Category: Constitutional Law


Green on Hamdan (Part I): Who’s Afraid of the War on Terror?

green.jpgWe’ve invited my colleague, Temple Professor Craig Green, to comment for us on Hamdan. Craig has recently written an article on Wiley Rutledge, Executive Detention, and Judicial Conscience at War, and is currently working on a project titled Repressing Erie’s Myth. He has provided two different posts for us. Here is the first:

Who’s Afraid of the War on Terror?

Not Justice Kennedy, it seems. And (pace Marty Lederman) maybe that’s the biggest lesson from yesterday’s Hamdan decision.

[Readers who haven’t consumed the decision’s 177 pages will find lots of quality background material here. For my part, i’ll ignore interesting (??) disputes over abstention and jurisdiction to focus on the merits.]

The Court’s bottom line is that Congress in 1916 implicitly (and without anyone’s really noticing) forbade all wartime military commissions unless they comply with: (i) the international law of war, and (ii) all “practicable” rules of ordinary courts martial. That rule stands on two statutes: § 821, concerning international law, and § 836 , concerning courts martial directly.

Justice Stevens wrote for Souter, Ginsburg, Breyer, and occasionally Kennedy. In the parts that all five joined, Stevens held only that the procedures for Hamdan’s military commission differed too much from a normal court martial with too little justification. The Five held that President Bush never justified the military commission’s need for the differences in evidentiary standards and abilities to confront inculpatory proof. That failure violated § 836 directly, and also violated § 821 because the Geneva Conventions’ Common Article III required a “regularly constituted tribunal,” which the Court read to presumptively mean a court martial.

In sum, the Court sketched two statutory routes toward one simple result: Military commissions must mirror courts martial, except where a satisfactory reason is offered for the difference.

[Stevens also wrote that Hamdan’s conspiracy count was unprecedented (and illegal) under international law, and that international law itself required allowing Hamdan, at the very least, full confrontation of evidence against him. For these parts, however, Stevens drew only four votes.]

The above interpretation isn’t (yet?) orthodox, and some readers may have to slog through the opinions to decide for themselves. But let me flag something that could be overlooked, using Professor Balkin as a partial foil. Balkin suggests that Hamdan is “democracy forcing” (great phrase) because the Prez has to go to Congress if he wants “more authority,” e.g., by relaxing §§ 821 and 836. Balkin’s obviously right that Congress could change those statutes, and he explains that the democratic consequences of doing so could be salutary. But does Hamdan make statutory change truly necessary? i’ve got my doubts.

If, as the majority says, the problem here is a failure to “explain” or “justify” why departures from court- martial procedures are necessary, why wouldn’t the Prez just take on that task – either in individual cases or perhaps as a general matter? He might succeed, he might fail. But such efforts would test whether the Court’s gestures toward Presidential judgments are serious. (See, e.g., Section VI.C’s “assumption” that Presidents deserve “complete deference” in deciding when normal procedures are inappropriate, and its emphasis that, in Hamdan “[t]here is no suggestion . . . of any logistical difficulty in . . . applying the usual principles of relevance and admissibility.”). If the Court accepted such arguments, it would let almost all the air out of the “democracy-forcing” balloon. No Congress after all, just a better record.

If Hamdan really is so limited in scope, however, we should rethink what Kennedy was doing here. [Kennedy’s the focal point because Stevens & Co. would happily have gone farther.] Hamdan’s not a ringing endorsement of timeless procedural fairness? (See Balkin.) It’s not even a Bickelian spur for democratic dialogue? (See supra.) Then what?

Here’s my shot: The rule in Hamdan matters most if the President doesn’t have “the goods” to prove military necessity; and maybe Kennedy wanted to see those cards on the table. Perhaps some readers recall Hamdi and Padilla? The Prez once claimed that each was a dangerous terrorist who absolutely had to be detained without charges or adjudicative process. The fate of the Republic, evil-doers, etc., etc. Then what happened? If cynics are to be believed, the Court called the government’s “bluffs,” and Hamdi was returned to Saudi Arabia (perhaps sitting on a beach sipping non-alcoholic pina coladas?), while Padilla’s now being tried in federal district court. Where’s all that “military necessity” now?

Maybe these recent experiences, or media events, or freestanding judgment, have made Kennedy’s decreasingly willing to accept claims of executive wartime exigency. If so, and especially if (as seems likely?) Congress and the Prez actually don’t pursue the option of military commissions against Hamdan etc., such a spiraling credibility gap might well damage the government’s arguments in future cases. Can’t you almost hear Stevens’s whisper in the next case – whether it concern interrogation tactics, the Detainee Treatment Act, or some such – “Remember, Tony, that’s what they told us last time. You stood strong, asked for more proof, and look, we’re all still here, safe, and sound.”

