Wednesday, July 15, 2015

Zivotofsky v. Kerry

This is a Supreme Court case decided on June 8, 2015. The issue involved in the case is a rather unusual one for a Supreme Court case.

In 2002 Congress enacted a law mandating that American citizens born in Jerusalem can request that their place of birth be listed as "Israel" on their passports. Since the official position of the U.S. has always been that it recognizes no country's sovereignty over Jerusalem, the State Dept. records the place of birth in such instances not as "Israel", but rather as "Jerusalem". Plaintiff Zivotofsky filed suit to require that his passport reflect the Congressional mandate.

The majority interpreted this as requiring that the official U.S. policy on recognition of a foreign sovereign be changed. Since the Constitution does not specifically say that diplomatic recognition is solely the province of the executive, the majority ruled by analogy from other powers that the executive does have under the Constitution, such as the power to receive ambassadors from other sovereign countries. The court also looked at the historical record, beginning with Washington's recognition of the new government in France following the revolution there, and doing this without consulting with Congress. Based on both of these analytic threads, the majority concluded that the Congressional mandate in question was invalid, because the power to recognize foreign governments rests solely with the executive branch.

This was a 5-4 decision, with the conservatives dissenting, three of them dissenting completely and Thomas dissenting in part (he felt that it was OK for Congress to make its requirement for consular reports of birth abroad, but not for passports).

Roberts' dissent emphasizes that this is the first time the court "accepted a president's direct defiance of an Act of Congress in the field of foreign affairs". Roberts expressed doubt that the president's power of recognition is exclusive. But he then goes on to say that "even if the president does have exclusive recognition power, he still cannot prevail in this case, because the statute at issue does not implicate recognition".

Scalia filed a separate dissent in which he took apart the majority's position more systematically. Scalia notes that Congress has power over passports, due to the clause in the Constitution giving it power to establish a "uniform Rule of Naturalization". This really decides the issue, other than noting that putting "Israel" as the nation of birth on passports for kids born in Jerusalem does not equate to recognition of Israel's sovereignty over Jerusalem. Scalia's conclusion, then, is that "the court's decision does not rest on text or history or precedent".

Some observations:

Scalia vs. Thomas. Scalia and Thomas really sniped at each other in their respective dissents. They called each other by name over and over, in their attempts to specifically refute the other's arguments.

Kennedy again the swing vote. Kennedy wrote the opinion for the majority. This was one of many cases in which the four-member liberal bloc stuck together in this term, which was a very successful one for the liberal side. Part of this success is due to the four sticking together, and speaking with one voice rather than sniping at each other as the conservatives sometimes did. And they were happy to allow that "one voice" to be another justice, as in Kennedy here, with Roberts occasionally filling this role in other cases.

Breyer's position. Breyer filed a two-sentence concurrence stating that he believes the case presents a political question which the judicial system should stay out of. But he joined the majority because "precedent precludes resolving this case on political question grounds."

Roberts' deference to Congress. It has been noted that Roberts was the only justice to defer to the legislative branch on both the Obamacare and the gay marriage decisions. In this case, he again demonstrates that same deference to the legislative branch, which presumably is speaking the will of the people.

So who's right?  This seems to be one of those hard cases that makes bad law. Jerusalem is such a sensitive issue on the international stage, that the majority felt it crucial that the U.S. speak with one voice on that issue. And the majority obviously agrees with the position of the executive branch here, rather than the legislative branch.

The idea that the relatively innocuous act of listing a kid's place of birth as "Israel" on his passport amounts to recognition of Israel's sovereignty over Jerusalem is silly. And, as Scalia points out, if there was indeed any real confusion about this, the president could easily issue a statement clarifying his administration's position on the matter. So, the dissent is legally correct.

Saturday, July 11, 2015

ACLU Turns Its Back on Sweet Cakes

I'm a liberal but I've never been enthusiastic about the ACLU. News recently that it has come out against the free speech rights of the Sweet Cakes owners has helped me to understand the reasons why.

