The ACRU Blog

ACRU Senior Fellow Ken Blackwell will be on the Roger Hedgecock Show on May 30 at 6:30pm ET. He will be talking about the California Gay Marriage ruling and the push for a constitutional amendment. If you are in the San Diego area, tune into 600AM KOGO or listen online here.

Recent comments by Senators Leahy and Schumer critical of Justices Roberts and Alito demonstrate the senators' significant misunderstanding about the role of the Supreme Court and reveal their own flawed judicial philosophy.

According to Senators Leahy and Schumer, Justices Roberts and Alito misled the committee during their respective confirmation hearings regarding their willingness to uphold the traditions and precedents of the Supreme Court. Nothing could be further from the truth. Actually the Justices have been fairly incrementalist and supportive of judicial precedence in their approach to interpreting constitutional law.

Executive Summary:

Judge Munley has ruled (AP: "Judge strikes down Hazleton's illegal immigrant law,") that local ordinances to protect munincipalities of bearing the cost of illegal immigration, like the one in Hazelton, PA, re "preempted by federal law." This is flatly contrary to prior decisions of the Supreme Court. The driving force behind the appeal of this case, and a similar decision by another federal judge against ordinances of Farmers Branch, Texas, will be future harms to the American citizens who live in those towns. There will be more rapes, robberies, assaults and murders of citizens by illegal aliens. There will be more injuries, damage and deaths from illegal aliens who are driving without licenses, without insurance, and often, while drunk. The citizens of those, and other towns, which are being overrun by illegal aliens, will rightfully blame this death and destruction on the federal judges who have, so far, stripped the local governments of the power to protect their own citizens -- which is the first duty of all local officials, everywhere.

The Honolulu Advertizer has picked up my latest Op-Ed. Here it is:

Three noteworthy cases on 9th Circuit docket

The 9th Circuit Court of Appeals is proving itself once again to be a powerhouse among the circuits. And based on some of the cases that it will decide this year it might actually edge out the D.C. Circuit as the most influential circuit court in the nation.

With its headquarters in San Francisco, the 9th Circuit is the largest of the 13 courts of appeals, and this term there's a lot happening. Three of the cases awaiting final disposition by the 9th Circuit are quite noteworthy. And depending on the outcome, they could literally change the world.

Dear Senator Specter,

I am writing to you as the Ranking Republican on the Judiciary Committee. It's useless to write to Chairman Patrick Leahy, because his views are the same as a minority of the Supreme Court Justices -- whatever outcome in any case benefits the Democratic Party is fine with him, regardless of what that does to or with the US Constitution.

You, at least, say that you are interested in accurate analysis of the constitutional issues presented. I've read a couple of your books and I must say that your scholarship, except in the area of Scottish law, leaves a great deal to be desired.

But, let bygones be bygones. Today's issue is the incompetence of the press in dealing with the issue of habeas corpus and its application, or not, to the prisoners at Guantanamo. I'm sure you'll be hit with questions about that. And it would behoove you to know what you're talking about, better than the editors at the New York Times, to choose an example not entirely at random.

If, so, read on. Here's an explanation of that very subject in words of one syllable or less:

WASHINGTON -- The U.S. Supreme Court just ruled on an affirmative action case involving a Seattle school district. The ACRU supports the challenge to the school district's race-based student assignment plan. In Parents Involved in Community Schools v. Seattle School District No. 1, the school district argued its decision to use race is entitled to deference, a presumption of correctness before the law.

ACRU Senior Fellow and constitutional law expert Horace Cooper said that, "The Supreme Court today barred school assignment plans that take account of students' race. It is a shame that more than 50 years after Brown v. Board of Education was decided by the Supreme Court, school districts are still struggling with whether or not to race or skin color should influence the decision of where children attend school. Today's ruling narrowly upheld the colorblind principle that all Americans regardless of race are equal under the law. But there's clearly more work to be done until at least 5 members of the Supreme Court acknowledge that just as our Constitution is colorblind, our public schools should be as well."

Horace Cooper is a writer, legal commentator and was a visiting assistant professor of law at George Mason University. He also has been Counsel to the Honorable Richard K. Armey, Majority Leader of the United States House of Representatives from 1994 to 2002. Horace Cooper is a Senior Fellow with the National Center for Public Policy Research and the Centre for New Black Leadership. He has held senior appointed positions in the presidential administration of President George W. Bush.

The American Civil Rights Union (ACRU) is dedicated to protecting our fundamental rights and liberties across the board. The ACRU focuses, in particular, on those areas of our civil rights which are ignored, or even actively undermined, by other supposed civil liberties groups. These include property rights, freedom of religion, equality under the law, the right to keep and bear arms, individual liberty and federalism. The ACRU also supports freedom of speech and of the press, sound principles of criminal justice, and proper voting processes and procedures, among others.

