December 22, 2013

The greatest rock and roll Christmas songs of all-time

Success breeds imitation. Imagine writing that one song that becomes a Christmas classic forever. The Christmas Song, by Mel Torme. Or Have Yourself A Merry Little Christmas, by Judy Garland. Or Sleigh Ride by Johnny Mathis. We know these songs by heart. And the people who wrote them were set for life. Everyone wants money. Every songwriter has his own Christmas song. And much of it is drivel. But the best of the best makes the season worthwhile, even if you might be trampled to death at Wal-Mart.

The world of rock and roll is no stranger to Christmas songs. But it's hard to capture the spirit of Christmas with electric guitars. Somehow, the people below were able to accomplish this. Most of these songs are rock and roll. Some are jazz. All are great.

The Ronettes - Frosty the Snowman. This is from the Phil Spector Christmas Album, released in 1963 and featuring Spector's famous Wall of Sound. He used the best musicians in music, including Hal Blaine on drums, who played on many of the hits from Los Angeles in the 1960's. Some of the best drumming I ever heard is on this song.

The Ronettes - Sleigh Ride. Another song from the Phil Spector album. Phil married the lead singer, Ronnie Bennett. She became Ronnie Spector. Which only proves that Jews sometimes give us the best sounds of the season. Phil Spector is now in jail, convicted of murder. Which proves that sometimes murderers give us the best Christmas music.

Vince Gauraldi Trio - Skating. This is from the Charlie Brown Christmas Special. Kids watching the TV show don't know that this is some of the best jazz of the 1960's. This is just a beautiful piece of music. The video shows people ice skating in Pittsburgh, for some reason.

Bruce Springsteen - Santa Claus is Coming to Town. Bruce is rock and roll's greatest live performer. This song is one of the few radio-friendly classic rock Christmas songs I can listen to without changing the station.

The Waitresses - Christmas Wrapping. This is a bona-fide original, not an interpretation of an old Christmas classic. The lyrics tell a nice story.

John Lennon - Merry Christmas/The War is Over. As wonderful as the Beatles were, they did not produce any great Christmas songs. The solo Beatles tried to write good Christmas songs, but they couldn't cut it. Except for John Lennon. Most Christmas songs are not political. This one was. It is hard for us to imagine what it was like to live through the late 1960s and early 1970s. Imagine being drafted to fight a war that you do not believe in. And being asked to kill and maim and possibly suffer the lost of a limb or post traumatic stress disorder. A very good argument can be made that for draft-age Americans during the Vietnam War, this country was a military dictatorship. Resist the draft, go to jail. Lennon was a little crazy, in my view. And he did contradict his humanitarian impulses on a regular basis. But this song truly captures his spirit. He may have been full of shit from time time, but he meant it on this song. Here we go, Johnny:

Barbra Streisand- Jingle Bells. Remember what I said about the Jews giving us the best Christmas songs? This is from her 1967 Christmas album. We blast this each and every year. Christmas on steroids, from Brooklyn, New York.

Beach Boys - Little Saint Nick. If you want to know what family dysfunction is like, read a book about the Beach Boys. The father was crazy, the drummer was crazy, Brian Wilson was crazy. They were all crazy, in a bad way. Not in a "cool" way. But this song is very pleasant, even if it was recorded in Southern California, where it is always warm and there is no snow at all.

Band Aid - Do They Know It's Christmas. In the 1980's rock stars decided to devote their talents for charity. In the U.S., the big hit was We Are The World by USA for Africa. We Are The World is one of the 10 worst songs in the history of rock music. I am serious when I say that. We Are The World is the worst garbage I ever heard. Over in England, the charitable contribution for Africa was Do They Know It's Christmas. That's Bono on vocals, and Phil Collins on drums. The guy who looks like a woman (Boy George) is really a guy. I have no idea if any of the money went to Africa. The haircuts in the video are outrageous. Everyone looks super-serious, as if they knew they were being filmed. But I always liked this song, especially the fade-out. Some of you may say, "but Steve, you are better than this. This song is sappy, a true band-aid in every sense of the word, which does nothing to stop the stranglehold that international lending institutions like the IMF and World Bank have on the Third-World." You are right. But I will say this, and I will say this in the true spirit of Christmas: go screw yourself. I love this song.

September 4, 2012

Stop-And-Frisks Come Under Judicial Scrutiny

By Stephen Bergstein
Z Magazine
September 2012

As the crime rates in New York City continue to drop, courts are taking a hard look at the police department’s stop-and-frisk practices in light of evidence that racial minorities are being disproportionately searched by police officers on the street without justification. Significantly, a federal judge in May 2012 authorized a class-action lawsuit alleging the police department routinely frisks minority residents on the basis of their race.

Sooner or later, every significant dispute over governmental practices winds up in federal court with the Constitution as the legal backdrop. Yet, the Constitution provides no easy answers. The Fourth Amendment does limit police activity, but its language is sufficiently vague and malleable as to allow the government as well as the courts to interpret it nearly any way they choose. That amendment simply reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” While the Fourth Amendment provides concrete guidance on search warrants, the prohibition against “unreasonable searches and seizures” is open-ended.

