Posts Tagged ‘Supreme Court’

The gay marriage decisions, part 2: Hollingsworth continues an uncomfortably strong reading of the ‘standing’ doctrine

June 28, 2013

Yesterday, the Supreme Court handed two significant defeats to opponents of LGBT equality: United States v. Windsor, discussed yesterday, and Hollingsworth v. Perry. By all accounts, Windsor is far and away the more important case. It more or less establishes that the gender of married parties, and whether married parties are or are not the same gender, is off-limits when the federal government is decided how to parse out marital benefits. That is a huge triumph for marriage equality (though, as discussed in yesterday’s post, the scale of the triumph is somewhat diminished by weak federalism).

Hollingsworth, on the other hand, technically says nothing at all about gay marriage per se. It allows no new marriages, it creates no new rights, it recognizes no existence gay marriages. It answers none of the questions that both parties to the case wanted answered, the most important of which would have been whether or not the state constitution of California, or the charter of California, forbids the denial of marriage benefits to same-sex couples. In fact, it answers a question that neither party asked at all, that is, whether or not the opponents of gay marriage had the right to be challenging the case at all. Hollingsworth speaks to the “standing” of the appealing parties, which neither party actually seriously challenged at any stage prior to the Supreme Court appeal.

“Standing” is a complicated thing, and I don’t mean that it’s complicated for the laymen, I mean that it’s complicated. What’s important for our purposes is that, if you want to sue the government over a law, you have to show that you were actually injured by that law. This analysis is usually best suited to criminal defendants being convicted for violating laws that they think are unConstitutional. Hollingsworth is interesting in that it is about the standing of the plaintiffs.

The doctrine of standing plays two important functions. Firstly, it prevents people with no stake in a particular law or incident from getting the advantage of court intervention – for example, imagine the harm to justice that would be done if, instead of letting the victims of racial discrimination sue to defeat discriminatory laws, the Klu Klux Klan were allowed to take up the case against racial discrimination, and just how good a job they would do of it. Secondly, it denies the courts the opportunity to usurp the power of legislators by taking the slightest complaint and turn it into a judicial referendum. Imagine, for example, a court that was just itching for an opportunity to strike down a mandatory minimum sentencing law, since it just steps on the toes of judges and juries. So, rather than going to someone sentences under such a law, they go to the judge’s neighbor Joe, who is just personally morally opposed to mandatory minimum sentencing, lets him sue, and takes his case. Joe has become an opportunity for a judge to strike down a law. Standing requirements forbid either scenario – the Klu Klux Klan presumably does not have standing in its case, and Joe does not have standing in his, since justice is properly left to truly aggrieved parties.

But for atheists and skeptics like myself, the word “standing” sticks in your craw because of a case called Elk Grove Unified School District v. Newdow. That was the case in which Michael Newdow, father of a daughter who had been punished for refusing to recite the Pledge of Allegiance because of its bizarre recently-added theistic commitments, was refused the opportunity to challenge Congress’s intrusion into the Pledge not because his case was bad, not because he was wrong about the Constitution or about the separation of church and state, but because he lacked “standing.”

Denial of “standing” is becoming an increasingly esoteric legal doctrine that is beginning to strike me as a judicial substitute for “we don’t really want to hear your case.” The Supreme Court had a prime opportunity in Hollingsworth to and a sounding defeat to the enemies of equality, but instead, it took the easy way out on a truly ambiguous question of standing. Like WindsorHollingsworth was 5-4, but Hollingsworth wasn’t the 5-4 you’d think. Where Windsor was divided along the traditional conservative bloc vs. Kennedy/liberal block lines we’ve come to know and love, Hollingsworth was opposed by the unusual combination of Alito, Thomas (Bush appointees), Sotomayor (an Obama appointee), and Kennedy. Liberal-conservative splits are to be expected. Ragtag teams of liberals, conservatives, and moderates all coming together to oppose are rather unexpected.

The dissent is just as concerned as I am that the Supreme Court took the easy way out in Hollingsworth, and worse, that the Court is making true justice entirely too inaccessible, that future Supreme Courts now have the superweapon of an unlimited standing doctrine to dismiss any case without having to answer the hard questions. To quote the dissent:

The essence of democracy is that the right to make law rests inthe people and flows to the government, not the other way  around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century…. In California and the 26 other States that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The Court today frustrates that choice by nullifying, for failure to comply with the Restatement of Agency, a State Supreme Court decision holding that state law authorizes an enacted initiative’s proponents to defend the law if and when the State’s usual legal advocates decline to do so. The Court’s opinion fails to abide by precedent and misapplies basic principles of justiciability.

