Scalia Watch

DonkeyHotey

There has long been a consensus in mainstream circles, if not necessarily in the legal community, that whether you agreed with him or not, Justice Scalia possesses a great legal mind.  Indeed, the conventional wisdom for decades, as Jeremy Leaming writes, "has held that Justice Antonin Scalia is the high court’s most brilliant, disciplined, albeit ideological, member."

It may be that exposure through the internet "has altered the narrative by giving forums to an array of writers who have been quick to poke holes in an increasingly tiresome and shoddy line of reporting" or simply that Scalia's over-the-top rants and overt partisanship have finally reached a critical mass.

But as the country becomes more politically polarized, Scalia, as Dana Milbank wrote a while back, has had more difficulty containing his rabid partisanship.  He noted that “Scalia’s tart tongue has been a fixture on the bench for years, but as the justices venture this year into highly political areas such as health-care reform and immigration, the divisive and pugilistic style of the senior associate justice is very much defining the public image of the Roberts Court.”

Leaming is absolutely correct that "with each passing high court term, Scalia seems to be coming wackier, more out-of-touch, increasingly shrill. And he’s being called out for his nuttiness with growing frequency." 

"The Madness of Justice Scalia," Leaming's piece, cites various legal scholars and reporters, including law professor Paul Campos, who observed that Scalia “has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.”

Perhaps Scalia has finally gone too far.  In a column last Wednesday (before the ACA decision), E.J. Dionne called for Scalia to resign:

So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line.

Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama’s move had nothing to do with the case in question. Scalia just wanted you to know where he stood.

After this case was argued and while it was under consideration, the secretary of homeland security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants,” Scalia said. “The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.

What boggles the mind is that Scalia thought it proper to jump into this political argument. And when he went on to a broader denunciation of federal policies, he sounded just like an Arizona Senate candidate.

Dionne takes Scalia to task for being a "blatantly political actor" and justice at the same time:  "Unaccountable power can lead to arrogance. That’s why justices typically feel bound by rules and conventions that Scalia seems to take joy in ignoring."

Recall, as Dionne reminds us, 2004, when "three weeks after the Supreme Court announced it would hear a case over whether the White House needed to turn over documents from an energy task force that Dick Cheney had headed, Scalia went off on Air Force Two for a duck-hunting trip with the vice president."

Then there was the speech Scalia gave at Switzerland’s University of Fribourg a few weeks before the court was to hear a case involving the rights of Guantanamo detainees:  "I am astounded at the world reaction to Guantanamo,” he declared in response to a question. “We are in a war. We are capturing these people on the battlefield. We never gave a trial in civil courts to people captured in a war. War is war and it has never been the case that when you capture a combatant, you have to give them a jury trial in your civil courts. It’s a crazy idea to me.”

Dionne does not even mention how Scalia (as well as his fellow conservative justices Thomas and Alito) regularly attend right-wing events and political fundraisers.  (Indeed, Clarence Thomas, in particular, is far quieter, but similarly nakedly partisan and ethically challenged.  See, e.g., here and here.)

Scalia is 76 years old but despite the urging of E.J. Dionne does not appear to be leaving the bench any time soon.  What is of far greater concern is that Justice Ginsburg turns 80 next year and Justice Breyer turns 75.  When you throw in Justice Kennedy (75), you have what the New York Times points out is "among the oldest courts since the New Deal era."  As a result, "the winner of the race for president will inherit a group of justices who frequently split 5 to 4 along ideological lines," suggesting "the next president could have a powerful impact if he gets to replace a justice of the opposing side."

And while it is true that Chief Justice Roberts showed some modicum of sanity in voting to uphold the Affordable Care Act, he has not been magically transformed into the new swing justice.  It should be noted that while the outcome was welcome, his legal reasoning was, as Justice Ginsburg put it, "stunningly retrogressive."  (See 10 Ways John Roberts Is Still A Conservative's Best Friend.)

What shouldn't be lost in all the hoopla over the validation of Obamacare is that the Scalia and the other three dissenters (Thomas, Alito and Kennedy), as Paul Krugman points out, "did so in extreme terms, proclaiming not just the much-disputed individual mandate but the whole act unconstitutional. Given prevailing legal opinion, it’s hard to see that position as anything but naked partisanship."

As I have previously written, Romney's choice of Robert Bork as co-chair of his Justice Advisory Committee is a disturbing sign of the kind of radical jurists Romney would nominate.  (See Romney Gets Borked.)  In the wake of Roberts' "defection," there will be even more pressure on Romney to choose right wing extremists in the Scalia-Thomas mold, a fact he is essentially admitting on the campaign trail.  Dionne is right that Scalia should resign but that isn't going to happen.  But there remains an even more disturbing prospect than Scalia staying put.  It is that a President Romney will  add more right-wing ideologues to the Supreme Court (and throughout the federal judiciary), forming a solid block of partisan operatives.

At Least Those Supreme Court Conservatives Aren't Influenced By The New York Times

Clarence and Virginia Thomas

After the theory that Chief Justice Roberts' vote to uphold ACA was caused by his epilepsy medication didn't fly, the latest conservative narrative making the rounds (thanks to a "scoop" by CBS's Jan Crawford) is that Roberts switched his vote, buckling to external political pressure, and then withstood a ferocious month-long campaign by Justice Kennedy to bring him back around. 

Who knows what truth there is to this story (or who inside the Court leaked it), but I was particularly struck by a remarkable nugget in Crawford's article which describes the conservative wing of the Court, in contrast to Chief Justice Roberts, as impervious to outside influences -- or at least liberal ones.  Thus, while Roberts "pays attention to media coverage," the conservatives, "such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal."

What the article left out are the right-wing influences on Justices Thomas, Scalia and Alito.  As I've previously written, these three justices have attended, headlined and spoken at political fund-raising events for right wing organizations.   In another piece, Activist Judges, I pointed out that Justice Alito attended a major fundraising event for the notorious right wing magazine American Spectator (notorious for smearing President Clinton with false stories as part of the "Arkansas Project," an effort to get Clinton impeached), and that Justice Scalia and Justice Thomas have also attended secret political fundraisers.

