,” it added, “is laden with diplomatic-relations cosnequences that should make the Court wary of stepping beyond where the statutory text treads.”

The FSIA, the expatriates’ brief asserted, did not displace a series of specialized immunity grants that vary with different categories of foreign officials.  Congress had no intention of displacing those, it suggested.

As a final, broad-gauged plea, the Somalis’ brief stressed the importance of respecting the decision of Congress and the Presidency to deal with the foreign policy implications of immunity from lawsuits.  It noted that those other parts of the government have denied a safe haven in the U.S. courts for foreign officials “who engage in torture and killing.”  Samantar’s personal concerns about potential diplomatic consequences of narrowing FSIA immunity, the brief said, cannot displace the considered judgment of the political branches.

Whatever reticence kept the Bush Administration from taking any role in the lawsuit against Samantar has ceased with the Obama Administration.  It has directly entered the case as an amicus generally rejecting Samantar’s immunity claim, even while staking a strong claim to an Executive prerogative to shape the development of foreign officials’ immunity.

Its brief opened with a strong condemnation of “grave human rights abuses of the kind alleged” in this case, and stressed the foreign policy interest in promoting safeguards for human rights.

On the merits, the government brief is more nuanced than that of the Somalis.  Although arguing that FSIA’s silence works against any immunity grant for foreign officials directly under FSIA,  it went on to allow for the possibility that the Court might opt to read such an immunity into FSIA.  If the Justices were to do so, it suggested, it should leave a wide range of discretion for Executive officials to determine who is eligible for such immunity, and who is not.

“It is unlikely that Congress, in enacting the FSIA, intended to divest the Executive of the ability to evaluate complex considerations” of the kind that would have to be taken into account in judging whether any particular foreign officials — like Samantar — deserved immunity, the brief said.  For example, for Samantar himself, the brief said the government would consider the fact that he now lives in the U.S., would examine the nature of the atrocities he is accused of condoning or authorizing, would analyze the impact of Congress’s withdrawal of immunity for sponsors of torture and kiling, and would weigh the significance of the fact that there is now no recognized government in Somalia that could say whether Samantar acted in an official or personal capacity.

In any event, weighing whether Samantar himself is entitled to immunity, the government brief said, is beyond the scope of what the Court must decide at this stage, and should be left for lower courts to examine in the first instance, along with any other claims of immunity that Samantar might assert.

Samantar has gained the support in the case of a group of former U.S. attorneys general as amici, arguing that the absence of immunity in such cases will hamper U.S. foreign policy, by groups of pro-Israel organizations and the Anti-Defamation League, expressing concern about potential lawsuits growing out of armed conflict in the Mideast, and by the Saudi Arabian government.  The Anti-Defamation League, urging no specific outcome, joined in the case to suggest some boundaries on such lawsuits.   The Somali clansmen drew the support of a host of human rights and anti-genocide organizations, international law professors and academics specializing in Somali history and affairs, a former Somali foreign minister, three members of Congress, and retired military officers.

Analysis

Given that the Act says nothing explicit about the individual official’s immunity question, that could be conclusive if the Court makes up its mind solely on the basis of the actual language.  The Court, of course, could look beyond the bare text, but that is a mode of interpretation that is not popular with some of the Justices.  Nor is the idea of adding to the scope of a law by judicial creativity.

If the Court, however, is prepared to take into account policy considerations, the position that the federal government has now placed before the Court is likely to be strongly influential.  This is a Court that tends, most of the time, to defer to the Executive Branch on foreign policy considerations, and there are few diplomatic issues more fraught with complication than whether U.S. courts will be opened to damage lawsuits against foreign officials.   The government has made a strong plea that, whatever scope the Court finds FSIA to have, it should leave much to the discretion of the Presidency and Congress working together to manage this aspect of the nation’s foreign relations.

The Supreme Court on Monday found itself shifting between worry that the judge who tried the biggest Enron scandal case may not have done enough to assure that a fair jury was chosen, and worry that the Court should not try to micromanage how trial judges handle that process.  The Justices seemed far more interested in the jury issue than in the other high-profile question before them in Skilling v. U.S. (08-1394) — whether former Enron Corp. CEO Jeffrey Skilling was convicted of violating an unconstitutional law.

With Justice Stephen G. Breyer leading the way, the Court probed deeply into the questioning of potential jurors at Skilling’s trial in Houston, examining whether District Judge Sim Lake took too little time to ferret out potential prejudice or stopped short of following up to test jurors’ pre-trial intimations — or outright conclusions — that the accused Enron brass deserved to be convicted.  Several of the other Justices questioned the brevity of that probing, but there was no evident consensus about what the Court should now do about it.  Even Justice Breyer, who was the most troubled about Judge Lake’s performance (“I’m genuinely concern about a fair trial”), repeatedly stressed that he did not want the Court to go too far to second-guess such performances.  “I’m worried about controlling too much,” he said on the second point.

One point, though, was clear: no member of the Court appeared to embrace Skilling’s core argument that the jury-selection process, even if more extensive, could never be a cure for massive negative feeling in a community about a criminal case.   The Court appeared to accept that the Enron prosecution did occur in a pressure-cooker of revenge sentiment in Houston, yet was not yet ready to lay down sweeping new limitations on how judges should respond to that kind of atmosphere.

Although Justice Breyer indicated near the end that at least he would now want to go back over, very carefully, the questionnaires the Enron jurors had filled out, and the questioning that they underwent during a mere five-hour session to check for bias, his was not the only voice of concern.  Justice Sonia Sotomayor — a former trial judge who no doubt is familiar with jury selection for criminal trials — also displayed considerable skepticism about Judge Lake’s methods.  However, she also was somewhat skeptical about how well Skillling’s defense team had handled the jury selection process.

Skilling’s lawyer at the podium, Sri Srinivasan, set the agenda for the hearing by beginning with the juror prejudice issue, in an apparent indication of a strategy to try to get a completely new trial for Skilling, rather than a reversal on, say, the conviction for failing to provide “honest services” to Enron’s shareholders by pushing up the company stock’s price.  (Even when the Court began exploring the “honest services” law, after Chief Justice John G. Roberts, Jr., raised it, the argument was somewhat lacking in fervor.  That may be an indication that, having already hear two other cases this Term testing that law’s scope, the Court either has made up its mind to pare it down or did not see much new about it in this case, even though Skilling has posed a direct constitutional challenge to it.)

On the juror bias issue, Srinivasan put most of his emphasis on the impact on community attitudes from the economic collapse of Enron, treating the “vitriolic” publicity in the media almost as a secondary concern.   Even if some jurors had paid little or no attention to the publicity, the jury pool itself was people with local citizens who had felt the impact, and resented it, he argued. Even though those attitudes emerged in some of the jurors’ questionnaires, Srinivasan complained, Judge Lake failed to follow up, and essentially curbed the defense lawyers’ chances to follow up.   Some of the jurors, he said, would not have felt free to return to the community if they had not brought in convictions.

He was only a little way into his argument before Justice Breyer started probing for “how we sketch the line” between an adequate and an inadequate exploration of potential jurors’ actual or perceived biases.  Srnivasan sought to lay down some standards, but Breyer seemed less than satisfied with that attempt at assistance.

When the Court reached the “honest services” issue, Skilling’s lawyer sought to reinforce the deep skepticism that some of the members of the Court are known to already feel about the open-ended sweep of that law.  Srinivasan suggested that the way the Justice Department was now interpreting that law would suggest that i would reach virtually any lie that any worker told in the workplace about his job performance.

Deputy Solicitor General Michael R. Dreeben, defending the verdict in the case as well as Judge Lee’s handling of the potential bias issue, sought to portray the Skilling team’s depiction of the procedure as  exaggerated.   He had uttered only a few sentences, however, when Justice Sotomayor pressed him on whether there had been any other “high-profile case” in which juror selection was limited to only five hours.  Dreeben said he knew of none, but insisted there was no problem with the way it worked out in Skilling’s case.

It was then that he ran into the barrage of Breyer’s questions.  The Justice said he had gone over the entire examination of potential jurors, and began to point out what he clearly was portraying as an insufficient response by Judge Lake.  One potential juror (who was not seated) had lost $50,000 to $60,000 as a result of Enron’s collapse, but, Breyer noted, the judge refused to dismiss her from the case for “cause,” as the defense asked.   After Breyer had gone over several instances, Dreeben suggested that perceptions of what had gone on might be different now for someone “sitting with a cold record” rather than having been there for the actual proceeding.

After further probing by Breyer and then by Sotomayor, Dreeben accused the Skilling defense of engaging in an “immense distortion,” of putting together “a highlight reel” of instances of prejudice against the Enron executives.  Somewhat sarcastically, he suggested that the defense was arguing that “all 4.5 million people in Houston were infected with pervasive prejudice.”   The Justice Department lawyer also tried to counter by arguing that the Court has traditionally been willing to trust jurors to put aside the opnions that they may bring to court in the beginning.

That Dreeben was not making much headway seemed clear when Justice Anthony M. Kennedy, who had sat back without taking a full part, sat forward and said that a five-hour period of juror examination “seems about standard” but only for a case in which there has been “no strong showing of prejudice….It is hard to think of a much shorter” juror selection process.   Dreeben fought back, drawing a contrast between the trial of Oklahoma City bomber Timothy McVeigh, in a case in which 168 people, including many children, had killed, and the economic misdeeds trial of Skilling and other Enron executives.  It took 14 days to pick the McVeigh verdict, but that case was not comparable to a trial involving “the financial meltdown of Houston,” Dreeben argued.

When Dreeben’s side of the argument moved on to the “honest services” fraud issue, he suggested ways for the Court to interpret the law to get beyond any problem of vagueness in what it covered.  But that only drew a retort from Kennedy, who suggested that “the point is that the Court shouldn’t rewrite the statute; that;s for Congress.”   Justice Antonin Scalia, a known foe of the “honest services” law, also lectured Dreeben on what the Justice saw as the excessive reach of the law — a theme echoed through the remainder of the argument by others on the bench.

Srinivasan made creative use of his rebuttal time, bringing out that the criminal trial of homemaking guru Martha Stewart involved six days of juror selection,in a case in which there was not evidence of “deep-seated passion and prejudice” among jurors.

The Court is expected to decide the case by late spring or early summer.

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For the third time this Term, the Supreme Court will examine the scope of the controversial 1988 law that makes it a crime to commit fraud that deprives someone, such as one’s company, of “the intangible right of honest services.” It does so in the leading criminal case growing out of the Enron business scandal. This time, however, the Court may confront the constitutionality of that law, since the new case involves a claim that the law is so broadly worded that no one can know what it outlaws, thus making it unconstitutionally vague. The case has an added dimension: the Court is asked to spell out how trial judges should deal with massive negative publicity that surrounds a criminal case.

Background

In October 2001, the giant energy company, Enron Corp. — the nation’s seventh largest business firm — suddenly collapsed and soon was in bankruptcy, wiping out workers’ jobs and retirees’ savings, and devastating the entire local economy in Houston. After the company’s fall, the economic and personal disaster was often compared locally to the devastation of the Sept. 11, 2001, terrorist attacks on the U.S. The scandal mushroomed, and President George W. Bush named a special task force to track down any criminality. Three years after the fall, a major show trial started, after a wave of fevered calls for revenge for what had been done to Houston, and after other prosecutions for Enron-related crimes had raised expectations over what was called the “main event.” The flow of negative news stories dogged that trial. Now, nearly six years later, in the quiet, decorous chamber of the Supreme Court, the Justices take their first full-scale look at that trial, its outcome, and the publicity.

The appeal the Justices will hear focuses on Jeffrey K. Skilling, a longtime executive of Enron who resigned as CEO shortly before the scandal broke into public view. Skilling is now in prison, initially sentenced to 24 years and four months and ordered to pay $45 million in restitution. Although his sentence is scheduled to be reviewed anew in lower courts, that review would not directly affect his conviction. His appeal, though, seeks an entirely new trial, to be held somewhere other than Houston.

On May 25, 2006, after the four-month trial, Skilling was convicted of one count of conspiracy to commit securities fraud and wire fraud (the “honest services” charge is keyed to that count), 12 counts of securities fraud, five counts of making false statements to accountants, and one count of insider trading. The jury found him not guilty of nine counts of insider trading in Enron stock. His conviction was upheld by the Fifth Circuit Court, but that Court ordered a new sentencing because of a flaw in calculating the sentence due under federal Sentencing Guidelines.

Prosecutors charged that Skilling was at the center of an elaborate plot to deceive investors about the state of Enron’s fiscal health. The plot allegedly included over-statement of the company’s financial condition for more than two years in an attempt to keep the company’s stock price high and rising. (Convicted along with Skilling was his predecessor as CEO, Kenneth Lay, who died before he could be sentenced. Others in the case have pleaded guilty.)

