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As we segue to
May, the month set aside to mark Better Sleep, Good Car Care, Photography, Salad, Eggs, and Barbecue—I kid you not—let's end April's
Convictions Poetry Slam with one last post on law and poetry.
Turns out it's the subject of
Law and Poetry, 11 Roger Wms. L. Rev. 353 (2006), by
Edward J. Eberle and
Bernhard Grossfeld, law professors at Roger Williams and Universität Münster, respectively. In addition to discussing some of the questions that
Kenji and
I explored, the article includes a number of passages mentioned here this month. To talk of Justice Harry A.
Blackmun and baseball and of Chief Justice William H.
Rehnquist and the flag, the authors add Ninth Circuit Judge
Stephen Reinhardt's
quotation of the anti-lynching ballad
Strange Fruit in n.14 of his dissent in a capital punishment case. The article continues with many more examples of ways that law influences poetry and that poetry influences law. I leave you with one such quote, from "Variations on Variations on a Theme" by
Lawrence Joseph, a St. John's law professor:
And that's the law. To bring to light
most hidden depths. The juror screaming
defendant's the devil staring at her
making her insane. The intense strain
phrasing the truth, the whole truth, nothing
but sentences, endless sentences.
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Doug, since you brought up Jeremiah Wright ... I think the biggest insult to the Obama campaign was that Wright didn't go hide under a rock somewhere. The Wright issue had just about died until Wright started jawboning on national television—he had to know that his speaking out in any way was bad news for Obama. And worse yet, what he said confirmed our worst suspicions about him—especially at the Press Club, he was arrogant, self-obsessed, mugging for the cameras and the crowd he had obviously had trucked in from Chicago to pack the hall (old community organizer's trick—if you can't count on a friendly audience, bring one with you).
Maybe his worst moment came at the NAACP speech when he spouted the discredited and silly theory that black and white children learn differently due to differences in—get this—their brains (white kids are "right-brain" dominant—object-oriented, logical, and bookish—black kids are "left-brain oriented"—subject-oriented, creative, intuitive, and chatty). In other words, you white folks like empirical evidence and books, and we blacks rely on our guts and are good dancers. Thanks, Rev—we ought to get you in touch with James Watson—you'd have a lot to talk about.
One thing is clear—Wright has totally broken from Obama and is now determined to undermine him. You'd think the he was working for Hillary Clinton. I've suggested in the past that some people might be afraid that an Obama victory would undermine their worldview and their platform—now I think Wright is one of those people.
Interesting that your shunning examples all involve religion in some way—is the real problem here not the volatile politics of race as much as the absolutism of religion? Wright cites some pseudo-research for some of his crackpot ideas, but for the most part he wraps them in Scripture—you can't fault him for his crackpot conspiracy theories and angry tirades because he's just quoting the book of Jeremiah and if you do, you're insulting, not just him, but the entire "black church" (whatever that could mean).
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I just can’t muster up a lot of outrage about Indiana’s Voter ID law. Tim is right that we have a de facto national ID now. The Indiana law is nothing like a poll tax: This law may or may not be attacking a nonexistent problem of voter fraud, but either way, it’s attacking it by requiring people to do something almost everyone would do, anyway.
Jack, I thought David—like Deborah—was saying that one of the injuries the Indiana law is correcting is the perception—warranted or not—of voter fraud. David’s point: That perception may well be in the way of other reforms to make voter registration and voting easier (example: the most commonly voiced objection to voting by phone or by the Internet is fraud—an ID requirement might address such concerns and lead to sensible reforms that would allow more people to actually vote). Whether or not any such reform would be wise, maybe it’s better that the courts stay out of this and let the political processes at the state level work.
From this perspective, it’s a bad idea for the courts to require the state to show they’ve already implemented the reforms in order to“compensate” for the burdens of the voter ID law because 1) there’s little evidence of any more than minimal burden; 2) the point isn’t that the reforms would “compensate” for the burdens of the voter ID law—it’s that the reforms would be good in and of themselves (even if they, say, make it easier for different people to vote than the people burdened by the voter ID law); and 3) the ID law may be the precondition to the other reforms: If the state had to show that it had already taken steps to ameliorate the (possibility nonexistent) burdens, then it would never be able to generate the confidence that would smooth the way for the reforms.
Another way of looking at this—maybe a formal voter ID law is better than voter eligibility requirements that are enforced ad hoc—either at the polls by overzealous poll watchers or after the fact through litigation challenging the results. The ID law makes it simple to ensure that everyone who votes is who they say they are and to check and make sure no one votes twice, thus reducing the need for other types of (often discriminatory) enforcement and cutting the legs out from under potential litigation by the losers of the election. Echoing David: Shouldn’t the Constitution allow a state to make such a trade-off, at least unless someone can show actual and significant injury in the application of the law?
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First, Sen. Obama sort of half-shunned Jeremiah Wright—the video clips don't do justice to the man's good work as I knew it; then Wright surprise-shunned Obama—he's just a politician doin' what politicians do, which prompted Obama to double-shun Wright—say what again about roosting terrorist chickens and the government's spread of HIV? Not to be outdone, Bob Novak wants the Catholic Church to shun a good chunk of the Democratic congressional leadership by excluding them from communion.