And as stated here, Scalia and Thomas were featured guests at a retreat of wealthy Republicans and conservative leaders organized by Charles and David Koch, the brothers who finance right wing causes from the money they made from their energy conglomerate.  One of the Koch brothers pet causes had long been ending financial regulations on elections.  Indeed, according to Common Cause, they funded many of the groups who filed amicus briefs in the Citizens United case.  What is so unseemly about the appearances of Thomas and Scalia at the Koch Industries-sponsored event is that it occurred while Citizens United was pending before the Court.

And then, of course, there is the influence of Justice Thomas's wife, Ginni Thomas, a right-wing activist and powerful lobbyist, who worked to repeal the health care law.  Thomas was employed by the Heritage Foundation, a right wing think tank, between 2003 and 2007, and then set up a political consulting business, Liberty Central, which is described as an advocate for “liberty-loving citizens" fighting against the left wing "tyranny" of President Obama and the Democrats.

Well, at least the conservative members of the Court are not influenced by the New York Times and other dreaded liberal media.

10 Ways John Roberts Is Still A Conservative's Best Friend

By Ian Millhiser, cross-posted from ThinkProgress

Last week, Chief Justice Roberts embraced a ludicrous, Tea Party reading of the two key provisions of the Constitution, tossing out nearly two centuries of established law in the process. Yet, after he also refused to join a deeply partisan decision tossing out President Obama’s signature accomplishment — agreeing with several leading conservative judges in the process — the right-wing did not waste any time drawing its knives upon him. In just 24 hours, he was accused of everything from caving to non-existent “bullying” to being mentally unfit for duty.

It’s tough to imagine a more flagrant display of ungratefulness than the pushback Roberts is now receiving from his fellow conservatives. The reality is that Roberts consistently advanced the right’s agenda from the moment he joined the Court:

1) Corporate Money In Elections: Roberts jonied the majority in Citizens United, holding that wealthy corporations should have a nearly unlimited power to buy and sell American elections. Roberts also voted to undermine public financing laws in a way that severely undermines candidates without well-moneyed backers’ ability to compete in elections.

2) Judges For Sale: Roberts wrote a dissent in Caperton v. Massey that would have allowed a wealthy coal CEO to pay $3 million to put a sympathetic supreme court justice on that court. The same justice would then go on to $50 million verdict against the big spender’s company.

3) Corporate-Owned Courts: Roberts consistently votes to give corporations a nearly unlimited power to force workers and consumers into a privatized, corporate-run arbitration system that overwhelming favors corporations.

4) Dividing And Conquering Ordinary Americans: Roberts voted in AT&T Mobility v. Concepcion to allow corporations to strip their workers and consumers of their ability to bring class action lawsuits. Because of this decision, corporations now have a nearly unlimited power to cheat the people who do business with them — so long as they only do it a few dollars at a time.

5) Corporate Immunity To The Law: Roberts voted to give generic drug makers immunity to key state laws after one of their drugs caused a condition called tardive dyskinesia in many of the people who took it. Tardive dyskinesia is an horrific neurological condition that causes sometimes crippling, uncontrollable bodily movements, often in the face:

6) Abortion: Roberts also joined the Court’s decision restricting reproductive freedom in Gonzales v. Carhart, which reasoned that a woman’s right to choose must be cut back because “it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

7) Race: Roberts has also consistently resisted attempts to eradicate the legacy of racism in America. Most notably, in Parents Involved v. Seattle School District No. 1, he claimed that a plan to desegregate public schools violates Brown v. Board of Education.

8) Gitimo: Roberts twice sided with President George W. Bush on questions of detainee treatment — as a lower court judge in Hamdan v. Rumsfeld, and as Chief Justice in Boumediene v. Bush.

9) Unequal Pay For Women: Roberts joined the Court’s discredited decision in Ledbetter v. Goodyear Tire rolling back women’s right to receive equal pay for equal work.

10) Older Workers: Roberts also joined the Court’s 5-4 decision in Gross v. FBL Financial Services limiting older workers’ ability to be free from age discrimination in the workplace.

California's Cruel And Unusual Death Penalty 40 Years And $4 Billion After Furman v. Georgia

San Quentin State Prison

40 years ago today, the United States Supreme Court decided Furman v. Georgia, which struck down existing death penalty laws as unconstitutional in violation of the Eighth Amendment's cruel and unusual clause.  California's death penalty was quickly reinstated.

Attempting to comply with Furman, the new statute made the death penalty mandatory for certain first degree murders and other crimes.  But in 1976, the U.S. Supreme Court struck down death penalty laws that provided for mandatory death sentences. The California Supreme Court, relying on the high court's ruling, once again found the state's statute to be unconstitutional.

Undeterred, the California legislature passed a new death penalty law in 1977.  This was followed in 1978 by a ballot proposition, known as the Briggs Amendment, which was similar but more expansive version that sought to encompass more -- virtually all -- categories of murder (including unintentional murders committed during certain felonies).  Briggs passed and it is the law we are living with, so to speak, today.   

Forty years after Furman: $4 billion dollars, over a thousand death sentences, over 720 currently on death row, and 13 executions, none since January 2006.

Tani Cantil-Sakauye, after one year as the Chief Justice of the State of California, has concluded that the state's capital punishment system is "not effective" and requires "structural changes" that the State cannot afford.  Her predecessor, Ron George, who was Chief Justice for 15 years, came to the same conclusion, describing California's death penalty scheme as "dysfunctional."

An extensive study by Arthur Alarcon, long-time judge of the Ninth Circuit Court of Appeal, who, together with law professor Paula Mitchell, determined that California's death penalty system is currently costing the state about $184 million per year.  They concluded that "since reinstating the death penalty in 1978, California taxpayers have spent roughly $4 billion to fund a dysfunctional death penalty system that has carried out no more than 13 executions."

Justice Byron White observed in Furman that:

When imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.  Nor could it be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient, or that community values are measurably reinforced by authorizing a penalty so rarely invoked.” 

The infrequency of executions and the randomness with regard to which condemned inmates actually will be executed have made a mockery of the supposedly rational justifications for the death penalty.  In addition, given the current backlog and the serious problems identified by the California Commission for the Fair Administration of Justice (CCFAJ) -- problems that would require an enormous influx of state funds to fix -- it simply is not possible that defendants who are only now being sentenced to death will have their death sentences carried out.  Because it is “so wantonly and so freakishly” used, California’s death penalty has become a wholly arbitrary punishment in the same sense as the death penalty laws that were struck down in Furman.