Organizations the ACLU has represented in the past include the Ku Klux Klan and the Westboro Baptist Church. Individuals include Kareem Abdul-Jabbar, Arthur Bremer, David Duke, Sean Hannity, Ted Kaczynski, G. Gordon Liddy, Rush Limbaugh, Oliver North, Sirhan Sirhan, and George Wallace. Really no reason here for a liberal to support this organization.

The Sweet Cakes owners have recently been victimized by an administrative ruling that they are prohibited from talking about their refusal to bake a cake for a lesbian wedding. This is in addition to the absurd amount of $135,000 they have been ordered to pay for "pain and suffering" of the two lesbians. The "talking" which the labor dept. bureaucrat complained of in his ruling was describing what happened to a reporter, and posting a sign saying in part, "This fight is not over. We will continue to stand strong." The bureaucrat decided this was in violation of an Oregon law prohibiting a business from announcing it's intention to discriminate in the future.

So the ACLU is backing these people, right? No, the legal director, a dunce named "Mat dos Santos", wrote a column in the paper explaining that the ACLU is supportive of the ridiculous decision to punish the Sweet Cakes owners. How disappointing.

Thursday, July 2, 2015

SCOTUS Gay Marriage Decision

The Supreme Court Friday issued its long-awaited gay marriage decision. As expected, Justice Kennedy delivered the majority opinion in favor of a right to same-sex marriage for a sharply-divided 5-4 court. The majority opinion is straightforward, and therefore not very interesting. Justice Kennedy, writing for a unified majority (there were no concurring opinions), reasoned that marriage was a fundamental right, and therefore denying that right to a segment of the population was a violation of the Due Process clause of the Fourteenth Amendment. There was also a halfhearted effort to base the decision on Equal Protection grounds, but there was none of the rigorous, step-by-step analysis that is required of Equal Protection decisions.

The dissents were much more interesting. Each of the four dissenters wrote a separate opinion.

Roberts dissent. The main dissent was written by Chief Justice Roberts, who painstakingly took apart the majority's argument point-by-point. The problem with the majority analysis is that it was not based on sound legal reasoning, and therefore, it was easy pickings to be demolished by Roberts' cogent dissent. Certainly the majority opinion contains much good reasoning which would argue in favor of a legislator changing the law in regard to gay marriage, but nothing indicating it was proper for a court to do so.


The Roberts dissent starts out be observing that "for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening". It goes on to say that "The majority's decision is an act of will not legal judgment. The right  it announces has no basis in the constitution or this court's precedent."

Roberts then gets to the details, examining the majority's argument that the court 's prior line of cases on marriage expands the definition of marriage, and this decision is therefore  only a logical continuation of that line.  The line of cases the majority relies on includes a case on granting mixed-race couples the right of marriage, granting prison inmates the right, and granting people who owe child support the right. However, Roberts aptly points out that the basic definition of marriage as between a man and a woman was never in question in any of these cases.

Roberts then examines the legal basis of the majority's position, which is substantive due process. This is clearly a contradiction in terms, and always has been, because"due process" refers to procedure, and not substance. This concept has been severely discredited and has practically died out; yet, the majority resurrects it from the legal cemetery in this opinion.

Substantive due process was first used in the infamous Dred Scott case in 1857. It reached its zenith in the case of Lochner v. New York, which Roberts refers to numerous times in his dissent. Lochner was a 1905 case which dealt with a New York law which limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. The court struck down the law on dubious substantive due process grounds. That decision has come to be regarded by legal scholars as one of the worst decisions in Supreme Court history. The whole substantive due process theory is considered today to be totally discredited, and it is surprising that the court could find no better basis on which to base a decision in 2015 than this discredited 158-year-old joke of a legal concept.

The basic problem with substantive due process is that the court is substituting itself for a legislative body. The court is saying that "we have a better idea of how things should be than the people's elected representatives." This obviously is a huge overreach for the court, and totally improper.

When a court does this type of overreach, it risks the possibility that the executive branch will simply ignore its decision. After all, the supreme court has no ability to enforce its decisions; rather, it must rely on the executive branch to do so. This raises the possibility that the executive branch might do as Andrew Jackson did when the Supreme Court issued a decision in favor of Cherokee rights; Jackson replied, "John Marshall has made his decision, now let him enforce it."  Jackson then proceeded to ignore the Supreme Court decision and to remove the Cherokees from their homeland and relocate them to present-day Oklahoma, over the infamous "Trail of Tears".

