OrCon Law

Judicial Review and the Anti-majoritarian problem.

Lawrence Solum at the Legal Theory Blog has a good post today on judicial review and the anti-majoritarian problem.  It furthers the discussion that Jim Westwood began with his July 9 blog on Judicial Review - Legitimate or Made Up?  The link is here.

Understanding Leegin v. PSKS

The Sunday Oregonian (July 8) contains an excellent summary and analysis of the Supreme Court's recent decision in Leegin Creative Leather Products v. PSKS, overturning a century of precedent in retail price maintenance under Sherman Act section 1.  A link to Laura Gunderson's article is here.  The Supreme Court's decision is here.

Judicial Review - Legitimate or Made Up?

It's an old debate - what is the basis for the doctrine of judicial review in the United States, and is it a valid one? Here's my offering on the subject. I invite comments from any and all who see this and want to weigh in. The Constitution's text implies judicial review vaguely or not at all. Article III section 2 extends "the judicial power" to "all cases * * * arising under this Constitution," and the second sentence of Article VI makes the Constitution "the supreme law of the land," but evidence from the Constitutional Convention and ratifying conventions does not support that language as a source for judicial review. Madison argued at Philadelphia that Article III specifically does not give the Supreme Court power to invalidate legislation. See Christopher Collier, Decision in Philadelphia (1987) at 269.

It was up to the antifederalist known as Brutus, in his Twelfth Essay, to warn that under the Constitution courts would use arbitrary standards to refuse enforcement to laws they thought were unconstitutional, and (presciently) that the dangerous outcome would be to "give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter." See Ralph Ketcham (ed), The Antifederalist Papers (2003) at 300.

If one argues that the Supreme Court's authority depends upon its being faithful to the spirit as well as the language of the Constitution, one needs to assume there is common agreement on what comprises its unwritten "spirit."  If judicial review is to be performed at all, that highlights the need for a Supreme Court that departs from the Constitution's literal text only in the rarest of cases - to invoke a "spirit" of the Constitution only when the Court is essentially unanimous and even then, as Alexander Bickel wrote, to think of itself as "a court of last resort presumptively only." Alexander Bickel, The Least Dangerous Branch (1962) at 258.

Assuming that an objective "spirit" of the Constitution does exist, and that the word "authority" means the Supreme Court's credibility with the American public, then the Court's fidelity to that spirit is indeed vital to its survival as a respected institution.  Chief Justice Marshall successfully invoked the "spirit" of the Constitution in McCulloch v. Maryland (17 U.S. 316, 421 (1819)) to confirm Congressional authority to charter a national bank.  Justice Harlan was less successful when he invoked a Constitutional "spirit" in his dissent from the majority in Plessy v. Ferguson (163 U.S. 537, 563 (1896)), but the Court vindicated his view 58 years later.

So who wins the debate on judicial review?  In Federalist 78, Alexander Hamilton reasoned that because a constitution must be regarded by judges as fundamental law, and because the Constitution does not authoirze Congress to be the judge of its own powers, it belongs to the judiciary to ascertain the meaning not only of Congressional acts, but also of the Constitution.  Hamilton said it is rational to view the courts as an intermediary between the people and the Congress, to keep Congress within its delegated authority.

Hamilton said it well.  Judicial review lies at the heart of a government of separated powers.  It is, in that most fundamental respect, constitutional.

An Interesting 9th Circuit Criminal Case With Judge Susan Graber Dissenting

    Fifteen 9th Circuit judges sitting en banc reheard arguments in U.S. v. Heredia, 483 F3d 913, AZ, 2007.  Judge Kozinski wrote the majority opinion, and Judge Susan Graber, joined by Judges Pregerson, Thomas and Paez dissented.

    This was a drug possession case where the issue was whether "knowingly" possessing a controlled substance with intent to distribute the controlled substance can be proven by the prosecution showing beyond a reasonable doubt that the defendant was aware of a high probability of criminality yet deliberately avoided learning the truth.  In short, the question is whether deliberately avoiding learning the truth can substitute for the statutory element of "knowingly" possessing the controlled substance.

    One might think that to "knowingly" possess something one must have knowledge that one does possess something (in this case, a controlled substance).  One might also think that if the prosecution's proof falls short of proving knowledge beyond a reasonable doubt that the defendant is entitled to be acquited.  One might also think that if this is an unsatisfactory state of affairs then one should urge Congress to amend the statute so that "wilful blindness" serves as a substitute for "knowingly" possessing.