Justice Potter Stewart famously characterized the Texas and Georgia statutes at issue in Furman as being “cruel and unusual in the same way that being struck by lightning is cruel and unusual.”  What he meant was that of all those who committed death eligible crimes, the petitioners were “among a capriciously selected random handful upon whom the sentence of death has in fact been imposed . . . [and] the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

Application of Furman’s benchmark for determining arbitrariness demonstrates that only a “capriciously selected random handful” of death-sentenced inmates in California will actually be executed.  A new death row prisoner would have to get in line behind 720 condemned inmates.  He or she would then have to wait years for appointment of appellate counsel (currently a 5 year wait) and even longer for the appointment of state habeas counsel (8-10 years).  Even after these lawyers are appointed and appellate briefs and habeas petitions are filed, the case will not be heard and decided before the several hundreds of cases that have preceded it.  And then, after all this time and expense, the California Supreme Court, in virtually every case regardless of the merits, will uphold the death sentence.   Then the case moves on to federal court, which has its own backlog, and often requires new counsel, with proceedings currently averaging over six years in district court followed by over four years of appellate review. 

Justice White noted in Furman that where the “penalty is so infrequently imposed that the threat of execution is too attenuated to be of substantial service to criminal justice” it is unconstitutional.  As he stated, when the death penalty “ceases realistically to further [the social ends it was deemed to serve] . . .  its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

We have far surpassed this point in California.

The SAFE California Act is on the November ballot.  If it passes it would replace California's multi‑billion dollar death penalty with life imprisonment without parole and require those convicted of murder to work and pay restitution to victim families through the victim compensation fund.  It would also set aside $100 million in budget saving for local law enforcement for the investigation of unsolved rape and murder cases.

Please join the effort to replace the death penalty by clicking here:  SAFE California.

Hail To The Chief Justice?

DonkeyHotey

Let's not get carried away by the fact that Chief Justice Roberts voted with the so-called liberal-moderate block to uphold the Affordable Care Act.  Let's not forget, as Ethan Bronner of the New York Times writes, that "in the past, especially on campaign finance law but also on other socially sensitive issues like abortion and affirmative action, Chief Justice Roberts has not shied away from leading a conservative redraft of previously established law, causing some to accuse him of judicial activism."

But with the reputation, perhaps legitimacy, of the Supreme Court at stake, Roberts decided to find a way to validate the Act.

As Steven Teles predicted, Roberts did not want "a direct confrontation with the entire Democratic Party. Striking down the substance of the ACA would have created such a confrontation, and put the Supreme Court at the center of the next election. I don’t think Roberts had a stomach for that."

Teles uses a baseball metaphor to demonstrate the difference between Roberts' approach and that of his fellow conservatives on the bench:

The best way to understand the difference between Roberts and the dissenters is to think of two pitchers who are throwing to a batter who is crowding the plate. The first pitcher throws at the batter’s head, while the second brushes him back. At least in this decision, Roberts decided to be that second kind of pitcher. Roberts wanted to send a signal to the other branches that there are limits on government, and the ACA was really crowding the plate. But he didn’t want to hit the pitcher and invalidate the whole law. So declaring that the mandate violates the Congress’ power under the commerce clause but upholding it as a tax does what Roberts wanted to do: get Congress to pay closer attention to constitutional norms while not precipitating a bench clearing brawl. 

I'm not sure I buy Teles' overarching point (and that of others, such as Laurence Tribe) in the wake of this ruling that Roberts is not really a radical ideologue.  As Ed Kilgore observes, "Roberts exercised 'judicial restraint;' at the same time, however, he managed to deliver not only his 'brush-back pitch' but a nice, easy talking point about ACA relying on a 'tax.'"

And it is unrealistic to think that Roberts has magically undergone some kind of transformation.  As law professor Adam Winkler points out, the Roberts Court has hardly been known before today for its judicial restraint:

Since John Roberts became Chief Justice in 2005, the Court has issued one landmark ruling after another. The Roberts Court gave us Citizens United, which struck down longstanding limits on corporate political spending. This Court also allowed new restrictions on women's right to choose; became the first Supreme Court in American history to strike down a gun control law as a violation of the Second Amendment; effectively outlawed voluntary efforts by public schools to racially integrate; and curtailed the reach of environmental protections.

In many of these decisions, the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old. Prior to Citizens United, the Supreme Court had explicitly held in two cases that corporate political expenditures could be limited -- the most recent of which was handed down in 2003. Six years before the Roberts Court upheld the federal ban on "partial birth" abortion, the Rehnquist Court, which wasn't known for its liberal leanings, had overturned a nearly identical law.

Significantly, although Roberts agreed with the four conservative justices that the individual mandate was not a regulation of interstate commerce, he ultimately voted to uphold the constitutionality of the mandate by characterizing it as a tax.  While his vote saved the Act, Justice Ginsburg cautioned that Roberts' view comprised a "novel constraint on Congress’ commerce power." 

In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to The Chief Justice, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

As Amy Davidson notes, “stunningly retrogressive” is not the phrase most people are using this morning to describe Roberts’s opinion; he is being celebrated as a moderate, called a disappointment to conservatives. But Ginsburg’s caution is worth watching. (See Professor Tobias Wolff's comments on the extraordinarily disruptive potential of Roberts' reasoning.)

But, as Winkler notes, "with this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president's signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn't want to go there."

Chief Justice Roberts undoubtedly had the Court's institutional legitimacy and his own reputation in mind when he voted to uphold the Affordable Care Act.  And, more disturbingly, as Winkler predicts:

Roberts may have voted to save healthcare because he wants to preserve the Court's capital to take on other big issues heading toward the Court. Legal experts predict the Roberts Court will invalidate a key provision of one of the most important laws in American history, the Voting Rights Act, next term. And the Court is set to end affirmative action in public education. Both policies have been centerpieces of America's commitment to civil rights for over 40 years.

It is therefore ridiculous to analyze Roberts' legacy based on this one ruling.  As Winkler concludes, "The Roberts Court has only just begun."

The Affordable Care Act Survives

DonkeyHotey

Before the Obama Administration embraced individual mandates as a compromise to push through health care reform, it was a Republican idea (endorsed, of course, by then-Governor Romney).  And when Republican state Attorneys General began challenging the constitutionality of the law their actions were viewed with derision by most legal scholars.  And prior to oral argument in the Supreme Court, it was widely assumed that the law would be upheld.  Since then dire predictions about the fate of the law, of health care for Americans, and of President Obama's re-election prospects have dominated the media.