Skilling’s challenge to his trial in Houston and to his conviction and sentence wound through lower courts for more than two years, then reached the Supreme Court in May of last year. It arrived on the Court’s docket just shortly before the Court on May 18 agreed to hear two other cases testing the federal “honest services” fraud law. Those cases are Black v. U.S. (08-876) and Weyhrauch v. U.S. (08-1196), both heard by the Justices on Dec. 8 and now awaiting decisions. Neither involves a direct constitutional challenge to that law. The Black case tests whether that law applies to a private individual whose alleged fraud did not result in any economic harm to his company. The Weyhrauch case tests whether the law applies to a state official if that official did not violate any state law.

Petition for Certiorari

Much of Skilling’s challenge deals with his claim that he could not possibly have gotten a fair trial in Houston amid what his lawyers call the “devastating impact” of the scandal on the entire city and region, and the resulting “vitriolic” and “blistering” publicity about the accused executives. His attorneys claimed in the petition that “the community passion” stirred up by the case “was as dramatic as any in U.S. criminal trial history.”

But, among those who specialize in criminal law, the case has a higher profile because of its broad challenge to the constitutionality of the federal law that criminalizes any form of fraud, if the misconduct deprived another of “the intangible right of honest services.” That law, enacted by Congress 22 years ago to overturn a Supreme Court decision (McNally v. U.S., 1987), is a favorite tool of federal prosecutors, especially in public and private corruption cases. Its undefined language has led to countless efforts by federal judges to give it some particular meaning in order to save its constitutionality. Skilling’s appeal assailed that effort, arguing that the resulting array of lower-court rulings “is a hodgepodge of oft-conflicting holdings, statements, and dicta” that “only the most discriminating lawyer or judge” could understand.

In Skilling’s case, the “honest services” fraud law was invoked by prosecutors to bolster their overall charge of a conspiracy to commit securities and wire fraud. One aim of his wire fraud, prosecutors said, was to deprive Enron of his “honest services.” They had other theories for the conspiracy count; those are at most implicitly at issue. The focus of Skilling’s petition, on this point, was that the “honest services” theory cannot be applied to an individual who did not make any private gain; his lawyers contended that his only purpose was to benefit Enron, by boosting the value of its stock. If the law does not exclude those who had not pursued personal gain, then it should be struck down as too vague, the petition argued. The Court should clear up lower-court confusion on the gain issue, the petition asserted, since three appeals courts allow the law to be applied even when there was no such gain, while two others do not.

The petition raised the constitutional argument in a somewhat subtle way. While implying that excluding from the law cases that do not involve private gain might save the law from being struck down, it suggested that “even that limitation may not suffice to save the statute from unconstitutional vagueness.” The implication, of course, was that the Court would have to strain to uphold the statute whether or not it narrowed it as Skilling had suggested.

The “honest services” issue was the petition’s first question. In its second, Skilling asked the Court to rule that, if negative publicity about a criminal case is so widespread and inflammatory that it creates “a presumption” that no jury could be fair, then the conviction must be overturned and a new trial automatically ordered. The problem cannot be cured, it argued, by questioning potential jurors to see if they can show that they would be fair and impartial. If juror questioning might be a remedy for such an indication of prejudice, the petition argued, the Court should rule that it actually is a remedy only if prosecutors prove “beyond a reasonable doubt” that no juror was actually prejudiced.

The Justice Department, in response, urged the Justices to bypass Skilling’s case or, at most, to hold it for action until after it decided the Black case on the scope of the “honest services” law. The government’s first argument against review was that, since the Fifth Circuit had ordered a new sentencing, the case was not really final at this stage and thus the Court should not get involved. Moreover, it noted that Skilling’s lawyers were intending to file a new motion for a new trial.

In seeking to counter his challenge regarding the absence of any proof of “private gain,” the Department said that the prosecutor’s claim of denying “honest services” to Enron was only one of three theories used to support the fraud conspiracy count against Skilling. Thus, it contended, the jury verdict on that count would have been the same even without that theory. On Skilling’s prejudical publicity claim, the government said that his would not be a good case to use to review what must be done if publicity has created “a presumption of jury prejudice” since that presumption was unwarranted in this case. Such a presumption exists, it argued, only in an extreme situation, and this case does not meet that standard. Although the Fifth Circuit had found such a presumption to exist (but allowed it to be overcome during juror question), the government contended that any such presumption was overcome in this case by questioning jurors to check for prejudice. A finding of a presumption of juror bias can be cured without resorting to automatic reversal and a new trial, it concluded.

Merits Briefs

Skilling’s brief on the merits represented some new strategic calculations by his attorneys. They put their initial emphasis on the prejudicial publicity issue, thus giving it more prominence — perhaps reflecting the fact that, if this succeeded, it could overturn all of the conviction, not just the conspiracy count keyed to “honest services” (although the brief does contend that the problem with the “honest services” charge infected the entire verdict.)  Just as significantly, the brief makes an unmistakable constitutional attack on the “honest services” law, contending that it simply cannot be saved no matter how it might be narrowed, because that would not be a legitimate judicial effort.

The challenge to the publicity surrounding the case begins at the top of the brief: “Skilling’s trial never should have proceeded in Houston.” Once it was allowed to go forward there, his lawyers argued, a conviction was assured. Houston, they contended, was “rife with the anger and pain engendered by Enron’s collapse,” and “there was no legitimate justification” for not transferring the case to a place “where jurors could be presumed impartial, instead of the opposite.”

Once defense lawyers had demonstrated the effect of the Enron collapse and the ensuing publicity on the trial, the brief asserted, there was no way to cure it by asking jurors to confess to their bias — something they could not be expected to do. In fact, the juror questioning that did occur came during a “truncated” five-hour session, “with no individual questioning” of jurors, according to the brief; that process, it added, “did almost nothing to weed out prejudices exposed” on the questionnaires the jurors had filled out before being questioned.

Moving on to the “honest services” issue, the Skilling brief said that, if the negative publicity was not enough to assure a conviction, then the prosecutors’ use of a vague statute cemented their prospect of guilty verdicts for the top Enron brass. That led into the frontal challenge to the law’s constitutionality, citing again the “morass of conflict and confusion” about the law’s meaning. It noted that, while the McNally case had sought to force Congress to clarify the “honest services” concept, Congress did not do so. The brief then made a sharp new thrust: “It is beyond the judicial function to identify…the crime that Congress failed to define.”

As a fallback, the brief suggested that, if the Justices “were inclined to complete Congress’s work,” they should limit the “honest services” law to bribes and kickbacks. Going further, the brief said that the Court, if inclined to read the statute as encompassing anything beyond bribes and kickbacks, should not include the kind of conduct in which Skilling was accused of engaging: “pursuing his normal compensation scheme” without harm to Enron. Only in the brief’s concluding point did it suggest that the Court should put outside the law’s scope any conduct that did not involve direct personal gain at the company’s expense.

The Justice Department’s brief on the merits accepted the Skilling challenge of putting the prejudicial publicity issue first, and sought to refute it by contending that it is the defense counsel’s task to show juror bias, not the prosecutors’ to refute it. An accused individual, it argued, “is not deprived of a constitutional right unless he can show that a selected juror was biased”  In the Skilling case, it insisted, the questioning of jurors about the effect of the publicity was not inadequate; rather, it argued, the trial judge did a “meticulous and careful” job that, in fact, “produced an unbiased jury.” The government relied upon the Court’s 1991 decision in Mu’min v. Virginia for the proposition that “a trial judge’s vigilance in voir dire is fully capable of ferreting out bias and that the judge’s decisions to seat a juror are entitled to deference on appeal.”

Moreover, the Department’s brief argued that the Court has repeatedly shown that it regards the remedy of automatic reversal of a conviction because of trial error as being available “only in a very limited class of cases.”

On Skilling’s description of the impact of Enron’s collapse on the Houston area, the government brief contended that the Constitution does not guarantee “a trial in a venue whose populace has no exposure to the effects of the defendant’s crime or adverse pretrial publicity about it.”

Turning to the constitutionality of the “honest services” law, the government repeated arguments that it has made in the other cases this Term involving that law — that is, that the body of lower court rulings that has built up over the years points in a clear direction. What those precedents mean, it asserted, is that the statute is violated if there is “a breach of the duty of loyalty, intent to deceive, and materiality.” The prosecution of Skilling, it said, satisfied all three. On the “personal gain” question, the government brief said that Skilliing, even though pursuing his own compensation interests, actually was seeking personal gain. By seeking to inflate the price of Enron stock, it contended, Skilling actually was seeking “additional personal benefits at the expense of stockholders.”

Among amici briefs, Skilling’s constitutional assault on the “honest services” law drew strenuous support from the U.S. Chamber of Commerce, the National Association of Criminal Defense Lawyers, and Texas defense counsel, and by two right-of-center legal advocacy groups — the Pacific Legal Foundation and the Cato Institute. Those two groups made a special effort to try to persuade the Court to treat the accused in complex business cases to the same protection from vague criminal laws that ordinary criminals get. The NACDL brief also sought to reinforce the Skilling challenge on the prejudicial publicity point, arguing both that jury questioning cannot cure a demonstration of likely community bias, and that the attempt to do so in this case was seriously inadequate. The government’s challenge to the Skilling demand for automatic reversal due to a “presumption” of prejudice from publicity gained the support of a host of media organizations, arguing that putting such a presumption beyond possible rebuttal would “create a significant new incentive to restrict press coverage of the most intensely followed prosecutions and thwart the value of openness.”

Analysis

It is already clear that there is, among some members of the Court (most notably, Justice Antonin Scalia), a deep skepticism about the constitutionality of the “honest services” law. The decision by Skilling’s lawyers to harden their challenge to it in their merits brief, and the support that challenge gets from amici, very likely increase the chances that the Court will be prepared to rule directly on the law’s validity. The fact that Congress has made no effort to clarify the law’s scope, in the face of a widely varying array of interpretations by lower courts, may make the Court reluctant to re-craft the law itself.  The Court has seen, in the three cases this Term testing the law’s reach, how difficult it seems to be to know what it actually covers.

There was another small hint to suggest that the Court, in fact, is quite interested in the constitutional question. Three days after the Skilling merits brief was filed, with its direct complaint about the law’s validity, the Court moved the Skilling case ahead on its docket, to give the Court an earlier chance to hear lawyers’ argument on it. No one outside the Court knows why it advanced the case, but the Justices clearly were keen on getting to it.

One potential point of hesitancy, however, would be the Court’s sometime devotion to the notion that constitutional judgments should be avoided unless clearly necessary. Skilling’s lawyers have given the Court a series of alternative approaches that could save the law by narrowing it. Those are ready at hand, if the Court should find it difficult to reach five votes to nullify the law outright.

The dispute in Skilling about how to deal with pervasive negative publicity before and during a criminal trial is more difficult to analyze. His lawyers have painted a vivid portrait of the virulence of the publicity surrounding the Enron trial and just as vivid a picture of the personal and economic wreckage that the scandal-driven Enron collapse did to the Houston area. Those are portrayals that the media organizations, as amici, have not been fully successful in neutralizing. But, even if the Court were moved by the recollection of the wreckage, it is by no means clear that it would be prepared to opt for automatic reversal of convictions and a new trial as the sole available remedy. Perhaps the Court might mandate a more thorough juror questioning process than was done in the Enron case, however.

The media organizations, in the most significant point in their brief, noted that the Supreme Court has not found a case of presumed prejudice by publicity about a criminal trial since the “watershed case of Sheppard v. Maxwell,” and that was 44 years ago. (Actually, according to the Justice Department merits brief, the last instance was somewhat further in the past than that: the case of Rideau v. Louisiana in 1963, 47 years ago.)

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On the day 20 months ago that the Supreme Court decided the historic case of District of Columbia v. Heller, declaring that the Second Amendment provides an individual right to have a gun for private use, the first of an expected swarm of follow-up lawsuits was filed to test just how far that right will extend.  That same-day sequel has now reached the Court, raising a misleadingly simple question: must state, county and city governments obey that Amendment for the first time in the 219 years it has been a part of the Constitution? The outcome will affect many more gun control laws than Heller itself did.  By one estimate, some 90 million people in the U.S. have guns — 200 million of them — and most of those are regulated more by state and local laws than by federal laws.

Background

The Supreme Court, like the lower courts in this case, is likely to spend almost no time examining the gun control laws that are under challenge.  That’s because the sole issue is whether the Second Amendment (guaranteeing “a right to keep and bear arms”) even applies to those laws.  But the local laws at issue together provide a perfect test case for that issue: by functioning as virtually complete bans on handguns, the ordinances almost certainly would be struck down if the right established by the Heller decision can be invoked against them.  (A similar ban in force in the federal city of Washington, D.C., was nullified by Heller.)  Chicago’s city ordinance bans from the city any gun that is not registered, and most handguns simply cannot be registered.  Rifles and some shotguns are allowed in the city, if registered.  Oak Park, a city of about 50,000 people bordering the west side of Chicago, has gone even further: It makes it a crime for anyone to have within the city limits any gun small enough to be concealed on the person.

