When O’Connor Gored the Republic

Justice Sandra Day O’Connor just died. It seems poor form to criticize the departed. But she might as well have participated in Dred Scott v. Sanford, the worst decision the Supreme Court ever handed down and one of the triggers for the Civil War, because her vote was crucial to another decision just as bad. O’Connor, Rehnquist, Thomas, Scalia, and Kennedy all voted to substitute their presidential preferences for the election results in 2000. It has been standard and proper for courts to conduct recounts when elections are challenged and enough votes are at issue to change the result. The Florida Court was doing that. And they were doing it the right way – recounting the whole Florida vote by a single set of rules. But this group of so-called justices decided it was OK to take the election into their own hands lest Mr. Bush be embarrassed by the results – Scalia was quite explicit about it but there was no other real explanation.

Having taken control over a presidential election, it seemed anything was possible. And it was. The decision changed who could be nominated to the Supreme Court. We’ve been trying to have a code of Supreme Court judicial conduct but that decision was self-dealing – deciding who would be on the Court with them. In the short run it was Roberts and Alito. With Thomas and the Trump trio – Gorsuch, Kavanaugh and Barrett – this is the crew that struck down Roe v. Wade after telling Congress it was a super precedent. And it’s the crew that has been deciding, with great consistency, that there is nothing to be done about the election chicanery that allows a Republican voting minority to dominate the Democratic voting majority and turn over control of the House to a small minority even of the Republic Party and constantly threaten to close down government so that their small legislative majority could dominate despite the Democrats significant national support. That’s part of what Bush v. Gore got us. And they also made it much more difficult to prove or get relief for discrimination. If you aren’t allowed to prove discrimination, how are you going to get equality?

By installing Bush, Bush v. Gore also got us the Iraq and Afghanistan wars, ill-conceived wars based on fooling the American people about the logic. Thank you Bush v. Gore for installing a president who would start major wars that achieved nothing and installed new members of the Court who would do what Republicans could not do at the ballot box. That is the result of one crucial decision that fails to respect the political process.

This is not a court we can live with – it will instead destroy us all. That’s why I’ve been calling for tearing down everything we can about the Court – it’s budget, building, staff and the statute that let’s them control their own docket.

I have met the late Justice O’Connor. She was here for a conference I ran in 1991 and gave the keynote address. She had written a fair amount about the subject of that meeting. To some extent, she changed what she wrote about it afterwards. But her vote in Bush v. Gore has done incredible damage. She might as well have been Chief Justice Taney in Dred Scott.

— If you think I’m on target, please pass it on. For the podcast, please click here. This commentary was scheduled for broadcast on WAMC Northeast Report, on December 5, 2023.

The Innocence Project

I want to talk about people we are less used to talking about around Christmas.

Several times a year I am guaranteed to have a good cry – whenever I get the latest bulletin from the Innocence Project. Without fail they describe at length someone who spent decades in prison, sometimes on death row, for crimes they did not commit. As a human being I am always heartbroken. As an American who believes that we all have a right to liberty, I am both sick and outraged.

And once freed, what education, training or experience do they have? Did they have a chance to start a family and are any left to warm their hearts? The dislocation of freedom is immense. I’ve met men in prison afraid to come out. Those lost decades freeze the soul as they scar past, present and future. Freedom is precious. It also unravels.

I am outraged because there are too many in this country, too many with the power, to keep people in prison, even execute them, even after it has become clear that they were innocent of the crimes for which they were convicted. Justice O’Connor, bless her heart, saw that as unacceptable, although we didn’t always agree on the facts. But the Supreme Court has not yet found the character or the will to conclude that it is unconstitutional to hold an innocent person once that becomes clear, or to sit tight and deny a hearing once evidence has been found that makes it improbable that the prisoner was guilty. The Court has refused to find a right to DNA evidence when that could prove innocence. And prosecutors repeatedly do everything they can to withhold evidence that could result in justice instead of in conviction. The Supreme Court has even said that there are no penalties for withholding evidence even when it is in clear violation of constitutional obligations.