American Civil Rights Union
CONTACT: Audrey Mullen for the American Civil Rights Union,
+1-703-548-1160

Conservatives have been fighting to reverse a liberal activist Supreme Court since the 1968 Nixon campaign. Now, almost 40 years later, we are on the verge of success. But have we lost interest?

The current court is very finely balanced between conservatives and liberals. There are 4 solid conservatives on the court, Antonin Scalia, Clarence Thomas, John Roberts, and Sam Alito. There are also 4 solid liberals, John Paul Stevens, Ruth Bader Ginsburg, David Souter, and Stephen Breyer. Then there is Anthony Kennedy, who keeps wandering back and forth, with the outcome of every ideological case dependent on his whims.

Conservatives have already begun winning key cases in both the Supreme Court and lower courts. School vouchers, even for religious schools, have been upheld as constitutional. The Supreme Court recently upheld a Federal law banning partial birth abortion, even though the High Court and the lower courts had consistently struck down all previous bans. In 2000, the Supreme Court ruled that the Boy Scouts have a constitutional right to choose what values they want to uphold and promote, and can choose to hire only those who represent those values. Consequently, the Scouts cannot be found to have committed illegal discrimination in refusing to appoint openly gay Scoutmasters. The DC Circuit Court of Appeals also recently ruled that the Second Amendment really does protect an individual right to keep and bear arms, just like it says.

By April 20, 2009, ultraliberal John Paul Stevens will be 89 years old. He is unlikely to survive the next President's term on the court. If he is replaced by a true conservative like the other 4, the balance of the Court will shift decisively to the conservatives.

In addition, Ruth Bader Ginsburg looks every one of her 74 years and is reportedly in ill health. Before the end of the next President's term, she will be 80 years old. The next President will likely replace her as well. If another solid conservative is appointed, that would make 6 conservatives, 1 wandering moderate, and 2 liberals.

What an enormous victory for conservatives that would be. In addition to the social issues, this will make a big difference as well on such economic issues as property rights, including intellectual property, tort reform, business regulation, further school voucher cases, and others.

But are the conservatives still paying attention? They seem confused, disoriented, and diffident regarding the next election. They need to be focused on getting a President who will make appointments like Alito and Roberts, or even Scalia and Thomas. They also need to be focused on getting a Senate that will confirm them.

Monday's divided (2-1) decision by the Fourth Circuit Court of Appeals is wrong in a number of serious ways (see "Federal appeals court rules against enemy combatant policy"). It refers to "enemy combatants" without knowing what that phrase means. It ignores a 1942 unanimous decision of the US Supreme Court which decided a similar case the way the dissenting judge would have decided this one.

"Enemy combatants" simply means enemy soldiers. When captured, enemy soldiers can be held for the duration of the war, without any charges, trials or access to lawyers. So say the Geneva Conventions, the Hague Convention before them, and the Law of War which preexisted the government of the US, and which was incorporated into US law in 1789 in our first military code.

"Illegal enemy combatants" are those who don't wear uniforms, are not in military units, and hid among civilian populations. Such "illegals" have always been subject to military (or "drum-head" trials and prompt execution, if not simply execution on the spot. Witness the hanging of Nathan Hale as a spy by the British in Manhattan. Witness the hanging of Major John Andre, (Benedict Arnold's contact who was in civilian clothes and behind enemy lines) in New Jersey.

For legal approval of such actions, see the 8-0 decision of the US Supreme Court in the Quirin case in 1942. It concerned two groups of four each who came on shore from German submarines, in civilian clothes, with money and plans to blow up various military facilities in the US. They all called themselves Germans, but one and possibly two of them had acquired American citizenship as children.

The Supreme Court upheld the military tribunal trial of all eight, six of whom were sentenced to death. The Court ruled that it was irrelevant that one or two of them were American citizens, because they were "illegal enemy combatants."

The final, gross error of the press coverage of such trials today is that the Court ruled unanimously that the eight defendants in 1942 were all entitled to the writ of habeas corpus. That is exactly how they obtained their Supreme Court review. That writ remains available today. What is NOT available today, because Congress and the Supreme Court both say it is not available, is the full dress application of US civil and criminal law. And unless the entire Fourth Circuit and the US Supreme Court are willing to overrule the Quirin case from 1942, today's decision will be thrown out on appeal.

Here's my latest op-ed, published in today's Washington Examiner (though they spelled my name incorrectly):

WASHINGTON - A review by Adam Cohen of a new book, Supreme Discomfort: The Divided Soul of Clarence Thomas, appeared earlier this week in The New York Times.