On June 26, 2008, right after the Supreme Court decided Heller, an already-prepared lawsuit was filed in federal court in Chicago to challenge that city’s gun law and related city regulations; the challengers were four gun enthusiasts in the area: Otis McDonald, Adam Orlov, and Colleen and David Lawson, along with the Second Amendment Foundation and the Illinois
State Rifle Association, a branch of the National Rifle Association.  The following day, two other lawsuits, ready beforehand, were filed in the same court, challenging the Chicago law and also the gun ban in Oak Park. Those cases were filed by the NRA, along with Chicagoans Kathryn Tyler, Van F. Welton and Brett Benson, and Oak Park residents Robert Klein Engler and Gene A. Reisinger.

As senior U.S. District Judge Milton I. Shadur would later write: “What is eminently plain is that both sets of lawyers…came loaded for bear, on the assumption that the Supreme Court majority would rule as it did [in Heller].”  And both sets of lawyers quickly agreed that Judge Shadur should narrow the issues in the case, down to the single question: does the Second Amendment apply to state and local laws, or just to those passed by Congress or the federal enclave of Washington, D.C.?

It took Judge Shadur less than six months to rule. In essence, he said he had no choice but to reject the claim that the Second Amendment does reach to the state and local level.   The judge wrote in December 2008 that the Seventh Circuit Court, whose decisions he must follow, had ruled on the issue in 1982 in Quilici v. Morton Grove (an Illinois case that the Supreme Court back then refused to review).  That decision, he said, “squarely upheld” a local handgun ban by relying on a Supreme Court decision issued in 1896, Presser v. Illinois.  Citing the Presser decision, Judge Shadur quoted the Supreme Court as having declared that the Second Amendment “is one of the amendments that has no other effect than to restrict the powers of the National government….”   And, he added, the Supreme Court in Heller had listed Presser, along with U.S. v. Cruikshank in 1876 and Miller v. Texas in 1894, as having concluded “that the Second Amendment applies only to the Federal Government.”

In modern times, there has been much debate about whether those old precedents remain good law, and the Supreme Court has already heard a great deal about that, and will hear more.  Judge Shadur was not in a position to judge that issue, he said.  But he did add that the Second Amendment’s extension argument “may well carry the day before a court that is unconstrained by the obligation to follow the unreversed precedent of a court that occupies a higher position in the judicial firmament.”

Then, the next higher court in the firmament, the Seventh Circuit, similarly concluded that it had to follow those three precedents.  “Cruikshank, Presser, and Miller still control even though their reasoning is obsolete,” the Circuit Court concluded in June of last year.  Writing for the three-judge panel, Circuit Judge Frank Easterbrook added: “In decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale.” The Circuit Court rejected the gun rights enthusiasts’ suggestion to find a way around the three precedents.  To do that, it said, would mean that Supreme Court rulings “would bind only judges too dim-witted to come up with a novel argument.”

Thus, the lower courts had focused more on their own lack of authority than on the question that lay behind these first sequels to Heller: that is, what concept or actual language written into the Constitution would allow a court to conclude that the Second Amendment could apply to state and local governments?  Over time, two potential approaches would emerge: one direct, and one indirect.  The Bill of Rights could be read as placing direct restrictions on all levels of government, or, though supposedly written only to restrain the national government, they could be applied to the states by absorption (“incorporation”) into other phrases that do restrain the states and local governments.

James Madison had drafted the Bill of Rights, including the Second Amendment, in 1789, primarily to satisfy critics of the new Constitution, who argued that the national government being set up would have too much power over the citizenry.  Although one can debate whether there was an “original understanding” to apply the Amendments only to the federal government, the Supreme Court in 1833 — in the case of Barron v. Baltimore, involving the Fifth Amendment — apparently rejected the direct approach; the Fifth Amendment, Chief Justice John Marshall wrote, “is not applicable to the legislation of the States.”  That precedent has never been overturned and, in fact, is now widely understood as barring the direct approach to extending any of the Bill of Rights to the state and local level.

The “incorporation” alternative has fared much better, using the Fourteenth Amendment as the place to “incorporate” provisions of the Bill of Rights.   While the Supreme Court has not ruled that every one of the Bill of Rights is “incorporated” into the Fourteenth Amendment, it began in 1897 (Chicago, Burlington & Quincy Railroad Co. v. City of Chicago) a process that came to be known as “selective incorporation.”  Now, most provisions of the Bill of Rights have been so “incorporated.”  But among the few still left out is the Second Amendment.  While the Supreme Court in the Heller decision gave the Amendment a broad new meaning, it left undecided whether the right to keep and bear arms must be respected by state, county, and city governments, too.

In theory, there are two clauses in the Fourteenth Amendment that the Court might now use, if it were to decide to “incorporate” gun rights.  First is the clause that protects citizens’ “privileges or immunities.”  The second is the guarantee that “life, liberty or property” may not be taken away without “due process of law.”  In every one of the Court’s “incorporation” decisions (the last of these came in 1979, in Burch v. Louisiana, requiring unanimous juries in some criminal cases), the Court has used the “due process” clause.

The two new test cases seeking “incorporation” of the Second Amendment have been aimed, from their very beginning, at putting the issue before the Supreme Court, and the attorneys pressing those cases have long been ready to do so when the opportunity fully arose.  Thus, one day after the Seventh Circuit Court ruled in the Chicago and Oak Park cases, the NRA filed its appeal to the Justices (NRA, et al., v. Chicago, et al., docket 08-1497).  Then, a week after the Circuit Court decision, the McDonald group filed theirs (McDonald, et al., v. Chicago, et al., 08-1521).

Petitions for Certiorari

The McDonald petition — the one the Court chose to review — and the NRA petition asked the Court to “incorporate” the Second Amendment into the Fourteenth using either — or both — the “privileges or immunities” clause or the “due process” clause.   At the time these appeals were filed, both sides made much of the fact that federal Circuit Courts had reached conflicting conclusions about “incorporation.”  They thus urged the Court to clear up that dispute promptly, in order to end what the McDonald papers called “the deprivation of fundamental constitutional rights among a large portion of the population.”  It would serve no purpose, that petition said, to let the conflict among lower courts continue, and it added that “the scholarly landscape concerning the core constitutional issues in the case is exceptionally well-developed, enabling a just and comprehensive treatment by this Court.”

The two petitions differed in one significant respect.  In McDonald, the lawyers directly urged the Court to overrule an 1873 precedent, the so-called Slaughter-House Cases, which many observers interpret as having virtually read the “privileges or immunities” clause out of the Constitution.  “Given the profound scope of Slaughter-House’s error, and the confusion it has spawned in Fourteenth Amendment jurisprudence, overruling Slaughter-House remains imperative,” the petition argued. In NRA, the lawyers seemed to favor the “due process” approach, saying that the Court’s jurisprudence under that clause “easily brings the Second Amendment into the incorporation tent.”  But, it added, if the Court wished to take a new look at “privileges or immunities” jurisprudence, “this would be an appropriate case in which to do so.”

Both petitions noted that, in a remark in a dissenting opinion in 1999 (Saenz v. Roe), Justice Clarence Thomas had said he would be open to reevaluate the meaning of the “privileges or immunities” case in an appropriate case.

The cities of Chicago and Oak Park did not oppose review by the Court of the question — still open, they conceded — whether the Second Amendment should be “incorporated” through the “due process” clause.  While they argued that the three old precedents against applying the Second Amendment to the states “remain good law today,” they said that the Court should address the “incorporation” question if it “believes the time is right.”  However, they did oppose review of the alternative argument, under the “privileges or immunities” clause.  The two petitions, the cities contended, had not shown why the Court should consider “breaking with precedent” that long ago excluded that clause as a mechanism for “incorporation.”  Their opposition papers went on to discuss why “incorporation” should not now be declared.  Any “liberty interest” that due process may protect is, at least when it comes to having a gun for self-defense in the home, fully protected because guns other than handguns were allowed in the cities under the present ordinances.

If the Court did take on that issue, the cities suggested, the Court should not go further and review the constitutionality of the specific ordinances under challenge.  No record on the scope of those laws was made in the lower courts, because all of the focus had been on the Second Amendment issue, the cities said.

By the time the Justices scheduled the two cases for initial consideration, in their first Conference late last September, the conflict among the Circuit Courts had come to at least a temporary end, when the Ninth Circuit Court voted to vacate and then reconsider en banc its ruling “incorporating” the Second Amendment through the “due process” clause.   Even so, on Sept. 30, the Supreme Court agreed to take on the issue, granting review of the McDonald petition.  It made no mention of the NRA petition.  Later, because the NRA was supporting the McDonald plea for “incorporation,” the NRA was treated under the Court’s rules as a “respondent” in support of the McDonald group; that gave the NRA’s lawyers a full right to take part in the briefing.

Merits Briefs

With a call for the Court to return to the drafting of the Fourteenth Amendment beginning in 1866, the McDonald merits brief put forth a strong plea for “the text’s original public meaning.”  The people at the time, it argued, understood that Amendment to safeguard “a broad array of pre-existent natural rights believed secured by all free governments, as well as the personal rights memorialized in the Bill of Rights.  The Fourteenth Amendment’s framers used language that successfully accomplished their intent.”  The bulk of the brief rested the “incorporation” argument on the “privileges or immunities” clause, and its reexamination of history was keyed largely to that.  The “due process” argument is confined to a few concluding paragraphs focused on the “fundamental” nature of gun rights, and the fact that most of the remainder of the Bill of Rights has already been “incorporated” into the Fourteenth Amendment.

Seeking to guide the Court through the Fourteenth Amendment’s origins, the brief suggested that the framers had intended it to embrace virtually all “the natural rights of man,” perhaps so great in number that all of them could not be enumerated.  Clearly, the brief asserted, it included all of the rights spelled out formally in the Bill of Rights, but went further to command respect for all “fundamental guarantees” of citizenship in a free country.  One of Congress’ specific aims in writing the Fourteenth Amendment, it asserted, was to repudiate the Supreme Court’s decision in Barron v. Baltimore limiting the Bill of Rights to safeguard against the national government only.

After Congress had completed its work, the brief said, the new Amendment went out to the ratifying public, and thus the nation as a whole embraced the original sweep of rights that were being safeguarded.  Clearly included in that public understanding, according to the McDonald brief, was the personal right to the security of having a gun for personal use.

Moving beyond the original meaning argument, the brief then energetically attacked the Slaughter-House Cases precedent curbing the scope of “privileges or immunities” along with the Cruikshank and Presser precedents.  Each, it argued, misunderstood what the clause had intended, and should now be overruled.   “These cases,” it contended, “established that the states could continue to violate virtually all privileges and immunities of American citizens, including those codified in the Bill of Rights, notwithstanding [the Fourteenth Amendment's] clear textual command to the contrary.”

Slaughter-House, the brief said, “announced a theory of the privileges or immunities clause never apparently considered by anyone during the framing and ratification process, standing diametrically opposed to every statement of intent and understanding related to the privileges or immunities clause.”  That theory, it noted, was that the clause only protected the rights that citizens enjoyed at the national level, a very narrow list, indeed.

The NRA merits brief, in sharp contrast, suggested that the Court need not overrule any prior precedent in order to make the Second Amendment applicable to state and local laws.  The Court, it noted, had never ruled directly on whether the Second Amendment was “incorporated” through the “due process” clause of the Fourteenth.  Recalling the series of cases using that approach to extend other Amendments to the states, the brief said the Court has long been engaged in the process of assuring protections for all rights that are an “essential feature of all free governments.”  The Bill of Rights, it added, is “the most natural place” to find what those rights are — and, of course, that includes the right to keep and bear arms.

“There can be no doubt,” it contended, “that the right to keep and bear arms protected by the Second Amendment easily meets the test set forth in this Court’s selective incorporation precedent.  It is a right ‘fundamental’ to ‘liberty,’ ‘a free society, ‘free government,’ the ‘liberty…at the base of all our civil and political institutions,’ and ‘ordered liberty.’  The Second Amendment is the only provision of the Bill of rights that declares its own essential link to liberty and a free society” — pointing to the Amendment’s preamble, the right protected being “necessary to the security of a free state.”  (The NRA later gained the chance to present 10 minutes of oral argument by contending that the McDonald brief had underplayed the “due process” argument, which NRA vowed to stress at the podium.)

The NRA filing, though, offered the Court two other potential paths for “incorporating” the Second Amendment.  One would be to declare that the gun right is one of the privileges and immunities of national citizenship — thus giving it full protection even without overruling the Slaughter-House Cases precedent, which found that only national rights were protected by the clause.   The second path, the brief indicated, is the only one requiring an overruling: casting aside Slaughter-House to ensure that gun rights are fully protected under the “privileges or immunities” clause.   The overruling, it suggested, would be based on the premise that the right to guns predates the founding of this country, and thus is a basic attribute of citizenship.

The cities of Chicago and Oak Park, in their combined merits brief, dealt with the “incorporation” question primarily as a social policy issue — that is, it contended that guns “are designed to injure or kill,” so access to them could not possibly be regarded as a right that is “implicit in the concept of ordered liberty” under the “due process” clause.  While those two cities have chosen to impose outright bans on handguns, the brief said “other approaches are possible and may be effective elsewhere.”   Still, it asserted, “it cannot be concluded that easy and widespread availability of firearms everywhere is necessary to protect ordered liberty.”

