Mirror of Justice

Judicial news . . .

The St. Thomas law faculty has produced its first federal judge.  My colleague and the friend of many MoJ-ers, Patrick Schiltz, has been confirmed to the federal district court of Minnesota.

Rob

Religion and Immigration

Here's an interesting USA Today article about the views of various religious communities on immigration. 

Jane Jacobs, R.I.P.

Jane Jacobs, the author of the prescient and hugely important book, The Death and Life of Great American Cities, died on Tuesday.  Here is one obituary; here is another.  I hope our friend Phil Bess will supply a tribute!

"Hocking the Future"

The editorial in the April 10, 2006 issue of America magazine is called "Hocking the Future."  After noting that "the United States has enjoyed an extraordinarily long period of economic growth with very little inflation," the editors express concern that "the beneficiaries of this growth have been principally the very rich.  The gap," the editors contend, "between the very rich and working-class Americans has grown."   The second problem, in the editors view, is that "both consumers and the federal government are hocking their futures to spend for the present."

This excerpt grabbed my attention:

It is now widely taken for granted that to support a middle-class family, both parents must work. While women have every right to equality in the workplace, every family also has a right to a living wage so that one parent can stay home and raise their children if he or she wishes. The high price of housing is a special stumbling block for young workers trying to move into the middle class. It has become very difficult for young families to become homeowners without the help of wealthy parents.

This is not fair. A just economic system extends its benefits to all in society, especially those most in need. If the economy itself does not do that, then the government must intervene to correct the imbalances through tax and spending programs that spread the wealth. This is simple justice consistent with Catholic social teaching.

We can agree, I expect, that -- as a general matter -- markets are not sacrosanct, that property rights are not absolute, that taxation is not theft, and that governments ought to tax-and-spend in a way that provides for the needs and respects the dignity of the vulnerable and least fortunate.  It is a big leap, though, from this tenet of "simple justice consistent with Catholic social teaching" to the very different claim that "imbalances" in wealth and the benefits of a thriving economy may (let alone must) be corrected by government intervention.  Is it really the case -- is it really "simple justice"? -- that government ought to tax-and-spend (i.e., to take money earned lawfully from some and give it to others) in order to correct for the fact that a "middle-class" lifestyle (a lifestyle that is, of course, strikingly like that enjoyed by the "upper" classes in most contexts) is now widely thought to require both parents to work?  The suggestion that "imbalances" are unfair -- and unjust -- seems just wrong.  (To be clear:  I am not taking issue with redistribution that protects the dignity and serves the needs of the poor or with the editors' observation that our economy depends excessively on advertising and status-consciousness-driven consumption).

Also, one wonders if the editors have really thought about the challenges that might attend trying to formulate policy that is consistent with their statements that "women have every right to equality in the workplace", "every family also has a right to a living wage so that one parent can stay home and raise their children if he or she wishes," and "[t]he high price of housing is a special stumbling block for young workers trying to move into the middle class."  One might think, for example (without being a bad Catholic, or indifferent to "simple justice"), that -- absent a norm that only one parent work (a norm that I would not endorse) -- a "living wage" would likely (or, could possibly) increase (or, at least, not decrease) the number of two-working-parent families, thereby increasing the incomes of those families, thereby increasing demand for housing, thereby making housing more expensive for families where only one parent works, etc. 

The Evils of "Elasticity”: Professionalism and the Part-Time Paradox

I have just posted under my name an article recently published as part of the Fordham Urban Law Journal Symposium on Professional Challenges in Large-Firm Practice, The Evils of “Elasticity”: Reflections on the Rhetoric of Professionalism and the Part-Time Paradox in Large Firm Practice.  The title comes from a wonderful text in C.S. Lewis’s That Hideous Strength (the third novel in his “space trilogy”) in which he described a young sociologist’s slide into the evil “National Institute of Coordinated Experiments” (N.I.C.E) which is plotting to submit the entire world to a totalitarian regime.  I hope I don’t overstretch the analogy, but I couldn’t resist seeing the text as a helpful vehicle to explore the deep seated cultural tensions that obstruct open, creative and productive conversations about work-life balance in large law firms.  The essay submits that lurking beneath some of the resistance to descriptions of law as a business and some of the rhetoric of loyal dedication to client service, is the evil of “elasticity,” in which the all-consuming demands of the workplace gradually corrode hope for a more harmonious and balanced life.  Based on that text, the analysis then flags the dark side of seemingly positive and constructive concepts in professional rhetoric such as “calling” or “vocation,” “commitment,” and “service.”  Unlike most of my other work, religion is something of a subtext in this piece, appearing as one of many possible anchors and guides for one’s professional life.  Thanks to many of you for your helpful comments on the draft, and especially to Mark for having me down to Villanova last fall to discuss the draft with his faculty.  Amy

