Based on the U.S. Supreme Court argument in the Wisconsin Gerrymandering case, I am optimistic that we may get some very much needed reform. To see why, click here for my commentary on TheHill.com.
Americans have been celebrating the reaction to Hurricane Harvey as an example of Americans taking care of each other. There is much to celebrate. But we have also wrestled for centuries with the problem of taking care of each other – the out of work, the working poor and others struggling to stay afloat.
An economic reversal in the lives of many of us is just temporary. But it does permanent damage when it unravels peoples’ lives, leaves them with debts that spiral out of control so that they cannot hope to pay, or leaves them homeless, in broken families, or housed in barred cells. When people have little, events that would be a minor inconvenience for most of us can drop them over the cliff, unable to climb back. As the Founders recognized, all of us can expect some of our offspring to be poor. So what are the options?
Welfare has been cut back but some pieces of a social safety net remain, mostly funded by the federal government. One reason they are funded nationally is because some local governments don’t want to do anything about the problems of poverty. Another reason is that the problems fall unevenly on local governments. The process of creating suburbs and new communities is a process of seceding from the places where people have problems and therefore avoiding any responsibility under our laws about local government. By shifting the obligations upward to the feds we all share those problems at least to some degree.
We could provide jobs. Instead of just giving things and money out, we could take advantage of the time, labor and skills of people who are otherwise out of work, to get some useful things done. But the city can’t save the money that goes into the social safety net because that money isn’t city money. Albany’s Mayor Sheehan pointed that out at a house party before she was first elected. Fair point. But turning welfare money over to localities would invite them to divert the cash. Some form of cooperative federalism might be better for everyone.
Public services for everyone are also an option. We have created many sorts of services that all of us have rights to. Clean water fit to drink is a lot cheaper for everyone than buying it in bottles – provided that government isn’t asleep at the switch and doesn’t let the water supply fill with lead and other poisons. Sewage systems make everyone better off than a crazy quilt of individual efforts to deal with garbage, their own and their neighbors. And it saves a lot of money both because of economies of scale and because sewage can breed disease for all of us. Roads, bridges, sidewalks, other transportation amenities, libraries, postal services and regulated public utilities like phone and electrical service make life better for everyone. And all of them make life cheaper which is especially important for the impoverished.
In other words, making some things available for all of is good for us all and are also ways of helping the least among us. That used to be true of the health care system until we privatized it, demolished the many county, municipal and not-for-profit hospitals, only to try to restore some of the benefits of a public health system with Obamacare.
Republicans call measures like that socialism. I just call it smart, efficient and decent – Americans taking care of each other.
— This commentary was broadcast on WAMC Northeast Report, September 5, 2017.
The Hill asked me to analyze the likelihood that the president could be held legally responsible for the violence at demonstrations. For my analysis click here. As the saga of Jones v. Clinton and the subsequent impeachment made clear, high profile cases can have unpredictable results.
The North was segregated after Brown outlawed segregation in 1954. It didn’t happen by private individual choices but by government decisions that blocked banks from lending to African-Americans in both the suburbs and inner cities. Those now well documented decisions created many of the inner cities’ problems and the struggle to make equality real. But who cares?
Who cares because all the proposals to fix a huge injustice, not in the distant years of slavery but now, mean paying to help “them.” It’s fine if someone else pays. But not us, not the wealthy, the middle class or the poor.
So are there answers society could adopt?
We nibble: the Fresh Air Fund, scholarships for the African-American elite, the people who overcame all the potholes and roadblocks in their way.
In 1938, years before Brown, the Supreme Court understood that the inescapable sin of segregation was the barrier to networking. Missouri was prepared to send African-Americans to any law school in neighboring states so that they would get what Missouri called an “equal” education, but not to Missouri schools. Presaging Brown, the Court said it wasn’t equal to deny African-Americans the chance to get to know future colleagues, adversaries, judges and legislators. As Brown would say 16 years later, segregation is inherently unequal.