The troubling question raised by Hollingsworth is, who’s next to be denied Court access because of “standing?” Michael Newdow deserved to have his case heard, but the courts above him had created an insulating protection that lets them get rid of difficult cases without committing themselves to potentially politically unpalatable consequences. That is how Hollingsworth sounds to me. It makes me think, “first they came for the gay marriage opponents, but I said nothing, because I was not against gay marriage….” What if, some day, I want to petition the highest courts in the land to protect me from some federal or state invasion of my Constitutional protections, and I lack standing because my case is politically undesireable? Then I will be like Michael Newdow, and like the opponents of gay marriage: unpopular, unpalatable, and unprotected by the courts.

Corporations aren’t passengers!: Citizens United and corporate ontology

January 7, 2013

Cute story out of California: getting his wish at last, a California man is pulled over with “corporation papers” in his passengers’ seat in the carpool lane. Insisting to the arresting officer that, on the logic of the infamous Citizens’ United case, the corporation is a person and a passenger, he offers himself as a (doomed) test case for the opposition to Citizens.

I say doomed for a few reasons:

  • The Supreme Court has not changed in any relevant way since Citizens was decided (one Democratic appointee, Stevens, has since been replaced by Kagan),
  • Citizens has been upheld against significantly more plausible challenges than this, and so is thoroughly embedded in the fabric of American jurisprdence,
  • Citizens itself follows a long line of Supreme Court decisions chipping away at the power of the government to regulate political speech by corporate entities, unions, and interest groups, and so is not itself even the original problem-case anyway.

I think that we have to accept the fact that Citizens is here to stay. The Supreme Court has decided that it is impermissible, on constitutional grounds, for the government to limit the ability of private interest groups to use money to influence elections.

You should read the text of Citizens. It’s a fascinating case, decently argued. And you’ll notice that phrases like “corporations are people” are entirely absent from the opinion. That’s because Citizens does not rely on the assertion that corporations are people, or on any pseudonym thereof. Rather, the case asserts that it is not only human persons that are eligible for constitutional protections, that corporations, unions, and interest groups are some of the non-human persons eligible for those protections, that those protections ought to include participation in political discourse, and that unlimited cash contributions from undisclosed sources is an essential component of such entities’ participation in political discourse.

Each element of the logical progression seems reasonable up until the last one. Certainly, it is not only humans that are protected by the Constitution – churches, political parties, protest marches, two people co-signing a letter to the president, none of which is a human person, are all obviously protected by the Constitution. That corporations are among those entities protected by the Constitution is an ancient component of Constitutional jurisprudence: while the Supreme Court has sometime drawn a very marginal distinction between “personal speech” and “commercial speech,” the latter of which might be something like advertising, both are said to flow from the First Amendment, and the difference between them is merely a matter of degree (for example, the state can almost never punish you for lying unless your lie hurts someone, but it can  punish advertisers who lie before anyone is actually hurt by the law). And I am certain that, if any rights at all are to be protected by the Constitution, speech is way up there, and political speech is the most important kind of speech – it is the kind of speech the Framers had most clearly in mind when drafting the protection.

But it is the final element that befuddled commentators and academics the most. Rather than forbid the government from regulating the content of political advertising, the Supreme Court essentially forbade the government from regulating the dollar amount of political advertising. They even created an amazingly thick wall of privacy for private interest groups, PACs, and “Super-PACs:” they don’t have to disclose the sources or the specific outflows of their income… but you and I sure have to! You and I are forbidden from omitting our revenue sources from our tax returns (unless you assert your 5th Amendment right not to disclose as such, but hey, good luck with the audit afterwards), but a PAC is not. A PAC isn’t a person – according to the Supreme Court, it deserves more privacy than a person does! Outrageous!

But it kind of makes sense when you think about it.