It was perilously close -- another 5-4 decision -- and it took Chief Justice Roberts to side with the majority in upholding the Affordable Care Act because the usual swing vote, Justice Kennedy, dissented.

From Scotusblog:

Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act.   By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t.  That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed.  The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.

As Greg Sargent explains:  "The court ruled that the mandate is defensible as a 'tax.' In so doing, it supported the administration’s argument that it’s within the proper scope of federal authority to incentivize the purchase of health insurance, in order to expand coverage to millions of Americans who have been left behind by the private market."

Democrats will breath a sigh of relief while Republicans plot their next move to gut the law.  Which brings up a fascinating point about the entire debate on health care:  how our polarized politics have radically altered what used to be a bi-partisan consensus on at least the ultimate goal --  providing health care to all Americans.

Ezra Klein explains that there was not always such a stark divide between Democrats who are committed to "provide every American with health insurance" and Republicans who are committed to "prevent any American from being forced to have health insurance."

Democrats and Republicans used to argue over how best to achieve universal coverage, but both agreed on the goal. The first president to propose a serious universal health-care plan was Harry Truman, a Democrat. The second was Richard Nixon, a Republican. In the 1990s, when President Bill Clinton was arguing for a national health-care system based on an employer mandate, Republicans were arguing for one based on an individual mandate.

In the 2000s, Romney used the individual mandate to make Massachusetts the first state to actually achieve near-universal coverage. On the national level, Republicans as diverse as Newt Gingrich, Lamar Alexander and Lott joined him. Republicans sometimes like to present their support for the individual mandate as a youthful indiscretion, but as late as June 2009, Charles Grassley, the ranking Republican on the Senate Finance Committee, was telling Fox News that “there is a bipartisan consensus to have an individual mandate.” 

As Klein concludes:  "The battle over the Affordable Care Act has largely distracted voters from this tectonic shift in the Republican Party. Yet unlike in past elections, in which even the most conservative Republicans argued that we should 'ensure that all Americans would have affordable, quality, private health coverage,' voters this year will choose between one party that supports universal health care and one that doesn’t, with health insurance for as many as 50 million voters hanging in the balance."

Supreme Court Politics

DonkeyHotey

It was a big -- and telling -- day at the high court even without the highly anticipated Affordable Care Act decision, which is now expected to be issued on Thursday.  As I wrote earlier, Justice Scalia's raving dissent about state sovereignty in the Arizona immigration case starkly illustrates that he is more of a political operative than an impartial judge.

And, not surprisingly, Scalia's obeisance to states' rights was nowhere in evidence in another case decided today, a case in which a 5-4  majority struck down Montana’s 100-year-old anti-corruption law banning corporate spending on elections without ever hearing arguments in the case.  As Nicole Flatow at American Constitution Society summarized:  "Although Montana’s law was intended to combat corruption in election spending, the five-justice majority held in a paragraph-long decision that this case was controlled by Citizens United, which found that independent expenditures by corporations 'do not give rise to corruption.'” 

Flatow points out that, "A supermajority of Montanans thought otherwise when they passed the Corrupt Practices Act in 1912," and as Justice Stephen Breyer wrote in his dissent, “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”
 
Breyer's dissent, joined by Justices Ginsburg, Kagan and Sotomayor, pointedly concluded as follows:

Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case. But given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition. 

And there you have it.  As Amy Davidson notes, "Breyer is saying that he does not trust the majority enough to even listen, and would rather that it not hear the case at all; since he was joined by Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, that means the four of them didn’t believe that a single of the other five Justices had been at all chastened by the consequences of Citizens United."

And so, E.J. Dionne pleads:

Will everyone please finally admit conservatives actually don’t care a whit about states’ rights unless invoking states’ rights happens to be helpful to the conservative agenda? Conservatives on the court have become complete and utter hypocrites on the matter of what states can and can’t do.

This has stuck in my craw for a long time. Recall that the Supreme Court had absolutely no qualms about telling the state of Florida in 2000 that there was no way it could recount its votes in a fashion that would be satisfactory, and never mind that the Florida Supreme Court had ruled in favor of recounts. Those recounts might have gotten in the way of George W. Bush’s elevation to the presidency. Face it: If states’ rights are inconvenient to the outcome conservatives want, conservative justices will find a way to supersede them.

James Fallows recently wrote with regard to the Affordable Care Act case that "confidence in the very idea that the Roberts majority will approach this as a "normal" legal matter, rather than as one more Bush v. Gore front in the political wars, grows ever harder to maintain."

Which leads Ed Kilgore to draws what to me is the most critical lesson, whatever happens with the health care decision:

But it’s becoming more obvious each day that the judicial counter-revolutionaries of the Supreme Court don’t need the crisis atmosphere that they used to justify Bush v. Gore to continue its legacy. Indeed, it seems to have become the only precedent the majority reliably respects. Maybe they will surprise us all on Thursday and step back from the brink. But without question, if another seat on the Court falls their way, the constitutional substructure of every 20th century social accomplishment from the New Deal to the Civil Rights Act to the Clean Air Act to the right to an abortion is in immediate danger. And anyone who remembers that strange night in 2000 when the Court’s Republican appointees decided to seize the opportunity to choose a president should not be surprised.

Supreme Court Bans Mandatory Life-Without-Parole For Children Convicted Of Homicide

Bryan Stevenson

In Miller v. Alabama and Jackson v. Hobbs, the Supreme Court holds that mandatory life-without-parole sentences for all children 17 or younger convicted of homicide are unconstitutional.  (I wrote about these cases earlier here.)  Both cases were argued by the brilliant and heroic Bryan Stevenson.

Here is a summary of this great outcome from Equal Justice Institute of which Bryan is the founder and executive director:

The Court today struck down statutes in 29 states that provide for mandatory life-without-parole sentences for children, reasoning that mandatory imposition of life-without-parole sentences on children “contravenes Graham’s (and also Roper’s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”

"This is an important win for children. The Court took a significant step forward by recognizing the fundamental unfairness of mandatory death-in-prison sentences that don't allow sentencers to consider the unique status of children and their potential for change," said Bryan Stevenson, Executive Director of the Equal Justice Initiative, who represents Jackson and Miller. "The Court has recognized that children need additional attention and protection in the criminal justice system.”