The review demonstrates that neither Cohen, nor the authors of the book, nor the editors of The Times have a clue about what it means to have a constitution and how such a document operates.

The review began with Cohen getting his knickers in a twist over the fact that Justice Thomas does not ask questions during oral argument. It suggests that he might be ignorant of the case, might have his mind made up or might have contempt for the process, according to Cohen.

Anyone who is experienced in practice before the court knows this dirty little secret - oral argument is just for show; cases are almost always decided on the written pleadings. The only debate that matters is the one behind closed doors on Friday morning when the justices "conference" and decide all cases argued that week. Present are just the justices, no clerks or other staff.

Regarding the two Washington Post reporters who put together this book, Cohen writes, "They offer a wealth of insight, but they have no answer to the central enigma [Thomas] poses: Why the justice who has faced the greatest hardships regularly rules for the powerful over the weak, and has a legal philosophy notable for its indifference to suffering."

Think about that statement. There have been a few societies in which judges were expected to decide cases on the basis of the social position of the parties rather than follow the law.

One of the earliest was during the French Revolution. Those on the wrong side of the law then were fed to the guillotine. A more modern example is the former USSR, in which certain classes of people were "parasites," and were left to starve, or in better times, shipped off to Siberia.

The point this review utterly misses is that the Constitution is, as it says in its text, "the supreme Law." And as Alexander Hamilton, John Jay and James Madison wrote in The Federalist, the Constitution must be the supreme law, or it could be nullified by state or federal laws, or have different meanings in different parts of the nation.

The review refers to Thomas' views as "far right," but for some odd reason does not refer to the views of Justice John Paul Stevens as "far left." Both labels, however, are misleading when applied to justices on the court.

Instead, the proper question is which justices obey their oaths of office. All justices swear to obey and enforce the Constitution. That means following the Constitution wherever it leads. That is quite the opposite of saying, "Who do I want to win this case, and how must I rewrite the law or bend the Constitution to get that result?"

The review ends with this statement, "America will be a much less just place if Justice Thomas's life experiences and moral truth start to shape the court's agenda - and the nation's."

No one who understands the role of law in the U.S. would write such a statement, nor would any competent editor allow it to be printed unchallenged. America is a "just place" only when everyone obeys the law. And the Constitution contains no exception that places justices above the law.

Cohen, the book's authors and The Times editors might prefer that justices be above the law, and be able to revise the Constitution as they wish (as long as their kind of justices are in control).

But that's not what the Constitution says. Amendment belongs only to the people, as specified in Article V. I guess the editors at The Times didn't read that part of the Constitution, either.

John Armor practiced in the U.S. Supreme Court for 33 years and currently serves as counsel to the American Civil Rights Union.

Uttecht v. Brown, Case No. 05-413, 2 June 2008:

Justice Stevens, joined by Justices Souter, Ginsberg and Breyer, claimed in Dissent that the Court is "violating" its own prior cases, by allowing a trial judge to exclude a juror who expressed opposition to the death penalty, in a death penalty case. The Dissent made clear the belief by these four Justices that every possible step to prevent a jury from imposing
a penalty of death, should be taken.

Note this incredible statement in footnote 1 of the Dissent:

"The Court opens its opinion with a graphic description of the underlying facts of respondent's crime, perhaps in an attempt to startle the reader or muster moral support for its decision. Given the legal question at issue, and the procedural posture of this case, the inclusion of such a description is, in my view, both irrelevant and unnecessary.... 'It is not for this Court to decide whether [the Defendant] deserves to die.'"

Well, how much did Justice Kennedy say about the Defendant, for the majority in deciding the case? He wrote:

"Respondent Cal Coburn Brown robbed, raped, tortured, and murdered one woman in Washington. Two days later, he robbed, raped, tortured, and attempted to murder a second woman in California. Apprehended, Brown confessed to these crimes and pleaded guilty to the California offenses, for which he received a sentence of life imprisonment. The State of Washington, however, sought the death penalty and brought Brown to trial."

The case concerned the dismissal of a single juror (Juror Z) based on the trial court's examination of the attitudes of that juror about imposing the death penalty. Juror Z said he thought the penalty should be applied, when the defendant "might be released, and might reoffend." In this very case, the jury's only choice was to impose the death penalty or life without parole. He would never be released.

This fact reveals the hypocrisy of the four Justices in Dissent. They want to maintain the pretense that states may impose the death penalty for particularly bad crimes. But at the same time, these four want to force onto juries at least one juror who will vote against that penalty, so the penalty is available in theory, but in fact it disappears.