Maybe skepticism’s a good thing. Maybe we trust the government too much, especially as to national security. But there’s an obvious cause for concern. Thomas’s dissents, here and elsewhere, surely stand on absolute bedrock in pronouncing that courts don’t know much about military matters. Indeed, the judiciary’s very often (from the Civil War to World War II internment to now) required simply to trust or not to trust executive assertions of need. Maybe some readers think the Court’s doing all right so far. But any of us who would celebrate what the Court has done in Hamdan and other GWOT cases must confront the reality that someday, maybe not today, maybe not tomorrow – but someday – there might be a dangerous wolf after all. Or at least a very fierce-sounding lamb.


Steve Bainbridge on “Evading” Hamdan

In a post titled “Evading Hamdan,” Steve Bainbridge notes that there’s a different way for the Executive to get the military commissions it wants than to hash out legislation establishing them with our elected representatives in Congress. Congress could instead try to strip the federal courts of all jurisdiction to hear cases out of Gitmo, or, presumably, cases leveling challenges of any sort to military commissions.

An interesting thing to think about, I suppose.

But I’m not sure I see the normative case for trying to give the courts the boot and setting up a standoff between Congress and the judiciary over the scope of Congress’s power to strip jurisdiction. Congress can make policy in this area, or it can try to eliminate the courts so as to allow the Executive to make essentially unreviewable policy. Why would it choose the latter over the former?

Steve says he’s not advocating the idea of jurisdiction-stripping, but simply mentioning it. I’m not so sure: when you say, as Steve does, that you doubt Congress has “the guts” to strip the courts of jurisdiction, and when you muse publicly about whether “anybody in Congress will have the chutzpah to run it up the legislative flagpole” — and indeed, when you frame Hamdan as a decision to be “evaded” — some people might think you believe that jurisdiction-stripping would be a good idea. That’s what I’m inferring from Steve’s post, in any event. Perhaps Steve can clear things up by explaining his take on the merits of the idea he’s floating.


“An era of lawless fascism and rubberstamp courts”

That’s what Tennessee law professor Glenn Reynold seems to say would be a fair characterization of our times if Justices Scalia, Thomas, Alito (and presumably the Chief) had prevailed today in Hamdan. They didn’t, but it’s worth pointing out that Justices Roberts and Alito have nothing but time to consider chinks in Hamdan’s armor, and rumors of Justice Stevens’ possible retirement continue to swirl.

But Professor Reynolds then offers the following very strange sentence, complete with a link to an intemperate blogger urging further administration defiance:

“[Rebuking those who claim that we’re an an era of LFaRC is] (another) good reason for Bush not to follow advice from some quarters to disobey the ruling, a la Andrew Jackson.”

Is it just me, or is this comment a little Quattrone-esque? And, why pick on Jackson, whose involvement in lawless rhetoric is probably apocryphal, and has little current political purchase anyway. Why not say: George Bush can try to ignore the consequences of Hamdan just like Dwight Eisenhower tried to ignore the consequences of Brown.

We’re going to have a special guest blogger offer some thoughts as to the why and how of Hamdan later this evening or tomorrow morning. In the meantime, check out the latest at SCOTUSblog, essential as always.


Wild KPMG Fees Decision

Barely one day old, and Gonzalez-Lopez is already making waves in corporate law. To see the connection, however, you’ll have to bear with me for a bit of brush-clearing.

Judge Lewis A. Kaplan (S.D.N.Y.) today ruled on certain individual defendants’ motions to dismiss an indictment arising from the KPMG tax shelter investigation. (Large pdf here.) According to the defendants, their due process rights were violated when the U.S. Attorney pressured their former employer (KPMG) not to advance and reimburse legal fees incurred as individuals defendants. Judge Kaplan found a due process violation, scolded the government, and suggested a new lawsuit against KPMG to recover those legal fees, in which today’s decision would have collateral effect and make the proceedings summary. In short: the decision seems to constitutionalize the right to receive indemnification from your employer.

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Where Is The Academic Truth Squad?

Have you heard of Mark W. Smith? He is a ’95 graduate of NYU Law School and a partner at the New York office of Kasowitz, Benson, Torres, and Friedman. More to the point, however, he is an up-and-coming Fox-News-style “legal affairs commentator.” He is described as “one of the fastest-rising legal stars in the country” by no less a legal luminary than … Ann Coulter. Get the picture?

I just heard Smith on our local talk radio station flogging his latest book, “Disrobed: The New Battle Plan to Break the Left’s Stranglehold on the Courts,” about which its publisher (Random House) says this:

America’s courts, legal culture, and law schools remain solidly in the Left’s camp. Decades of liberal legal precedents fill volumes of law tomes. Absent a sweeping change—precisely what bestselling author Mark W. Smith calls for in Disrobed—liberals will ruthlessly exploit their dominant position in the law to continue advancing their radical agenda, as they have for the past seventy years.