Terry v. Ohio

In 1968, the Supreme Court interpreted the Fourth Amendment in the context of stop-and-frisks. A stop-and-frisk is almost self-explanatory. Law enforcement officers approach some people on the sidewalk and, without a warrant, stop them and ask questions before patting them down for contraband such as drugs or guns. In Terry v. Ohio, the liberal Warren Court noted that, “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”

Chief Justice Earl Warren (who as California’s attorney general during World War II oversaw the internment of Japanese-Americans) displayed remarkable sensitivity to the harms associated with arbitrary police stops: “It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime—‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. It is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a search. Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”

In formulating a legal standard governing stop-and-frisks, the Supreme Court rejected the probable cause test in favor of the more lenient “reasonable suspicion” test, owing to the “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure.” Under this standard, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” This judge-made legal standard represented a compromise to ensure that citizens are not arbitrarily stopped by the police who still have a difficult job in patrolling the streets. The Court said, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security and it must surely be an annoying, frightening, and perhaps humiliating experience.”

On the other hand, “we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”

The Supreme Court in Terry did not specifically address racially-motivated stop-and-frisks. But it foreshadowed that issue in a footnote, observing that a presidential commission found in 1967 that “in many communities, field interrogations are a major source of friction between the police and minority groups.”

Floyd v. City of New York

In Floyd v. City of New York, a case pending in federal court in Manhattan, Judge Shira Scheindlin addressed the issues surrounding racially-motivated stop-and-frisks. In May 2012, she held that the plaintiffs may bring a class-action lawsuit against New York City on the basis that the city has engaged in a policy and practice of unjustified street searches on the basis of race. The lawsuit highlights a series of disturbing statistics, particularly in light of the city’s agreement in 2004 to reform its stop-and-frisk practices to reduce the racial impact on these searches. As Judge Scheindlin noted, in a city populated by approximately eight million people, officers now make almost 600,000 pedestrian stops per year. “On over 2.8 million occasions between 2004 and 2009, New York City police officers stopped residents and visitors, restraining their freedom, even if only briefly. Over 50 percent of those stops were of Black people and 30 percent were of Latinos, while only ten percent were of Whites.”

This racial disparity is no accident. One police officer testified that he believed the NYPD “absolutely” has a problem with racial profiling: “I work in a minority community and what we do to people in the South Bronx you would never do to people in midtown Manhattan.... Illegally searching, illegally stopping, illegally handcuffing, put phony charges on them, put it through the system.” This officer saw officers stop and question civilians without having reasonable suspicion “every day.”

Tape recordings reveal police supervisors demanding that patrol officers stop-and-frisk anyone walking around certain neighborhoods. One sergeant said, “If they’re on a corner, make ’em move. They don’t wanna move, lock ’em up. You can always articulate [a charge] later.” This sergeant said on other occasions, “You’re gonna be at 120 Chauncey [St.]. You’re gonna be in, uh, vehicle out there. Shake everybody up. Anybody moving, anybody coming out of that building—[UF] 250”; “You’re gonna be Howard and Chauncey...[s]ame thing.... Everybody walking around. Stop em. 250-em”; “Anybody walking around, shake ‘em up, stop ‘em, 250-em, doesn’t matter what it takes.” A UF-250 form memorializes stop-and-frisks.

The police officers also have to satisfy quotas for summonses and arrests. Judge Scheindlin noted in a November 2011 decision that various NYPD officers “testified that they have been instructed to complete a certain number of stops or arrests, or to issue a certain number of summonses, per tour or per month; and certain supervisors have testified that they have so instructed their subordinates.” For example, the Court said, “a union delegate told officers that the union and the NYPD management agreed on a quota of one arrest and 20 summons per month; and a supervisor told officers that the Bronx Borough Commander was yelled at by the Chief of Patrol and others at NYPD headquarters for low summons activity and that officers in the 41st Precinct were expected to increase their summons numbers.”

The Court concluded, “the overwhelming evidence—including the precipitous rise in the number of stops, the policy statements from Commissioner Kelly’s office, the many comments of Deputy Commissioner Browne and Chief of Department Esposito, the recordings of roll calls from precincts in the Bronx and Brooklyn, and the testimony of numerous police officers—shows that the dramatic increase in stops since 2004 is a direct consequence of a centralized and city-wide program.”

The statistical expert hired by the class-action plaintiffs concluded that NYPD officers conducted at least 170,000 unlawful stops between 2004 and 2009. Based on the forms that officers have to complete after these stops, 400,000 additional stops appear to be “facially insufficient.” Judge Scheindlin further observed, “in over 62,000 of those cases, police officers gave no reason other than ‘furtive movement’ to justify the stop. These facially unlawful stops occurred in every precinct in the City.” And, “[i]n over 4,000 stops, police officers gave no reason other than ‘high crime area’ to justify the stop. These facially unlawful stops also occurred in every precinct in the city.”

In perhaps the most startling statistical anomaly of all, the court noted that only “5.37 percent of all stops result in an arrest; 6.26 percent of stops result in a summons. In the remaining 88 percent of cases, although they were required by law to have objective reasonable suspicion that crime was afoot when they made the stop, police officers ultimately concluded that there was no probable cause to believe that crime was afoot. That is to say, according to their own records and judgment, officers’ ‘suspicion’ was wrong nearly nine times out of ten.”

The stops often yield nothing illegal. The Court noted that, “[t]he percentage of documented stops for which police officers failed to list an interpretable ‘suspected crime’ has grown dramatically, from 1.1 percent in 2004 to 35.9 percent in 2009. Overall, in more than half a million documented stops—18.4 percent of the total—officers listed no coherent suspected crime.” Relatedly, few stops yield unlawful handguns. “Guns were seized in 0.15 percent of all stops. This is despite the fact that ‘suspicious bulge’ was cited as a reason for 10.4 percent of all stops. Thus, for every 69 stops that police officers justified specifically on the basis of a suspicious bulge, they found one gun.”