Today’s decision requires the lower courts to conduct new sentencing hearings where judges will have to consider children’s individual characters and life circumstances, including age, as well as the circumstances of the crime.

While the Court did not categorically ban juvenile life without parole in all circumstances, Justice Kagan wrote for the majority that, “given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”

Stevenson cautioned, however, that sentencing courts’ discretion must be exercised in an informed and thoughtful way that acknowledges that children are biologically different than adults and less responsible for their wrongdoing, and that the courts should provide the individuals affected by the ruling a meaningful opportunity to show they have rehabilitated themselves and are appropriate candidates for release.
Stevenson added that historically, race and poverty have been powerful forces in influencing which children receive life-without-parole sentences.

Today's decision follows the Court's earlier rulings in Roper v. Simmons (2005) and Graham v. Florida (2010), which acknowledge the diminished culpability of children.

Groups as diverse as the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Psychiatric Association, the Council of Juvenile Correctional Administrators, the American Bar Association, mental health professionals, former juvenile court judges, criminologists, victims, and national advocacy organizations filed amicus briefs in the cases to urge the Court to give children an opportunity to have their sentences reviewed later in life.

The Supreme Court Strikes Down Much Of Arizona's Anti-Immigration Law While Scalia Rants

The Supreme Court issued its much-anticipated ruling on Arizona's harsh anti-immigration law, upholding the most controversial part of the law -- but striking the rest.

As the New York Times reports:

The court unanimously sustained the law’s centerpiece, the one critics have called its “show me your papers” provision. It requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if there is reason to suspect that the individual might be an illegal immigrant.

The justices parted ways on three other provisions. Justice Anthony M. Kennedy, writing for five members of the court, said the federal government’s broad powers in setting immigration policy meant that other parts of the state law could not be enforced. 

The provisions that were struck included Section 3 criminalizing the failure of persons to carry immigration documents; Section 6, barring undocumented immigrants from seeking work; and Section 6, allowing warrantless arrests when an officer has probable cause to believe a person who has committed a crime is undocumented.

One of the more fascinating -- and disturbing -- aspects of the decision was Justice Scalia's raving dissent from the portion of the majority opinion that blocked implementation of the Arizona law.

As Ben Jacobs writes, "the conservative icon rails against the court’s decision over 22 pages and makes strained claims for Arizona’s continued ability as sovereign state to regulate immigration while citing dubious authorities like the notorious Kentucky and Virginia Resolutions (documents written anonymously by Madison and Jefferson that have repeatedly been rejected by the court over the past 200 years when cited by segregationists and secessionists)."

Here's an excerpt:

But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Govern­ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

A good way of answering that question is to ask:  Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding [that the national government has supreme jurisdiction over immigration policy]?

Huh?  As Jed Lewison at Daily Kos puts it:  "So according to Scalia's logic, SB1070 is constitutional because Arizona wouldn't have entered into the Union if it weren't. Brilliant!"

Remarkably, Scalia criticized the Administration's immigration policy and specifically went after Obama's recently-announced executive order to stop the deportation of  children whose parents illegally entered the country -- which post-dated and had nothing to do with this case: 

It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.
[For certain illegal immigrants] immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct­ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

As UCLA law professor Adam Winkler, Scalia has "finally jumped the shark":

He claims to respect the founding fathers, but his dissent channels the opponents of the Constitution. Back then, opponents argued that the Constitution denied states their sovereignty by giving too much power to the federal government, as with immigration. Now Scalia echoes their complaints that states are being denied their sovereignty. States are not sovereign when it comes to powers vested in Congress, such as the authority over immigration and naturalization.

 Ben Jacobs rightly concludes that "The health care decision is only days away and it is explicit that at least one justice is making his decisions on political grounds."

Corporate Takeover At The Supreme Court

I've written previously about the unprecedented pro-corporate bias of the current conservative majority of the Supreme Court, and the insidious role played by the U.S. Chamber of Commerce in getting the Court to hear business cases and to rule in favor of business interests.  (See, e.g., here, here and here.

The Constitutional Accountability Center points out that "without much fanfare, the U.S. Chamber of Commerce is edging towards what could be its first 'perfect' Term before the Supreme Court since at least 1994."  It has "declared victory in all seven of its cases that have reached a clear outcome," which "brings the Chamber’s overall win/loss rate before the Roberts Court up to 68% (60 of 88 cases)."

As CAC's "prior studies establish, this is significantly higher than the Chamber’s success before the Rehnquist Court of 56% (45 of 80 cases), and dramatically higher than its success rate before the Burger Court, when the Chamber only won 43% (15 of 35) of its cases."

Darryl Issa's Contemptible Actions

DonkeyHotey

Darryl Issa, a California Congressman, made his fortune manufacturing car alarms and used his wealth to fund the recall of California Governor Gray Davis, who was succeeded by Arnold Schwarzenegger.  (Issa reportedly intended to place himself on the ballot before Schwarzenegger jumped in.)

As chair of the House Oversight and Government Reform Committee, Darryl Issa has called President Obama "one of the most corrupt presidents in modern times."  He declared he would hold "hundreds of hearings" to uncover wrongdoing in the Obama Administration.  But, as Alex Seitz--Wald details, Issa "often ended up shooting blanks."

His investigations into WikiLeaks, Fannie and Freddie, the FDA, and countless others have failed to expose any massive wrongdoing by the administration and after a year and half, he has little to show for them. . . .

Other investigations bordered on fringe absurdism, like when he asked the Department of Justice to investigate ACORN more than a year after it went extinct. There was also the hearing he held probing the Affordable Care Act’s contraception mandate, which famously included a panel featuring zero women.

But yesterday, as Seitz-Wald reports, Issa "finally got his big trophy and moment in the cable news sun today when his committee voted to hold Attorney General Eric Holder in contempt of Congress, following nearly seven hours of testimony on the ATF’s botched “Fast and Furious” gun scandal."

Meteor Blades at Daily Kos has the background:

The issue that spurred the committee's vote is Holder's unwillingness to release documents and internal communications at the Department of Justice regarding the operation known as "Fast and Furious." That operation, run by the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed guns bought in the United States to cross into Mexico. The idea was to nail straw purchasers of weapons in United States and also high-level members of Mexican drug gangs that obtained the weapons.