There lies the real problem of race – any real solution involves us all. Would we put the resources into “their” schools that we put into “ours”? Would we share some classrooms? Would we allow willing parents to send their kids to our schools or would a modest program be too much for us or the racist majority on the court in Washington?
I think there will be success for African-Americans too. Fresh out of slavery, their ancestors created a system of higher education, fine colleges and universities which survive and thrive. Then they started the climb toward the middle class familiar to many of us. Many African-Americans joined the ranks of civil servants in the federal government. Government service had been a route out of poverty for many of our ancestors. But beginning in 1913, after years of progress, President Wilson excluded African-Americans from all but menial federal jobs, pushing educated and successful African-Americans out of the federal bureaucracy.
That story was repeated after World War II, after Brown v. Board, when federal officials denied that African-Americans had any rights the capitalist system need honor and instead used the federal agencies they controlled to block African-Americans from getting loans to build businesses or join the march to the suburbs. It wasn’t anything African-Americans did, but that deliberate undermining of their efforts and successes laid the seeds of contemporary inner city problems.
There are many more chapters to the story of the ways that the financial and political rugs were pulled from under potentially successful African-Americans and their businesses. The road of our African-American brothers and sisters has been longer, harder, more unjust than the ancestors of most of the rest of us because America made it so.
I was there in front of the Lincoln Memorial when Dr. Martin Luther King shared his glorious dream. That dream of equality belongs to all of us. All of us depend on the crucial American realization that all mankind is created equal. So, like most Americans, I thrilled to King’s words. And I admire the principled courage and dedication of Charlottesville’s counter-protestors. Their presence was an indication of the progress America has made, and their struggle reflects the distance still to travel. King’s dream, our dream, is still a dream.
— This commentary was broadcast on WAMC Northeast Report, August 22, 2017.
It was difficult to sit through all the sanctimonious claims of doing law by adhering to precedent by a succession of Supreme Court nominees and then read its decision in BNSF R. CO. v. Tyrrell in which the Court overruled International Shoe v. State of Washington. Senators have been grilling the nominees for years about adherence to precedent. We heard about ordinary precedent, long standing precedent, and precedent that has been used and cited numerous times.
International Shoe was decided in 1945 by legendary justices. Chief Justice Harlan Fiske Stone wrote the opinion. He was joined by Justices Douglas and Frankfurter, as well as justices Reed, Murphy, Rutledge and Burton who are less well known to the general public. There were no dissents. Justice Hugo Black concurred on the ground that the attack on the jurisdiction of the State of Washington was so frivolous it should have been dismissed out of hand. Justice Jackson was a member of the Court but recused himself and took no part. Effectively it was unanimous.
If ever a case was used and relied on it was International Shoe. Lexis, a legal database reported that International Shoe had been cited by nearly 22,000 judicial decisions at all levels of the American legal system, plus some 13,000 other sources. It showed no negative treatment.
International Shoe provided that companies could be sued either where the claim arose or where they did sufficient business to make it fair to sue them there.
Montana’s Supreme Court held that the defendant corporation could be sued in Montana “because it has over 2,000 miles of railroad track and employs more than 2,000 workers in Montana.” It other words, the company is quite busy in Montana. But the U.S. Supreme Court held that the corporation could only be sued at its home office.
In their freshman year, law students are drilled on International Shoe. Endless pages in textbooks are devoted to International Shoe. A pretty important decision indeed. But the Roberts Court didn’t like it.
Justice Sotomayor, as she often does, explained:
The majority’s approach grants a jurisdictional windfall to large multistate or multinational corporations that operate across many jurisdictions. Under its reasoning, it is virtually inconceivable that such corporations will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation. Foreign businesses with principal places of business outside the United States may never be subject to general jurisdiction in this country even though they have continuous and systematic contacts within the United States. … What was once a holistic, nuanced contacts analysis backed by considerations of fairness and reasonableness has now effectively been replaced by the rote identification of a corporation’s principal place of business or place of incorporation. The result? It is individual plaintiffs, harmed by the actions of a farflung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in distant jurisdictions with which they have no contacts or connection.