This primary has definitely gone on much too long. I know it's not over until the Howard Dean screams, but. please, must we wait until November?
Sen. Obama—let the good Rev. Wright play out the "crazy Uncle Harry" routine; in this case, you are definitely not your brother's keeper.
And Mr. Novak, "judge not lest ye be judged and found unworthy."
So, now that we have transcended the politics of race and division, what's next?
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A colleague forwarded this memo from Deputy Defense Secretary Gordon England directing the promotion of the Army, Navy, and Air Force's top uniformed lawyers—giving them an additional star and promotion to lieutenant general or vice admiral, respectively. The promotion order will take some time to process, as it must be vetted, packaged, and formally submitted by the president for the advice and consent of the Senate, but this is now effectively a done deal as far as the Pentagon is concerned.
What's interesting is that Congress mandated these promotions last year in the National Defense Authorization Act. But as Scott Horton recounts, those promotions were delayed by former Pentagon counsel William "Jim" Haynes II, who wanted to maintain the dominance of senior political appointee lawyers over the services' uniformed lawyers—exactly what Congress wanted to reverse. Haynes sought a Justice Department opinion on the matter and slow-rolled the promotions as long as he could. However, Haynes left the Pentagon a few months ago with his own star in decline. It appears that Defense Secretary Gates ordered the promotions as a way to build bridges between senior political appointees and senior military officers and a way to move past the Rumsfeld-Haynes legacy on detention and interrogation policy.
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Ooof—well, Dawn, I certainly didn't intend to leave the impression there are no differences between Indiana Dems and Republicans. And perhaps I may be granted some dispensation for having lived in the district that elected Dan Burton, R-Ind., to Congress. Repeatedly. By overwhelming margins. My, I hope far less troubling, thinking was just that if one were to put the Indiana parties on a national scale of liberal to conservative, former Gov., say, Evan Bayh, would not fall very close to, say, Ralph Nader.
But my more serious point was to raise questions about how flawed Stevens' reasoning really is here. I'd like to think my bona fides in securing free and fair elections for all are decent, particularly after having spent the last two presidential elections, for example, doing poll monitoring in blistering Florida. And I've no doubt the Indiana ID requirement will pose a burden on some voters, most especially those at the economic margin. But I read the splintered decision to leave exactly those challenges open, no?
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Oh, Deborah! Writing that there are negligible differences between Hoosier Ds and Rs, just days before our election! Last night I co-hosted a fundraiser here in Bloomington, Ind., aimed at electing a Democrat to replace Republican Mitch Daniels as governor of our Hoosier State, while we still have some remains of a government he hasn't privatized. What a blow to come home and read your words. Shades of Nader!
Sure, it's a relatively conservative state. But if this were a political blog, I would (and could) post a lengthy list of major differences between the Ds and the Rs, both among our current candidates and among our previous officeholders—including in how our state was run under our three Democratic governors who immediately preceded Daniels. (Full disclosure: My husband was part of two of those three Democratic administrations.)
By the way, I can match your story of pressure to register as an R in Indiana with my own from the blue state of New York, where I first registered to vote. In my case, they came into our high-school classes to register us all, and our teacher explicitly advised that if we ever wanted a shot at one of those coveted, cushy summer jobs working on the beaches of Long Island, we had better register as Republicans.
But this is a legal blog, so let me say a few things about the Crawford decision. First, Indiana's votes in the presidential races of the last decades are not representative. We have many very close races here—local, state, and Congress—with frequent party switches. Just one e.g.: The Indiana House was evenly split twice in the last two decades. So, Rs don't have to suppress many votes—through this excessive and indefensible ID requirement and other tactics—for it to make a difference.
Second, I recall stories from poll workers last election about how sad and outrageous and punitive it felt to have to turn away honest citizens seeking to vote. Little wonder that young people and others often feel disaffected and discouraged from participating when the atmosphere is comparable to being sent to a high-school principal's office rather than being welcomed and encouraged to participate in our great democracy.
Reading some of the reactions here in Indiana to the Crawford decision, it struck me that many (by no means all) of the people who support the court's outcome simply don't feel that way. The point for some is that they really don't want certain kinds of people to vote, that they even feel if people won't take the "trouble" to manage the logistical and financial barriers our state has erected (which pose no problem for most), then they simply don't deserve to vote. Of course, everyone is against fraud, but who really thinks this is about fraud?
Finally, at that fundraiser last night, there actually was strikingly little discussion of Crawford. Intense and heated feelings about the presidential primary of next week was soaking up all of the oxygen, and I think muting the outcry the court's decision deserves.
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Earlier this month, I wrote about a lawsuit against the government brought by the family members of Francisco Castaneda, who was refused a biopsy for a lesion on his penis while in immigration custody, and then died after having his penis amputated. The government initially moved to dismiss the suit on grounds of immunity. Judge Dean Pregerson of federal district court in California rejected that argument after some neat statutory detective work, which makes it look as if a lot of other courts have been wrong to grant the government immunity under the Public Service Health Act, which addresses medical negligence by government doctors and nurses.