According to the 2011 report Fueling Cartel Violence prepared for Oversight Committee Chairman Darrell Issa (R-Calif.) and Senate Judiciary Committee Ranking Member Charles Grassley (R-Iowa), hundreds of firearms made their way into the arsenals of three of the largest drug cartels: Sinaloa, El Teo and La Familia.

Mexican authorities have claimed that as many as 150 people have been killed by these firearms in an ongoing war that has taken the lives of more than 50,000 people since 2006. Some 2,000-plus firearms are said to have made their way into Mexico as a result of "Fast and Furious." A U.S. Border Patrol agent, Brian Terry, was also killed with one of the weapons, an AK47-style firearm. Among the weapons allowed to leave the states were .50 caliber sniper rifles that may have made the difference in battles between cartel members and Mexican police.

As Jeremy Leaming at American Constitution Society explains:

U.S. Rep. Elijah E. Cummings (D-Md.) told The Times the administration was forced into invoking privilege because of the Issa-led committee’s “unreasonable insistence on pressing forward with contempt despite the attorney general’s good faith offer.”

The Department of Justice has provided Issa’s committee nearly 8,000 documents for the congressional investigation into the tactics used in the federal government’s efforts to stop violence related to drug smuggling along the southern border.

But Issa and other Republican members on the committee have feigned disbelief, arguing that much more is needed to complete their work.

I'm not particularly comfortable defending this -- or any -- Administration's invocation of executive privilege but Issa's relentless pursuit of the president, culminating in this investigation of a trumped-up scandal is nothing more than cynical political theater.

As Kevin Drum notes, this is a "fairly ridiculous invented controversy that Republicans care about only because (a) it involves guns, and (b) it involves the Obama administration."  Indeed, Issa "more or less admitted the fever swamp origins of tea party outrage over Fast & Furious when he told Sean Hannity that Obama was using the program to 'somehow take away or limit people's Second Amendment rights.''  This mad notion was seconded by Newt Gingrich on on CNBC last night.  According to Steve Benen, Gingrich "argued, with a straight face, that the so-called "Fast and Furious" controversy was part of an elaborate ploy to enact gun control."

Crazy, right?  "And yet," as Benen sums it up, "this nuttiness has been fully embraced by many House Republicans, many Senate Republicans, Fox News, Newt Gingrich, the NRA, and some deeply strange folks on far-right blogs and talk radio. To put it mildly, it's disconcerting."

 With the contempt citation going to the full House next week, you can take action by calling (202-224-3121) or emailing your representatives and urging them to oppose this politically motivated witch hunt.

Justice Scalia: The Opportunistic Originalist

By Jeremy Leaming, cross-posted from American Constitution Society

DonkeyHotey

We likely shouldn’t be surprised by Justice Antonin Scalia’s “flip-flop,” as TPM puts it, on precedent supporting modern understanding of the Constitution’s commerce clause.

TPM’s Sahil Kapur reports that in his forthcoming book, Scalia says the Supreme Court’s 1942 opinion in Wickard v. Filburn wrongly construed the scope of the commerce clause. As Kapur and many others have noted, including the Obama administration, Scalia cited Wickard in a 2005 opinion concluding that a law barring personal cultivation of marijuana for medical use was not beyond the scope of the commerce clause.

In that case, Gonzales v. Raich, Scalia lodged a concurring opinion, citing precedent in holding, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

In an e-mail to TPM, constitutional law expert Adam Winkler wrote, “This is typical Scalia.”

Winkler, a law professor at UCLA, continued:

He respects precedents when they fit his conservative ideology and disregards them when they don’t. He claims that history should guide judges. But nothing about the history of the commerce clause has changed. What’s changed is the political implications of the commerce clause. When it’s being invoked for law and order conservatives, he favors Wickard. When invoked by liberals to support healthcare reform, he thinks Wickard is bad law.
Once again, we see that Scalia’s orginalism is a charade.

There is also the spectacle of oral argument, where Scalia not only revealed a wobbly understanding of the health care insurance system but affinity for the simplistic, but radically libertarian arguments lobbed against the Affordable Care Act’s minimum coverage provision. The minimum coverage provision is integral to the health care reform law, requiring those who can afford to do so to obtain a minimum amount of the health care coverage starting in 2014.

The provision was quickly attacked by the Right as a dire threat to liberty. If the government were able to require many indiviuals to purchase health care insurance, then surely it could also force individuals to buy broccoli and gym memberships, the law’s opponents argued.


In an ACS Issue Brief, Simon Lazarus blasted the arguments against health care reform as constituting a “bold bid for historic, sweeping constitutional change. If successful, they would be a major step toward reinstating the web of tight constitutional constraints on congressional authority, known as ‘Lochnerism,’ which conservative Supreme Court majorities repeatedly invoked during the first third of the 20th century to strike down economic regulatory laws.”

The Supreme Court’s opinion on the constitutionality of the health care law is coming sometime this month, unless the justices decide the case is not ready to be challenged.

During her featured remarks at the ACS 2012 Convention, Justice Ruth Bader Ginsburg touched upon the rampant media speculation surrounding the challenges to the health care reform law, the likelihood of more sharply divided opinions to come, and the impact of Supreme Court dissents.

In noting the challenges to the minimum coverage provision, Ginsburg said, “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

See video of Ginsburg’s remarks here.

Acquittal On Steroids

Roger Clemens was acquitted today of perjury charges based on his testimony before Congress in 2008, in which he stated that he never used steroids or human growth hormone.  After an earlier mistrial, federal prosecutors decided to retry Clemens and, as the New York Times reports, the second trial was far more extensive than the first, with 46 witnesses over more than eight weeks.

 I have long despised Clemens for his petulance, his arrogance and not least, his beaning of Mike Piazza in 2000, followed in the the World Series of that year with his inexcusable heaving of a piece of  broken bat at Piazza after it was shattered by a pitch.   Nevertheless, for the reasons I explored in a piece re-posted below on the Barry Bonds trial (which also ended in embarrassment for the prosecution when it was able to obtain a conviction on only one count, an obstruction of justice charge) the case served no purpose and was a colossal waste of resources.
 