The statistics also show a stark racial component to the stop-and-frisks. The plaintiffs’ expert stated that, “NYPD stop-and-frisks are significantly more frequent for Black and Hispanic residents than they are for White residents, even after adjusting for local crime rates, racial composition of the local population, police patrol strength, and other social and economic factors predictive of police enforcement activity.” Moreover, “Black and Hispanic individuals are treated more harshly during stop-and-frisk encounters with NYPD officers than Whites who are stopped on suspicion of the same or similar crimes.” And, when stopping racial minorities, police officers are more likely to list no suspected crime category (or an incoherent one) than when stopping whites on the street. Even the city’s expert acknowledged that, “the raw statistics suggest enormous racial disparities in the NYPD’s stop-and-frisk practices.”

Statistics do not tell the whole story. Judge Scheindlin cited an affidavit submitted by New York State Senator Eric Adams, a retired NYPD police captain. In July 2010, Adams met with the Police Commissioner to discuss stop- and-frisk practices. During the meeting, “Commissioner Kelly stated that the NYPD targets its stop-and-frisk activity at young black and Latino men because it wants to instill the belief in members of these two populations that they could be stopped and frisked every time they leave their homes so that they are less likely to carry weapons.”

In sum, according to the New York Civil Liberties Union, “innocent New Yorkers have been subjected to police stops and street interrogations more than 4 million times since 2002 and Latino communities continue to be the overwhelming target of these tactics. Nearly nine out of 10 stopped-and-frisked New Yorkers have been completely innocent.”

Of course, lawyers for the city opposed the plaintiffs’ efforts to certify a class action. A proceeding like this is not only time-consuming, but places city police under a judicial microscope for which no political posturing will save them. If the plaintiffs win, the damages for the thousands of plaintiffs may run in the millions of dollars. In its zeal to avoid class certification, the city’s lawyers offended Judge Scheindlin, who noted that the lawyers made the following “disturbing statement”: “[E]ven if [plaintiffs] prove a widespread practice of suspicionless stops and [City-wide liability], it is not at all clear that an injunction would be a useful remedy. Certainly, no injunction could guarantee that suspicionless stops would never occur or would only occur in a certain percentage of encounter.... Here, plaintiffs essentially seek an injunction guaranteeing that the Fourth Amendment will not be violated when NYPD investigates crime. If a court could fashion an injunction that would have this effect, then it is likely that lawmakers would have already passed laws to the same effect.... An injunction here is exactly the kind of judicial intrusion into a social institution that is disfavored....”

Judges do not want their sensibilities insulted, especially by sophisticated municipal lawyers. In response, Judge Scheindlin wrote, “First, suspicionless stops should never occur. Defendants’ cavalier attitude towards the prospect of a ‘widespread practice of suspicionless stops’ displays a deeply troubling apathy towards New Yorkers’ most fundamental constitutional rights.” Second, “It is rather audacious of the NYPD to argue that if it were possible to protect ‘the right of the people to be secure in their persons’ from unlawful searches and seizures by the NYPD, then the legislature would already have done so and judicial intervention would be futile. Indeed, it is precisely when the political branches violate the individual rights of minorities that ‘more searching judicial enquiry’ is appropriate.” And third, “if the NYPD is engaging in a widespread practice of unlawful stops, then an injunction seeking to curb that practice is not a ‘judicial intrusion into a social institution’ but a vindication of the Constitution and an exercise of the courts’ most important function: protecting individual rights in the face of the government’s malfeasance.”

The State Court Response

State courts in New York are also standing up to lawless street searches. In June 2012, a state appellate court ruled that, “in broad daylight,” the police illegally searched a 14-year-old boy on the street “without any evidence that [he] was engaged in criminality or that he represented any threat to the safety to the officer.” The Court noted that a contrary ruling would “broadly expand the power of the police to search an individual during street encounters and can too easily lead to the diminishment of one of the most cherished rights, the right of individuals to be secure in their persons against illegal searches and seizures.”

In July 2012, the same appellate court struck down a similar search against another 14-year-old, even though the officer saw him remove an object from his waistband that did not bear the obvious hallmarks of a weapon. In that case, there were no other objective reasons for the officer to search the boy.

The federal court’s class action certification is good news for civil libertarians who have watched the deference that judges have paid to law enforcement in recent years. In April 2012, the Supreme Court held that jail officials may strip-search incoming prisoners no matter what their offense, even without any reason to believe they are carrying contraband. Under this ruling, prisoners arrested for minor offenses may be strip-searched. The decision in Florence v. Board of Freeholders was notable in giving jail administrators the benefit of the doubt. Writing for a 5-4 majority, Justice Kennedy wrote, “[t]he difficulties of operating a detention center must not be underestimated by the courts.... Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.” The plaintiff in Florence was strip- searched after the police arrested him on an outstanding bench warrant that remained in the statewide computer database even after he had paid his fine. Although the plaintiff had done nothing wrong and was the victim of negligent recordkeeping, the Court held that he had no right to sue jail administrators for a strip-search that required him to lift his genitals for corrections officers.

The federal courts are making it impossible for police officers to sue their employers over First Amendment whistleblowing. Under a 2006 Supreme Court ruling, Garcetti v. Ceballos, public employees may not bring retaliation lawsuits if management disciplines or fires them for speaking out on important matters pursuant to their official duties. In the interests of workplace efficiency and managerial prerogative, the lower federal courts have interpreted Garcetti to mean that officers who speak out about lawlessness and corruption in their own departments may be disciplined because this kind of whistleblowing grows out of the plaintiffs’ official duties and is not the kind of “citizen speech” protected by the First Amendment. The irony is that inmates (whose First Amendment speech claims are governed by a different legal analysis) often have greater speech rights than the officers who arrested them.