Now the government has in fact admitted negligence. That could mean up to $250,000 in damages for Castaneda's family. More importantly, it shows why Congress was right not to give blanket immunity to government health care providers, as Judge Pregerson found.The doctor who treated Castaneda (or rather, apparently failed to treat him) testified that she doesn't feel responsible for Castaneda's death. But now the courts can find otherwise.
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The "facial" vs. "as applied" distinction animates the minimalism of the Roberts Court. You may remember that Chief Justice Roberts gave a speech at Georgetown shortly after his confirmation, saying that what doesn't have to be decided in a case shouldn't be. But, of course, Chief Justice Roberts also said that he would be pursuing a larger number of unanimous outcomes—an aspiration that seemed to run aground in his second term when the court had one of the highest number of 5-4 opinions in decades. But the "facial/as applied" distinction that resurfaced in the Crawford voter-ID decision and that has played prominently also in areas of abortion (Ayotte; Carhart) and more recently in the lethal-injection case (Baze v. Ky) reveals that some may have dismissed the chief's efforts at achieving unanimity, or at least greater consensus, prematurely.
As the not entirely ideological 6-3 configuration in the Crawford case reveals, pronouncing an Act of Congress or a whole legislative enactment by the states to be unconstitutional on its face is strong medicine, and for that reason, it is especially unlikely to be pursued by any member of the court inclined toward preserving the idea of a more-tamed judicial posture. Justice Stevens may be substantively liberal, but in terms of his understanding of the judicial role, he is a moderate conservative. His dissent in Bush v. Gore, after all, was about keeping the court out of the presidential election. By distinguishing between the facial and as-applied challenge, Justice Stevens satisfies both sides of his personality: He can be conservative in facial outcome by upholding the statute's general contours while preserving and signaling that he would be substantively liberal in application—e.g., in Crawford being relatively quick to find in a later case that a specific election requirement was burdensome. For somewhat different but overlapping reasons, the "facial/as applied" distinction appeals to Justice Kennedy's Hamlet personality, since he can be for and against the statute at the same time—which may sound flippant, but it in fact reflects Justice Kennedy's commitment to particularized justice. See, e.g., his separate opinion in Rapanos (indulging a multifactored analysis of navigable waters under the Clean Water Act) or Parents Involved (similarly indulging the possibility of some uses of race that are not specifically visited upon the student, but might be used to lessen racial stratification by, for example, a siting decision of where to build a new school).
It should be noted that the "facial/as applied" distinction did not begin with Roberts, though it has been more successful under him. Chief Justice Rehnquist sought to use the distinction in the context of his handcrafted doctrine of 11th Amendment sovereign immunity, but there, he was using it not to sustain legislation, but to strike it down. Consider, for example, Rehnquist's proposed use of the distinction in Tennessee v. Lane. Rehnquist would have found the ADA to be invalid under the 11th Amendment on the theory that Congress had not legislated in a congruent and proportional way to address unconstitutional state behavior in a sufficiently targeted fashion. Rehnquist was able to reach this conclusion because he conceived of the proper focus to be facial rather than as applied. In other words, Rehnquist in essence told Congress that it could not legislate more broadly than necessary. In doing its legislative work, Congress had to think of the full range of applications of the statute as against the states and not just a particular application. As Professor Vik Amar once astutely pointed out, since Congress could not tell the states that they had a duty to accommodate the disabled in a public hockey rink as well as a state courthouse, the ADA, which had language that could cover both, was facially unconstitutional, even if in Lane it was properly applied to the denial of courthouse access. Note, however, how using the "facial/as applied" distinction in this way stands the general canon of constitutional interpretation that facial challenges are the most difficult to mount on its head. Rehnquist was effectively seeking to use that facial characterization to limit congressional power more easily, not to be more deferential to it.
It is sometimes said that the jurisprudence of John Roberts is a mere continuation of the Rehnquist era. There is some truth to that. But a closer examination of how the two chiefs employ the "facial/as applied" distinction differently—with Roberts setting a narrow compass of judicial activity and Rehnquist pursuing a more aggressive, less deferential judicial role—undermines that assertion.
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90 percent of white voters in Chicago, including ward bosses, turned their back on the Democratic Party. The atmosphere of the city became divisive and hostile in ways that would be difficult to imagine ... a quarter century later.
... It became a campaign of slurs, accusations, charges and counter-charges, and a contest dominated by the issue of race. ...
I remember it well. The election took place while I was a student at Chicago's
Northwestern University School of Law, from which Washington had earned his J.D. in 1952, a time when, according to campus lore when I was there, the school was considered "progressive" for setting aside two seats in each class, one for a woman, one for an African-American. (Washington's set-aside sibling also proved her mettle:
Dawn Clark Netsch graduated magna cum laude, became a politician and Northwestern law professor, and, in 1994, became the fist woman to receive the Illinois gubernatorial nomination of a major party.) Although decades had passed, in 1983 the city remained splintered, a metropolis of ethnic enclaves circled by unseen but well-known walls. Isolation fed bitter, overt hostilities.