Reviving some of the arguments that had been made in the Heller case in trying to persuade the Court that the Second Amendment did not embrace a personal right to a gun, the cities’ brief said that the Second Amendment at the time of its adoption was not understood to embrace “any view that a private arms right unconnected to preservation of the militia” was a fundamental right.

It also contended that the Heller decision only assured protection of a right to possess guns for self-defense, and said that this does no more than protect against a hypothetical law that would eliminate access to every kind of firearm — a kind of law that is unlikely anywhere.  The brief also made a fervent argument that Heller did not establish a free-standing constitutional right of self-defense enforceable against government.

In trying to head off an “incorporation” decision based on the “privileges or immunities” clause, the cities’ merits brief relied most heavily upon the Court’s doctrine of respecting its own precedents.  The Court, it said, has consistently refused incorporation on a “privileges” clause basis, and this approach “is workable and venerable,” respects “significant reliance interests,” and reflects the understanding commonly held by those who lived through the Civil War and Reconstruction.   If the clause were now used as the vehicle for “incorporating” rights, the brief warned, that “would throw into doubt the rights of aliens and corporations, make the grand jury clause and Seventh Amendment applicable to the states, and unsettle the legal status of unenumerated rights, both those that have been recognized and those that have not.”

Elaborating, the brief’s point about the rights of aliens and corporations was based on the fact that the “privileges or immunities” safeguard of the Fourteenth Amendment is limited to the rights of “citizens.”  If the Court were now to require the states to respect the Bill of Rights so far as those guarantees apply to “citizens,” then aliens and corporations would find their rights at risk, not protected.  Their rights now at least have some protection because they are “persons” under the “due process” clause, and thus have gained some benefit from “incorporation” of other parts of the Bill of Rights, the cities noted.

They also make an argument that such a decision would impair federalism interests, by unsettling the relationship between national and state governments.

Amicus Briefs

The proponents of applying the Second Amendment to state and local gun control laws have drawn twice as many supporting briefs from amici as do Chicago and Oak Park — 32 to 16.

Although 44 of the states already protect a right to a gun under their own state constitutions, a total of 38 states have joined in urging the Court to apply the Second Amendment to state and local laws, so as to clear up uncertainty about when millions of Americans can have guns.  The states argued that the Court’s interpretation of the scope and nature of federal gun rights will help inform states as they develop or enforce their own gun laws.  Fifty-eight members of the U.S. Senate and 251 members of the House added their support, too, reminding the Court of how strongly Congress has supported gun rights.  Prominent constitutional law scholars, and a wide array of gun advocacy groups and conservative organizations, also supported the extension of the Second Amendment, with much of their argument focused on the “privileges and immunities” clause.

Competing historical interpretations, and social policy arguments, are offered on the cities’ side, along with the support of 55 members of the U.S. House, a wide array of municipal organizations, and many of the nation’s most prominent gun control advocacy organizations.  Much of the historical argument targeted the gun advocates’ claims about the scope of the “privileges or immunities” clause, and some of the historians renewed arguments that had been made in the Heller case against the individual right to a gun, suggesting that such a right was not a fundamental one.

Analysis

Starting with the fact that the Heller majority found a personal right to have a gun to be a right that existed even before the Constitution was written, it is difficult to imagine that a majority will do anything other than require state and local governments, too, to respect that right.  For the Court to conclude that this right is peculiarly undeserving of such protection, when almost all of the other key provisions of the Bill of Rights have long since been protected against state infringement, would require the abandonment of at least some of the sentiment, if not the substance, of the Heller decision itself.  But that is only the start of the inquiry about how the Court may proceed.

There is much criticism in conservative circles, no doubt shared by at least some of the Justices, over the expansive interpretations that the modern Court has given to the Fourteenth Amendment’s “due process” clause.  While that might deter the Court from using that clause to extend gun rights, the simple fact is that this has been the only basis of “incorporation” of any right up to now, and a departure would be something of a jurisprudential jolt.  The only viable alternative is the “privileges or immunities” clause, and the cities’ merits brief has sketched for the Court a Pandora’s box of interpretive complications — and real-world effects — of shifting to that clause as a basis for “incorporation.”

The Court’s task has also been made more difficult, not easier, by the proponents’ attempt to establish a meaning for the Fourteenth Amendment that would safeguard many as-yet-unrecognized rights, well beyond the right to have a gun for self-defense in the home (which is, so far, all that Heller protected).  The argument, in attempting to head off state infringement on gun rights, that the Amendment embraces virtually every right that a free person could possibly claim is so open-ended that the Court might have real problems accepting it and then trying to hold it in check.

The way out for the Court, then, may be to decide the case on an extremely narrow basis, dealing only with the very specific right established by Heller, and saying that, while that right is so fundamental that it applies to all government, it can be regulated by state and local agencies if they can demonstrate clearly that they have done so reasonably.  As it did in Heller, the Court may well reiterate, and further clarify, examples of valid regulation that states, counties and cities might undertake.   But, as to the two cities’ laws directly at issue, the Court seems unlikely to go ahead and rule on their constitutionality, leaving that task in the first instance to the lower courts when the cases return to them.

It is a virtual certainty, of course, that any decision that emerges is likely to divide the Court deeply, as Heller did.  Thus, the decision in the case is likely to be one of the last to emerge from the Court near Term’s end.

Have you heard of the “14-Day Clause” of the Constitution? If not, you should take a look at the Supreme Court’s opinion yesterday in Maryland v. Shatzer. Shatzer is an intriguing example of how the Supreme Court makes rules in the area of criminal procedure. It’s particularly notable in that it introduces a very rare (but not unprecedented) numerical rule to implement constitutional protections.

Shatzer is a case on the law of police interrogations when a suspect is in police custody. It’s one of the dozens of spinoff decisions from the 1966 blockbuster Miranda v. Arizona, also known as the “you have a right to remain silent” case. The specific question in Shatzer is whether a detained criminal suspect who has asked to speak with a lawyer can ever be questioned again without a lawyer present. In a 1981 case, Edwards v. Arizona, the Supreme Court held that when a detained suspect asks to speak with a lawyer, the police cannot try to persuade him to change his mind. They have to stop the questioning, and they cannot restart the questioning, even after time passes and the suspect has met with his attorney, unless the suspect reinitiates the questioning on his own.

The issue in Shatzer was whether that rule continues to apply if the suspect has been released from police custody and is then rearrested. In particular, do the police have to honor the earlier request for a lawyer? The Miranda protections don’t apply when a suspect is no longer in custody. When the suspect is arrested again, however, he regains his Miranda rights. The question is, does the break in custody reset the clock on the effect of the suspect’s earlier request to speak with a lawyer? Or does the fact that the suspect is released from custody make no difference at all, such that the police are forever barred from approaching the suspect without a lawyer whenever he is in custody?

Two practical points make answering this question unusually hard. Point One is that the police need clear rules that answer the question with certainty. It doesn’t work to give the police complex legal tests to apply on the fly: They need clear rules to know what they can and cannot do. Point Two is that the two obvious candidates for clear rules each create absurd results. If you say that any break in custody, however short, resets the clock, then the protections are meaningless. If a suspect asks to speak to an attorney, the police will just “release” the suspect for 30 seconds, re-arrest him, and then restart the interrogation. That doesn’t work. On the other hand, if you say that the break in custody has no effect at all, then all sorts of strange consequences follow. A request to speak with an attorney in one case will inoculate the suspect from police interrogations for the rest of his life for all of his unrelated crimes. A request to speak to an attorney at the age of 18 in one case would bar questioning a half-century later for something entirely different. That doesn’t work, either.

So what to do? What clear rule on how long the break must be to reset the clock is workable here? Enter the 14-day rule, announced today in Shatzer in a majority opinion by Justice Scalia:

We think it appropriate to specify a period of time [at which time the clock is reset]. It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.

The 14-day limitation meets Shatzer’s concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for reinterrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship—nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights.

As a matter of policy, I think that’s a pretty good rule. But why precisely 14 days? That is, 336 hours, or exactly 20,160 minutes? There is no 14-day Clause in the Constitution. (I checked.) Why not 15 days? Or 13.491 days?

As far as I can guess, the only reason 14 days was chosen is that it’s easy to remember and seemed in the right ballpark. Jews started measuring seven days as a time period in the 6th Century BC; the Romans then adopted it, measuring time in 7-day weeks; and two-thousand-odd years later, on February 24, 2010, a majority of the Justices on the Supreme Court thought that one of those was too short, three was too long, and two seemed about right. And how did the Justices know that 14 days would be about right? Based on their extensive experience being arrested, perhaps? Presumably not. But no matter. Fourteen days seemed about right, and so the 14-day rule became the law.

If you’re wondering how Justice Scalia could end up writing an opinion that sounds so legislative — picking 14 days out of thin air — you need to know Justice Scalia’s history with Miranda. Justice Scalia intensely dislikes the entire line of Miranda cases. The Court has sometimes referred to the Miranda rules as “prophylactic.” That is, they are rules created to protect the Constitution, and enforced as constitutional law, but not necessarily constitutional rules themselves. In his dissent in Dickerson v. United States, Justice Scalia argued that this entire approach was illegitimate. He would overthrow the entire line of cases as an illegitimate power grab.

It’s not clear how many Justices continue to see Miranda as just “prophylactic” after Dickerson. But Justice Scalia still does. And he has long had a special dislike for the Edwards rule in particular. (Remember, that’s the rule that the police have to stop interviewing someone, and can’t restart questioning, if he asks for a lawyer.) In a 1990 dissent, Scalia described the Edwards line of cases as “prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement.”

But if you can’t beat ‘em, join ‘em. Or at least join ‘em if that means you get to write the opinion that substantially limits the effect of the Edwards rule. And if you’re going to write an opinion that you see as merely “prophylactic,” presumably you’re not bound by your usual approach to constitutional interpretation. With apologies to Chief Justice Marshall, it is not a Constitution you are expounding. So explicitly policy-based rulemaking becomes more understandable, even if it’s jarring coming from Justice Scalia.

John Paul Stevens very likely will retire.  Ruth Bader Ginsburg definitely will not.

Justice Stevens keeps his own counsel, but the signals he has sent are unchanged and grow more significant as they accumulate and as time passes.  The White House has long known – since before Justice Sotomayor was confirmed – that there was a significant chance Justice Stevens would retire this year.  Some of the signals are inaction – he has made no move to hire additional clerks, which he logically would have done if he had decided to remain on the Court.  Other, more subtle things the Justice has said and done privately also support the conclusion that his working plan is to retire.  Obviously, nothing is final until it is announced, but for the first time, I now believe that he is going to retire.

For almost everyone, Justice Stevens’s retirement will be a deeply sad event.  He is a great man – a historic figure.  Like Justice Souter, Justice Stevens has always been the consummate gentleman, while at the same time incisive and brilliant.  Justice Stevens’s stamp on our jurisprudence, however, is much deeper.  The fact that the nation’s attention will shift so quickly to speculation about his successor, rather than an appreciation of him, is unfortunate.

Incidentally, although Justice Stevens’s difficult reading of his Citizens United dissent from the bench has led some to say that his time on the Court is logically coming to an end, the two aren’t particularly related.  The press and public see Justice Stevens regularly at oral arguments, and nothing indicates that the Citizens United incident was anything other than a passing stumble.

The signals from Justice Ginsburg are unchanged as well and point in precisely the opposite direction.  She has stated unequivocally – both at her law clerk reunion and afterwards – that she is not going anywhere.  The speculation that she would leave is all based on exaggeration and underestimation and is generally driven in the media by the idea that it would make for really interesting politics.

Justice Ginsburg was sick; she’s better, and she has consistently published a significant amount of information about her health so that the public understands that.  She has sometimes worked herself to the point of complete exhaustion, so that she has been seen nodding off, which (when you get a ton of media attention) gets reported.  She looks frail; that’s always been true, and it has always caused people to underestimate her.  But she is at the top of her game and has no reason to retire.

Her intention to remain on the Court should not be misunderstood as not caring at all who would appoint her successor.  Rather, retirement is sufficiently far over the horizon, that it really is not an issue.

To clear up any remaining ambiguity, if you believe or hear anyone else say that Justice Ginsburg may retire this summer, this is the appropriate response:  Will.  Not.  Happen.

No other member of the Court has any reason to retire either.  By all accounts, each of the Justices is in good health.  All of them feel an obligation to serve.  Although the Court is divided, it’s not Congress; none is going to pull an Evan Bayh and walk away.  Justice Souter’s perspective on his role and tenure was unique.  And it’s a good job, so few people want to give it up.  (If offered it, you should take it.)

When Justice Stevens retires, what happens then?  There will be a pretty efficient process.  The White House will receive significant pressure from both the right and left, all of which it will basically ignore.  Conservatives will want to use the Court as a rallying point for their base for the 2010 midterm elections and beyond.  Liberals will not only rightly view this as their last, best opportunity to appoint a genuine progressive to the Court for a long time, but also will recognize the significant prospect that the Court will ironically become more conservative under a Democratic President with this change in membership insofar as Justice Stevens is the left’s leading strategist and seemingly has the best relationship with Justice Kennedy.