    An activist judge, however, might believe that the "intent" of Congress can be determined and that if this intent was to make "wilful blindness" the equivalent of "knowingly" then the court should save Congress the necessity of amending the statute and simply so hold.

    Judge Kozinski's judicial reputation is more on the conservative side than on the liberal side, so his opinion that "wilful blindness" should serve as a substitute for "knowingly" in this statute, is seemingly a more activist opinion than what one would expect from a conservative judge.

    But, the Court in Heredia was deciding whether to overrule or to reaffirm, or to reaffirm in part, a decision  the Court had made in 1976 in the case of U.S. v. Jewell, 532 F2d 697 (1976).  A more conservative judge may be more inclined to follow precedent than to avoid it or to overturn it, so perhaps Judge Kozinski in this case believed that it was more important to sustain the opinion in Jewell (and do some clearing of accumlated underbrush that had grown up around the original decision) than it was to challenge the idea that a court can or should even attempt to ascertain the intent of Congress in passing legislation where the legislation contains no expresssion of Congressional intent.  After all, individual persons have mental states; the "intent" of Congress could only, at best, be an accumulation of the individual mental states of its individual members who voted on the legislation.  And, the intent of individual members could only be ascertained by their own declaration of intent, and then it would have validity for only the time at which the declaration has been made and accurately recorded, because we know that members of Congress, like the rest of us, are often changing our minds about this or about that.  Anti-activist judges don't like the idea of courts determining the intent of Congress for the foregoing and other good reasons.

    However, that is what the 9th Circuit Court did in the U.S. v. Jewell decision in 1976.  The majority of the Court there decided that "Appellant's narrow interpretation of 'knowingly' is inconsistent with the Drug Control Act's general purpose to deal more effectively 'with the growing menace of drug abuse in the United States.' Holding that this term introduces a requirement of positive knowledge would make deliberate ignorance a defense.  It cannot be doubted that those who traffic in drugs would make the most of it."

    In U.S. v. Heredia Carmen Heredia was stopped driving a car in Arizona with her two children, her mother and her aunt as passengers.  Another aunt was traveling in another car on the freeway.  There were 349.2 lbs. of marijuana in the trunk and a strong "perfume" odor permeated the car.  Heredia admitted on the stand that she suspected there were drugs in the car.  Her aunt had explained that the smell came from a bottle of fabric softener that had been spilled in the car, but Heredia didn't really believe her.  Also her mother was nervous, did not have a job, but had a lot of cash.  As Heredia's suspicions grew she passed the last freeway exit and it would have been dangerous to pull over.

    The judge gave the prosecution's requested instruction, the so-called "deliberate ignorance" instruction.
The given instruction wasn't really correct, but the Court held that it did imply the necessary elements even if it did not clearly state them and, in any event, the defendant did not object to the one given.

    The proper instruction is that "the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question, unless he actually believes it does not exist." 

    The alternative to all of this is to simply hold that "knowingly" in the statute means that the person has positive knowledge of the fact in question.  Since we can only judge what other people know by what they say or do or have done a jury can only find that a person "knowingly" possesses a controlled substance by making inferences from what a person says, does, or has done.  The point here is that "positive knowing" can be proven only by inferences from observable statements or actions.  So, why introduce this judge-made concept of "deliberate ignorance" or "wilful blindness?"  It only puts a label on another "state of mind" that itself can only be proven by inferences from the accused's statements or actions in circumstances.  Are we developing the criminal law by postulating yet another "state of mind" that can only be experienced, if at all, by the person who is having it, and can only be proven in a court of law by a confession or by inferences from statements or actions of the accused under circumstances?  Perhaps not, but we can make it easier for the prosecution to prove its case.  Because, surely it is easier for a jury to infer that there was a high probability that Heredia was aware of the marijuana in the trunk than it is for a jury to infer that she had positive knowledge that there was marijuana in the trunk.

    So, maybe for some judges, whether conservative or liberal, it's ok to be a judicial activist and look for the intent of Congress when it results in more guilty verdicts for possession of controlled substances.   And is affirming a thirty year old precedent more or less activist, where your opinion seeks to clear out a lot of the judicial underbrush that has built up, and where that opinion affirms a case where the court believed that it could and it did ascertain the intent of Congress?

    Whatever, your conclusion, I recommend to you the dissent of Judge Susan Graber.  She makes these points:

1) Congressional inaction over the 30 years since the Jewell decision is not a justification for affirming Jewell.

2) Congress before and after the Jewell decision defined the mens rea of crimes in terms of a high probability of awareness, but not by using the term "knowlingly."