Emblematic of the ugliness of the 1983 campaign was a button that my relative saw worn openly on the floor of the Chicago Mercantile Exchange: Beneath the circle-with-slash that's the universal sign of "NO" was a green watermelon against a black background.
Washington's four years as mayor
—he
died from a heart attack in 1987—were landmark. The city fared as it had under other mayors. That fact of competence eroded Chicago's entrenched ugliness. And though Daley eventually did become mayor, his way of running things proved far more inclusive than that of his father.
Harold's breakthrough, moreover, inspired a generation
—not only this onetime lakefront law student, but also a man who came to the city in the '80s to
work with poor people. That man was
Barack Obama, now himself a member of Congress, now
taking his own bruising as he endeavors to repeat in the national arena what Harold achieved in Chicago.
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I hate showing ID just as much as the next guy. (Well maybe not as much as John Gilmore, one EFF's founders, who sued the federal government when he was denied boarding because he refused to show any ID.)
But as everyone knows sometimes it is background facts - i.e., not the facts of the case, but the facts in society - that drive decisions. And here, the background is the changing state of ID requirements in the U.S. Over the last 30 years or so, the US has created what is more or less a de-facto National ID card system, of mixed private and public parts, as Michael Froomkin pointed out in a 2004 paper. As the ID-requirement has spread into so many areas, like the entry of public and private buildings, it makes Indiana's law look reasonable, or at least something hard to decide on assumed facts.
So in part, politics; but in part, a battle over ID already lost long ago.
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All the justices agree that states must "balance" the benefits and costs of voter ID requirements. The benefit is reduction in voter fraud; the cost is disenfranchisement of those who cannot obtain the ID. No one explains what an appropriate balance is, and the answer is far from clear.
To see the problem, suppose that a state can choose an ID requirement along a sliding scale from zero to maximal, where zero means something like "swear that you are eligible to vote and this is the only time you are voting" and maximal means something like supplying a birth certificate and a passport and a driver's license and thumbprints and dental records and retinal scans, etc. As the state increases the strictness of the ID requirement, the risk of fraud declines but the degree of disenfranchisement increases. The question is, what is the constitutionally permissible range on this scale?
It is tempting to think that the social cost of a single fraudulent vote is equal to the social cost of a single disenfranchised voter, and so the rule should be set at the point beyond which more voters would be disenfranchised than fraudulent votes prevented. But this conclusion would be hasty. We might think that even a little fraud throws the whole system in disrepute; or we might instead worry that disenfranchising people is much worse than tolerating a little fraud.
There are more complications. Suppose you think that the majority should rule, and so if a community has 100 eligible voters, then the candidate preferred by 51 should prevail. A strict ID rule, by excluding the poor, would bias results in favor of candidates supported by the rich. But what would be the effect of an insufficiently strict rule? Would the fraudsters favor the candidate of the rich or the candidate of the poor? If you are tempted to say that fraudsters would be paid by supporters of the rich candidate, then you should have second thoughts about supporting a weak rule. A weak rule would, along this dimension, hurt the poor by making it easy for the rich to finance voter fraud.
The current debate assumes that the majority party will choose a rule that keeps the minority party out of power. But once we agree that the majority party can enact anti-fraud rules, we again need to ask how to determine when the majority goes too far. Suppose that the majority belong to the Republican party, and that an incremental tightening of the rule eliminates 10 Democratic voters but also eliminates n cases of fraud. For the new rule to be permissible, can n be 10, or does it have to be 100 or 1000? Could n be 1? Does it matter who the fraudulent voters would have voted for? If they would have voted for Republicans, and n > 10, then the move injures Republicans. Perhaps the safest assumption is that fraud would favor neither party. But its cost would still need to be quantified; otherwise, it is impossible to choose a reasonable n. And how do we quantify the cost of fraud that, because it favors neither party, has no impact on the election?
Many people say that fraud undermines voters' confidence in the system. But so what? Do voters with less confidence vote less? If both the rich and the poor, or Republicans and Democrats, vote less, then reduced confidence won't affect the outcomes of races. And how do we decide how much fraud has to occur before confidence is seriously weakened?
The fact is that no one agrees on what voting systems are supposed to do, nor does anyone really understand how much voting fraud is tolerable and how much is too much; so no one can agree on what the costs and benefits of anti-fraud rules are. Perhaps this is the real reason that the Court is signaling that it wants to have nothing to do with this problem.
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A few modest additions to the early word on voter ID. First, for all those who would prefer to insist that Justice Stevens is easily pegged as a dyed-in-the-wool liberal, the Stevens-Roberts-Kennedy opinion in Crawford v. Marion County Election Board is Exhibit Q in a long list of decisions in which Stevens, for reasons entirely his own, votes against the liberal line. (His passionate dissent in Texas v. Johnson, in which the majority rejected on First Amendment grounds a Texas anti-flag burning law, is another one that leaps quickly to mind.) The great Justice Stevens is many things, but predictably "liberal" is not one of them.