Concerning the majority's halfhearted Equal Protection argument, Roberts easily demolishes this position. He says that "the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position....In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States' 'legitimate state interest' in 'preserving the traditional institution of marriage'."


Roberts states that "Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept". Roberts is actually making a very interesting point here; his point is that it is always better for people to work out their problems themselves, rather than have a "solution" imposed upon them from a higher authority.

Any good teacher understands this, and will seek to enable students to work out answers for themselves. The same goes for any good parent; rather than "hovering" around and solving every problem for their kids, a good parent will allow kids to grow by letting them work out their problems for themselves. A good family law judge will also recognize this, and require the parties to go to mediation to work something out they both can live with, rather than having a judge arbitrarily decide issues of child custody and visitation.

Scalia dissent. Scalia was his usual vitriolic, snide, sarcastic self in his criticism of the majority opinion. He writes right at the start about "this court's threat to American democracy". He says that "it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me."

As to the idea that marriage expands our freedoms, Scalia correctly points out that just the opposite is the case; marriage limits our freedoms, not expands them. Scalia states that "Freedom of Intimacy is abridged rather than expanded by marriage....Anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say."

Thomas dissent. Thomas also makes some cogent points in his dissent. His basic point is that "liberty has been understood as freedom from government action, not entitlement to government benefits." He goes on to discuss what "liberty" means. It basically means the freedom from restraint. The 14th amendment can only be invoked if a citizen is being deprived of "life, liberty or property" without "due process of law".  Thus, it cannot apply to this case.

It is interesting that Justices Roberts and Alito are the only dissenters not to join in on any of  their fellow dissenters' opinions. In the case of Roberts, I think this is due to the fact that Justice Roberts has a sincere and honest desire to protect the legacy and reputation of the court. To join in an opinion which contains the vitriol and sarcasm that characterize the opinions of the three right-wingers is just not something he is inclined to do, even though he agrees with the points being made.

Alito dissent. In the case of Alito, it appears that Alito wants to emphasize an issue mostly ignored by his colleagues. That issue is the threat the decision poses to the religious beliefs of those opposed to same-sex marriage.

A few observations are in order.

Democracy.  First, there is the idea emphasized by Scalia of "the threat to American democracy" which he thinks this decision represents. People like Scalia often talk about democracy when it suits their purposes, and ignore it at other times. The fact is, we do not have a democracy, we have a republic.

And thank God we do. We have seen instances all over the world in which democracy is used by the majority to persecute the minorities. Just look at Egypt, for example. The Western world rejoiced in 2011 when Mubarak was ousted as Egypt's ruler. However, the imprisonment of dissenters since then has gotten worse, and under the first democratically elected president, Morsi, the Christian minority was brutally persecuted. Many other examples from everywhere in the world could be given.
We had an idiot president take us into war in Iraq, on the misguided notion that toppling Saddam Hussein would take care of all of Iraq's problems. All it did was topple one ethnic group and substitute another for it as the ruling power. So, instead of the Sunnis persecuting the Shias, we now have the Shias persecuting the Sunnis. And civil unrest is at unprecedented levels. Such are the (rotten) fruits of democracy.

In India, we have a situation in which 24 of the 29 Indian states have regulations prohibiting either the slaughter or sale of cows. And to take this to an absurd extreme, the Indian state of Maharashtra now has a law making eating beef illegal, with violators subject to up to five years in prison!  All this despite the fact that India has a constitution which says quite clearly that India is (supposedly) a secular state and recognizes freedom of religion. Thank God the U.S. is more serious about following its constitution than India is.

The U.S. was settled by people who had been persecuted in their countries of origin, either because of their religion, their ethnic group, or their unpopular ideas. Consequently, our constitution was written so as to make it clear that we would not have a tyranny of the majority in this country. Governmental power was diffused in many ways, such as the separation of powers, which spreads power around among the three separate branches. Similarly, power between the federal government and the states is divided, so that everywhere one looks there are checks on governmental power over its citizens.