This also explains why these four Justices - Stevens, Souter, Ginsberg, and Breyer - object to a factual statement in the Opinion of what this Defendant did, which caused the imposition of the death penalty. These four Justices have contempt for the law, when it is established by legislators who disagree with these four about execution of heinous criminals. But they don't want the public to see clearly what they are trying to do, with and to the Constitution, in order to oppose the death penalty.

In one of yesterday's entries ("The Most Dangerous Branch, cont'd"), I argued that the courts are chipping away -- when they are not discarding wholesale -- policy judgments properly left to the elected branches. The particular focus of my entry was a case my colleague John Armor had mentioned, Smith v. Texas. There, the Supreme Court, by a one-vote margin, overturned for the second time a death sentence that a unanimous jury had imposed for a particularly grisly murder. I argued that the Court's decision said less about the the propriety of the jury instruction on mitigation (which was the majority's ostensible focus) than it did about the courts' -- and especially the Supreme Court's -- increasing inclination simply to paste into the Constitution the social and legal policies it prefers.

Among the policies currently in vogue, at least with the Court's liberals, is a strain of deep skepticism about the death penalty. As I noted, this skepticism persists notwithstanding that the death penalty enjoys overwhelming public support -- slightly better than two-to-one -- and has been part of American law virtually since the founding. And it's not just that the death penalty enjoys broad support among voters; it's that historically, it has enjoyed even broader support among judges. Our country has had 112 Supreme Court Justices, and of that number, only three -- Brennan, Marshall and Blackmun -- have taken the view that the death penalty per se violates the constitutional ban on cruel and unusual punishment. One would think that a margin of 109 to 3 would be enough to inspire something resembling a sense of modesty among the death penalty skeptics currently on the Court. But one would need to think again.

The principal argument now made against the death penalty is that it has resulted in the execution of innocent people. That, indeed, was the overarching theme among the Court's liberals when they dissented in a case called Kansas v. Marsh, No. 04-1170, June 26, 2006. It is therefore well worth reading Justice Scalia's concurring opinion in that case, which constitutes the most devastating critique of the we're-executing-innocents argument I have ever seen. Not surprisingly, much of Scalia's discussion is devoted to explaining that, so far as the actual facts show, we have not, in the modern era and probably for decades before then, executed a single innocent person. I excerpt below a few paragraphs from Justice Scalia's opinion (footnotes omitted):

"[T]he dissenters' [attempt to encumber] the death penalty...with unwarranted restrictions neither contained in the text of the Constitution nor reflected in two centuries of practice under it, [is] the product of their policy views--views not shared by the vast majority of the American people. The dissenters' proclamation of their policy agenda in the present case is especially striking because it is nailed to the door of the wrong church--that is, set forth in a case litigating a rule that has nothing to do with the evaluation of guilt or innocence....

"There exists in some parts of the world sanctimonious criticism of America's death penalty, as somehow unworthy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently--and indeed, many of them would still have it if the democratic will prevailed.) It is a certainty that the opinion of a near-majority of the United States Supreme Court to the effect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

"It should be noted at the outset that the dissent does not discuss a single case--not one--in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt."

For those interested in the death penalty, it's worth reading every word of the Scalia concurrence in Marsh.

Why the Court's liberals (and liberals everywhere) are so ready to believe that the United States executes innocent people -- in the face of the evidence that we don't -- is another question, and a very important one. As I shall attempt to explain later, I believe it is because liberals view the United States as so engulfed in a history of roughshod capitalism, militarism and, of course, racism, that we have forfeited the right to moral confidence. And a country lacking justified moral confidence has a shaky claim at best on the right to execute anyone -- or forcefully to resist its foreign enemies, protect its borders, preserve its civil institutions (from traditional marriage to the Boy Scouts), defend its academic standards (from, for example, race-based admissions policies), and on and on.

Thus, in the future, I want to return to this theme. For now, I am content to note that, so far as the actual evidence shows, no, we are not executing the innocent, and the quick willingness to believe we are bespeaks a reservoir of moral doubt about America that promises nothing but trouble.

The Supreme Court's overturning of the death sentence in Smith v. Texas is an apt example of how activist judges subvert popular will (see my previous post on this subject). The point here is not that the majority opinion is incorrect on the merits, although it is for the reasons ably stated by the four dissenters. The point is to illustrate how, little by little, and under the pretense of restraint, major issues of public policy are being decided by the courts instead of by the elected branches.

