Agency Will Stop Treating Political Speech as Fair-Housing Violation
The California Department of Fair Employment and Housing has agreed to stop investigating citizens on the theory that their political expression in and of itself constitutes a potential violation of laws against housing discrimination. The concession came in a settlement with Julie Waltz, whom it had dragged through an investigation for publicly opposing the placement of subsidized group homes in and near her Norco, Calif. residence. A news release from the Center for Individual Rights:
During the year-long investigation, state investigators told Waltz that her speech violated state fair housing laws, requested that she refrain from her speech activities, and threatened her with prosecution. An investigator also told her that the investigation would end if she removed signs from her yard objecting to the next-door group home as well as signs posted by other people in her neighborhood. Waltz declined to remove the signs. …
Waltz was represented by the Los Angeles, CA firm of Munger, Tolles & Olson LLP, which donated its time pro bono and the Center for Individual Rights.
When it comes to trampling the First Amendment, California fair housing officials are serial offenders: in 2000 and again in 2006, CIR says, the Ninth Circuit handed down rulings restraining them from similar practices.
Supreme Court Will Hear Appeal of School Choice Case
The SCOTUS Blog reports this morning that the United States Supreme Court has agreed to hear an appeal of the Ninth Circuit’s ruling in the Arizona k-12 scholarship tax credit case. This is great news, and paves the way for the Court to ultimately overturn the 9th Circuit’s credulity-straining legal misadventure.
For the details, see the Cato brief in this case, which was joined by the American Federation for Children and Foundation for Educational Choice.
The Ninth Circuit as a Denial of Service Attack on American Justice
The Supreme Court is expected to decide tomorrow whether to summarily overturn a Ninth Circuit Court ruling, hear an appeal of that ruling, or let the Ninth Circuit’s decision stand. The case involves Arizona’s k-12 scholarship tax credit program that helps families afford private schooling, which the Ninth Circuit found last year to violate the First Amendment.
Before the Ninth Circuit handed down its decision, I predicted that it would rule against the tax credit program, and that it would eventually be overturned by the Supreme Court. The first part of that prediction came to pass, and I still expect the second part to as well. For the reasons why SCOTUS will overturn the Ninth Circuit, see Cato’s brief in the case.
Ilya Shapiro (with whom I co-wrote that brief) draws attention today to a great column by George Will in which Will likens the Ninth Circuit to a “stimulus package” for the Supreme Court. It’s a funny analogy, but it’s too benign. It’s more accurate to see the Ninth Circuit as a Denial of Service Attack on American justice. A D.O.S. is a computer attack that prevents Internet surfers from accessing a particular website/server by flooding it with spurious requests. By failing to take Supreme Court precedents seriously, as the Ninth Circuit routinely does, it creates a torrent of ridiculous rulings that demand the Supreme Court’s attention, thereby preventing the nation’s highest court from taking other important cases.
If there is a way for SCOTUS to reprimand the Ninth Circuit for spuriously consuming the nation’s most important legal resources, it would be in the interest of justice for it to do so.
Supreme Court Should Call Out Ninth Circuit in Education Case
Friend-of-Cato and 2010 Milton Friedman Prize Dinner keynote speaker George Will published an excellent column today about a case under review at the Supreme Court, Arizona Christian School Tuition Organization v. Winn:
The case concerns an Arizona school choice program that has been serving low- and middle-income families for 13 years. The state grants a tax credit to individuals who donate to nonprofit entities that award scholarships for children to attend private schools — including religious schools. Yes, here we go again.
The question — if a question that has been redundantly answered remains a real question — is whether this violates the First Amendment proscription of any measure amounting to government “establishment of religion.” The incorrigible 9th Circuit has declared Arizona’s program unconstitutional, even though there is no government involvement in any parent’s decision to use a scholarship at a religious school.
If this case hadn’t originated in a state within the Ninth Circuit’s jurisdiction, nobody would have heard about it because any other federal appellate court would probably have decided it correctly. Will correctly and convincingly argues for summary reversal — as our friends at the Institute for Justice, who represent the petitioners, request — because the Ninth Circuit’s decision ignores clear Supreme Court precedent allowing parents to choose how to direct state funds for their children’s education (to a sectarian school or otherwise):
So, [Chief Justice William] Rehnquist wrote [in 2002], public money “reaches religious schools only as a result of the genuine and independent choices of private individuals.” Therefore any “advancement of a religious mission” is merely “incidental” and confers “no imprimatur of state approval . . . on any particular religion, or on religion generally.” These standards had been developed in various prior cases.