In a more unusual case, in June 2010, the Second Circuit Court of Appeals in Manhattan held that a police officer could not be sued for falsely arresting the plaintiff for loitering under a law that had been struck down in 1983 as an unconstitutional restriction against First Amendment activity. Although the loitering law had been repudiated years earlier, it literally remained “on the books” in that it was still included in training materials given to officers at the police academy. The Court of Appeals ruled that the arresting officer reasonably did not know that the loitering law was unconstitutional.

Perhaps the stop-and-frisk rulings represent renewed judicial scrutiny. The media have focused on the many unjustified street stops by NYPD officers, as well as allegations that the police department has pressured officers to falsify arrest records to play down violent crime and therefore place the department’s crime-fighting strategies in a more positive light. In 2009, a federal judge in Brooklyn observed in a false arrest case that a plaintiff had a plausible claim against the police. Judge Weinstein wrote, “Informal inquiry by the court and among the judges of this court, as well as knowledge of cases in other federal and state courts, has revealed anecdotal evidence of repeated, widespread falsification by arresting police officers of the New York City Police Department. Despite numerous inquiries by commissions and strong reported efforts by the present Administration—through selection of candidates for the police force stressing academic and other qualifications, serious training to avoid constitutional violations, and strong disciplinary action within the department—there is some evidence of an attitude among officers that is sufficiently widespread to constitute a custom or policy by the city approving illegal conduct of the kind now charged.”

In another case, a federal judge resolved claims that the NYPD was subjecting officers to discipline for providing sworn testimony in asserting their rights under the wage and hour laws. The judge rejected the City’s argument that it was merely investigating in good faith whether officers had given false testimony. The judge stated, “I decline to fully credit defendants’ hearsay affidavit asserting that the NYPD vigorously investigates each and every allegation of false testimony or perjury. Such a claim is simply not credible to a judge with close to 20 years of experience. My experience and that of my colleagues have been discussed in the media.” The judge cited a newspaper article that described the pervasive problem of “testilying” and the lack of NYPD monitoring or investigations.


Stephen Bergstein is a civil rights lawyer in upstate New York.

June 1, 2012

Supreme Court to Hear Educational Diversity Case

Z Magazine
June 2012

By Stephen Bergstein

The U.S. Supreme Court is taking up the issue of affirmative action in public education. The Court has not ventured into this territory in nearly 10 years. The Court might use this case to wipe out race-based admissions in higher education for good.

The case, Fisher v. University of Texas at Austin, will be decided in the Court’s 2012-13 term. In January 2011, the Fifth Circuit Court of Appeals, sitting in New Orleans, upheld the constitutionality of the University of Texas’ admissions policy, which takes race into account in assessing a student’s application. The question is whether that policy violates the Equal Protection Clause of the U.S. Constitution.

Like many public universities, the University of Texas uses a complex formula in reviewing applications. Students who place within the top 10 percent of their high school classes are guaranteed admission to UT. The complexity lies in the remaining applicants. UT reviews those applications through Academic and Personal Achievement Indices. The Academic Index tries to predict freshman GPA by examining the student’s high school class rank and standardized test scores. An applicant may receive admission on the basis of a strong Academic Index alone. The personal achievement score is more complex, triggering the constitutional challenge that the Supreme Court will resolve. In addition to considering the applicant’s two written essays, under the personal achievement score, admissions officers size up the applicant based on leadership, awards, honors, work experience, extracurricular and community activities. UT also considers the applicant’s high school grades relative to the grades of her peers. Finally, for the personal achievement score, the admissions office considers the applicant’s race.

As summed up by the Fifth Circuit Court of Appeals—which upheld the UT admissions process as constitutional—“[n]one of the elements of the personal achievement score—including race—are considered individually or given separate numerical values to be added together. Rather, the file is examined as a whole in order to provide the fullest possible understanding of the student as a person and to place his or her achievements in context.” For this reason, said the Fifth Circuit, “given the mechanics of UT’s admissions process, race has the potential to influence only a small part of the applicant’s overall admissions score.”

How We Got Here

Added to the Fourteenth Amendment in the wake of the Civil War, the Equal Protection Clause reads, “no state shall deny to any person within its jurisdiction the equal protection of the laws.” This simple phrase has generated endless court rulings interpreting its meaning. As few provisions of the Constitution are interpreted literally, the Equal Protection Clause does not guarantee pure equality. Generally, the government can treat people differently so long as it has a rational basis for doing so. If the government is treating different races differently, however, it needs a compelling reason. The “compelling interest” test is difficult for the government to overcome. If a court finds that the government took race into account in making decisions, the government must prove not only that it had a compelling reason for doing so, but that it adopted the narrowest means possible to achieve that objective.

While it is hard for the government to defend a race-based policy, courts have traditionally given public educational institutions more latitude when they take race into account in making admissions decisions. In 1977, the Supreme Court decided Regents of the University of California v. Bakke, holding that the university’s medical school could not use racial admissions quotas. However, by a 5-4 vote, the Court said that the school had a compelling interest in a diverse student body and could consider race as a “plus” factor in its admissions program. The deciding vote was cast by Lewis Powell, a moderate Republican appointed by President Nixon.