The President will want a highly qualified nominee, obviously.  Beyond that, the calculation for the White House will be almost entirely political.  Rahm Emanuel will have overriding control – if not minute-by-minute involvement – just as he did with Justice Sotomayor.  And as with that previous confirmation, the calculus will be one of the political costs and benefits of the highly qualified candidates at the political moment in time.

Unfortunately for progressives who want the Administration to invest its political capital in a nomination, this summer is likely to be a profoundly difficult time in political terms.  It is hard to overstate the Administration’s view of the significance of the loss of the sixtieth Democratic Senate seat.  The point isn’t actually that there is a realistic chance that a Supreme Court nominee would be filibustered:  there are several liberal candidates whom conservative Democrats and the Republican Senators from Maine might or might not ultimately support, but they would not filibuster.  Supreme Court nominees require just fifty votes for confirmation, and with a committed effort, the Administration could get a relatively wide range of candidates through.

Instead, the effect of the vote is to reduce the Administration’s political capital and maneuvering room at a time when both are in short supply.  The White House specifically and the Democratic Party more generally feel an urgent need to recapture some momentum to put their domestic agenda on track.  The Administration was entirely invested – and “entirely” is not an overstatement – in a sixty-vote health care strategy, which failed the minute Scott Brown won in Massachusetts.  Republicans know this, and they will do whatever is reasonably necessary to prevent Democrats from regaining their footing in the run up to the 2010 elections (as the Democrats would have done to them).  The White House knows that Republicans know (etc.) and it will invest whatever political capital it has in getting centrist undecided Senators to support its domestic agenda – health care, jobs, and the like – rather than leaning on them to support a liberal Supreme Court nominee.

Look at it this way.  Which of these three options is going to get President Obama re-elected: (a) 500,000 new jobs, (b) expanding health care for 10 million additional Americans, or (c) Seventh Circuit Judge Diane Wood?   No one — not even the most devoted members of the American Constitution Society — believes the answer is “c”.

That is not to say that the President does not care about the Supreme Court.  Certainly, he does.  He is a former law professor who understands the institution and its importance perhaps better than any of his predecessors since Taft.  But he has a broader responsibility to the country that prevents the White House from being single-minded about the Court at a time that is politically very difficult.

But even that is not to say that the Administration is going to put the Court on the back burner.  To the contrary, all indications are that it intends to raise the Court’s profile.  The public’s hostility to the Citizens United decision – consciously stoked by the White House – is pretty much off the charts.  We’ve seen the beginnings of what may turn into a populist-style campaign against the institution.  Nixon ran against the Court as pro-criminal.  The Obama Administration and Democrats more broadly seem poised to paint the Court as pro-corporation, linking Citizens United with a variety of other decisions such as the Ledbetter pay case that Congress recently overturned by statute.  Like criminal law issues, a “fight” with the Court over what would be framed as individual versus corporate rights has a lot of appeal to political independents.

Unfortunately for liberals, that does not equate with any significant likelihood that the President will appoint a thoroughly and avowedly progressive nominee.  Don’t confuse the desire to accumulate political capital (by positioning the Administration against unpopular rulings by the Court) with the need to avoid expending that capital unnecessarily (by picking a big confirmation fight).  Instead, the Administration is likely to take a hard rhetorical stand against rulings that it believes can be framed as pro-corporate, while nominating a candidate who will sail through the confirmation process.

As I suggested above, on some level, this is all about the decision whether to nominate Seventh Circuit Judge Diane Wood.  If the President’s priority were to appoint a brilliant, moderately liberal jurist in whose views he has confidence (because she has a track record), he would appoint Judge Wood.  No judge on the left in the country is so uniformly respected for her intellect and thoughtfulness.  She is amazingly articulate, and at a hearing would be no less impressive than was Chief Justice Roberts.  She will be the near-uniform choice of the groups on the left – at least those who have given up on the dream of Pam Karlan.

Diane Wood
Judge, Seventh Circuit Court of Appeals
Age 59



Judge Wood is not remotely a fire-brand liberal.  Few lawyers known for their service in the antitrust division are.  But because she has at least a record of decisions on hot-button issues like abortion, there would be a genuine fight over her confirmation.  Committed conservatives will oppose any realistic candidate (just as committed liberals were going to oppose anyone whom President Bush nominated), but a nominee with a paper trail will put in play the moderate Senators whom the Administration absolutely needs for the rest of its domestic agenda.

The White House and Democrats on the Senate Judiciary Committee have also put themselves in a difficult position through the hearings last summer.  In those hearings, Democrats described the ideal nominee as perfectly neutral on the law, embracing Chief Justice Roberts’s model of the “umpire.”  So any nominee who departs from that approach, and attempts to articulate and defend a progressive model of judging and constitutional interpretation, is going to look very liberal.

As a point of comparison, despite a long service on the bench, Justice Sotomayor had decided almost no cases on questions of race, abortion, the death penalty, guns, and gay rights.  Her rulings in Ricci and on the incorporation of the Second Amendment were framed as entirely reflecting settled precedent rather than her own view of the law.  Again, a nominee with a record of actual decisions on those issues is likely to generate additional ideological opposition.

In a world without ten percent unemployment and in which the White House’s hope of health care reform was not hanging by (at best) a thread – i.e., a world in which the Obama Administration would be more willing to embrace the fight over the Supreme Court in the way the previous administration did – I think we would soon be talking about Justice Diane Wood.  But that is not the world in which we live.

To the extent there is a tie-breaker with respect to Judge Wood in particular, it is her age.  In actuarial and historical terms, she’s far from old.  But in an era in which Presidents seemingly put teenagers on courts of appeals to position them for the Court, fifty is the new sixty.

It is worth pausing here to consider the fantastic, sweeping success of conservatives in dramatically shifting the debate over Supreme Court nominees.  Judge Wood represents nowhere near the far left wing of potential Democratic candidates, but her nomination and confirmation would require a significant investment of the Administration’s political capital.

Whereas progressives may look back on the Sotomayor hearings as a tremendous lost opportunity, because Democrats failed to articulate a vision of progressive judging, the White House is likely to take exactly the opposite view of the process’s success.  The Administration’s priority last summer, and once again this summer, is not to have a debate about visions of judging.  Rather, it defines success in a confirmation hearing as confirming a great nominee.  The admittedly early indications are that Justice Sotomayor in fact is an extremely intelligent and very hard-working judge who shares the same values and perspectives when it comes to judging as does President Obama.  Her tenure on the bench likely will be no less of a success for this Administration than Chief Justice Roberts and Justice Alito were for President Bush.

The lesson the Obama Administration will take away from last summer was that it got exactly the Supreme Court Justice it wanted, without a genuine political fight.  Sure, there was opposition, in the sense that there will be division over every Supreme Court nominee for the indefinite future.   (Democrats certainly will rue the day that they did not embrace Harriet Miers with open arms.)  But Justice Sotomayor was the left’s Chief Justice Roberts – a nominee who shared the vision of the President who appointed her, but upon whom opponents couldn’t genuinely lay a glove.  Plus, the Obama Administration genuinely broadened its base of political capital by selecting her.

There is no reason to believe that this summer the White House will abandon what it regards as an entirely successful model and select a nominee who will generate a significant political fight.  The Administration cares about the Court and wants to have a lasting impact on it while (if it can) avoiding incurring a short-term political cost in the process.  This is the “have your cake and eat it too” strategy.

If the Constitution allowed Justice Sotomayor to fill two seats, the White House would nominate her again.  Seriously, if you are the Obama Administration, what do you think has gone better for you in the past year than the Sotomayor nomination?  And why would you try to change a thing about your previous strategy?

If not Judge Wood, then who?  You can look back at these two posts (here and here) on the Democratic short list for details on potential candidates, as well as this post noting that the prospects of some have faded.  (“Associate Justice Elliot Spitzer” doesn’t trip off the tongue the same way it once did.)  The Administration’s failure to press forward appellate nominees means that alternative candidates like Teresa Roseborough have not developed the judicial credentials that would be required to consider them seriously for this vacancy.

But we can do better than those lists.  Nothing I have written above fails to scream – not merely suggest, but scream – Elena Kagan, who deserves the title “prohibitive front runner.”  Super-smart and genuinely knowledgeable.  Solicitor General.  Formerly the tremendously successful Dean of Harvard Law School.  Personally has the greatest respect of the President, in part from their shared ties to both Chicago and Harvard.  Deep relationships in the Administration, particularly among those who served under Clinton.  Well-known conservatives lined up around the block to support her in emphatic terms.  Young!  Female!  Has an exceptional ability to sound extremely articulate and thoughtful without saying anything that could cause offense.  No material track record on anything.

Elena Kagan
U.S. Solicitor General
Age 49

Curt Levey, as you try to figure out how you are going to paint Elena Kagan as an ultra-liberal, let me introduce you to Charles Fried, who served as Solicitor General during the Reagan Administration, and Jack Goldsmith, who served as Assistant Attorney General for the Office of Legal Counsel during the George W. Bush Administration.  Both will testify that you are crazy, and so will lots and lots and lots of other people.  This too will be the reverse of the Roberts confirmation, in which Democrats climbed over themselves to sing the Chief Justice’s praises.

The hard-core right will raise some money inveighing against the great threat to the Republic of the nomination (filling in the nominee’s name on the press release that surely has already been drafted), and its letters soliciting donations will be used by liberal groups to boost their own fundraising, in a reprise of the Cold War military-industrial complex.  These groups have to exist for some reason, and with respect to this confirmation like the last, it will be to fire off releases about the danger presented by the other that no one reads.  Both sides will be smart to bank that cash rather than wasting it in a process they cannot genuinely affect.

Are there risks for the left in a Kagan nomination?  God yes.  The last nominee about whose views we knew so little was David Souter.  In fact, it seems entirely possible that Elena Kagan does not really have a fixed and uniform view of how to judge and to interpret the Constitution.  She knows a tremendous amount about the law, but she has, after all, never been a judge.  It is certainly not that she lacks either vision or conviction – no one who observed her tenure as Dean would say that.  Rather, her deep thinking has been very focused on her particular role at the time:  scholar, dean, and now Solicitor General.  Her legal writing doesn’t reflect much interest in more abstract theorizing about the law.  By all accounts, she just is not doctrinaire.

To be sure, General Kagan has done a few things that hard-core conservatives will use in an amateurish-looking effort to paint her as a committed (if somehow simultaneously closet) liberal.  Those will get no traction, and if anything the few examples will serve as slight Pepto-Bismol to the left’s heartburn over her nomination.  First among these will be her position as Dean that the Solomon Amendment is unconstitutional and her related stated opposition to the military’s position on recruiting homosexuals.  Conservatives will contend that these positions reflect an anti-military bias.  But the Administration will have no trouble describing General Kagan’s position as reflecting that of Harvard as an institution – a position that was broadly shared among the nation’s elite Universities.

Opponents will try to make something of the nuances of the legal arguments Harvard joined in the Solomon Amendment litigation, which no one will understand or care about.  In terms of policy, Don’t Ask, Don’t Tell is on its way out.  And the Administration will gleefully offer up to reporters (and the Judiciary Committee) the many students who had served in the armed forces and whom General Kagan hosted at Veteran’s Day dinners each year to honor their service.

At the same time, General Kagan is extraordinarily – almost artistically – careful.  I don’t know anyone who has had a conversation with her in which she expressed a personal conviction on a question of constitutional law in the past decade.  Now, there are obviously an awful lot of people whom I do not know.  But I have never talked to anyone who talked to anyone who had a conversation like that.

General Kagan is no John Roberts, who had a public profile of studied neutrality and openness but also a history in the Reagan Administration as a clear-minded conservative.  That is not to say that she is an enigma and unknown quantity where it counts.  Far from it.  General Kagan served in the Clinton White House and has people from that Administration who were colleagues, if not confidantes.  Some of her most important relationships go back twenty-five years.  Those people will have a sense of her dispositions and leanings.

But so long as the President is ultimately convinced – and I am confident he will be – that General Kagan does in fact broadly share his vision for the law and constitutional interpretation in particular, the White House will regard this ambiguity and the anxiety that it generates among the left as a good thing, not bad.  The morning that Sonia Sotomayor was nominated, the Administration was extremely pleased to see the selection described as a disappointment to liberal groups that wanted Judge Wood instead.  Politically, that helps their strategy of positioning the President and his nominees as moderate rather than liberal.

And are there other candidates?  You bet.  After only Judge Wood, D.C. Circuit Judge Merrick Garland is the most respected Democratic appointee now on the bench.  Indeed, in Washington circles, he is much better known.  His opinions are moderate and uniformly thorough and well-reasoned.  He also has much more law enforcement experience from his significant service in the Department of Justice.  He would be confirmed in a cake walk; it would be a victory lap.  But the tie-breaker here is gender, for the President gets a benefit from appointing two women to the Court.