No fair reading of the record in Smith v. Texas leaves any doubt that the defendant committed the crime. Nor does it leave doubt that the jury had a reasonable opportunity to assess supposedly mitigating factors from the killer's childhood. (I shall defer for the moment the question whether alleged instances of abuse that happened decades in the past, if at all, can mitigate responsibility for a calculated murder of the kind at issue in Smith). Nonetheless, the Court reversed a death sentence provided for by Texas law -- a sentence that had twice been imposed by unanimous juries. It did this on the stated theory that the particular language of the mitigation instruction might have been insufficient to alert the jury to its prerogative to impose a sentence of less than death.

That at least is what the majority opinion purports to do. What it actually does is take yet another step toward abolishing the death penalty wholesale. It does this, not by stating forthrightly that this is the object of the game, but by adopting another finespun procedural hurdle that, while leaving the death penalty on the books, helps to make it impossible to actually execute anyone.

This method of attacking the death penalty features a dishonesty borne of necessity. The dishonesty is obvious -- it's hardly honest to represent to our citizens that "we do too have a death penalty" knowing that, as a practical matter, it can never be carried out. The necessity of this tactic is only slightly less obvious. The reason that liberal courts (and death penalty "moratorium" supporters like the ACLU and the ABA) are reluctant to announce the real agenda is that the real agenda cannot be sold to the public.

The public's view of the death penalty is not in doubt. According to the most recent comprehensive Gallup poll on the subject (conducted a year ago), 65% support capital punishment, while only 28% oppose it. Notwithstanding the fact that 63% believe an innocent person has been put to death within the last five years, 60% believe the death penalty is applied fairly. Fully 64% believe that it deters murder. And while 21% believe it is imposed too often, 25% say it is imposed with about the right frequency, and 51% -- a majority -- say it is not imposed enough.

Accordingly, it's no wonder that liberals and their allies on the courts soft-peddle their goal of outright abolition, and prefer the far shrewder strategy of stealth abolition. The public is less likely to become alarmed, or moved to action, when the abolitionist agenda can operate in obscurity, chip-chip-chipping away a bit at a time, as in Smith v. Texas.

The liberal, activist judges of the late 1960's and 1970's learned that being too obvious may feel good, but has its downsides (e.g., the election of Richard Nixon and his appointing to the Court Justices Lewis Powell and William Rehnquist). They are wiser now, and more clever. Unfortunately for the rest of us, this makes them, not the least dangerous branch, but more dangerous than ever.

John Armor performs a crucial service with his three recent blog entries about liberals' use of the courts to counteract democratic self-rule (see John's article today about the Supreme Court opinion in Smith v. Texas, and his two articles about the "ACLU Against Wisconsin"). Ostensibly, the articles have different subjects: The article about the Texas case discusses adjudicating capital punishment, and the articles about Wisconsin discuss efforts by allies of the losing candidate (and of the ACLU) effectively to reverse the outcome of a judicial election. In fact, the articles bring great insight to the same pernicious development, i.e., the role of liberals in building and then using an increasingly politicized judiciary to achieve policy outcomes they can't sell at the ballot box.

It is of course true that courts are empowered to strike down measures enacted by the electorate, or the elected branches, when they violate the Constitution. But fidelity to the principle of majority rule -- which is, after all, the cardinal principle of democracy -- requires courts to act with great restraint in the exercise of that power. One thing restraint means is that judges cannot simply declare that the Constitution ordains their own preferences. To allow such a thing is to replace the rule of law with the rule of taste. It is also to invite into the law one of the principal sources of its destruction: instability. When people don't know from one term of Court to the next what the law requires or forbids, then law has lost one of its most valuable qualities. More importantly, it has lost one of the primary qualities that defines it as "law" to begin with.

The imperative of judicial restraint is the cornerstone of the argument for originalism -- that is, the argument that the Constitution must be interpreted in accord with its original meaning as the Framers understood it. Often this is portrayed by ACLU-types as mere nostalgia for an irrelevant, 18th Century past. In order to accommodate change, they argue, the Constitution must be seen as "living" or "flexible." But the Constitution was never intended to accommodate change in the ACLU-approved sense. It created the Executive and Legislative branches to do that. And there is a crucial reason for this distinction: When the policy du jour is adopted by the political branches, it can get "un-adopted" at the next election. But when it is adopted as part of the Constitution -- something only the courts can declare -- the next election will do you no good. Legislative edicts can be here today and gone tomorrow, but Constitutional edicts are, for almost all practical purposes, here to stay.

Because courts have (at least some of the time) acted with the restraint their awesome power commands, they have been called "the least dangerous branch." But as the Texas death penalty case illustrates, we are never very far away from their becoming a very dangerous branch indeed. In my next blog, I will use that case, and the capital punishment debate generally, to try to explain why this is so.