Trial On Steroids

So many people in and out of baseball hate Barry Bonds passionately.  He was a selfish player who focused unduly on his own statistics.  He is arrogant and unapologetic.  He has always treated the press with great disdain.  He had his own Barcalounger in the Giants' clubhouse.  Unlike, perhaps, more sympathetic marginal or fading players, he was a brilliant player in his prime when he felt compelled to cheat by using steroids.  He is a petty man who cheated because he was jealous of Sammy Sosa and Mark McGwire, and wanted to become not just the best all around player, but the home run king.  And it worked; he not only broke McGwire's single-season home run record, even more egregiously, he eclipsed the hallowed career home run mark of the beloved Hank Aaron.  Have I missed anything?  Oh, and he denied knowingly taking steriods when forced to testify under oath before a grand jury.

For the last of these, Bonds is on trial, charged with lying to the grand jury and obstruction of justice.  It seems, however, that those who hate Barry Bonds hope he is humiliated, found guilty, and sentenced to a long prison term for his many other other non-criminal offenses.

I am not one of the Barry Haters.  Watching Barry Bonds play for the Giants, both pre- and post-alleged steroid use was one of my greatest thrills as a baseball fan.  Every time I went to the ballpark I felt it was a privilege to be able to see one of the most amazing players to have ever played.  In 2001, the year he hit 73 home runs, he hardly ever got a decent pitch (he walked 177 times that year), but when he did he crushed it.  Maybe steroids added some distance to these blasts, but the discipline, focus, timing and beauty of these at bats can't be credited to drugs.  The dude could flat out hit.

OK, with that disclaimer out of the way, I think the issue is less about Bonds and more about whether the United States Government should be expending so many resources on the use of performance enhancing drugs in baseball. 


We now know that steroid use was rampant for about a decade, beginning roughly in 1995.  During that time, offensive numbers (and players’ heads) were suspiciously inflated, fueling a welcome fan resurgence after the devastating baseball strike of 1994.  Attendance soared and baseball ownership gleefully looked the other way.  While all other major sports put policies into place banning steroid use, baseball management did nothing.

I strongly believe that the federal government can play an important role in investigating and remedying many of our social ills, including, for example, poverty and hunger, discrimination, deceptive practices of financial institutions, unsafe food production, inhumane working conditions, environmental hazards and climate change. Steroids in baseball does not come close to making this list.  Nevertheless, we have had federal investigations, grand juries, and even Congressional hearings to address an issue that should have been -- and eventually was -- handled by baseball itself.  (Roger Clemens, for whom I have no warmth in my heart, will be tried this summer on allegedly lying to Congress; I take the same position on Clemens as I do on Bonds.)

In 2002, a federal investigation began into whether BALCO labs was providing steroids to athletes, including baseball players.  Barry Bonds and others testified before a grand jury which, in 2004, issued a 42-count indictment charging BALCO-related figures with running a steroid-distribution ring.  40 of these charges were eventually dropped.  The main target, Victor Conte, BALCO's founder, pleaded guilty to one count of money-laundering and served only 4 months in prison followed by 4 months' home confinement.  BALCO's vice president James Valente received probation.  Greg Anderson, Bonds' personal trainer, received 3 months in prison and 3 months home confinement, although he served additional time for refusing to testify against Bonds.

Given the relatively light sentences received by the major players in the scandal it is hard to see the dogged pursuit of Barry Bonds by federal prosecutors as anything more than vindictive, ego-driven and an attempt to justify the enormous waste of time and resources.  The scandal derailed the end of his career, when no team was willing to sign him.  His legitimate claim to being one of the greatest ballplayers of all time, even before his alleged steroid use, and all his remarkable records are considered tainted by many.  And, as I started this piece, he is reviled by all but the most die-hard Giants fans (and me).  Isn't that enough?

Why Are We Spending So Much To Lock Up Elderly Prisoners Who Pose Little Threat?

By Inimai M. Chettiar and Vanita Gupta, cross-posted from American Constitution Society

Elderly prisoners are the least dangerous group of people behind bars but the most expensive to incarcerate. Yet despite this truth, the number of elderly prisoners is skyrocketing. Harsher sentencesfor less serious crimes – one defining characteristic of our failed “tough on crime” and “war on drugs” policies – are responsible for this staggering increase in the number of older prisoners, and taxpayers are taking the hit.

You may be shocked to learn how much money states are dumping into housing aging prisoners who pose little safety risk. Today the American Civil Liberties Union released a report, “At America’s Expense: The Mass Incarceration of the Elderly,” which details the growth of our aging prisoner population, the low public safety threat elderly prisoners pose and the fiscal impact of incarcerating them. Strikingly, the report estimates that the average aging prisoner costs taxpayers about twice as much as the average prisoner.

The report is co-authored by the ACLU’s fiscal policy analyst and in-house economist, Will Bunting. He conducted a fiscal impact analysis, weighing the cost of incarcerating the average aging prisoner against the burden releasing that same prisoner would impose on public benefit programs. Even taking into consideration the cost of state payments for Medicaid, supplemental security food stamps, energy assistance, and other public assistance benefits, the report estimates that states could save $66,000 per year for each aging person released from prison. To put this number in context, the average American household makes $40,000. The money thus saved could be redistributed to more worthwhile and cost-effective state goals like education and infrastructure.

A look at the grander scheme of things is even more startling: in 1988, the United States spent about $11 billion on the entire corrections system. Today, we spend about $16 billion annually on the aging prisoner population alone.

As the number of prisoners in the United States climbs ever higher, the number of aging prisoners is climbing even faster. Between 1980 and 2010, the total number of people incarcerated in this country grew by 400 percent. In that same timespan, the population of prisoners age 55 and older grew by nearly 1,400 percent. At the current rate of growth, the number of prisoners age 55 and older will have increased 4,400 percent from 1981 to 2030 and will make up fully a third of the nation’s prison population.

The increase in the number of aging prisoners is not due to a spike in the number of crimes committed by older people. There is no “elderly crime wave.” And contrary to popular belief, older prisoners aren’t more likely to have committed a serious crime. Rather, many elderly prisoners are incarcerated for crimes committed in their youth for which they received disproportionately long sentences, and many elderly prisoners are in prison for nonviolent crimes. The current mentality of “lock ‘em up and throw away the key” has led lawmakers to impose exceedingly harsh penalties on individuals who commit low-level offenses, ensuring that they stay behind bars well into age and often until they die. The adage “let the punishment fit the crime” has given way to a reign of disproportionality in sentencing that is nothing if not cruel and unnecessary.