3) Congress didn't make the decision that "deliberate ignorance" (based on high probability) is equivalent to "knowingly", the Jewell court did.

4) The majority here directly contravenes the principle that "it is the legislature, not the court, which is to define a crime, and ordain its punishment."

Judge Graber then writes: 

    "The mens rea-reducing Jewell instruction not only is wrong, it is also unnecessary in the face of the kind of proof that a prosecutor is likely to produce.  For example, if your husband comes home at 1:00AM every Friday...never reveals where he has been, won't look you in the eye on Fridays and puts...shirts in the hamper bearing lipstick stains, your friends will agree that you "know" he is having an affair even if you refuse to seek confirmation.  The role of a jury is to apply common sense to the facts of a given case.  A sensible jury will be persuaded that a drug mule 'knows' what she is carrying when confronted with evidence of how mules typically operate and how this mule acted - all without reference to a Jewell instruction.
Thus, I would overrule Jewell and interpret 21 USCA sec. 841(a) to require exactly what its text requires - a knowing or intentional mens rea.  If Congress wants to criminalize willful ignorance, it is free to amend the statute to say so and, in view of the several examples quoted above, it clearly knows how."

    To me, Judge Graber's dissent is neither conservative nor is it liberal - it is solid.

Detention and the Constitution

This week the 4th Circuit held that the indefinite detention of a U.S. resident alien is unlawful.  The opinion is here.   There is some powerful language in the opinion about executive power.  Here is one of the key passages:

   

For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law. Yet more than four years ago military authorities seized an alien lawfully residing here. He has been held by the military ever since -- without criminal charge or process. He has been so held despite the fact that he was initially taken from his home in Peoria, Illinois by civilian authorities, and indicted for purported domestic crimes. He has been so held although the Government has never alleged that he is a member of any nation’s military, has fought alongside any nation’s armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the Executive believes that his military detention is proper.

An Article to Feed Your Paranoia, or Inspire You to Make a Campaign Donation to Your Favorite Judge

Damon Cann of the University of Georgia posed an article today on the Social Sciences Research Network that ought to give pause to all of us who live in states that elect judges.  We can only hope his conclusions are wrong, especially here in Oregon.  The abstract tells it all: Abstract:      While federal judges are selected by appointment, many state judges are selected through competitive elections. As state judicial campaigns become progressively more costly and political, judicial candidates have turned increasingly to lawyers and law firms as a source of campaign funds. Given that contributing lawyers frequently appear in court, it is natural to wonder whether judges are more likely to rule in favor of attorneys who offered financial support to their campaign. Looking at cases from the Supreme Court of Georgia's 2003 term, I show that campaign contributions are indeed correlated with judges' decisions. Further, using a two-stage probit least squares estimator to address questions of causality, I show that the campaign contributions directly affect judicial decision making. You can read the article for free (registration required) here.

Yale Professor Bruce Ackerman's Oliver Wendell Holmes Lectures

    I recommend that you go to Larry Solum's Legal Theory Blog and scroll down to a June 02 07 entry for a link to The Living Constitution, the 2006 Oliver Wendell Holmes Lectures, by Yale law professor Bruce Ackerman.  Then use the links Solum provides and go to Balkinization Blog where Yale law professor Jack Balkin does commentary on Ackerman's Holmes Lectures.

    The central issue addressed in the lectures, writes Ackerman, is the "yawning gap between the constitutional canon of the 1787 Constitution and its subsequent formal amendments and the 'nation-centered' self-understanding of the American people."  Ackerman contends that there is an "operational" canon that consists of landmark statutes and superprecedents that now play a central role in constitutional argument and interpretation.  Examples, Ackerman argues, are the Social Security Act, the Civil Rights Acts, Brown v Board of Education and Griswold v Connecticut.

    Ackerman contends, for example, that "we must admit the landmark statute (the Civil Rights Act of 1964) into the constitutional canon and treat the history of its enactment with the same respect that we give the debates surrounding the formal Amendments of the first Reconstruction." pp. 1781-1782

    This is a carefully researched journey through American history in an attempt to demonstrate that even though over the past century there have been few changes to the Constitution (arguably because it so extremely difficult to amend) nonetheless "We the People" have spoken emphatically through Congress and through some key decisions of the Court such that the "operational" constitutional canon has undergone significant change resulting from and in our new nation-centered self understanding.

    These are thought-provoking and controversial ideas.