Merrick Garland
Judge, D.C. Circuit Court of Appeals
Age 57

The Administration will also seriously consider candidates with other backgrounds.  Janet Napolitano is not one of them for the single reason that, in fact, the system did not work.  Suggestions that the President would appoint Hillary Clinton are as crazy as previous speculation that Bill Clinton could get the nod, and rival the bizzaro-world lunacy of the suggestion that Barack Obama will nominate himself or give up a second term in exchange for a promised nomination by Hillary Clinton.  Secretary Clinton is a great success as Secretary of State (overcoming concerns that the bitter primary fights would spill over into governing) and too old for the slot.  And her strength is in her international stature, not reading cases in a judicial chambers.

Hillary Clinton
U.S. Secretary of State
Age 62

The President is known to admire Cass Sunstein greatly.  But Sunstein is the left’s Alex Kozinski or Richard Posner – although stunningly brilliant, too much of a free thinker to be nominated to the Supreme Court.  If he were nominated, some of his writing – is there anything he has not written about? – would be freely caricatured.   The fact that Sunstein has not been nominated to the D.C. Circuit shows that elevation to the high Court isn’t in the cards.

Cass Sunstein
Harvard Law Professor
Age 55

African-American candidates would be very difficult for Republicans to block; the most likely are Eric Holder and Deval Patrick.  The President personally knows both well, although Holder is probably too old.  But because both create significant confirmation battles (Holder over Gitmo and Patrick over liberal policies and asserted missteps as Governor), neither ultimately seems likely to be named.

Eric Holder
U.S. Attorney General
Age 59

Deval Patrick
Massachusetts Governor
Age 53



Jennifer Granholm is a serious possibility.  She is a Governor, giving her a background in actual governance that the Court sorely lacks after the departure of Sandra Day O’Connor.  She is also a former state attorney general, which gives her law enforcement experience that cuts against accusations that she is too liberal.

Jennifer Granholm
Michigan Governor
Age 51

That said, there is no outward evidence that she is interested in the job of a Supreme Court Justice, which is very different from holding elected office, at a time that her State is in difficult straits and needs consistent leadership.  And her extended role in politics creates a genuine risk of an issue emerging that turns into a confirmation fight.  Again, she would certainly be confirmed, and from what I know, she would fit the President’s model for as a Justice.  But it doesn’t seem that the upsides of naming her would be enough to knock Elena Kagan off of the pedestal of the presumptive nominee.

The most serious remaining candidate to General Kagan might actually be someone who has not really been discussed in the published so-called “short lists”:  Senator Amy Klobuchar of Minnesota.  She is fantastically well spoken.  She has a clear and unshrinking willingness to articulate a progressive vision.  On the other hand, she (like Governor Granholm) is an experienced prosecutor.  And senators are notoriously hesitant to oppose their own, particularly members who are well respected (as she appears to be).  The idea that any Democratic senator or the female Republican senators from Maine would seriously oppose her (much less support a filibuster) is absurd.

Amy Klobuchar
U.S. Senator for Minnesota
Age 49



If Senator Klobuchar is interested in the job (and her speeches on judicial issues suggest she would be), then a different political calculus comes into play: the balance in the Senate.  The Democrats have already lost their filibuster-proof majority.  But there are now conversations about whether in 2010 they might lose their absolute majority.  That is not a realistic possibility, but when the President’s domestic agenda is at stake, each seat is vital, as I said at the outset.  If the President appoints Senator Klobuchar, then Minnesota’s Republican Governor Tim Pawlenty gets to name her replacement in the short term and her seat is unnecessarily put into play.  (The replacement would serve until November, unless Senator Klobuchar were confirmed after August 2, in which case under Minnesota law the interim appointee would serve another year, until November 2011.)  If this were January 2009 and the wind were at the Democrats’ backs, it would be a very serious possibility, but this is 2010 and it is not.

So, here is how I expect the next few months to play out.  In the spring, Justice Stevens will announce his retirement.  In May or June, the President will nominate Elena Kagan.  Explaining that her paper record is a thimble-full of Sonia Sotomayor’s, Senator Leahy will schedule hearings and Senator Reid will schedule a floor vote before the summer recess.  The only theme that will give opponents any success is that she fails to express her views on anything.  She will then be confirmed by a vote of 61 to 39.  Ok, that last prediction about the exact vote could be off by a bit, but I feel pretty confident about everything else.

With a federal government lawyer pushing for a sweeping interpretation of the government’s most-used anti-terrorism law, the Supreme Court on Tuesday at times seemed tempted to conclude that, perhaps, the law may go too far.  Although some of the Justices made it clear they were sympathetic to Congress’ attempts to stop aid to international terrorist groups, a somewhat surprising skepticism set in as the 62-minute argument in the Humanitarian Law Project cases unfolded.  Near the end, Chief Justice John G. Roberts, Jr., suggested that the “material support” law may need another airing in lower courts, with that statute perhaps having to clear a higher constitutional hurdle — an option that could make it unnecessary for the Court to decide now what swing-vote Justice Anthony M. Kennedy called “a difficult” case.

Before the Court could get to that point, it appeared, it might have to satisfy itself that a distinction can be drawn different kinds of support that Americans might provide to an organization that is on the U.S. government’s terrorist blacklist.  Several members of the Court — but especially Justice Antonin Scalia — wondered if any kind of aid to such a group necessarily can be turned into a benefit for its violent activities.  If the Court accepted that proposition, then the law would be likely to escape this challenge now before it.  But Solicitor General Elena Kagan, although advocating a very broad scope for the law, did not press that point.  She offered a number of concessions that might narrow, though only slightly, the law’s scope.   Under further questioning, however, she talked herself into some trouble in arguing that the law might make it a criminal act for a blacklisted group even to hire a lawyer to put its views before a U.S. court, or to use an American as its advocate for peaceful aims before the United Nations.

The Court was reviewing the cases of Holder v. Humanitarian Law Project (08-1498) and Humanitarian Law Project v. Holder (09-89) as tests of a law dating back to 1996 providing up to 15 years in prison if convicted of providing “material support” to any group designated by the U.S. government as terrorist.  The law is considered vital by the government to its anti-terrorism legal campaign, as Kagan pointedly noted as she began her defense of the law, following a fervent attack on it by her opponent, Georgetown law professor David D. Cole.  Cole was questioned rigorously (especially by Justice Scalia) in trying to persuade the Court that his clients wanted only to engage in benign, humanitarian activities, and yet the points he made seemed to set the stage for even more challenging questioning of Kagan.

Cole made little headway in trying to convince the Court that it should follow its own example in the 1950s and 1960s when it was willing to tolerate some benign activities of the Communist Party.  Justice Scalia said Communists were different from terrorists; many people became Communists for philosophical reasons, the Justice said, but terrorist groups — such as Hamas — exist only to commit violence.  And Justice Kennedy said that, at the time of the rulings in the Communist cases, there was no federal law forbidding support to the Communist Party, as there now is for terrorist groups.

The professor, however, steadily pushed his argument that the material support law would, in fact, reach a good many forms of “pure political speech” of the kind he said the First Amendment protects, and that approach drew the Justices into a close examination of just what kinds of support might be banned, or allowed, by the law.  These exchanges had the apparent effect of gradually shifting the Court’s focus away from whether any kind of support would translate into aid for terrorism, to the more discrete question of whether the kinds of activities the Humanitarian Law Project wanted to pursue were covered by the law’s reach — exactly the focus that worked to Cole’s advantage.   Although Justice Scalia suggested that the Court could fill in the blanks of the law’s scope in future cases, after turning aside the particular challenge that the Project supporters were making, other members of the Court were not deterred from examining the law’s parameters.

Questioning by Justices Samuel A. Alito, Jr., and Sonia Sotomayor gave Cole a chance to make his point that the Court should interpret the material support law to be limited to the kind of aid that is provided with the specific aim of supporting violent or terrorist acts by blacklisted groups.   He told Sotomayor that there was no “reasonable likelihood” that the kinds of speech activities that the Project supporters wanted to undertake would further the terrorist aims of groups on the blacklist.

Almost from the start of Kagan’s argument, she had to deal with hypothetical scenarios that the Justices put before her to test just how far her description of the “material support’ law would reach. Justice Sotomayor started the probing, with a question about whether it would provide illegal support for a group if an attorney represented it in a U.S. court.  The Solicitor General said that would not be illegal, if the group had been charged with a crime, because it would have a constitutional right to defend itself.

Even while making some such concessions, Kagan insisted that, because the targeted groups were foreign, Congress had wide authority to pass laws to limit how Americans might interact with those groups.  And she made sure that any concession she made was only to put beyond the law actions of “independent advocacy” by Americans not directly tied to the listed organization itself.  She said that the kinds of activities the law might reach that would implicate the Constitution were a mere “thimbleful” compared to the “ocean” of support activities that the law would legitimately forbid.

“To the extent the Court thinks some of these hypotheticals raise constitutional concerns, the Court can put those off to another day,” she suggested.  That thrust, however, did not stop the Court from raising even more scenarios.  And as those questions proceeded, Kagan left Justice Ruth Bader Ginsburg puzzled about just where she was drawing the line between legal and illegal support for a listed organization.

But she was tested most aggressively when several of the Justices pressed her about the kinds of actions by attorneys that might come under the law, as she interpreted it.  She told Justices Kennedy, Sotomayor and John Paul Stevens that the law would forbid a listed group from retaining a lawyer to file a friend-of-court brief in a U.S. court on its own behalf, because that would amount to an outlawed “service” to the organization. And she told Stevens that, if one of the Project supporters involved in this case — California college professor Ralph Fertig — approached the United Nations as an agent of one of the listed groups, he would be covered by the law.

During Cole’s rebuttal argument, he had a chance to make his argument that the Court should judge the material support law applying the most difficult test — strict scrutiny — and to argue that the law could not possibly survive under that standard.  He told Sotomayor, though, that the lower courts in the case had never had a chance to analyze the case under that standard.  That was when the Chief Justice suggested that, perhaps, a remand for such an inquiry might be the proper outcome, if the Court were unwilling to uphold the law on the lesser standard Kagan had advocated.

The Constitution provides important safeguards against government regulation of private conduct in both the civil and criminal contexts – including the Ex Post Facto Clause, which protects against the retroactive application of laws.  However, a defendant must assert these rights in a timely manner at trial or risk forfeiting them. Under Federal Rule of Criminal Procedure 52(b), courts have limited discretion to consider plain errors that affect substantial rights but were not timely raised.

On February 24, 2010, in No. 08-1341, United States v. Marcus, the Court will consider the circumstances in which the exercise of this limited discretion is appropriate. Specifically, the case presents the question “[w]hether the court of appeals departed from the Court’s interpretation of Rule 52(b) of the Federal Rules of Criminal Procedure by adopting as the appropriate standard for plain-error review of an asserted ex post facto violation whether ‘there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.’”

Respondent Glenn Marcus was convicted on federal charges of sex trafficking and forced labor in the Eastern District of New York. Both of the statutes at issue in Marcus’s conviction were enacted as part of the Trafficking Victims Protection Act of 2000 (TVPA). The convictions stem from a sadomasochistic relationship that began in 1998, two years prior to the TVPA’s enactment, and continued until 2001, after which Marcus was indicted.

At trial, prosecutors presented evidence regarding Marcus’s conduct during the entirety of the relationship – that is, both before and after the effective date of the TVPA. Marcus did not object to the introduction of evidence regarding his conduct prior to the enactment of the TVPA, nor did he request a jury instruction to limit the jury’s consideration to post-enactment conduct.

On appeal, Marcus argued for the first time that the TVPA had been applied retroactively to his conduct in violation of the Ex Post Facto Clause. Reviewing this argument for plain error under Rule 52(b), the Second Circuit agreed and vacated the convictions.  In its view, the Ex Post Facto Clause is violated “whenever there is any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.”

Then-Judge Sotomayor and Judge Wesley concurred.  They agreed that the decision was “compelled by the current law of [the] circuit,” but they expressed concern that the circuit precedent “does not fully align” with Supreme Court guidance on the issue, as outlined in cases such as Johnson v. United States (1997) and United States v. Olano (1993). That case law instructs that an appellate court may correct errors that were not raised at trial only if there is (1) an error (2) that is plain and (3) affects substantial rights; and (4) the error “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

The United States filed a petition for certiorari, which the Court granted on October 13, 2009.  In its brief on the merits, the United States argues that the Second Circuit’s standard deviates from Olano:  the correct standard of review requires a “reasonable possibility,” rather than merely “any possibility,” that the jury could have convicted based exclusively on pre-enactment conduct. First, the government argues, Rule 52(b)’s reference to “substantial rights” requires “in most cases” that the error be “prejudicial” – that is, it “must have affected the outcome of the district court proceedings.” Moreover, the error in question is subject to the “same standard of plain-error review” that is used for all forfeited claims; nothing “justifies a different standard of plain-error review for forfeited ex post facto claims.”

Second, the United States argues that the fourth Olano prong for “instructional errors,” as interpreted in Johnson (1997), and United States v. Cotton (2002), also compels this result. According to the United States, a conviction “based on a forfeited error” should not be reversed when there is no reasonable possibility that the error affected the judgment – a standard that “ is consistent with the recognition in Johnson and Cotton that when ‘overwhelming’ and ‘essentially uncontroverted’ evidence was introduced on an element that the jury was not asked to find, the verdict is so unlikely to have been different that the ‘error does not seriously affect the fairness and integrity, or public reputation of the judicial proceedings.’” This standard would have to be met even for the “very limited class of cases” where the error is “structural.”