Cato filed a brief in this case that I previously blogged about. And you can listen to Will’s Friedman Dinner address here. (Unrelatedly, if you still haven’t read his masterful Men at Work: The Craft of Baseball – which has sold many more copies than any of his political books — pick up the re-issued twentieth anniversary edition.)
The Ninth Circuit’s Controversial New Class Action Decision
The Ninth Circuit has issued its long-awaited en banc decision in Dukes v. Wal-Mart, a pathbreaking class action seeking relief from Wal-Mart for alleged gender discrimination on behalf of somewhere between 500,000 and 1.5 million women. The upshot: a 6-5 partial affirmance of one of the most questionable class certification approvals in recent memory.
The case is sparking considerable commentary: see here, here, and here, for starters. Cataloguing all the myriad questionable parts of the 135+ page decision, which range from the standard for admitting expert testimony in support of certification, to the permissibility of so-called “issue classes,” to due process restraints on award of class-wide punitive damages, would take a blog post rivaling the length of the Ninth Circuit’s own monster-of-an-opinion.
Here, though, are a few problems that pop out on first reading.
Ramming Through Radical Nominee Takes Back Seat to Ramming Through Obamacare
Senate debate on the health care reconciliation bill forced Democrats to postpone yesterday’s hearing for Goodwin Liu, President Obama’s controversial nominee to the Ninth Circuit (which covers the western states). Senate Judiciary Committee chairman Patrick Leahy accused Republicans of “exploiting parliamentary tactics and Senate Rules” — GOP senators have stopped consenting to afternoon hearings for the duration of the health care debate – to delay Liu’s appointment “at the expense of American justice.”
Nothing could be farther from the truth. Despite the postponement, Liu’s confirmation is proceeding at breakneck speed. His hearing was scheduled only 28 days after his nomination, while the average Obama appointee waited 48 days for a hearing and the average Bush appointee waited 135 days. And Senate Democrats themselves cancelled all hearings Tuesday afternoon so they could attend the ObamaCare signing ceremony at the White House.
Moreover, Leahy’s intent is not so much to urge the timely vetting of judicial nominees, but to further the government’s Blitzkrieg takeover of civil society – before the Democrats’ congressional majorities turn into pumpkins this November. As Liu stated in a January interview with NPR, “now we have the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice.”
According to Liu, that progressive vision includes constitutional rights to health care, education, housing, and welfare payments. Liu states outright that “rights to government assistance” are “essential to liberty.” He defends this contradiction by claiming that “experiences of other nations suggest that the existence of such rights is compatible with constitutionalism.”
Liu’s hearing before the Senate Judiciary Committee thus concerns much more than a seat on a federal appellate court (just when you thought the Ninth Circuit couldn’t get more radical). The Washington Post has noted that the hearing might serve as a test of Goodwin Liu as a Supreme Court nominee. With so much potentially at stake, postponing Liu’s hearing to ensure it receives the Senate’s undivided attention — and any other legal method of stopping or delaying by even one day his ascension to the bench — serves “American justice” rather than betraying it.
If You Think Obamacare Is Bad…
Today the Senate Judiciary Committee will hold a hearing for the nomination of 39-year-old Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. Liu’s confirmation would compromise the judiciary’s check on legislative overreach and push the courts not only to ratify such constitutional abominations as the individual health insurance mandate but to establish socialized health care as a legal mandate itself.
Yesterday Cato legal associate Evan Turgeon and I published an op-ed on the Liu nomination in the Daily Caller. Here are some highlights:
While Liu purports to develop an original approach [to constitutional interpretation], his nuanced methodology fails to generate a novel result. He may “suggest a more cautious and discriminating judicial role than one that is guided by a comprehensive moral theory,” but it is impossible to imagine a case in which Liu would reach a different outcome than a judge employing the (disfavored) “Living Constitution” analysis. And this is not surprising, given that the stated purpose of Liu’s scholarship is to establish legal justifications for “rights” foreign to the Enlightenment tradition on which our republic rests — those that make demands on others (unlike, say, the right to free speech, which makes no demands on anyone).