Posted 6 05 07 by Les Swanson
 

American Law Institute Project on Criminal Sentencing

    In May, 2007, I (Les Swanson) attended the annual American Law Institute meeting held this year in San Francisco.  A current project of the ALI is a model code for establishing criminal sentencing commissions in the states.  The model code lays out a sentencing philosophy and guidelines for establishing state sentencing commissions.

    Criminal punishment involves some important philosophical issues including the problems of "free will", "just desserts", and "deterrence", not to mention the legal and moral issues involved in capital punishment.  A couple of interesting things happened at the meeting:  1) Two members proposed that the ALI take a position on capital punishment (against) as part of the sentencing project, and 2) Michael Marcus, Multnomah County Circuit Court Judge, submitted three motions to substantially amend the body of the proposed draft of the project.

    The capital punishment motions will be filtered through the Council of the ALI (about 60 people, Hans Linde being one of them, out of about 3,000 members) and will be subjected to further debate before it is returned for consideration by the general membership.  The Reporter for the sentencing project, a law professor at the U of Minnesota opposes the ALI taking a position on capital punishment.  His reasoning appears to be that 1) A number of states who have capital punishment might disregard the new code and not consider adopting it if the code is anti-capital punishment, and 2) Besides capital punishment there are enormous problems in the U.S. concerning criminal sentencing that cry out for improvement and we should not take attention away from them and instead allow it to be focused on the very contentious issue of capital punishment.  In other words, there is a lot of good that can be done, without opening the can of capital punishment.

    Some members pointed out that the procedural defects in the criminal law process leading to capital punishment are themselves adequate reasons for opposing capital punishment, without even reaching the substantive moral issues.  One law professor said that in a recent study soon to be published it is shown that 3% of those on death row are very probably innocent of the crimes for which they were convicted.

    Judge Michael Marcus's three motions were defeated.  I will try to explain the motions and their context briefly.  First the context.  The proposed code on sentencing relies heavily on the sentencing philosophy of Norval Morris, now deceased, formerly a U of Chicago law professor.

    Morris was quite skeptical of philosophical theories and he used that skepticism to put together his own  eclectic theory that drew on various parts of the main philosophical approaches to sentencing.  He used 1) retribution theory (a person should receive his/her just moral dessert), 2) utilitarian deterrence theory (let's sentence so as to increase the overall amount of well-being in the world); 3) skepticism concerning our ability to determine just what people are responsible for and what they are not; 4) pragmatism concerning the use of internmediate sentences - for those in the 2-3 years of prison range - where we need a lot of sentencing alternatives including home monitoring, restorative justice, rehabilitation and other alternatives to a simple lock up.

    The general idea for state sentencing commissions is that representatives of the population determine by their deliberations what the appropriate "proportionality of sentences" should be between, e.g., shoplifting, robbery, and murder.  The commission also would establish minimums and maximums for each crime.  Then, within the ranges established, judges would have considerable latitude in applying utilitarian reasoning (what sentence here will most likely increase the greatest amount of well-being in the world) to determine sentences.  And, judges are encouraged to use a lot of intermediate sentencing alternatives at the lower end of the spectrum, say prison sentences of 2-3 years or less.

    Morris also believed that the principle of "parsimony" should be applied in sentencing.  That is, "no sentence should be any longer than necessary."  Because we don't really know enough about the human decision-making process to determine exactly what a person deserves or exactly what would most likely increase the amount of well-being in the world, the benefit of the doubt goes to the person being locked up.  If it is unclear whether 3 or 4 years in prison is appropriate then use the "parsimony" principle and go with 3.

    Now, to Judge Michael Marcus.  he seemed to have two principle objections to the draft of the sentencing project.  First, he objected to sentencing commissions using intuitive, more retributive (just desserts) decision-making to arrive at maximums and minimums for various crimes and for determining the proportionality of, e.g., sentences for shoplifting, robbery, and murder.  Marcus, first, wants a sentencing commission to be able to justify sentences and sentence ranges and proportionality between sentences on empirical evidence rather than on more intuitive, community, judgments. Second, he wants public safety to be the narrower goal of any utilitarian reasoning about sentencing rather than the broader goal of increasing the amount of well-being in the world.

     I agree with Marcus that where we have good empirical evidence about sentencing practices we should use it.  But, I disagree with Marcus on two points:  1) I don't believe that we have the enough empirical evidence that is scientifically valid to make the evidence we do have the primary basis for sentencing decisions. l am skeptical that the social sciences at this stage in their development are able to produce scientifically valid information that would justify  that evidence  being the driving force in sentencing decisions.   2)  Even if the social sciences were able to produce large amounts of scientifically valid  information, I  am reluctant to agree that science should drive our moral decision-making even though I do agree that  good scientific evidence, when available, should always be taken into consideration.  I suppose that means that even if science could prove that society is overall better off if murderers are sent home and required to go through extensive counseling that I would still cling to the old ways and insist that this cannot be right.