So, for Scalia and the other dissenters to use the word "democracy" as often as they do shows a clear lack of understanding of what our system is all about.

Makeup of the court.  As to whether the court can function properly as a "super-legislature", Scalia surprisingly goes into some detail about the personal characteristics of the Supreme Court's current makeup. They are as unrepresentative of the public at large as can be imagined. All nine graduated from either Harvard or Yale law schools. All but one are from one coast or the other, with only one coming from "the vast expanse in-between". Not a single evangelical Christian; in fact, and most amazingly, not a single Protestant! There are six Catholics and three Jews.

Some may rejoice at the superficial diversity currently existing on the court. Consider that the first Catholic wasn't appointed until 1836, the first Jew not until 1916, the first woman in 1981, and the first Hispanic in 2009. But look at where all this politically correct nonsense has gotten us. We now have Catholics (25% of the nation) and Jews (less than 2%) representing 100% of the court. Just think, important abortion cases are decided by a court that is 2/3 Catholic, a church which condemns abortion and denies communion to politicians who support abortion rights. Protestants like myself, along with other religious groups, represent 73% of the population, yet we have zero representation on the court!

Now, if the court were to fulfill its proper role making legal decisions instead of political ones, then we would not want it to be representative of any group except the group of top-flight legal scholars. But when the court gets into this sort of political quagmire, the elitist nature of the court's makeup becomes relevant.

The court's reputation.  Roberts moans that "The stuff contained in today's opinion has to diminish this court's reputation for clear thinking and sober analysis." It is ironic that two of the dissenters (Scalia and Thomas) were part of the decision which by far did the most to damage the court's reputation. That decision was the atrocious Bush v. Gore decision in 2000.

What makes Bush v. Gore so atrocious is that the constitution gives the state legislatures the right to choose electors any way they want to. It does not even have to by a vote of  the people (in contrast to the election of Senators, which under the 17th amendment must now be chosen by popular vote).  In light of this, for the federal branch of government to interfere in how Florida was choosing its electors is downright shameful. And the hypocrisy of the right-wingers knows no bounds,. These are people who supposedly are so big on states rights and preserving the federalist nature of our system. And yet, this are the same group which interfered in a function which the constitution grants to the state of Florida to determine its electors for president.

After her retirement, Justice Sandra Day O'Connor acknowledged the damage done to the court's reputation, and admitted that taking the case was a mistake. Alan Dershowitz minced no words when he stated: "The decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath."

The constitution doesn't mention same-sex marriage. This is no doubt the lamest argument of all, made by Alito at the start of his opinion, when he says that "The Constitution says nothing about a right to same-sex marriage." There are two basic reasons why this argument is so lame.

First, the constitution doesn't mention a lot of things. There is no mention in the constitution of automobiles, of trains, of planes, of telephones, of the internet, and one could go on and on. Just because the constitution does not mention these things, doesn't mean that the constitution has no application to them.

But the real problem with this type of analysis is that it presumes that the government is all-powerful. That is, it presumes that "We the people" have no rights or freedoms except those specifically granted by the constitution.

This stands the constitution on its head. Our system, unique in the history of the world, makes the people sovereign, not the governmental rulers. The government only has the power which "We the people" have granted to it. Therefore, the correct inquiry is not "Does the constitution grant a right to same-sex marriage, but rather,  "Does the constitution grant the power to the government to deny same-sex couples the right to marry?".

A reading of the Bill of Rights makes it clear it is not intended to be a complete list of rights and freedoms enjoyed by the people. Thus we have the 9th amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". And the 10th amendment, saying that "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This analysis points the way to what a proper basis for the court's ruling would have been. Marriage is a fundamental right, as even the dissent acknowledges. Nothing in the constitution gives the government the power to deny that right to a certain class of adult citizens. Yes, the power to regulate marriage is given to the individual states, but the states cannot exercise that power in a way that discriminates against a certain class of citizens. Basic freedoms must be allowed to flourish, even if not specifically mentioned in the Bill of rights.  QED