In other words, these companies are too big to lose. The more places a company does business, the further it can make plaintiffs travel. Even if plaintiffs can get to court over the hurdles placed by this Court, they will have to sue far away in unfamliar places. No barrier is strong enough to protect those companies which are already wealthy enough to give back to the society that protects them.
These cases have been decided under the Due Process Clause of the Fourteenth Amendments. The word “due” means appropriate. It is an invitation to craft a jurisprudence that maximizes fairness to the parties. But the Court has been going the other way, grounding judicial power on happenstance, not fairness.
The Roberts Court is not doing law. Instead it has its own economic policy. It doesn’t seem to have noticed that voters in both parties have been demanding populism in economic policy. But who elected the Roberts Court?
— This commentary was broadcast on WAMC Northeast Report, July 18, 2017.
In one of the last cases to be decided this term of Court, the Supreme Court described the death of Sergio Hernandez as “a tragic cross-border incident.” Indeed. I want to make clear that I care deeply about this case. Several friends and I helped write an amicus brief to the Court about it.
Sergio Hernandez was 15 years old. The Court continued, “According to the complaint,” which the Court must accept as true at this early stage of the proceedings, “Hernandez and his friends were playing a game in which they ran up the embankment on the United States side [of the Mexican border], touched the fence, and then ran back down.” Border Patrol Agent Mesa caught and detained one of Hernandez’ friends but “Hernandez ran across the international boundary into Mexican territory and stood by a pillar that supports a railroad bridge spanning the culvert” between the c ountries. At a distance – the Court wasn’t precise but the culvert was up to 270 feet wide – Agent Mesa shot and killed Sergio Hernandez though the Agent was in no danger.
Notice the issues that the District, Appellate and Supreme Courts have been “struggling” with.
First, the Court had to deal with whether the Constitution itself authorizes a remedy when Congress has not provided one for the violation of constitutional rights. In other words, do our rights exist at the pleasure of Congress? That’s known technically as the Bivens question.
Second, do foreigners have any constitutional rights or may American officials kill them at pleasure? The Court of Appeals had decided that Sergio had no rights under our Constitution.
Third, even if Sergio’s rights were violated, did the Agent have “immunity … from civil liability.” They would have immunity if “their conduct ‘does not violate clearly established … constitutional rights.” So the fourth question is whether killing foreigners across the border violates any clearly established rights?
Along the way the Court commented that some of the issues in the case are “sensitive and may have consequences that are far reaching.” Sounds like the Court was thinking about foreign relations. The Bible just says “justice, justice shalt thou pursue.”
The Court finished by noting that the case “result[ed] in a heartbreaking loss of life” but thought the Court of Appeals should think about those issues before the Supreme Court reached any final resolution about the issues in the case:
- whether foreigners have any rights that American officials are bound to respect;
- whether there is any remedy for murder;
- whether murder by a government official is a clear violation of a constitutional right?
Abroad, and we use the same term when describing behavior in other countries, people who are protected from any responsibility for the harm they do are described as having impunity. It does not describe freedom. It describes lawlessness, in countries run for crime bosses and rapacious masters.
Think now about shootings of Americans in America by police officers, shootings of Americans with their backs turned, with their hands up, with their house keys in their hands. Are we now a nation with impunity? Does freedom still live here or are too many people here forced to bow, scrape and beg those with the power to kill. If there are people who, in the language of Dred Scott, have “no rights which … [American officials are] bound to respect,” does that mean that they and we are treated like the slave in Dred Scott?
 Hernandez v. Mesa, U.S. Sup. Ct. No 15-118, decided June 26, 2017.
 Brief for Amici Curiae Legal Historians in Support of Petitioners in Hernandez v. Mesa, U.S. Sup. Ct. No 15-118.
 Deut. 16:20.
 Dred Scott v. Sandford, 60 U.S. 393, 407 ((1856).