In his brief on the merits, Marcus counters that the Second Circuit applied the proper standard and properly exercised its discretion under Olano. First, he contends, the error in question meets the fourth prong of Olano:  the trial was “overcome by testimony and exhibits relating to conduct that occurred before the law was enacted,” rendering the error “prejudicial” and “certainly implicat[ing] the fairness of the judicial proceedings.” Moreover, Ex Post Facto violations fall within a “special category of flagrant errors” for which “prejudice may be presumed,” and they “should be corrected regardless of their effect on the outcome.” He characterizes the government’s standard – requiring a “reasonable possibility” that the jury relied solely on pre-enactment conduct – as “virtually insurmountable for defendants because there is no mechanism to discover what evidence the jurors relied upon in reaching their verdict.”

Marcus distinguishes Johnson and Cotton, explaining that in both cases Olano’s fourth prong was not satisfied because there was “no possibility that the outcome of the trial would be affected by the error.” In this case, by contrast, the Second Circuit found that there was a possibility that the jury could have convicted Marcus solely on the basis of pre-enactment conduct.  Quoting Johnson, Marcus further contends that the violation of the Ex Post Facto Clause is a structural – rather than instructional – error, as it “affects the ‘framework within which the trial proceeds, rather than simply an error in the trial process itself.’”

Finally, Marcus argues that because courts of appeals “have always been allowed broad discretion in how they supervise litigation within their own circuit,” there is no need to “impos[e] national restrictions on the exercise of their discretion.”

———————–

Amid a hot political debate in Washington on whether the government is being tough enough on terrorists, the Supreme Court examines whether Congress acted unconstitutionally in making it a crime to provide a wide range of support to organizations that the government has blacklisted under anti-terrorism laws passed in 1996, 2001, and 2004.  The review of the 2001 provisions brings before the Court, for the first time,  the USA Patriot Act — the sweeping law passed by Congress six weeks after the September 11, 2001, attacks.

Background

For the past twelve years, Americans who are descendants or supporters of the Tamil people, a linguistic group native to India, Sri Lanka and Malaysia with two thousand years of history, have been locked in a courthouse battle with the U.S. government.   As the case reaches the Supreme Court, it shapes up as the next major test of the First Amendment, following the Court’s deeply controversial ruling January 21 on the free speech rights, in politics, of U.S. corporations (Citizens United v. FEC). In fact, within hours after the Court decided the corporations case, a brief filed in the Tamils’ case repeatedly cited that ruling to support their First Amendment claims.

From the beginning, and still, the legal adversaries have proceeded on totally contradictory perceptions: the Tamil descendants insisting that they only want to provide completely benign aid to a humanitarian cause and, indeed, to encourage non-violence, with the government countering that the groups they want to aid are  deeply involved in widespread terrorist violence in Europe and Asia.

The challengers also are arguing that the government wants to wipe out a host of activity shielded by the First Amendment, and the government is contending that it has no such aim.  The Supreme Court will decide who is right when it rules on two cases being argued together. Each side partly won and partly lost in two rounds of lower court rulings, but each side will argue all parts of the case when they appear before the Justices.

The Tamils’ challenge, filed in federal court in 1998,  involves two U.S. citizens, California college professor Ralph D. Fertig and New York medical doctor Nagalingam Jeyaligam, along with the organization for which Fertig serves as president — the Humanitarian Law Project — and five pro-Tamil organizations in the U.S.  Those groups are Ilankai Thamil Sangam, Tamils of Northern California, Tamil Welfare and Human Rights Committee, Federation of Tamil Sangams of North America, and World Tamil Coordinating Committee.

Their lawsuit was filed to gain the right, without threat of criminal prosecution, to continue their efforts “to speak to, for, and in coordination with” two organizations that are on the U.S. list of designated terrorist groups.  Those two groups — the Kurdistan Workers’ Party and the Libertarian Tigers of Tamil Eslam — engage in “a wide range of lawful, non-violent activity,” and that is all that the Americans seek to support, their lawyers have argued.

The federal government, however, told the Court that the Workers’ Party (sometimes called the “PKK”) “has waged a violent insurgency that has claimed over 22,000 lives throughout western Europe,” and that the Tamil Tigers  organization “has used suicide bombings and political assassinations in its campaign for independence” in Sri Lanka, “killing hundreds of civilians in the process” — including the president of Sir Lanka and two other high government officials there.

The legal dispute began two years after Congress gave the U.S. Secretary of State power to designate a group as a “foreign terrorist organization” and criminalized “material support” to such a group.  As amended by the Patriot Act of 2001 and a new anti-terrorism law in 2004, the “material support” law has become the government’s main legal weapon in its “war on terrorism.”  Since 2001, the Justice Department has charged some 150 defendants with violations of the law, obtaining convictions in only about half of the cases.   The Department calls the law “a vital part of the Nation’s effort to fight international terrorism.”  The concept of “material support” for terrorism written into the law also has provided a legal rationale for the detention of individuals captured overseas and held at Guantanamo Bay.

Before the Supreme Court, the constitutional dispute tests five parts of the law.  Three of those were struck down by lower courts: criminalizing “material support” in the form of “service,”  ”training,” or “expert advice or assistance.”  The lower courts found those to be unconstitutionally vague and sweeping too broadly, possibly criminalizing free speech.  Two other provisions were upheld below: support in the form of  “personnel” or “expert advice or assistance” if it was “derived from scientific or technical knowledge.”

In an earlier round in the case, the Tamils sought Supreme Court review, but that was denied in 2001.   The case then returned to lower courts, resulting in the split decision now before the Justices.

Petitions for Certiorari

The Justice Department, last June 4, took the case back to the Supreme Court, arguing that the decision to block enforcement of the three provisions “seriously undermines the statutory scheme created by Congress” to help the government fight terrorism globally.  It noted that some of the successful prosecutions it has carried out under the law involved parts that were nullified by the Ninth Circuit Court in its latest ruling.

The central theme of the government’s appeal is that the law is not aimed at curbing speech, but only targets “conduct,” and any impact on free expression is merely “incidental.”  It has also pressed the point that the law requires proof that the actions prosecuted were carried out with knowledge that they were helping a terrorist organization.  If there is any vagueness in the law’s wording, the petition contended, this last requirement cures it.

Moreover, it argued, the words and phrases nullified by the lower courts cannot be considered vague on their own, because they are ”clear and readily intelligible to the average person.”

The petition noted that Congress had included in the law a direction to the courts where it might be challenged, mandating that they were not to read the law to violate the rights safeguarded by the First Amendment.  The lower courts should have followed that direction and found a way to uphold the law by narrowing its scope, if necessary to save it.  The Court, it added, would be free to interpret the law now so that it did not apply to “independent advocacy.”

A month later, the Tamils and their organizations opposed Supreme Court review of the government appeal, arguing that the lower courts had not split on the validity of the law, the decisions at issue had in fact left the “material support” law largely intact, and had put no “substantial limits” on the government’s authority to prosecute aid to terrorists.  In addition, they contended that the lower court left room for Congress to act further, if it chose to do so.

Still, the Tamils suggested that, if the Justices did agree to rule on the provisions tested by the government’s appeal, it should take on the entire case and decide on the validity of all five of the provisions at issue.   Their conditional petition vigorously attacked the law’s ban on support in the form of training or advice based on scientific or technical knowledge.  Those words are capable of supporting a criminal prosecution on a wide range of free speech activities, including publishing a statement by a leader of a blacklisted organization or providing legal advice if such a group filed a human rights complaint with the United Nations.

The main theme of the Tamils’ own petition is that the government itself had demonstrated, by the vigor of its defense of the most sweeping interpretation of the law, that advocacy of the most benign kind could draw a criminal charge.

The Court, in its first round of grants of review this Term on September 30, accepted both the government’s and the Tamils’ petitions, and consolidated them for briefing and oral argument.  In November, the Court granted the two sides’ proposal that the Tamils start the briefing as the “top side,” that both sides would file papers and argue the full range of the issues, and each side would have a chance to file briefs replying to the other side’s principal brief.

Merits Briefs

The Tamils’ brief on the merits renewed the argument that no one of the five words or phrases at issue could satisfy the First Amendment.  What the two individuals and six organizations seek to do, the brief asserted, involves “pure political speech,” and yet the government considers their activities to be criminal under the “material support” law.

Further bolstering its argument by relying on what government lawyers had said in lower court hearings in the case, the brief said that those lawyers have openly said it would be a crime “to submit an amicus brief in federal court, to petition Congress or the United Nations for legal reform, or even to speak to the media, for the benefit of a designated organization, as well as to teach such an organization human rights advocacy or English.”

Directly disputing the government’s claim that the law targets conduct, not speech, the Tamils’ brief said federal lawyers have argued that speech would, in fact, be targeted if it were of “benefit” to a listed group.   Protected speech under the Constitution, it added, “protects more than the abstract right to speak ‘independently,’ but also the right, asserted here, to speak to others, in association with others, and at the direction of others.”  Thus, it said, the government’s claim that the law would not apply to “independent advocacy” is not sufficient to save it.

In weighing the law’s validity, the brief said, the Court should use the most demanding constitutional standard: that is, the law would be valid only if it could satisfy “strict scrutiny.”  No more lenient standard is justified when “pure political speech” is at risk, it asserted.

In a significant strategic maneuver, the Tamils’ lawyers told the Court that it could avoid answering the constitutional questions altogether by reading into the law a new requirement of proof — that is, proof that an individual or group specifically intended “to further an organization’s illegal ends where, as here, pure speech and association are at stake.”  Members of Congress said, when the law was first passed in 1996, that it should reach as far as its could, “consistent with the Constitution,” and members said that would mean it reached only support for an organization’s “terrorist functions,” the brief noted.

The government’s merits briefs again stressed the ordinary meaning of the challenged provisions, saying they are readily understood and thus clearly pass any constitutional standard of vagueness.  But, it went on, the Court should not apply the “strict scrutiny” standard, as the Tamils advocated, because it has never done so in interpreting the scope of a criminal law that is challenged as too vague.

At its furthest reach, the law only “incidentally captures some expressive activity,” so a more tolerant constitutional standard is proper, the brief asserted.  The Tamils, it contended, “may express any views they wish” about the two listed organizations, or any other “terrorist organization.”

What the law does not allow, and this is all that it bans, is contribution of resources to listed groups “that further those groups’ activities,” according to the government.  In elaborating on that contention, the brief does suggest that the Justice Department does take a broad view of what kind of activity might “further” a listed group’s activities.  For example, it suggested that teaching a listed group how to make an appeal for relief to the United Nations, as the Tamils wish to do, would be teaching it a special skill, and that would bring it within the law’s reach.

The Tamils “may not believe such activity to be harmful, but they must understand, as all reasonable observers would, that the activity is covered by the statute’s terms.”

The brief went on to challenge the “hypotheticals” that the Tamils raised about providing legal or journalistic services.  The law, it argued, clearly allows the Tamils to engage in “independent advocacy,” so long as they do so “entirely independently.”

What is at stake here, it concluded, is not “pure speech” at all, since the Tamils remain free “to lobby Congress, to teach and advise on human rights, to promote peaceful resolution of political disputes, and to advocate for the human rights of minority populations” — all things that the Tamils said they wanted to do.

The government urged the Court not to consider the Tamils’ maneuver, suggesting a reading of the law to require specific intent to further the listed groups’ terrorism.  That issue was not raised in lower courts in the form outlined in the Tamils’ merits brief, and now comes too late, it said.

Analysis

The Court is confronted in these cases with the potentially challenging task of seeing the listed organizations that are at the center of the government’s attack as simultaneously violence-prone and yet also dedicated to humanitarian causes.  While the government in its advocacy has not over-emphasized the violent record it attributes to the PKK and the Tamil Tigers, it has done enough to make sure that the Court is aware of that.

The two Americans and their six domestic organizations are not linked by the government to those kinds of activities, and yet the government, in discussing the plans that those individuals and groups have, goes to considerable lengths to suggest that the listed groups would “benefit.”  The practical effect is to make the separation more difficult.

And the government has the tactical advantage of knowing that Supreme Court Justices, like every one else in the Nation, are acutely aware of the ongoing threat of global terrorism, and may start out with a reluctance to curb the government’s use of its primary anti-terrorism tool.  The centrality of that law to the anti-terrorism effort is made abundantly clear in the government’s papers.

On the Tamils’ side, they have the advantage of knowing that the Court these days is willing to defend what it perceives to be First Amendment rights even when doing so is quite controversial (as in Citizens United).  But the degree to which this might aid the Tamils depends upon the success of their lawyers in persuading the Court that their activities are, indeed, “pure speech” protected by the First Amendment.

Further, the First Amendment argument might truly work for the Tamils if the Court were to take their suggestion to apply “strict scrutiny.”  The government, understandably, wants a more relaxed standard, and may, in fact, need that in order to prevail.