The Bakke case guided admissions decisions in higher education for over two decades. In the meantime, the culture wars raged in America, as conservatives criticized affirmative action as “reverse discrimination.” Meanwhile, as the Supreme Court grew more conservative through the 1980s and 1990s, it tightened the screws on affirmative action in other contexts, including governmental contracting and employment. A good example of how new personnel on the Court can make all the difference is reflected in cases involving federal affirmative action programs. In 1990, the Court ruled in Metro Broadcasting v. FCC that, in the interest of editorial diversity, the federal government had additional leeway in taking race into account in awarding broadcasting licenses to minority-controlled firms. Writing for the Court, William Brennan held that affirmative action programs by the federal government are not held to the “compelling interest” test that applies to state governments. Metro Broadcasting was a 5-4 decision. But only five years later, the Supreme Court overruled Metro Broadcasting, ruling in Adarand Construction v. Pena, that the federal government cannot institute an affirmative action program without a compelling reason. While Adarand involved construction contracts, its reasoning made it much harder for the federal government to defend affirmative action programs in court. For the Supreme Court, the main difference between 1990 and 1995 was the retirement of long-time civil rights champion Thurgood Marshall in 1991, and his replacement by staunch conservative Clarence Thomas. A single personnel change in the Court can make all the difference.

While Adarand and other Supreme Court rulings have applied the compelling interest test in a variety of circumstances, public colleges have more leeway even under this strict test in implementing racial diversity programs. For this reason, in 2003, the Court held—again by a narrow 5-4 vote—that the University of Michigan Law School could take race into account in its admissions decisions. Like the Bakke case, the majority in Grutter v. Bollinger held that racial diversity in higher education is a sufficiently compelling reason for the university to consider making race one among many factors in granting applications. The University of Michigan was able to use affirmative action because race was not a determinative factor in the process.

Sandra Day O’Connor wrote the Adarand and Grutter decisions. This was no anomaly. O’Connor was a conservative pragmatist who decided cases without any strict ideology, often on narrow grounds. While her reasoning in Adarand reflected her opposition to affirmative action in general, in Grutter O’Connor made an exception for higher education, stating that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Consistent with her case-by-case approach, O’Connor added, “context matters when reviewing race-based governmental action under the Equal Protection Clause.” The majority in Grutter stated, “given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” That “special niche” is grounded in “educational autonomy.” O’Connor wrote, “‘[t]he freedom of a university to make its own judgments as to education includes the selection of its student body.’ From this premise, [in Bakke,] Justice Powell reasoned that by claiming ‘the right to select those students who will contribute the most to the ‘robust exchange of ideas,’ a university ‘seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission.’”

The Court in Grutter noted that the University of Michigan wanted a “critical mass” of minority students in light of “the educational benefits that diversity is designed to produce.” Describing these benefits at length, the Court noted:“the Law School’s admissions policy promotes ‘cross-racial understanding,’ helps to break down racial stereotypes, and ‘enables [students] to better understand persons of different races.’ These benefits are ‘important and laudable,’ because ‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds.’ ...[N]umerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’ ...These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer essential to the military’s ability to fulfill its principle mission to provide national security.’”

The Court further noted that law schools “represent the training ground for a large number of our nation’s leaders” and that “[i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training.”

After endorsing the law school’s compelling justification for taking race into account in choosing students, the Grutter majority upheld the law school’s admissions policies because race was not a determining factor in admitting students and there was no quota in light of statistics showing that “between 1993 and 1998, the number of African-American, Latino, and Native-American students in each class at the Law School varied from 13.5 to 20.1 percent.”

The University of Texas Case

The Grutter case may have been the high water mark of Justice O’Connor’s pragmatism. She began as a staunch conservative when President Reagan appointed her to the Court in 1981. Over the years, however, O’Connor moderated her views on some issues, going so far as to re-affirm Roe v. Wade in 1992 by insisting in Planned Parenthood v. Casey that stare decisis (a legal principle that commands the Court to abide by its prior decisions) required the Court to uphold the constitutional right to abortion. Only seven years earlier, in a prior abortion case, O’Connor accused her colleagues of too-broadly protecting abortion rights. Even in the affirmative action context, O’Connor voted with a 6-3 majority in a companion case to Grutter that an undergraduate affirmative action plan in Michigan violated the Equal Protection Clause because, unlike in Grutter, the undergraduate plan placed too much weight on the applicant’s race. These nuanced distinctions made O’Connor a swing vote on an evenly-divided Court such that Supreme Court advocates often tailored their arguments in an effort to win her over.

A New Supreme Court

When Justice O’Connor retired in 2005, President George W. Bush replaced her with Samuel Alito, a conservative who has consistently sided with the Court’s conservative bloc. Legal commentators have noted over the last seven years that the Court is more prone than ever before to overrule prior cases either implicitly or explicitly. In a comprehensive article published in the New York Review of Books in 2008, law professor Ronald Dworkin took a dim view of recent Supreme Court decisions that had quickly shifted constitutional doctrine to the right:

“The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

“These doctrines aimed at reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman’s right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective. The rush of 5–4 decisions at the end of the Court’s term undermined the principled base of much of this carefully established doctrine. As Justice Stephen Breyer declared, in a rare lament, ‘It is not often in the law that so few have so quickly changed so much.’”

Some of these 5-4 conservative victories are well- known. In Citizens United v. Fair Elections Commission, the Court in 2010 gave corporations free rein to make independent expenditures to political campaigns. The Court in Citzens United overruled precedents from 1990 and 2003. Another 5-4 conservative victory in 2007 involved the use of racial classifications in the public schools. This case provides a guidepost in predicting what the Court will do in the University of Texas case. It does not look good for proponents of racial diversity in public education.