So steamed was I by Smith’s harping on the theme that the federal courts are in the grips of “loony leftists” (like, you know, David Souter and Anthony Kennedy) that I called in to the program. Smith agreed to talk with me on the air, but he has studied the Fox News Playbook, so after I said “hi,” Smith launched into a two-minute filibuster about how, as a law professor, I am so mired in the liberal atmosphere of the American legal academy that I can’t possibly perceive the truth about how dominated the entire legal system is by the legacy of “fifty years” (!) of radical leftist control of the courts. The show’s hosts had to interrupt him to create space for me to ask my question, which was this:

Richard Nixon was elected President in 1968. In the 38 years since then, Republican presidents (including presidents elected from right of the center of their party) have appointed federal judges for 26 of them. Democrat presidents have done the appointing for just 12 years, and those two presidents, Carter and Clinton, were candidates from the center or right of their parties who defeated candidates to their left (Ted Kennedy in 1980; Tom Harkin and Paul Tsongas in 1992) in the primaries. So how is it possible to maintain that the federal judiciary is currently staffed by judges of the “loony left,” or for that matter, of any kind of left, loony or otherwise?

Smith’s response was, predictably, a filibuster about how the supposedly conservative Rehnquist Court was really a court of the radical left, endorsing the killing of unborn children while forbidding the killing of baby spotted owls, encouraging the seizure of private property, and so on.

Smith is not alone in this venture. The airwaves and bookstore shelves are full of these sorts of claims, often based on brazen distortions and lies. I can’t imagine that you could fill a telephone booth with legal academics of any political stripe who would defend the claim that the current personnel of the federal courts is shot through with “loony lefties,” or lefties of any stripe.

These sorts of claims — because of their prevalence, even their ubiquity — play a crucial role in American political discourse about the judiciary. We legal academics write our law review articles; some of us even carefully study the political and jurisprudential makeup of the federal courts. We talk to each other. But we do not talk to the public. We do not respond to the Mark Smiths and Andrew Napolitanos and William Pendleys and Robert Dierkers with popular-press books, or on the airwaves.

Why not?


Japanese Internment Gets A New Breath of Life in the Eastern District of New York

Federal district judge John Gleeson (E.D.N.Y.) yesterday filed an opinion of potentially enormous significance (.pdf file) in Turkmen v. Ashcroft, a class action challenging the government’s prolonged confinement of Arab and Muslim aliens on immigration charges in the wake of the September 11 attacks. In a nutshell, Judge Gleeson dismissed all claims asserting that the government violated the law in singling the detainees out for arrest and prolonged detention on the basis of their race, religion, and ancestry. He declined to dismiss the plaintiffs’ claims challenging the conditions of their confinement.

It is the dismissed claims that interest me, especially the claim that simply because of their nationality and their religion, the government detained these post-9/11 detainees for far longer than necessary after they had received final orders of removal or grants of voluntary departure, without affording them a hearing to determine whether the continued detention was warranted. Naturally, the plaintiffs presented this claim under the equal protection component of the Fifth Amendment’s due process clause.

Judge Gleeson made quick and dismissive work of this claim: these plaintiffs were aliens, not U.S. citizens, and for that reason the government was free to single them out for special enforcement on account of the unadorned fact of their national origin without violating norms of equal protection.

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Grutter Redo, Part 3

Recall that in a earlier post, I wrote about Judge Kozinski’s concurring opinion in the 9th Circuit ruling which upheld the Seattle school choice plan. His view was that rational basis review was preferable and strict scrutiny inappropriate because while the “program does use race as a criterion, [it does so] only to ensure that the population of each public school roughly reflects the city’s racial composition.” Kozinski’s position raises a number of interesting questions — at least one of which I alluded to before — the potential appeal of his approach to Justice Kennedy. But now I want to focus on the normative question which lies at the heart of Kozinski’s approach.

Let us set aside for a moment the Court’s view, which it has repeatedly reaffirmed in cases like Adarand, Grutter and Johnson v. California, that strict scrutiny review must apply to all racial classifications. The question I want to pose is this: is there a meaningful distinction between the racial preference that was at issue in Grutter, and the racial classification scheme that is challenged in the K-12 cases the Court has recently accepted. To assist you in answering this question, I’ll provide a quick review of the use of race in the two situations.