For instance, in California, Leandro Andrade, a father of three, received a mandatory sentence of 25 years to life in prison for two counts of shoplifting children’s videotapes valued at $153. He had two prior offenses for misdemeanors. In Mississippi, Atiba Parker was sentenced as a habitual offender to a total of 42 years in prison for selling a total of .3 grams and possessing less than .1 grams of crack cocaine. And also in Mississippi, the now-famous Scott sisters, Jamie and Gladys, were sentenced to two consecutive life terms for a robbery in which they stole $11 when they were teenagers.

Like many aging prisoners, Andrade, Parker and the Scott sisters are caught in the net of our extreme sentencing laws enacted since the mid 70’s. Politicians over the last quarter-century have held strong to the conventional wisdom that being "tough on crime" will win elections and appease the public's appetite for safety. To alleviate the public's overblown fear, or even to slake a thirst for retribution, our lawmakers have increasingly deemed more private acts criminal and doled out harsher punishments for a generation. Law enforcement has selectively enforced these laws against the "feared" Black and brown communities. In the end, we’re left with a massive, unsustainable prison population – and equally unsustainable aging prison population – unlike anything the world has ever seen.

If aging prisoners posed a serious threat to public safety, the costs of incarcerating them might be justified. But aging prisoners are in fact highly unlikely to commit new crimes upon release. Research has conclusively shown that by age 50 most people have significantly outlived the years in which they are most likely to commit crimes. For example, arrest rates drop to just over 2 percent at age 50 and are almost nil at age 65. In other words, there is no value to the continued incarceration of a large majority of our aging prisoners.

Today’s report provides a number of recommendations to legislators and correctional leaders interested in meaningful reform. Given the fact that public opinion is shifting toward a desire for fewer people in prison, the time to implement these reforms is now. The longer term solution requires political will to redesign our extreme sentencing regime to reintroduce proportionality, and repeal or reform habitual offender, mandatory minimum and truth-in-sentencing laws. A more immediate recommendation is for states to empower parole boards to determine which aging prisoners are worth the cost of continued incarceration because they pose grave public safety threats and which are not and can be safely released. In 2011, a bipartisan coalition in Louisiana passed just such a reform measure; if Louisiana – which leads the nation in incarceration – can take these steps, other states can surely follow suit.

In today’s hobbled economy, legislators cannot continue wasting taxpayer dollars by turning our prison system into a vast complex of nursing homes. It is a moral and fiscal imperative to stem the explosion in the aging prisoner population. Aging prisoners pose little threat to the public’s safety and incarcerating them is breaking our collective bank. Furthermore, it is inhumane to keep people locked up when there is no compelling societal justification to do so. The tools for grappling with this crisis are well within reach of legislators around the nation and the time for reform has arrived.

Inimai M. Chettiar, Policy Counsel, and Vanita Gupta, Deputy Legal Director, at the American Civil Liberties Union. Ms. Gupta directs the ACLU’s Center for Justice and its Safe and Fair Initiative to End Overincarceration. Ms. Chettiar serves as national legislative counsel coordinating the Initiative, and is incoming Director of the Justice Program at the Brennan Center for Justice at NYU School of Law.

Justice Stevens' Reasoned Takedown Of Citizens United

By Jeremy Leaming, cross-posted from American Constitution Society

At some point perhaps soon the U.S. Supreme Court’s conservative wing will have to reckon with some of its sweeping assertions in its controversial 2010 Citizens United v. FEC majority opinion.

Retired Supreme Court Justice John Paul Stevens in a methodical, thoughtful speech at the University of Arkansas Clinton School of Public Services detailed why he thinks some of the holding in Citizens United is due for reconsideration.

Stevens’ former colleague Justice Samuel Alito mouthed “not true” during President Obama’s 2010 State of the Union address when the president said Citizens United could “open the floodgates for special interests – including foreign corporations – to spend without fault in our elections.”

But the majority opinion, Stevens said “placed such heavy emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.’”
“Indeed,” Stevens continued, “the opinion expressly stated, ‘We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.’”

Stevens said:

Given the fact that the basic proposition that undergirded the majority’s analysis is that the First Amendment does not permit the regulation of speech – or of expenditures supporting speech – to be based on the identity of the speaker or his patron, it is easy to understand why the president would not have understood that ambiguous response to foreclose First Amendment protection for propaganda financed by foreign entities.
But Justice Alito’s reaction does persuade me that in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion. For his statement that it is ‘not true’ that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises that requires the Court to address the issue in a full opinion.

The former justice, the third longest serving justice on the high court, also pointed to an opinion, one he joined, that followed Citizens United. In Holder v. Humanitarian Law Project, the majority held that Congress can bar material support of terrorist groups, even if that support is advice on how to conduct peaceful protests.

“As Justice Breyer correctly noted,” Stevens said, “the proposed speech at issue was the kind of political activity to which First Amendment ordinarily offers its strongest protection. Nevertheless, under the Chief Justice’s opinion, the fact that the proposed speech would indirectly benefit a terrorist organization provided a sufficient basis for denying it First Amendment protection.”

So while the Citizens United majority claimed that political speech must receive sweeping protection regardless of the identity of the speaker, it looks as though the majority is going to have to start creating some categories here.

“Could the Court possibly conclude that expenditures by terrorist or foreign agents in support of a political campaign merit greater First Amendment protection than their actual speech on political issues? I think not. Indeed, I think it likely that when the Court begins to spell out which categories of non-voters should receive the same protections as the not-for-profit Citizens United advocacy group, it will not only exclude terrorist organizations and foreign agents, but also all corporations owned or controlled by non-citizens, and possibly even those in which non-citizens have a substantial ownership interest.”

Stevens provided more explanation of why he thinks Congress will be able to “impose more restrictive limitations on campaign speech than on issue advocacy.” See his entire remarks here, made available by The Huffington Post.

As The Huffington Post’s Mike Sacks notes and this blog has too the high court may have another vehicle to reconsider the sweeping majority opinion in Citizens United.

Last year the Montana Supreme Court upheld its longtime Corrupt Practices Act, a tough regulation of corporate financing of its elections. In doing so the Montana Court blasted the Citizens United majority opinion, and said it did not mean the state had to dump its strong campaign finance law. The justices may consider to review the case, and numerous public interest groups are encouraging the Supreme Court, if takes the case for review, to curtail its sweeping assertions advanced by the Citizens United majority.