In the 2007 case, Parents Involved Community Schools v. Seattle School District, the Louisville and Seattle school districts tried to ensure racial diversity in their public schools. In Seattle, the district used race as one of the tie-breakers in allowing students to attend the high school of their choice. Writing for the 5-4 majority, Chief Justice Roberts held that the Seattle plan was different from the plan upheld in Grutter because Grutter involved higher education, triggering “the expansive freedoms of speech and thought associated with the university environment.” The racial balancing sought in Seattle was not a sufficiently compelling interest under the Equal Protection Clause, the majority ruled, because that “would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that ‘[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.’” In addition, “[a]llowing racial balancing as a compelling end in itself would effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Moreover, an interest “linked to nothing other than proportional representation of various races...would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.”

In the Louisville case, the district reconfigured the district boundaries to promote racial balancing. The district advanced the same policy objectives as the Seattle district. Chief Justice Roberts struck down this plan, as well. While the Louisville and Seattle school districts argued that their plans were consistent with Brown v. Board of Education’s rejection of racial segregation in public schools, Roberts crafted what is now a well-known quote that is sure to surface when the Court takes up the University of Texas case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

What Will the Supreme Court Do?

While the Supreme Court in Parents Involved adhered to the Grutter case in striking down the Louisville and Seattle plans, that does not mean the Court will re-affirm Grutter in deciding the University of Texas case. The Supreme Court picks its battles. The Court did not have to repudiate Grutter’s reasoning in deciding Parents Involved. Grutter will be on the table in the University of Texas case, and it provides the Court an opportunity to promote a “color blind” Constitution that cannot abide the governmental interest in college diversity. In light of the Court’s track record of charting new ground in cases despite contrary precedent, this is a reasonable prediction.

Indeed, in asking the Supreme Court to hear the case, the plaintiff in the University of Texas case suggested that the Court might reconsider its pro-diversity holding in Grutter.

The University of Texas modeled its admissions process on that approved by the Supreme Court in Grutter. This is why the Fifth Circuit Court of Appeals upheld the constitutionality of the Texas policy. As in Grutter, the University of Texas has a compelling justification for considering an applicant’s race in the admissions process, and race itself does not make or break an applicant’s chances for admission. For the Fifth Circuit, this may have been an easy call. But that does not mean the Supreme Court will follow suit.

As the Supreme Court is divided between four Democratic-appointed Justices and four Republican counterparts, with Justice Anthony Kennedy in the middle, the conventional wisdom in all high profile cases is that the Court will rule 5-4 either way, with Kennedy as the swing vote. That sizes up the University of Texas case. Two of the conservatives, Justices Scalia and Thomas, have already gone on record as stating that affirmative action in all its forms is unconstitutional. Scalia condemned the Grutter majority for holding that racial diversity in higher education is a compelling governmental interest. So did Justice Thomas, who wrote that “[t]he Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”

While Roberts and Alito—both George W. Bush appointees—have not ruled in an affirmative action case, they tipped their hand three years ago in Ricci v. DeStefano, rejecting efforts by the City of New Haven to diversify the fire department by discarding a civil service test that had a disparate impact on minority applicants. Ricci was another closely-divided case, featuring a majority decision by Justice Kennedy, who ruled for the first time that municipalities may only dispense with these examinations if they have a “strong basis in evidence” that they violate the employment discrimination laws that prohibit a disparate impact on minority test-takers. Ricci was a loss for proponents of racial diversity in the public workplace.

Kennedy is more pragmatic than the other conservatives on the Court. In 1990, dissenting in the Metro Broadcasting case, he compared the affirmative action plan in favor of minority-controlled radio stations to apartheid-era South African policies. However, while Kennedy dissented in Grutter, he did note that “Justice Powell’s approval [in the Bakke case] of the use of race in university admissions reflected a tradition, grounded in the First Amendment, of acknowledging a university’s conception of its educational mission. Our precedents provide a basis for the Court’s acceptance of a university’s considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence.” The basis for Kennedy’s dissent in Grutter stemmed from the University’s application of its diversity policy, concluding that “the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas.” The future of state-sponsored diversity in higher education likely falls in the hands of the man who wrote those words.


Stephen Bergstein is a civil rights attorney in upstate New York.

April 7, 2012

Supreme Court OK's strip searches across-the-board

What kind of society to we want to live in? What kind of Constitution do we want? Last week, the Supreme Court of the United States ruled that jail officials -- including the guys running the local lockup -- are allowed to strip search nearly everyone who enters the facility, including people who are mistakenly arrested on bad warrants or cannot make bail or went to the county jail on a DWI or some other minor offense.

Does anyone agree with this decision? It doesn't matter if you don't. This decision is the law of the land. Congress cannot overturn it.

I wrote about this case after it was argued in the Supreme Court. Below is my initial write-up, published in Z Magazine before the Florence decision was handed down:

Strip Searches in Local Jails Z Magazine April 2012

By Stephen Bergstein

The U.S. Supreme Court will soon decide whether correctional facilities may strip search any detainee who enters the facility, including people who are arrested for minor offenses that do not inherently involve drugs or weapons. The case now before the Justices requires them to closely review a relevant precedent from 1979 when the Court was comprised of entirely different members. The strip search case, Florence v. Board of Commissioners, was argued before the Court on October 12, 2011. The Supreme Court took the case because the various federal courts around the country were deciding this issue differently. Some federal appellate courts said that jail officials cannot strip search detainees brought in on minor offenses without reasonable suspicion that they are hiding contraband or weapons. More recently, three appellate courts held broadly that all incoming arrestees may be strip searched, even without the reasonable suspicion that they are hiding contraband.