Grutter concerned the University of Michigan Law School’s admissions policy which sought to enroll a “critical mass of underrepresented minority students.” In short, while the policy did not set aside a fixed number of seats in the incoming class for minority group members, it did consider race or ethnicity “flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” Even though race was used flexibly (no bonus points or set asides as was the case in Bakke), there is little doubt that with respect to some candidates, race was outcome determinative. That is, race was outcome determinative for some white candidates in the sense that minority group members with identical qualifications would have been admitted to the Law School while they were not. (We can address the standing difficulties raised under this scenario at a different time.)

Contrast the Law School’s admissions plan in Grutter with the Seattle school choice plan. Under the Seattle plan, race was used as a tiebreaker. In the first instance, students are given their choice of schools. It is only when a school becomes oversubscribed and racially imbalanced that the racial tiebreaker comes into play, and even then it only operates on the margins; effecting only schools where the “student body differs by more than 15 percent from the racial make up of the students of the Seattle public schools as a whole.” Finally, we should note that under the Seattle plan, no student is denied an opportunity to attend a public school in the school district; all students are placed in some public school within the district. Thus, Judge Kozinski’s view of the Seattle plan was, “that a student is denied a school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual’s aptitude or ability.”

Do you agree? Are the Grutter and Seattle plans distinguishable? Is it really true that one plan attaches “stigma” to a frustrated applicant while the other inflicts no such stigmatic harm to the students? Isn’t one argument that the stigmatic impact of each plan is a matter of degree. If that’s the case, then perhaps Kozinski is right after all that a heightened form of rational basis review is superior because it would allow the Court to take all of the relevant facts into consideration. Unless you think strict scrutiny, in the race context at least, already performs this function.


Grutter redo, part 2

The Court’s acceptance of the two K-12 cases raises so many interesting questions that it is difficult to know where to start. For this post, I’ll quickly recap the facts and ask a question about Justice Kennedy’s potentially pivotal role in deciding the cases. Later posts will address other issues raised by the cases.

Both cases deal with “voluntary” desegregation plans where there is no court order otherwise requiring desegregation. In both cases, the school districts sought to break the link between residential and school segregation. Given the racially segregated nature of the neighborhoods within the school districts, an uncontrolled school choice plan would have likely replicated such segregation within the schools. Instead, the districts sought to both preserve neighborhood school choice and produce more integrated public schools. As a general matter, one school district used race as a tiebreaker. In this district, students were given their choice of schools, race notwithstanding; race came into play as a tiebreaker for oversubscribed schools that were racially imbalanced. In the other district, the school board established black student enrollment ranges. Administrators then used race as one factor among many (residence, school capacity, popularity, student’s choice, etc.) to achieve enrollment within those ranges.

Both the 6th and 9th Circuits upheld these plans, applying the Grutter “student body diversity” rationale to the K-12 context. In this post, I want to focus on just one question: Justice Kennedy’s role. While it is true that two new justices have joined the Court since Grutter, I think it highly likely that both Roberts and Alito will vote to strike these plans down (we can debate exactly how they will do this at a later date). I believe Kennedy’s vote will be pivotal. While it is true that Kennedy dissented in Grutter, essentially arguing that the Law School’s affirmative action plan was not narrowly tailored under the strict scrutiny test, I believe there may be a way to reach him here. But how? Enter Judge Kozinski.

In the 9th Circuit opinion, Judge Kozinski wrote an interesting concurrence. In it, he argued that a heightened form of “rational basis” review ought to apply to the case. His theory was that the Seattle plan wasn’t really an “affirmative action” plan given that it concerned admission to K-12 education. According to Kozinski, it had none of the “defects” associated with other racial preference schemes because “there is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about the individual’s aptitude or ability.” Thus, from Kozinski’s perspective, strict scrutiny need not apply — and instead a less deferential form of rational basis review would do. Given Kennedy’s position in Romer and Lawrence, will Kennedy be persuaded by Kozinski’s argument? If so, it would allow him to uphold the plans and to distinguish his position in Grutter, where arguably, strict scrutiny had to apply.


Student # 43 Unmasked!!

Bush.jpgI posted earlier about an answer to my exam question on constitutional amendments written by student with ID number “43.” I said that I gave “43” a C.

Most readers, I think, got it. But based on reactions posted by dolts at lesser blogs and some strange e-mails I received, some didn’t. (Who knew there were so many literalists?)

So, for the benefit of everyone, I’m hereby posting “43’s” facebook photo.

No, I didn’t give my current Constitutional Law students the question I discussed (though I’m confident if I had they would have had no trouble coming up with more carefully thought out proposals than the Federal Marriage Amendment). And I certainly can’t imagine posting a real student’s exam answer on a blog and telling the world how I graded it. That would be outlandish behavior–even for a law professor.

I appreciate the many thoughtful comments I received about this (fictional) post.