The Solomon Amendment and CLS

Rob notes that the SCOTUS decision upholding the Solomon Amendment, Rumsfeld v. FAIR, was cited by the district judge who rejected the Christian Legal Society's claim not to be excluded from recognized student-group status at UC-Hastings Law School.  (Full disclosure about what follows; I sit on  advisory boards for CLS and for organizations asserting the right not to be excluded from government programs because they require statements of faith and adherence to standards of sexual conduct.)  Applying FAIR to the CLS case contravenes statements in the FAIR opinion and other associational-rights cases, and at the very least extends FAIR markedly.

(1) FAIR involved a withdrawal of federal (DOD) funding from the complaining law schools.  But Hastings withheld from the CLS chapter not just funds, but also the ability to use the school's name and to advertise to students through a host of school media (e-mail, newsletter, website, organizational fair, student information center, certain bulletin boards).  In a host of student-group decisions beginning with Widmar v. Vincent, 454 U.S. 263 (1981), the Court has treated selective denial of access to public facilities as a First Amendment burden far greater -- and subject to a stronger presumption of invalidity -- than denials of funding.

(2) The district judge inexplicably argued that CLS had not shown how being forced to open its membership and leadership to "lesbian, gay, bisexual or nonorthodox Christian students would impair its mission. Significantly, unlike the Boy Scouts in [the Boy Scouts v. Dale case, 530 U.S. 640 (2000), involving an openly gay scoutmaster], CLS has not submitted any evidence demonstrating that teaching certain values to other students is part of the organization’s mission or purpose."  This not only contradicts the theme in Dale -- widely recognized as central to that decision -- that courts should defer to an organization's understanding of its mission.  (If the Boy Scouts were held to be communicating messages about the preferability of straight behavior, how can one possibly claim that CLS is not communicating messages for "orthodox" Christianity and against same-sex conduct?)  In addition, the district judge's reasoning, by treating forced admission to membership as not that serious a burden, contradicts the following passage in FAIR where the Court noted that the law schools were only required to associate with the military to the limited extent of allowing its recruiting on campus:

Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school " ‘to accept members it does not desire.’"

The Hastings ruling pressures CLS to drop requirements for its leaders and for the members who are eligible to vote for its leaders.  How can this not threaten to affect the organization's ability to preserve its views?

Yes, I think that if the Hastings ruling stands, it and others like it would greatly extend FAIR, wiping out FAIR's limitations and qualifications.  A major attack on subsidiarity.  (Lest I be personally misunderstood, the issue here is not whether bans on religious and sexual-orientation discrimination by student groups are a good idea generally -- they are.  The issue is whether such bans must be applied to a religious group for whom for doctrinal beliefs and sexual-behavior standards are integral to its religiously based understanding, much as beliefs in environmental protection are integral to the law student Sierra Club chapter.)

Tom

The Solomon Amendment & Religious Liberty on Campus

A few days ago Rick reported on the federal district court ruling allowing Hastings Law School to bar the Christian Legal Society from using law school resources given the group's discrimination based on religion and sexual orientation.  The law school's lawyer put the cause in stark terms, arguing that the school's position is that discriminating groups "have no place on campus."  (HT: Joe Knippenberg)  What's noteworthy is that the district court had an additional tool by which to dispose of CLS's claims: Rumsfeld v. Fair (the Solomon Amendment case).  The court reasoned:

As in Rumsfeld, the Court finds that the [Hastings] Nondiscrimination Policy regulates conduct, not speech because it affects what CLS must do if it wants to become a registered student organization – not engage in discrimination – not what CLS may or may not say regarding its beliefs on nonorthodox Christianity or homosexuality.