Second, on Marty's discussion of the paucity of evidence of fraud - Marty is of course right the evidence that fraud has been an actual problem is thin indeed. But I read Stevens' opinion to say that addressing actual fraud isn't the sine qua non of legitimate state interests. Rather, a state measure that promotes the perception of election fairness - whether or not fairness is actually a problem (even in a truthiness sense), or whether the measure will do anything to help the putative problem itself - is an interest itself sufficient to survive facial challenge (assuming the burdens on voters are not too great). That's the upshot of the lengthy passage from the Carter-Baker Federal Election Reform Commission findings Stevens quotes: "The electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters. Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important." And it's of course the import of the separate section the Stevens opinion devotes to the state's interest in "safeguarding voter confidence." Especially given the hit voter confidence has taken in the post-Bush v. Gore world, I admit I can't see anything wrong with acknowledging this as a legitimate state interest.
As for the burden side of the equation - how much of a burden is an ID requirement? - Stevens, relying heavily on the district court's finding of fact, concluded that he just didn't see the evidence of the statute's generally burdensome nature (although burdensome in specific cases, absolutely possible). So given a legitimate state interest and the possibility that remains of proving the law too burdensome in the next case down the road, I'm not sure Stevens was actually that far out on a limb here.
Finally, having registered to vote for the first time as a resident of Indiana (I attended a fine public high school just outside Marion County), and being asked upon registration to repeat twice (in all friendliness and sincerity) which non-Republican party I wished to associate myself with ("You want to register with what party?"), a word on Indiana politics. The Republicans are conservative. The Democrats are conservative. The difference between them is, conservatively speaking, negligible on a great many matters of state concern. Now it could well be that things have changed a lot in the past, um, number of years since I registered to vote. But I wouldn't put much stock on the view that the outcome of this particular case is likely to rock the Indiana political landscape anytime soon. For that matter, I'm not entirely sure how much a splintered Supreme Court opinion leaving open a host of other possible challenges to such laws does to change anything either - other than to launch a new wave of litigation that should keep us here at Slate occupied well beyond election day.
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David and I agree that we would like constitutional rules that would facilitate political bargains between people with different political interests; as David puts it: "if you ensure voters are who they say they are, we'll let you register more of them." But there is little reason to believe that the decision in Crawford facilitates such political bargains. Indiana's voter ID laws were among the strictest in the nation without any corresponding investment in government programs that would have made it easier for disenfranchised persons to comply with the law's requirements. It's worth noting, as Justice Breyer points out in his dissent, that the Carter-Baker commission conditioned its acceptance of voter ID laws on the requirement that states also make it very easy to obtain photo ID's and that these ID's would be issued free of charge. Doing so would help ameliorate the predictable effect of these laws acting as the equivalent of a poll tax by other means.
If you want to create incentives to achieve the sort of reforms envisioned by the Carter-Baker commission, you wouldn't want minimal judicial scrutiny of the sort the Court adopts. Rather, you would want a more searching judicial scrutiny that asked whether the state compensated for the difficulties it imposed on particular groups by creating methods of ameliorating those difficulties. Knowing that harsh laws would be struck down unless ameliorating programs were put in place would give legislatures incentives to strike precisely the sort of bargain that David favors. In contrast, the form of scrutiny the Court adopts in Crawford gives legislatures few incentives to strike such a bargain, because majorities can adopt voter ID laws that disenfranchise a significant number of voters who would vote for the opposite party without fear that the courts will strike these laws down.
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JUSTICE STEVENS announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE and Justice KENNEDY join.
That's from Crawford v. Marion County.
It reveals yet again just how influential Justice Kennedy is: He's such a swinging justice that the opposite poles now won't even let him swing.
And it reveals yet again just how fractured the Court really is. The Chief can stave off division in important cases only by deciding as little as possible. But now it appears, that approach doesn't even really work: it only gets you three, rather than nine. So much for dreams of a new era of good feelings.
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Marty nicely describes the paucity of evidence supporting Indiana's claim in Crawford v. Marion County Election Board that voter fraud is rampant in Hoosier land. After all, the Court long ago held in Croson that Richmond could not rely on experiences eslewhere to defend it's affirmative action policies. Well, if evidence of race discrimination in the capital of the Confederacy was too uncertain to count unless backed up with local studies, then why should Indiana be able to rely on the lone phony voter in Washington state to save it preferred policy from constitutional challenge?
Fair enough. But consider the other side: just how much evidence did the plaintiffs have to show that the new law would disenfranchise lots of folks? After all, the district court found that 99 percent of Indiana voters already staisfty the new standard and that there is good reason to think that the 1 percent who may not now, easily can. That could be wrong, of course, but the paucity of evidence on both sides here does suggest the reason for the Court's reluctance to decide this facially. Of course, ignorance is not always an excuse. A poll tax is hard to describe as anything other than a burden on the right to vote, no matter if there is evidence of just how many poor people it would block from going to the polls. But an identification requirement is a burden only if in practice it actually operates that way. So, one would think there would need to be a pretty substantial showing first to support a facial attack.