As an American, it is an understatement to say that is no source of pride. As an attorney and a human being, it is a source of disgust – and fear. A legal process that ignores justice is a threat to us all. The purpose of the Bill of Rights and of the Fourteenth Amendment is to protect us all from the abuse of law to polish the prosecutor’s reputation or prejudices instead of serving the cause of justice. Unfortunately attorneys know that the criminal process is more like a canning factory than an effort to separate the innocent from the guilty, truth from lies, and fairness from abuse.

The ACLU and the CATO Institute, otherwise often on opposite sides, come together in support of truth and accurate decision-making. But when the issue is the rights of people accused of crime or the rights of people who have been imprisoned, too many eyes glaze over, not from tears but indifference. Yet those rights, if and when they are honored, are what differentiate us from a police state where people can be imprisoned because of their politics, their parentage or their refusal to kowtow to the unreasonable demands of authorities. These are part of the central meaning of being an American.

The people whose title is Justice of the United States Supreme Court who vote most consistently to protect the right to life of fetuses are the least likely to protect life in any other context. That is hypocrisy under black robes. The behavior of callous prosecutors and unqualified Supreme Court justices is an American disgrace.

— This commentary was broadcast on WAMC Northeast Report, December 26, 2017.

Sotomayor’s dissent in Utah v. Strieff, Part II

Last time I read a portion of a dissent by Justice Sotomayor.^[1] The Supreme Court of Utah had held that the Utah police had violated the defendant’s constitutional rights. The United States Supreme Court overruled that decision. In the portion of her opinion I read you last time, Justice Sotomayor explained what happens, not always, but what often happens when police stop people. And she explained what the Supreme Court authorizes police to do. Justice Sotomayor explained the ways that stops of people regardless of innocence of any crime, let alone any crime deserving jail time, can injure decent citizens. I didn’t have time to read you the last part of her opinion, so I will read it now:

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes,^[2] many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner.^[3] But it is no secret that people of color are disproportionate victims of this type of scrutiny.^[4] For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.^[5]

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.^[6] They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

***

I dissent.

Justice Sotomayor was born in New York City to parents from Puerto Rico. After compiling stellar records at Princeton and Yale Law School, she became a prosecutor, eventually going into private practice. She spent six years as a federal judge, another decade as a federal appellate judge, and joined the Supreme Court in 2009. She writes from every angle of the criminal justice system, as an experienced prosecutor, attorney, member of the community, and judge. Her citations are to decisions of the United States Supreme Court. Before she left the Court, Justice O’Connor wrote a stinging dissent to one of the decisions Justice Sotomayor cites.^[7] She was coming to understand the enormity of what the Court has authorized. But this is the Court we have. Is this the Court we want?

— This commentary was broadcast on WAMC Northeast Report, September 6, 2016.

[1] Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

[2] [Dept. of Justice, Civil Rights Div., Investigation of the Newark Police Department 8, 19, n. 15  [2069]  (2014), online at https://www.justice.gov/sites /default/files/crt/legacy/2014/07/22/newark_findings_7-22-14.pdf.] at 8,

[3] See M. Gottschalk, Caught 119-138 (2015).

[4] See M. Alexander, The New Jim Crow 95-136 (2010).

[5] See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

[6] See L. Guinier & G. Torres, The Miner’s Canary 274-283 (2002).

[7] Atwater v. Lago Vista, 532 U. S. 318, 360 (2001) (O’Connor, J., dissenting).

Our Stake in Each Other’s Welfare

Do we have a stake in each other’s future or only in our own? That is a central question of American politics. The Tea Party’s tossing of the entire American budget into the sea over the issue of Obamacare is an effort to say no, we have no stake in each other’s welfare. To claim a stake in each other’s welfare is socialism. Although the political waters warrant silence from many elected officials about it, that same cry has been leveled and is being leveled against other American efforts to help each other. Social security, socialism. Medicare and Medicaid, socialism. Indeed, there is no logical reason to draw the line there and many don’t. National parks, socialism. Veterans’ benefits, socialism. Head start, socialism. Why stop there? Public schools, socialism. Public hospitals, government health departments and laboratories, socialism. It’s all socialism in the heads of the true believers. So let me repeat that question – do we have a stake in each other’s future or only our own?