…Even more dangerously, Liu’s approach flouts the Constitution’s very purpose: protecting individual rights by limiting government power. As the branch responsible for interpreting the Constitution, the judiciary must defend citizens’ inalienable rights, such as the rights to life, liberty, and property, from infringement by government actors. Liu’s approach turns that role on its head. He views the judiciary not as a safeguard against state tyranny, but as a rubber stamp for any legislation that reflects popular opinion. And it’s a one-way ratchet: Liu would likely rule that the next Congress could not repeal Obamacare because it is precisely the kind of “landmark legislation” — to borrow progressive Yale law professor Bruce Ackerman’s phrase — that cannot be undone.
As a member of the ACLU and chairman of the American Constitution Society, it is no secret what kind of rights Liu would find justified by “collective values.” Liu lists “education, shelter, subsistence, health care and the like, or to the money these things cost” as examples of affirmative rights he would seek to establish in law — to constitutionalize beyond a future legislature’s reach.
Read the whole thing. Also read Ed Whelan’s series of posts on Liu at NRO’s Bench Memos blog. (I don’t agree with Ed on everything, but he’s doing a workmanlike job on this important nomination, as he did on Harold Koh.)
And if all the above isn’t enough, here’s Liu in the 2006 Yale Law Journal:
On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life….. Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.
As Evan and I wrote:
We don’t expect a president of either party to appoint judges who adhere 100 percent to the Cato line — though that would be nice — so we do not object to every judicial nominee whose philosophy differs from ours.
Goodwin Liu’s nomination, however, is different. By far the most extreme of Obama’s picks to date, Liu would push the Ninth Circuit to redistribute wealth by radically expanding — and constitutionalizing — welfare “rights.”
The Senate needs to understand who it’s dealing with here.
One Year After Heller
One year ago today, the Supreme Court handed down its decision in District of Columbia et al. v. Heller. The decision affirmed the Second Amendment as protecting an individual right to keep and bear arms and invalidated the District of Columbia’s draconian gun control regime.
The case generated a storm of media attention. The Cato Institute filed an amicus brief, one of nearly four dozen in the case.
The Cato Institute held a forum for Brian Doherty’s book chronicling this victory for liberty, Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. The Heller case also figured prominently in Cato multimedia from Robert A. Levy and Clark Neily.
Heller did not settle all of the questions related to the right to keep and bear arms. The incorporation of the Second Amendment against state bans and regulations is currently being litigated across the country. A three-judge panel in the Court of Appeals for the Ninth Circuit held that the Second Amendment is incorporated against the states. The Seventh Circuit and Second Circuit disagreed. Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that declined to incorporate the Second Amendment, and Roger Pilon notes that this may play into her confirmation hearings. The circuit split on incorporation sets the stage for a further appeal to the Supreme Court, and Alan Gura and the National Rifle Association have both filed petitions for a writ of certiorari. Robert A. Levy discusses this in his recent Cato podcast.
It will be interesting to see what the next year brings for the Second Amendment.
State Secrets Case Proceeds
A three-judge panel from the Court of Appeals for the Ninth Circuit ruled yesterday that the State Secrets Privilege, a doctrine barring the introduction of sensitive information as evidence, did not bar a suit by former CIA detainees. (H/T SCOTUSBlog)
The plaintiffs allege that the defendant, a contract airline associated with the extraordinary rendition program, knowingly flew them to countries where they would be tortured. The panel held that individual pieces of evidence may be subject to the Privilege, but a suit could not be entirely barred by a government assertion that sensitive information could be revealed.
This presents a split in federal circuit rulings on the State Secrets Privilege. The Fourth Circuit held that the Privilege could bar a civil suit entirely. This expansion of the State Secrets Privilege, started under Bush and continued under Obama, is a departure from the fact-specific evaluation described by the Supreme Court in U.S. v. Reynolds. “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”
As my colleague Tim Lynch has written before, the State Secrets Privilege often has little to do with keeping secrets and a lot to do with avoiding liability. All that remains to be seen is whether the Obama administration will appeal the ruling, either to an en banc rehearing by the full Ninth Circuit or at the Supreme Court.
Cato on Facebook
Cato on Twitter
Cato on Google+
Cato on YouTube