Plus: it's not clear that the politics of this ruling are as bad as Jack or Marty indicates. Here, the state has on its side election monitor extraordinairre - President Carter -- who chaired a presidential commission on election reform that seemed to approve of voter ID requirements as being legitimate. As Carter no doubt reasoned, it may well be much easier politically to pass real reforms to make registration easier -- which could substantilly increase voting by the now disenfranchised -- if strict anti-ftraud measures are also in place. I'd be hesitant to see this case, therefore, as a bad development for those that want to increase the voting ranks. It may instead be a precondition for freeing new possibilities in election reform that could, on net, lead to greater enfranchisement. In other words, if you ensure voters are who they say they are, we'll let you register more of them. Don't we want a Constitution that would facilitate such a trade?
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Forgive me for interrupting the conversation about the Supreme Court's decision today upholding Indiana's baleful voter ID law, which I hope will continue. But another topic for a moment: Depressing findings from the Chronicle of Higher Education. Even though well-off colleges say they're trying hard to recruit low-income students, the numbers are going in the wrong direction. At the 75 schools with endowments over $500 million, the share of students who received Pell grants, which means they come from families that make less than $40,000 a year, dipped from 14.3 percent in 2004-05 to 13.1 percent in 2006-07. The trend is the same at the 39 tippy-top richest schools: 19.6 percent of students there were low-income in 2004-05, compared with 18 percent two years later.
The time frame under study is short, to be sure. But it also matches a period in which colleges have been talking up class diversity, and in which the idea has been floated as an alternative to race-based affirmative action. The falling numbers show that well-qualified poor applicants don't submit applications in droves to the well-endowed schools, and that the schools haven't really figured out yet how to find them. A few campuses have shown that it's possible to improve at that task: The Chronicle noted schools that are exceptions to the rule because they have posted small gains: Amherst, Holy Cross, Williams, Princeton, and the Universities of Richmond and Texas at Austin. At Smith, 25 percent-plus students are low-income; at UCLA, 35 percent. What are those schools doing differently?
That's the big question, I think. I'd love to hear other people's thoughts, but my own sense is that the answer is not the big feel-good initiative that Harvard and Yale announced this winter: expanding financial aid so that it covers families that earn up to $180,000 or $200,000 a year. As this persuasive NYT op-ed points out, most schools don't have the money to give aid to upper-middle-class families (I hope that $200,000 a year still gets you into that category) as well as truly needy ones. And so, as the op-ed by former Columbia Dean Roger Lehecka points out, the Harvard and Yale move "sets an example that is likely to make it even harder for low-income students to attend the best college for which they are qualified." So forget Harvard and Yale—among the private colleges, what's Smith doing? Or Princeton or Williams or Holy Cross or Amherst?
(Cross posted at XX Factor.)
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continue reading at Balkinization . . .
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I'm just beginning to read through the opinions in today's decision upholding the facial validity of Indiana's voter-ID law. Along with many others, I have argued that the law is unconstitutional because it imposes burdens on voting without advancing any governmental interest. Thus, to my mind, the most noteworthy paragraph in Justice Stevens' lead opinion is the one in which he tries to adduce evidence of an actual problem that this law would address:
The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor—though perpetrated using absentee ballots and not in-person fraud—demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.
The third piece of evidence (Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor) is not really on point, as Justice Stevens more or less acknowledges, because it was "perpetrated using absentee ballots and not in-person fraud," and thus such a fraud scenario would be unaffected by the Indiana law. So what we are left with is (i) "flagrant examples of such fraud in other parts of the country [that] have been documented throughout this Nation’s history by respected historians and journalists" and (ii) "occasional examples [of such fraud that] have surfaced in recent years."
For the first proposition, what does the opinion cite? Only this: an anecdote about in-person voter impersonation allegedly orchestrated by Boss Tweed in 1868. And for the second—occasional "recent" examples? Justice Stevens tips his hat to the Brennan Center's showing that "much of" the evidence of such fraud "was actually absentee ballot fraud or voter registration fraud." Nevertheless, he states that "there remain scattered instances of in-person voter fraud." The evidence for this? That in the 2004 Washington gubernatorial election, a partial investigation confirmed that one voter committed in-person voting fraud.
So we have an anecdote about Boss Tweed and a single modern voter engaged in the sort of fraud at issue here. If that's the best case that can be made in favor of the law ...
[UPDATE: Much more—characteristically excellent—analysis from Rick Hasen here. On the issue I discuss above, and a terrific summary of the holding, Rick writes:
In a nutshell, the approach [of the governing plurality opinion] boils down to this: under the balancing approach of earlier cases (which the opinion says comes from cases such as Anderson and Burdick), a state needs to come forward with merely plausible non-discriminatory interests to justify an election law. The evidence need not be strong. Indeed, though Justice Stevens says that there is evidence of fraud to justify a voter identification requirement, the actual evidence he cites in the footnotes is incredibly thin—either reaching back to 1868 (footnote 11) or a single case of impersonation voter fraud found in a recent gubernatorial election in Washington state (fn. 12). Moreover, Justice Stevens says an interest in preserving voter confidence can justify such laws as well, ignoring undisputed evidence such laws are not at all likely to instill voter confidence (and could in fact do the opposite). Nor does it matter if the motivation in passing the law is completely partisan. The law is to be upheld unless "such considerations had provided the only justification for a photo identification requirement." So those with partisan motive need only find a nonpartisan pretext for such laws. Once the state has posited its neutral reasons for such a law, the law is to be upheld if it doesn't impose serious burdens on most voters. For those voters who do face serious burdens, they must bring an "as applied" challenge where they present specific evidence applied to them as to why the law is onerous. This channelling of election law cases into as applied challenges—part of a recent trend of the Court—is going to make it tough for a lot of plaintiffs who are burdened, and is in sharp contrast with the Court's approach in earlier cases, such as the Harper case striking down the poll tax for everyone, not just poor voters. The evidence in as-applied challenges must be specific and tested in litigation; as Justice Stevens says responding to Justice Souter's dissent: "Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication."