I’ve already acknowledged both that the entities included under protections for political speech do not include just human persons and that some of the protected entities are interest groups. The point of attachment is between the Constitution and the entity’s speech – not between the Constitution and the entity, and it’s a whole additional degree of separation between the Constitution and contributors to PACs qua contributors to PACs. If the Constitution’s protections attach to the speech itself, that may also include a certain privacy right (and the Supreme Court has spent a century building on the Constitution’s implicit rights to privacy granted to entities under its ambit, including businesses). Just as individuals do not have a right to total anonymity, neither do PACs, which is why Citizens preserved the government’s right to compel PACs to disclose their responsibility for political advertisements, but not the sources that made the advertising possible – exactly as individuals, even though they have no total anonymity rights, are certainly not required to disclose the sources of their political speech. When you make political speech, you aren’t required to disclose what books, what media or culture, what political parties or advertisements influence your speech. You’re only required to attach your name to your vote at the ballot box, not your political influences. And so it is with PACs.

So it makes sense. But is it correct?

PACs aren’t people. I know that, you know that, and the Supreme Court doesn’t disagree. PACs are created on paper and operate on paper – but a PAC is not just paper, and neither is a corporation. The gentleman mentioned in the news article that opened this post says he has “corporate papers” in his front seat. Lets assume he has every piece of paper associated with some corporation – every filing document, every ’33 Act disclosure, every piece of stock, every minute from every board meeting, everything, and assume there’s no office, no product, no cash, no bank account, nothing but a CEO (the gentleman in question) in the driver’s seat and a stack of papers in the passenger’s. Are there two entities in that car sufficiently similar to each other to require them to have roughly similar rights, with a tilt towards greater privacy rights for the other?

The human person is a physically contiguous entity. It is a brain supported by various fleshy bits. It undergoes physical and physiological change. It turns 18, it dies, it gets sick. Corporations (or interest groups, unions, PACs, etc.), however, are not physically contiguous entities. A corporation is not its offices, it is not its paperwork. Corporate filing documents are descriptions of an abstraction. An incorporation statement is a recognition of the corporate entity, not the entity itself. There is no corporate entity anywhere in time or space, there is only an aggregate of mutually-interacting pieces of paper. Sometimes corporations have offices and employees, but no office is a corporation, nor is any employee or any person at all. The corporation is a conduit of market activity.

Like persons, corporations have tax liabilities, tort liabilities, reputations, places of birth, profits and losses, parents and children, and, as expressed by their boards or officers, they have political agendas. But they do not have bodies. They cannot be passengers in cars. They are ontologically radically distinct from humans – which is completely irrelevant to the question of their participation in political speech per the analysis above.

So no, when a man and his corporate papers go for a ride, there are not two similar entities sharing a car. There is only one entity, the human person driving it, because the corporate papers in his passenger seat are not themselves an entity. The corporation is much more than its paperwork. That is why the California court in this case, consistent with the rules laid down in Citizens, could reasonably say that a person riding with his corporate papers rides alone in a carpool-only lane even though corporations are “people” insofar as “person” in that specific context means nothing more than “an entity eligible for certain limited Constitutional protections.”

Is Citizens United decided rightfully? Four members of the Supreme Court, each of whom is significantly smarter than I am, think not. The majority of Americans think not. Frankly, I think not. I think that the Supreme Court exaggerated the similarity between human persons and corporate entities in a way that has proven detrimental to the very core of the democratic process. But not because PACs shouldn’t have speech rights. It is their privacy rights that bother me.

Returning to the analysis above, humans do not need to disclose the influences on their political speech, and neither do PACs. But to infer the latter’s privacy rights by analogy to the former falls prey to the very same analytic flaw that I am trying to combat, which is the popular misunderstanding that Citizens requires that “corporations are people.” Corporations are not people and that is beyond serious dispute. That is why I worry about selectively analogizing them to persons. The privacy right created by Citizens is created by analogy to human persons’ privacy rights, but the entire strength of Citizens rests completely on a discontinuity between humans and corporations, that the Constitution does not treat corporations as human persons, only that the Constitution’s ambit is broader than human persons in the first place.

Citizens makes I think a perfectly acceptable case that non-human person entities should be protected where political speech is concerned. The case that it does not make nearly as effectively, as is reflected in the considerably more vigorous dissent on this point than on the “personhood” or “person-like” point, is that non-human person entities should be protected where privacy is concerned. Sensible Constitutional jurisprudence should begin not by trying to throw as many human protections onto corporations as possible, but by completely separating humans from corporations and seeing which Constitutional protections attach to humans (certainly all of them) and which attach to corporations (only the most essential ones, and political speech is essential).