An Elastic Constitutional Standard

This case pits the Fourth Amendment against the federal courts’ tendency to defer to the authority of certain public institutions, including public schools, jails, and the military. The Fourth Amendment is a remarkably brief constitutional provision, stating that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Nearly all Fourth Amendment cases depend on how the courts define what warrantless searches are “reasonable.” Under this elastic standard, the courts have to balance the needs of a free society with the institutional demands of law enforcement and public safety. This is why the Supreme Court is as much a collection of learned judges as they are political scientists who have to resolve difficult legal issues on the basis of American history, the intent of the constitutional framers, existing Court precedent, and the current realities of American life. All these factors play into the strip search case that the Court is expected to resolve by June 2012.

Not all arrestees are taken to the local jail for violent felonies or other offenses against humanity. Some are brought in on non-violent offenses that have nothing to do with contraband. In the Florence case that is now pending in the Supreme Court, the detainee was arrested for civil contempt. Not quite the most dangerous offense, yet he wound up in the local jail. This is legal. Anyone can be arrested at any time, even wrongfully, and taken to the county lockup. If the arrestee cannot post bail, he might stay in the local jail overnight. Or, he might be legitimately pulled over after having a few drinks. In ruling on the strip search case, the Supreme Court will essentially be determining whether the motorist may be strip searched before entering the local jail. Examined in that light, anyone could be strip searched if the Supreme Court broadly sides with law enforcement in the Florence case. As the Court is stacked with conservative Justices who routinely favor the police and jail officials, this is a sobering thought.

There is nothing dignified about a strip search in jail. In Florence, the Third Circuit Court of Appeals said that, “Florence was directed to remove all of his clothing, then open his mouth and lift his tongue, hold out his arms and turn around, and lift his genitals. The officer conducting the search sat approximately arms-length in front of him and directed Florence to shower once the search was complete.” When Florence was transferred to a different facility, “he was subjected to another strip and visual body-cavity search upon his arrival at [the jail]. As described by Florence, he and four other detainees were instructed to enter separate shower stalls, strip naked and shower under the watchful eyes of two corrections officers. After showering, Florence was directed to open his mouth and lift his genitals. Next, he was ordered to turn around so he faced away from the officers and to squat and cough.” Adding insult to injury, Florence was soon released from jail and the charges against him were dismissed. Were these intrusive and embarrassing procedures necessary? Does the Fourth Amendment prohibit it?

No Supreme Court case is resolved in a vacuum. After more than 100 years of jurisprudence, the Court has a backlog of precedents from which it may draw in deciding cases. In light of these precedents, no Supreme Court ruling is entirely unpredictable. The problem for the Court is that no two cases are alike. Precedents may provide guidance in solving current cases, but old cases may have turned on different facts. Also, Justices come and go. New Justices can see old Supreme Court cases differently and every Supreme Court ruling in its own way charts new ground.

The Bell v. Wolfish Precedent

In 1979, the Supreme Court issued a ruling that the Court will have to scrutinize once again. In Bell v. Wolfish, the Court said that the Fourth Amendment allowed jail officials at the Metropolitan Correctional Center in New York City to strip search inmates after they had contact visits with outsiders, including family and friends. The facility mostly housed detainees awaiting trial on federal charges, but it also housed witnesses in protective custody and inmates serving short sentences. Yet, MCC policy was to conduct visual cavity searches after any of them met with outsiders, regardless of the reason for their detention. The reasoning was that any of the contact visitors might smuggle in contraband for the inmates.

Bell is a useful starting point for the Supreme Court in the Florence case, but it does not solve the problem now confronting the Justices. In Bell, all detainees were subject to the cavity searches. In theory, even if they were there for relatively innocuous reasons, they were incarcerated prior to the contact visit. They could arrange for an outside visitor to smuggle in drugs or a weapon. Florence is different from Bell. While both cases involve the need to prevent outsiders from smuggling drugs and weapons into jail, in Florence, the arrestee was taken to the facility for the first time and strip searched no matter what he was doing at the time of his arrest—and whether or not jail officials had reason to believe he was carrying contraband. As most people are arrested without any prior warning, it is far less likely that—pre-arrest—they are going to plan ahead to bring contraband into the jail. As the Third Circuit Court of Appeals noted in Florence, courts that have ruled in favor of strong Fourth Amendment rights for arrestees have done so on “the belief that individuals arrested for minor offenses presented a relatively slight security risk because they usually are arrested unexpectedly whereas the contact visits in Bell may have been arranged specifically for the purpose of smuggling weapons or drugs.”

For decades after the Bell ruling came down in 1979, most federal courts distinguished Bell from cases involving post-arrest strip searches. The Third Circuit in Florence summed up the prevailing view: “In the years following Bell, ten circuit courts of appeals applied the Supreme Court’s balancing test to strip searches of individuals arrested for minor offenses and found the searches unconstitutional where not supported by reasonable suspicion that the arrestee was hiding a weapon or contraband. In general, these courts concluded that the extreme invasion of privacy caused by a strip and/or visual body-cavity search outweighed the prison’s minimal interest in searching an individual with a minor crime shortly after arrest.”

Constitutional law is a fluid concept. The Constitution is written in vague terms and the Fourth Amendment invites re-interpretation by virtue of its prohibition against unreasonable searches and seizures. What is reasonable? What is unreasonable? These concepts are in the eye of the beholder. A federal judge who values civil liberties over security will find that degrading strip searches are a last resort, when prison officials have reason to believe the detainee is carrying something dangerous. A conservative judge will side with security and defer to the expertise of prison officials, who—as federal judges like to remind us—have a difficult and thankless job supervising society’s most dangerous and unpredictable people.