If the Court finds choosing up sides between the two basic constitutional positions too difficult, each side has offered it a narrowing interpretation of the “material support” law that could provide a fallback position for the Justices.  The more benignly it might view the activities of the Americans and their domestic groups, the more likely the Court may be to require proof of a goal of advancing terrorist violence.

The Court is expected to decide the cases before recessing for the summer in late spring or early summer.

At the same time that the Citizens United v. FEC dissenters launch their remarkable assault on shareholder rights, they claim to be defending the rights of shareholders.  This schizophrenic position seems to be the result of schizophrenic beliefs about a subsidiary issue.  The desire to “do something,” as we have seen, comes about precisely from the belief that corporations, when engaging in political participation, will focus solely on turning a profit for their shareholders, as Justice Stevens said in the Citizens dissent.  This is the quid pro quo rationale that has long undergirded campaign finance restrictions, since Buckley v. Valeo, and even the “corrosion” rationale behind the now overruled Austin v. Michigan Chamber of Commerce: corporations will attempt to influence public policy solely to gain undue favors that enrich their shareholders.  Yet now, we are told that corporate spending must be limited to protect those same shareholders from, in Professor Tribe’s words, corporations “squandering their property in federal elections.”  Thus, corporate spending on politics must be limited because managers (unlike other individuals?) will promote policies solely to maximize profits to the corporation, but must be restricted because in doing so they are “squandering” corporate resources.  The two propositions do not work in tandem.

If shareholder rights are really at issue, then the problem really arises when managers spend corporate funds in ways not intended to boost corporate profits.  This is why critics attack Citizens United as allowing corporate managers to “spend other people’s money.”  But even if this is true, this is a question not of campaign finance law, but of corporate law.  What is really under attack here is the business judgment rule.  If the business judgment rule is the problem, corporate political spending is the least of our worries.  Even before McCain-Feingold, Fortune 500 companies spent roughly ten times as much money on lobbying as on campaign expenditures.  Must shareholders approve all lobbying in advance?  (And, from the public interest side, is it better if corporations seek to exercise influence by lobbying lawmakers rather than lobbying the public, through campaign spending?).  Furthermore, these companies give away roughly ten times as much money as they spend on lobbying.  These donations can go not only to such causes as United Way or the local opera, which many shareholders might not like, but to controversial “political” charities, including groups such as the Brennan Center for Justice (which has long received corporate contributions to support its crusade for campaign finance reform, without ever expressing concern for whether the shareholders were in agreement with its agenda), Planned Parenthood, and even the Boy Scouts, once non-controversial but now a lightning rod for gay rights organizations (which, themselves, are sometimes controversial recipients of corporate charity).  Many corporations voluntarily support affirmative action, even though many shareholders disagree with such policies.  The managers do this under the business judgment rule.  Similarly, managers may decide to increase pollution within legal limits in order to boost profits, though some shareholders would prefer they do not – or they may decide to make a voluntary reduction in pollution at some cost in profitability, even though some shareholders would prefer that they do not.  Or corporations may run product ads suggesting that competitors are not treating their customers fairly, leading some shareholders to fear that the long-term effects of such ads will be to turn public opinion in favor of industry-wide regulation that will harm the corporation’s own profitability.  But these types of decisions are all made under the business judgment rule.

Corporate law scholars have long wrestled with the scope of the business judgment rule – indeed, it may be fair to say that there is no more vexing issue in corporate law than the question of how to have efficient corporate governance while preventing officers and managers from betraying their duties to shareholders.  But that is precisely why it would be a huge mistake to make a radical assault on long considered issues of corporate law due to a short term populist panic about corporate political spending, which is a miniscule portion of what any for-profit corporation does.

Meanwhile, the various specific solutions posed also indicate a certain schizophrenia.  Professor Tribe, having argued that shareholders must be protected from resources being “squandered” on political ads, seeks added disclosure on corporate ads.  He argues that “the impact of a campaign ad, whether in the form of a thirty-second spot or an extended production, would be cut down to size if it had to be (accurately) presented as a self-interested attempt by big pharma or by a cigarette or oil company or a bank holding company or hedge fund to influence the outcome of a candidate election for the benefit of the sponsoring company’s bottom line rather than masquerading behind a veil of public-spiritedness.”  But if the concern is really for shareholders, shouldn’t we want the corporate spending to be done as effectively as possible, with as much impact as possible?  Why would we limit that? (And as an aside, since when do most politicians, or individual voters, forthrightly declare that they simply want more stuff from the government, rather than hiding behind the “public interest”?)

Professor Tribe says that the idea is not “to suppress political speech,” but in fact that is exactly the idea.  He makes a series of proposals specifically designed to suppress political speech.  For example, he wants all corporate political ads to feature the name of the corporation’s CEO and the percentage of its treasury spent on the ad.  But of what benefit would any of that be to the listening public?  The apparent goal is simply to discourage speech.  Moreover, he proposes making corporate executives personally liable for treble damages and attorneys fees as a “deterrence” to spending corporate dollars on political activity.  The basis of such claims would be a “federal cause of action for corporate waste.”  This would either be toothless, simply relying on the manager’s claims of good faith, or would result in hindsight second guessing by prosecutors, minority shareholders, and juries as to whether the corporation could show specific quid pro quo benefits from its political involvement – exactly the thing that campaign finance reformers have long argued should be prevented, not required, when corporations engage in politics.

The lack of wisdom in these proposals is illustrated by the fact that there is no evidence that any substantial percentage of decisions on corporate political spending is in fact opposed by shareholder majorities.  It seems more likely that the opposite is true.  These proposals are clearly intended to make it much harder, if not impossible, for the shareholder majority to support its own best interests (which, again, the reformers seem to presume is contrary to the policy preferences of the reformers), in the name of shareholder rights.  It is hard to defend any of this as a victory for shareholder rights, rather than an effort to silence voices that the silencers seem to assume they will not like.

In summary, lacking a rationale for the corporate speech ban that can withstand even rational basis First Amendment analysis, opponents of corporate political speech are making a series of contradictory arguments, both underinclusive and overinclusive in their scope, in the name of shareholder rights, with the specific intent of hindering corporate speech by majority shareholders.

Finally and unfortunately, at this stage no discussion of Citizens United can be complete without addressing the question of foreign corporations engaging in political spending.  Of course, no one seriously believes that the ban on corporate spending was enacted to prevent foreign corporations from engaging in spending, as opposed to all corporations, nor did the government defend the statute on that basis, but even if we take that argument in good faith, it makes little sense.  First, a separate and very broad provision of the law clearly bans all foreign nationals from participating financially in any U.S. election, from dog catcher to president.  It is true that U.S. subsidiaries of foreign owned corporations could spend money in an election (just as they were able to do in twenty-eight states before Citizens United), but even to do that the subsidiary must be U.S. incorporated and U.S. headquartered, and must make expenditures from funds earned in the United States.  So a foreign corporation could not simply run money into the company to then make expenditures.  Furthermore, no foreign national can be involved, directly or indirectly, in any way, in decisions to spend, or on how to spend, any funds for political purposes.  So to address one hypothetical I have heard, it would be a violation of the law for a Saudi billionaire to suggest to the U.S. citizens making decisions that the U.S. subsidiary spend money in an election.  And finally, note that these U.S. subsidiaries are already eligible to spend unlimited sums on lobbying Congress or on promoting or opposing state ballot measures.  Additionally, these U.S. subsidiaries already have, and have long had, the right to create and pay the expenses for corporate Political Action Committees, which can not only spend on political races without limit, but can contribute directly to candidates.  The horror stories about foreign corporations simply illustrate, again, how weak are the both the First Amendment and broader Constitutional arguments against the Court’s ruling in Citizens United.

Citizens United is important not because it will lead to a flood of corporate and union spending in political races, but because it re-establishes a core principle of First Amendment law, which is that the government cannot be in the business of discriminating against U.S. citizens engaged in political activity simply because of the organizational form of their engagement.  But even if it should lead to a flood of corporate spending, the alternative endorsed by the government and the dissenting justices on the Supreme Court – an America where the government could ban political books and movies – is clearly far worse.

Last month’s Supreme Court decision in Citizens United v. Federal Election Commission is an important step to restoring political speech to the primacy it deserves under the First Amendment.

For years now, both outside observers such as I and members of the Court, most notably Justices Scalia and Thomas, have pointed out that the Court has been giving greater protection to such non-political speech as internet pornography, nude dancing, and the transmission of stolen communications than it has to core political speech.  These charges, whether made in judicial opinions, such as Justice Thomas’s dissent in Nixon v. Shrink Missouri Government PAC, or in public commentary have gone unanswered.  It is, of course, relatively easier to defend the First Amendment when the consequences of doing so seem unlikely to upset one’s own life or to have a broad impact (see, e.g., East Hartford Education Association v. Board of Education, upholding the right of a teacher not to wear a tie in the classroom), than it is when upholding the First Amendment may have major consequences for one’s own cherished political beliefs.  And let us make no mistake – there is a reason that the political left has been howling about Citizens United, and it is the belief that corporate political speech will benefit causes with which they disagree (see quotes from Democratic Senators and President Obama in recent newspaper stories here, here, and here).

In fact, the Supreme Court had to rule in favor of Citizens United, and what is remarkable is not that it did, but that four Justices dissented.  Remember, the government’s position in the case was that under the Constitution, it had the power to ban the distribution of books through Kindle; to prohibit political movies from being distributed by video on demand technology; to prevent Simon & Schuster from publishing, or Barnes & Noble from selling, a 500-page book with even one sentence of candidate advocacy; or to prevent a union from hiring a writer to author a book about the benefits to working Americans of the Obama agenda.  For all the outrage about this opinion, I have yet to hear anybody seriously defend that result.  The fact that not one of the dissenters could find a middle ground on which to concur in the judgment suggests that the majority was correct – this case was all or nothing.  Far from being activist, the majority reached the only logical conclusion.  The dissenters were the activists here, prepared to enforce an interpretation of the First Amendment wholly foreign to most Americans.

In his critique of the decision here at SCOTUSblog, Professor Tribe avoids the hysteria that has taken over much of the left.  While there is no doubt that this decision is important and will result in more public political speech (which I believe is a good thing), Professor Tribe notes that fears of an “overwhelming flood” of corporate political spending are overblown.  Professor Tribe correctly points out that before Citizens United, twenty-six states already allowed unlimited corporate spending in elections (and two more allowed limited corporate spending), and these states, representing over sixty percent of the nation’s population, were not overwhelmed by corporate or union spending in state elections.  Moreover, they include the top five rated states in Governing Magazine’s rating of the best governed states (Utah, Virginia, Washington, Delaware and Georgia).  Furthermore, prior to the McCain-Feingold Act of 2002, corporations could fund “issue ads,” hard-hitting ads that discussed candidates and issues but stopped short of asking citizens to vote in any particular way.  In defending McCain-Feingold in the courts, reformers had argued vociferously that these “issue ads” were no different in effect from the “express advocacy” ads the Citizens United Court ruled corporations have a right to make, and the Court had expressly adopted that view in McConnell v. FEC. If that is true, then the change in the law is merely, as a practical matter, back to the status quo of the 1980s and 1990s.  While many people do not like that change, it is difficult to argue that elections improved, or special interest influence declined, during the seven year reign of McCain-Feingold.

Nevertheless, Professor Tribe joins the chorus of those who seem to assume that Congress must “do something” about Citizens United. And here, the arguments have taken a curious twist.

The new rallying cry seems to be a combination of simultaneously attacking shareholder rights while claiming to defend them.  The attack on shareholders’ rights comes in the form of claims, voiced by Justice Stevens in his interminably long dissent, by Justice Sotomayor at oral argument, and by numerous liberal commentators, that corporations really have no rights, since they are “creatures of the state.”  In dissent, Stevens pulled a quote from the great Chief Justice John Marshall, “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law.  Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it” (Dartmouth College v. Woodward).  Never mind that Justice Marshall found that the corporation did have constitutional rights – Stevens uses Marshall to argue that it does not.

Here again, Stevens reveals the radical, activist position of the dissenters.  For well over one hundred years, it has been recognized that corporations possess constitutional rights as “persons.”  Few of us, for example, would endorse the proposition that a corporation could have its property seized (i.e., the property of the natural persons who are its shareholders) without due process.   While corporations do not have the ability to exercise, as corporations, all Constitutional rights, they have long been recognized as able to assert constitutional rights where doing so is necessary to preserve the rights of the corporate members or shareholders.  Thus, where a corporation asserts a right to speak, it is really the members of the corporation asserting a right to associate and to speak as a group.  That is why corporations possess First Amendment speech rights (as opposed to the Fifth Amendment right against self-incrimination, or the right to vote, which are only exercised on an individual basis, not through association in the group).

If Stevens and the others who joined his opinion are serious in thinking that corporations have no rights other than those granted (at whim, apparently) by the state, they are perhaps the most radical group of justices we have ever seen, prepared to overturn hundreds of precedents from the nation’s earliest days to the present.