Routine follow-up to Supreme Court’s decision on Arizona’s “papers” provision hailed as ‘major victory’ for anti-immigration groups

September 7, 2012

It is something of a trope among those with an interest in a specialized field that the “mass media” or the public-at-large generally does an atrocious job of translating subtle points about that field into laymen language. I actually don’t think this is true about the law: I think that the media usually does a pretty good job of getting the basic points of legal disputes out to the public. Even with politically-charged legal disputes, such as the Obama healthcare ruling earlier this year, with all of its complicated ins and outs, I think that the reporting on it did a pretty good job of explaining to the public what the difference is between the commerce clause and the taxation power.

That is why I am so baffled whenever big, lets not call them mistakes, but maybe rather glaring omissions, occur. Such is the case with the recent Arizona “ruling” that “upholds” the key provision of Arizona’s immigration overhaul – it is being hailed as a victory for advocates of more restrictive immigration policy, but in my opinion it is less than a tempest in a teacup. District Judge Susan R. Bolton’s ruling did not really “uphold” anything (unsurprising, since she is the very same judge who’s striking-down of that provision led to the Supreme Court case that tossed out most of the law but kept this very provision intact for now), it just reiterated a pretty uncontroversial point.

That point is that, when the Supreme Court says something, you do it.

When the Supreme Court ruled on the Arizona immigration law, advocates for immigrants and their families were disappointed by the perception that the “show-me-your-papers” provision, under which Arizona officials are entitled to demand proof of citizenship during criminal stops, had been “upheld.” But it wasn’t exactly upheld: it was rather put in the category of “let’s just let this one play out, and we’ll see how the cases go once the law is in effect.”

This all starts with the question of how it is exactly that laws are found to be racially discriminatory or not. Over the last few decades, courts have consistently applied a multi-tiered series of tests that applies anti-discrimination policy to state and federal laws differently depending on the text of those laws:

  • If a law is facially discriminatory (for example, segregated schools), the government has an extremely high burden to meet: the law is presumptively unconstitutional barring a showing that the law’s discrimination achieves a very specific legitimate state interest and that its discriminatory component is more or less essential and unavoidable to achieve that interest. This test cuts against both laws discriminatory against racial minorities, and laws that favor historically disadvantaged groups. Affirmative action programs, for example, must have extremely precise, express limitations in how long they last and what quotas or statistical balances they are trying to achieve, otherwise they are unconstitutional. Such policies may not be blanket or unqualified, though race may be used as one of many “plus factors” for admission to higher education, for example.
  • If the law is not facially discriminatory, meaning that its text does not expressly designate a certain race or other protected class for unequal treatment with other such groups, then the law must have a discriminatory effect, either in how consistently it is applied (in which case a judge can keep the law and just order law enforcement to enforce it more fairly) or in its ultimate unforeseen consequences (in which case the judge will ask the legislature to rewrite the law to get at the same state interest without necessitating the unforeseen discriminatory effects).
  • If the law doesn’t serve a valid government interest, than any discrimination either on its face or in its application invalidates it.

Since the Arizona immigration statute doesn’t single out any racial group, ethnicity, or national origin in express terms, it isn’t in the first category. And since probably any court in America would find that a coherent immigration policy is a valid government interest, it doesn’t belong in the third. So we’re left with the second.

The Supreme Court followed the same line of reasoning. The second category, you’ll note, requires discriminatory effects from the application of the law. Since the law had not yet gone into effect as of the Supreme Court’s decision, they did not rule on the question of its constitutionality. That does not mean that the Supreme Court upheld the law writ large. It means that the law wasn’t presumptively unconstitutional, as the first category is, and so it could only be found to be unconstitutional in its effects – and since the law hadn’t taken effect, there were no effects to investigate!

Judge Bolton did her job perfectly – she mimicked the Court’s reasoning to a T, which is sensible given that the Court’s ruling in that case was aimed at her own ruling. Like the Supreme Court, she did not declare that, in the face of discriminatory effects, the law stands up to scrutiny anyway. Rather, she just said that we’re still waiting for the evidence. The jury’s still out, as it were.

Advocacy groups for those unfairly targeted by discrimination laws see this kind of ruling as the opportunity for what’s called a ‘test case.’ Probably what will happen is that lawyers for immigration advocacy groups will be watching the Arizona police blotter carefully for arrests under the Arizona “papers” provision once it goes into effect, then swoop in to take those cases because then the courts will have to decide whether or not the law passes the standard of scrutiny applied to the second category above.

Until then, though, nothing has been upheld, nothing decided or tossed. We are in the wait-and-see session of this law. And as with the courts, you’ll have to wait to hear this skeptical jurist’s opinion until the cases start coming in.