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I am disappointed by how cursory that [plurality] opinion was in its review of the state's interest in light of the highly partisan atmosphere of election administration, and I fear that, despite the Stevens-Kennedy-Roberts' opinion's best intentions, this opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections. It is a real disappointment from that perspective.
(Read more from Convictions contributors about the Supreme Court's voter ID decision.)
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Adam Liptak's article in The New York Times described America's extraordinary incarceration rate, a rate clearly outstripping that of any industrialized country. But Liptak overstates the case when he talks about the relationship between incarceration and the crime rate. He notes that, there is "little question" that the high incarceration rate here has helped drive down crime," while conceding that "there is debate about how much." He quotes former Judge Paul Cassell as saying that a "good case can be made that fewer Americans are now being victimized" because of tougher crime policies. The implication of this statement and others in the article is that while the incarceration rate may be too high, it is somehow a necessary cost of controlling crime.
While I don't pretend to be an expert in crime statistics, the relationship between crime rates and incarceration is not remotely clear and to many lead to a conclusion opposite to that of former Judge Cassell's. See The Sentencing Project, "Incarceration and Crime: A Complex Relationship." and "Lessons of the Get Tough movement in the United States." Violent crime, which increased in the 60s, has experienced a sustained declined over the next three decades, a decline which does not necessarily correlate with onerous incarceration policies, but rather with a host of other factors -- the economy, the extent to which the crack epidemic simply ran its course, community policing, demographics. In any case, incarceration rates increased not because they were somehow essential to control crime but because criminal justice issued had become politicized, fodder for political campaigns and news stories. Murder stories, for example, increased even when the murder rate decline in the 1990s.
Some have even improperly identified the federal sentencing guidelines as a cause of crime rate reduction. 54% of federal prisoners are serving time for drug offenses, according to The Sentencing Project, with only 11% for violent crime. Drug crime rates have increased regardless of the increase in imprisonment. In any event, even assuming increased incarceration contributes to the drop in crime, federal sentencing comprises only a fraction of the sentences meted out in courts around the country. And while some states have guidelines, many do not, and none have copied the federal system's mandatory approach.
Apart from the crime rate, we ought to be looking at what some have called the criminogenic effects of mass incarceration, particularly of African Americans, about which Liptak has written on other occasions. We should be considering whether the mass incarceration of African Americans, particularly for non violent offenses, has wreaked more havoc to those communities than their crimes have. Large numbers of people are reentering communities which have little or no ability to absorb them. While prisoners are not committing crime in their communities while they are incarcerated, they also are not functioning as parents, workers, consumers or neighbors. As Marc Mauer (of The Sentencing Project) reports, there are now about 1.5 million children in the U.S. who have a parent in prison: "The effect on these communities is compounded by the fact that imprisonment has become an almost inevitable aspect of the experience of growing up as a black male in the U.S." an attitude which contributes to repeating the cycle in the next generation.
In short, it is not remotely clear that the blunderbuss approach to crime -- imprisoning everyone for as long as possible -- works, much less in proportion to its considerable costs.
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Statutes of limitations reflect a reasonable concern that as time passes, evidence becomes stale and memories fade, so that at some point potentially valid legal claims should be barred. Barring valid claims just because they are old seems harsh, but the legal system has all kinds of rules that penalize people with valid claims who do not act on them promptly and carefully; these rules are needed to keep the system running smoothly. Virtually all civil claims are subject to statutes of limitations, usually in the range of a few years.
Rich says that the Supreme Court erred in the Ledbetter case by deciding that the relatively short statute of limitations begins to run at the time of the initial discriminatory act, such as a decision to give a female employee a low salary because of her sex, rather than restarting with every subsequent payment, when no discriminatory intent exists. Rich argues that the purpose of antidiscrimination laws is not to ban discriminatory intent but to ban discrimination, and discrimination continues even if subsequent bosses do not intend to discriminate but just pay wages on the basis of a pay schedule established by predecessors who did intend to discriminate. Maybe so, but a disparate treatment claim can succeed only if discriminatory intent is proved, which means that the litigation will necessarily involve evaluation of the initial act. If the purpose of the statute of limitations is to ensure that evidence is fresh at the time of trial, and a valid claim depends on proof of discriminatory intent, then the traditional rationale for statutes of limitations implies that the clock should begin at the time of the intentionally discriminatory act, and not be restarted whenever wages are paid.