    In future blogs over the next week or so I will bring up the issue of "free will" vs. "determinism" and suggest some reading for those who are interested.  The dilemma of "free will" vs. "determinism", I believe, casts serious doubt on any "righteous" or "self-righteous" approaches to sentencing.  We just don't know enough about what people are freely choosing to do as compared to those actions that are "moderately" determined by genes, upbringing, etc. as compared to those actions that may be completey determined.
In my opinion, a judge who "throws the book" at a defendant can do so, justifiably, only if he or she simultaneously recognizes that he or she could be quite wrong about what he or she is doing, but nevertheless believes that there is sufficient justification for "throwing the book."  But, to be consistent, I must also say that for a judge to "throw away the book" and let a serious offender off very lightly, he or she should recognize that he or she could be quite wrong even though he or she believes that there is sufficient justification for "throwing away the book."

Les Swanson is responsible for posting on the blog through June 10

     Our blogmaster, Erin Lagesen, has assigned dates to members of the executive committee to post blogs over two-week periods.  Toby Graff and Les Swanson have responsibility for 5/27 through 6/10.  Toby is out of the country so Les Swanson will be posting on the orconlaw blog.  Here is what I plan to do.  Because constitutional law is so closely interrelated with political theory, ethics, politics, legal philosophy and more, I will be posting some material on the blog that will range considerably far afield from constitutional law per se.
The nice thing is that you don't have to read any of it if you choose not to.

    Today I am posting two pieces:  1) A summary of an article on Darfur from 2004 that was written by Samantha Power.  She is a lawyer and journalist who after several years in the Balkans wrote The Problem From Hell a book about genocide.  She is now an advisor to the Barack Obama campaign.  President Bush has recently imposed sanctions (fairly serious ones) on Sudan.  And Steven Spielberg and others have brought pressure on the Sudanese government to end the violence in Sudan by threatening to impede the upcoming Olympics in China.  China is Sudan's largest oil customer.  So, there is more pressure now than for some time on Sudan to accept UN troops in Darfur to strengthen the African Union troops now there, but underfunded, under equipped, and not very effective. Download DARFUR________DYING_IN_DARFUR_by_Samantha_Power.doc

2) The other piece that I am posting is a summary of an article that appeared in the NY Times a couple of years ago on abortion in the U.S.  The article was filled with interesting facts, some of which are relevant to the recent U.S. Supreme Court ruling, authored by Justice Kennedy, that did not require a "mother's health exception" to a state law prohibiting what abortion opponents call "partial birth abortions."  There have been several good articles in the New England Journal of Medicine about the impact of this decision on the medical profession.  Doctors that perform such abortions will do so at the risk of prison sentences in some  jurisdictions even if the doctor believes that the mother's health is at risk.  Apparently, if a doctor justifiably believes that the mother will die unless the abortion is performed, the doctor can go ahead with the abortion.  However, the doctor will have to be able to medically justify that decision because concern about the mother's health, short of justifiable concern about the mother's death, will not be a defense to criminal action. Download abortion_ny_times_article.doc

Removal of a religious symbol did not violate the Establishment Clause

Los Angeles County removed a cross symbol from its official seal.  Plaintiff, a county employee, alleged in a section-1983 claim that the removal of that cross conveyed hostility to Christians, thereby violating the Establishment Clause through the Fourteenth Amendment.  On May 15, 2007, a Ninth Circuit panel affirmed the district court's order dismissing the complaint with prejudice. 

The appellate court determined that plaintiff had standing because he alleged he was forced to have direct daily contact with the a-religious seal (without the cross) and thus alleged a legally cognizable injury.  "Affirmative avoidance" of an a-religious symbol is not a necessary allegation to challenge governmental action under the Establishment Clause.  "Spiritual harm" is a legally cognizable injury sufficient to confer Article III standing.  In so holding, the Ninth Circuit joined the majority of federal circuits that have addressed that issue.

The Ninth Circuit panel affirmed the trial court's order dismissing the action with prejudice on a summary-judgment motion.  The panel addressed the substance of the claim under the 3-part test in Lemon v. Kurtzman, 403 US 602 (1971) and subsequent cases.  The case was dismissed without leave to amend.

http://caselaw.lp.findlaw.com/data2/circs/9th/0456973p.pdf