I've gone on record previously noting the tension between the government's position in Fair and the principle of subsidiarity.  Is this new ruling evidence that Fair will have far-reaching consequences for subsidiarity whenever public funding is involved, or did the district court judge (a Bush appointee, notably) simply stretch Fair beyond its reasonable bounds?

Rob

The Constitutionality of Lethal Punishment Con't

[from Slate.com]

supreme court dispatches

Death Math
The Supreme Court tinkers with the calculus of capital punishment.
By Dahlia Lithwick
Posted  Tuesday, April 25, 2006, at 7:13 PM ET

In 1994, Supreme Court Justice Harry Blackmun famously wrote, "From this day forward, I no longer shall tinker with the machinery of death." And whatever you may feel about the merits of expressing that sentiment, there can be no doubt that a huge machine of death is what we have in this country. There are all sorts of ways we persuade ourselves that we aren't really killing the people we execute. The growing clamor about the constitutionality of lethal injection is really just about how gross capital punishment can be before it's too gross to sanction. Similarly, today's re-argument of Kansas v. Marsh is nominally a fight about jurors in "equipoise," but in fact is a fight about how dispassionate and mechanistic a sentence of death can really ever be.

Kansas is one of the states that ask jurors to determine—after a finding of guilt beyond a reasonable doubt—whether a list of predetermined aggravating factors (such as the heinousness of the crime) outweigh mitigating factors. If they do, a death sentence is pronounced. The question for the Supreme Court today is what happens when the jurors are in equipoise—when they find an exactly equal number of aggravating and mitigating factors. The Kansas death-penalty statute provides that, in those cases, "the defendant shall be sentenced to death." In other words, if there's a tie, you die. In a different case, the Kansas Supreme Court has held that this death-penalty statute was unconstitutional in equipoise situations. The Supreme Court must decide whether it's unconstitutional for Marsh.

Marsh was first argued last December, when Sandra Day O'Connor was still on the court. Presumably the reason the court is hearing a reprise is that the justices split 4-4 (again with the equipoise), and now the outcome of the case hinges on the new appointee: Justice Samuel Alito.

Michael Lee Marsh was sentenced to death for killing Marry Ane Pusch and her 19-month-old daughter. He allegedly shot Marry Ane, stabbed her, slit her throat, set the house on fire, and abandoned the baby to burn. A Kansas jury found him guilty. At the penalty phase of the trial, the jury found three aggravating factors: 1) Marsh knowingly or purposely killed or created a great risk of death to more than one person; 2) he committed the crime to avoid a lawful arrest or prosecution; and 3) he committed the crime in an especially heinous, atrocious, or cruel manner. The jury was instructed that a tie goes to the state and found these aggravating factors were not outweighed by mitigating circumstances. They agreed to a sentence of death. The question is whether a theoretical case of equipoise violates the Eighth Amendment requirement that jurors must individually assess the aggravating and mitigating factors before giving a death sentence.

Kansas Attorney General Phill "All teen sex is rape" Kline argues the state's side. He quickly realizes that his best bet is to get out of the way and let Justices Antonin Scalia and David Souter talk to each other directly.

When Kline says of the Kansas death-penalty scheme, "We default to life at about every stage," Souter stops him to say that he has trouble squaring Kline's rhetoric with Kansas' decision that "if a jury cannot find that the aggravating factors outweigh the mitigating factors, you can find death anyway." Kline has called the Kansas approach "a reasoned moral response." Souter says it's hardly reasoned or moral to have jurors say, "We're on the fence but execute anyway."

Scalia stops Souter by injecting that it is decidedly a reasoned moral response to say: "We have found these horrible aggravating factors. Three of them. We further find no mitigating factors outweigh them."

Souter spits back, "That is not our case. The mitigators are of equal weight."

Says Scalia, "They are equal in a way that doesn't predominate." It seems that the Kansas mitigators and aggravators are somehow separate but equal. Or that the justices are arguing about whether the tie goes to the runner or the tagger.

The new chief justice (who calls only balls and strikes) points out that this is "not a numerical equipoise," in other words, there aren't seven concrete units of outrage to be balanced against seven corresponding units of mercy. Jurors can give each factor "whatever numerical weight they want."

By now it's 12 minutes in, and Alito finally speaks. What he says is either a question or a haiku, having to do with the difference between jurors' moral burden and their psychological burden. The point may be that the aggravating and mitigating factors alleviate the psychological burden of ordering an execution by making it look like algebra.