It is true that it will often be difficult for victims of discrimination to discover the discrimination within 180 days of the initial act. But it is not a sufficient criticism to say that some valid claims will be barred. Courts and legislatures have struggled with this issue for centuries, and while they have developed some rules that take the edge off the harshness of statutes of limitations—for example, equitable tolling of the statute when the victim could not reasonably have discovered the injury, the doctrine of continuous tort when the activity is ongoing, and so forth—these rules are controversial and not applied in all settings because they introduce uncertainty, requiring courts to make case-by-case judgments about what is reasonable and what is not, possibly undermining the administrative values that statutes of limitations are designed to serve.
None of this is to say that the 180-day limit is necessarily correct as a matter of policy. Perhaps Congress should amend the law in order to bring it into line with state statutes of limitation for torts and breaches of contracts, which usually run for a few years. The problems of proof that arise from pay discrimination seem similar to those for a range of fraudulent acts, where an underpayment of some sort is concealed from the victim. In many states, the clock for a fraud claim does not begin to run until the violation could have been reasonably discovered. Perhaps this approach would work for antidiscrimination law. But the Ledbetter Act goes farther than this. If I read the law correctly, pay-setting discrimination that occurs when a worker is 20 years old could be litigated 30 or even 50 years later, as the statute of limitations can be restarted by retirement benefits as well as the most recent wage payment.
Opposition to the Ledbetter Act need not be based on sexism, as Dahlia claims, though she is certainly correct to mock the frivolous arguments of many of its critics. The Civil Rights Act balances costs to victims and costs to businesses. Concern for the cost to business can be the only explanation for the unusually short 180-day statute of limitations, which would continue to apply as before to discrete acts like terminations, unaffected by the Ledbetter Act, if it were passed. Presumably, the fear is that if judges and juries second-guess business decisions too closely and frequently, employers will be unwilling to make reasonable hiring, termination, and wage decisions that minimize labor costs but that are hard to justify before third parties who are confronted with claims of sex discrimination.
So one can't avoid doing a cost-benefit analysis in order to evaluate the Ledbetter Act. Would the gains for pay equity exceed the costs to business? To answer this question, one can't just say that anyone in favor of pay equity must be in favor of the act. People who care about pay equity and business costs must consider both factors.
With respect to pay equity, notwithstanding the ugly facts of the Ledbetter case itself, there is relatively little solid evidence that the 20 percent to 30 percent pay gap between men and women is due to intentional sex discrimination on the part of employers. The problem is that it is difficult to observe and measure all relevant characteristics that play a role in the setting of pay. A typical study will control for obvious factors such as age, education level, geographic location, and college major. Such a study will show that a 30-year-old female stock analyst with a B.A. in economics earns a wage about 20 percent to 30 percent lower than that of a 30-year-old male stock analyst with a B.A. in economics. Suppose, however, that the woman took time off to have a child in her 20s and stayed home with the child for a couple years before returning to work. If, as a result, she has less experience and is therefore less productive at the age of 30 than the man, it would not be unlawful discrimination to pay her less. Yet most studies cannot control for this possibility because most data sets do not include information about work experience.
A few recent studies have made progress, however. This study analyzes a data set consisting of college-educated men and women, and finds that much of the wage gap is explained by differences in experience; see also this study. Another study I have read (I have lost the link) looks at the wages of men and women who have recently graduated from college—before the experience effect can set in—and finds no difference between the wages of men and women with the same jobs. These studies dovetail with an emerging popular view that, either because of sexism or because of personal choice, women are more likely to take time off from their jobs to care for children than men are; sexism or personal choice also affects such "premarket" factors as the choice of major, and women tend to choose less remunerative majors than men do—English rather than engineering. If employers should pay people according to their qualifications, if taking time off reduces one's productivity relative to those who do not take time off, and if women are more likely to take time off for childcare than men are, women will continue to be paid less than men. If this conclusion is not acceptable as a matter of public policy, then new laws need to be enacted. The length of the statute of limitations for existing antidiscrimination law is almost completely irrelevant.
What of the costs to business? Unfortunately, these costs are also hard to measure. Businesses claim that they will be overwhelmed with litigation if the Ledbetter Act passes, but the main effect of laws that expand the rights of employees is not to create litigation but to cause businesses to change their behavior in order to avoid litigation. The only legitimate concern is that businesses will start paying workers the same amount even though their productivity differs because they fear that judges and juries will not be able to understand how productivity is determined. This would raise labor costs and hence prices for consumers; but as far as I know, no one has any idea whether these costs are high or low.
Given the tremendous uncertainty on both sides of the equation, the case for the Ledbetter Act is an uncertain one. Certainly, sex discrimination continues to occur, and as long as it continues to occur, it makes sense to give victims a legal remedy. But the implications of this observation for the statute of limitations question are, at best, complicated. If it is true that victims have trouble discovering that their wages are the result of discrimination, and employers are adept at concealing this information, that would be a better argument for equitable tolling than for the provisions in the act.
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