Kline says he doesn't believe that happens, reiterating that "the default is to life." Alito corrects him, "If the aggravators and mitigators are in equipoise, the default rule is death."

Justice John Paul Stevens (and in case you haven't heard it yet … here's some traveling music) asks whether Kansas could enact a law that would require mitigating factors to "substantially outweigh the aggravating factors." Justice Stephen Breyer says if the jury is indeed "in perfect balance, give me one moral reason that he should be executed." When Kline starts to say, "The law clearly provides …" Breyer stops him: "I don't want you to be a lawyer. Be a juror. What is the moral reason?"

Justice Anthony Kennedy has one. He says that "the scale is already tipped. [The defendant] stands before us having committed aggravated murder. He has the obligation to show us [mitigating facts]. He has not done so." Kennedy, at least, is not in equipoise.

Rebecca Woodman of the Capital Appellate Defender Office argues on Marsh's side. Roberts asks her how realistic it is to attempt to quantify "these abstract concepts like how much mercy." He wonders how you can quantify the "particularly heinous" nature of this crime in which "he slashed her throat and left her toddler to burn" and say it "exactly comes up to the level" of mitigating factors. He asks, "Is there any reason to think jurors come to balance such inchoate concepts?"

Woodman says jurors do just that, "in close cases." She offers (Doppler radar warns of horrible metaphor storms) a curious example of a wealthy woman hoping to "donate a million dollars to Yale Law School."

Scalia cracks up the room by asking, "Is that an aggravating circumstance?"

But Woodman goes on and at some length about how this hypothetical woman can't choose between two different portraits of her husband to hang on the walls of Yale, and she agonizes because she can't choose. And then some other stuff happens. And then she decides to let the dean choose which portrait to hang.

At the last oral argument in Marsh, Woodman talked about "yoking a live horse to a dead one to form a plowing team …" Maybe somebody should endow a metaphor clinic at Yale Law School instead.

Roberts probably isn't a likely donor, but he gently points out that Woodman's metaphor sucks. He says, in case we missed it the first time, "He is guilty of allowing a 19-month-old to burn to death and slashing the throat of her mother. … I can see thinking two portraits are indistinguishable. I can't see jurors saying 'I can show a lot of mercy or a little mercy, or just enough mercy to be in perfect balance.' "

Roberts is, of course, right. A regime asking jurors to "weigh" or "balance" a clutch of random intangible evils (heinousness of the crime, planning of the crime, whether the crime was done for pecuniary gain) against a clutch of random intangible mitigators (the defendant was dropped on his head as a baby, the defendant is the prison's Scrabble champion) is demented. It's not just weighing apples against oranges. It's a way to make a decision to kill or not kill look like a math problem with one right answer.

Woodman's position is that in the rare cases when a jury finds itself at a 50/50 split on those factors, is not reasonable to call their conclusion a decision. It's a not-decision, and that shouldn't lead to death.

It's awfully rare to hear a Supreme Court argument in which the word "moral" comes up as often as it does today. And in the end, this decision will turn on what "moral" really means to each justice. Scalia thinks its moral for the people of Kansas to decide that equipoise equals death. Souter says that a moral judgment that leads to the death penalty should have the clarity of an either/or decision, not a tie. Breyer, Breyer-like, suggests that you can either see it one way, or the other. But Roberts is right, I think, when he says that all this painstaking counting and measuring of aggravating and mitigating beans simply complicates the hard, messy work of putting someone to death.

Dahlia Lithwick is a Slate senior editor.
_______________
mp

Perry and Garnett on Roper

Michael beat me to the punch, posting a link to his new paper on the role of the Court in protecting constitutionally entrenched human rights.  Michael and I have had several engaging and interesting (to me, anyway!) conversations and arguments, via e-mail, about the piece, and I commend it to everyone's attention.  Michael also referenced a post of mine regarding the Court's decision in Roper.  That post, called "Two Cheers for Roper v. Simmons," is here.  Here is what I wrote:

Like Susan, I oppose -- although, I admit, with some mixed feelings -- capital punishment.  And so, like Susan, I am pleased by the fact that, as a result of the Court's decision today in Roper v. Simmons, no jurisdiction in the United States may impose the death penalty for crimes committed by persons under 18.  Still, I am unable to avoid feeling some disappointment over the ruling.  In my judgment, the reasons offered by the five-Justice majority for overruling the Court's earlier decision (Stanford v. Kentucky) permitting States to execute 17-year-olds who commit capital crimes are both weak and troubling. 

To be clear:  the result of today's ruling accords with my policy preferences and, I believe, with morality.  Still, it is not plausible to me that the 8th Amendment to the United States Constitution prohibits the people of a particular State to decide, through their elected representatives, that some 17-year olds are capable of committing and intending acts that warrant capital punishment.  That is, it is not clear to me that the five-Justice majority was constitutionally authorized to deliver this result -- even this happy result -- to me and those who agree with me about the death penalty.   Nor am I persuaded that the practices of, and changes in, other countries -- invoked admiringly by the majority -- are relevant to the meaning and application of the 8th Amendment's ban on "cruel and unusual" punishment.

A few years ago, I voiced similar reservations about the Court's decision in Atkins, which prohibited, on constitutional grounds, the execution of developmentally disabled persons:

I like this result. It strikes me as humane, if not democratic. I would vote for it as a legislator and campaign for it as an activist. But I also live under a Constitution. And I am quite convinced that my likes and dislikes are irrelevant to the question of whether the Eighth Amendment to the United States Constitutions forbids those who disagree with me from enacting and enforcing laws that reflect their likes and dislikes. . . .

None of this is to deny that, in many respects, our constitutional regime is "counter-majoritarian" with respect to fundamental individual rights. And I see no reason to disagree with [the] statement that "the basic concept underlying the Eighth Amendment is nothing less than the dignity of man." Still, our Constitution quite clearly reflects the judgment — one with which good and reasonable people can disagree — that capital punishment is, or at least can be, consistent with that dignity. The death penalty, then, is a problem whose resolution is left to the public square, not the courtroom.

To paraphrase my friend Michael, I think this post goes in the "Rick Garnett is Right About the Constitution and Capital Punishment (Among Other Things)" file.  =-)

Funding Discrimination at U. Wisconsin

In reaction to Susan's post about the University of Wisconsin refusing to include the Catholic group in student-fee funding:  If the University allows student fees to go to a wide variety of student groups (as I'm sure it does), then there is a very strong argument that excluding the Catholic group violates the First Amendment by discriminating based on viewpoint.  In Rosenberger v. University of Virginia, 515 U.S. 819 (1995), the Court held that it was unconstitutional to exclude an evangelical magazine from a wide program of student-fee-based funding of publications based on the fact that the magazine "manifested a belief in (or about) a deity."  After Rosenberger, school officials and funding opponents tried to argue that the case was limited to a publication that expressed views on cultural/political/social matters from a religious viewpoint, and that cases involving actual religious activity like worship and evangelism were different (because religion there was assertedly a different subject matter altogether, not a different viewpoint on cultural/political/social matters).  Without knowing the particulars, I imagine the UW officials may be asserting such a distinction here.  However, such arguments were severely shorn down by Good News Club v. Milford Central School, 533 U.S. 98 (2001), which held that a private after-school program of Bible memorization and Christian teaching and singing fit within a forum of "moral and character instruction," and thus for an elementary school to exclude it from classrooms was improper discrimination based on viewpoint rather than permissible discrimination based on the forum's subject matter.  Good News and Rosenberger together show at least that the Court will be very skeptical of claims that religious worship is different and can be excluded from a forum that allows or funds expression on a wide basis according to some quite general criterion.

Although I don't know the University's precise criterion for student-fee funding, it seems pretty likely to me that both "Lenten materials" and "evangelical activity" (as the AP story mentions) contain elements of reflection on life from a Catholic viewpoint, just as other funded materials reflect on life from other viewpoints.  One reason to assume that the UW has a broad underlying criterion is that only a few years ago in Regents of U. Wisconsin v. Southworth, 529 U.S. 217 (2000), the Court accepted the UW's claim that it had a wide-ranging public forum for student-fee-based funding, as a predicate for rejecting conservative students' objection to having portions of their fees go to groups they opposed.  Given the UW's successful arguments in Southworth, its desire to exclude "religious activities" as too controversial to include in funding looks ironic (to put it charitably).

Tom