Once the Supreme Court resolves an issue and its decision becomes the law of the land, we often forget that now-settled areas of law were often disputed, even among the Supreme Court Justices. Bell v. Wolfish was a 5-4 decision on the issue of whether jail officials could conduct cavity searches on all inmates after their contact visits. Even a moderate Republican, Justice Lewis Powell, dissented in Bell, stating that, “[i]n view of the serious intrusion on one’s privacy occasioned by such a search, I think at least some level of cause, such as a reasonable suspicion, should be required to justify the anal and genital searches described in this case.” Yet, those five votes become constitutional law.

A Shift To The Right On Prison Strip Searches

The Supreme Court took up the strip search case in Florence because the federal courts had taken divergent views on whether the Fourth Amendment prohibits strip searches for arrestees. As the Third Circuit noted in Florence, post-Bell, ten Courts of Appeal had sided with the arrestee on this issue. That was then. What happened over the last few years, however, is proof that the Constitution takes on a different meaning over time as the composition of the federal courts change.

In 2008, the Eleventh Circuit Court of Appeals, based in Atlanta, decided in Powell v. Barrett that most federal courts had misinterpreted Bell all these years in siding with minor offenders in the strip search cases. While federal courts over the years had held that the Supreme Court intended in Bell to grant different rights to detainees based on the nature of their offense, the Eleventh Circuit said this interpretation is incorrect. The court decided that other courts were not appropriately deferential to jail officials in requiring individualized suspicion before conducting these strip searches. After reviewing decisions from around the country that sided with the Fourth Amendment rights of minor offenders, the Eleventh Circuit concluded: “Those decisions are wrong. The difference between felonies and misdemeanors or other lesser offenses is without constitutional significance when it comes to detention facility strip searches. It finds no basis in the Bell decision, in the reasoning of that decision, or in the real world of detention facilities.

The Supreme Court made no distinction in Bell between detainees based on whether they had been charged with misdemeanors or felonies or even with no crime at all. Instead, the policy that the Court treated categorically, and upheld categorically, was one under which all “[i]nmates at all Bureau of Prison facilities, including the [Metropolitan Correctional Center], are required to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution.” It was a blanket policy applicable to all.

This was a bipartisan effort on the Eleventh Circuit to scale back the Fourth Amendment in the jail context. Republican presidents appointed seven of the judges who voted this way. Democrats appointed five of the judges who agreed with them. In addition to the Eleventh Circuit, another federal appellate court recently reversed the prior cases of its own jurisdiction and sided with jail officials on this issue. In 2010, the Ninth Circuit Court of Appeals, which sits in San Francisco, ruled that the Ninth Circuit had improperly decided in 1984 that the Fourth Amendment protected minor offenders. (All the Republican-appointed judges on the Ninth Circuit panel sided with law enforcement; only two of the six Democratic-appointees did). Following this trend, in 2010, the Third Circuit in Florence adopted a narrow view of the Fourth Amendment on this issue. That is the decision now before the Supreme Court.

The composition of the federal judiciary has moved to the right over the years. Presidents Ronald Reagan and George W. Bush each served for eight years and associated with conservative groups who wanted a more conservative judiciary. President Bill Clinton did not appoint their liberal equivalents during his presidency. While some Republican-appointed Justices in Bell disagreed with the majority decision that held that all inmates may be subjected to a cavity search following outside contact visits, there are fewer Republican moderates today in the federal system. Language in the Ninth Circuit case summarizes the conservative view on whether to search minor offenders may well sway the Justices on today’s Court: “The Supreme Court has instructed us that jailers and corrections officials ‘should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’ It has also explained that “judicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial.” Decisions that carve out misdemeanor arrestees at county facilities for special treatment do not afford those who run detention facilities the “wide-ranging deference the Supreme Court has mandated.”

Similarly, in the Florence case, the Third Circuit speculated that one reason not to distinguish between minor offenders coming in off the street and existing prisoners who meet with outsiders is that gang members might exploit that distinction: “We also disagree with Plaintiffs’ contention that the risk that non-indictable offenders will smuggle contraband is low because arrest for this category of offenses is often unanticipated. Even assuming that most such arrests are unanticipated, this is not always the case. It is plausible that incarcerated persons will induce or recruit others to subject themselves to arrest on non-indictable offenses to smuggle weapons or other contraband into the facility. This would be especially true if we were to hold that those incarcerated on non-indictable offenses are, as a class, not subject to search. For that reason, we agree with the concern expressed by the Eleventh Circuit in Powell v. Barrett that gang members would be likely to exploit an exception from security procedures for minor offenders.”

Pay close attention to what the Third Circuit said. It does not say there is actual evidence that gang members will take advantage of a civil libertarian ruling. The Court of Appeals only says that this scenario is “plausible.” Yet, in other areas of constitutional law, federal courts will not allow the government to infringe upon civil liberties based on the speculative fear of negative consequences. This inconsistency may seem unfair, but remember the deference that courts pay to prison officials and their need to maintain order in the jails. Indeed, in 1987, eight years after Bell v. Wolfish, the Supreme Court in Turner v. Safley made it more difficult for prisoners to challenge the conditions of their confinement, ruling that prison policies are constitutional if they are “reasonably related to legitimate penological interests.”

This is the most deferential standard of review that the Supreme Court will apply in constitutional cases. Any justification for restrictive prison policies is legal if they are plausible on their face. Yet, as pointed out by attorneys for Florence in their Supreme Court brief, there is no evidence that the rule prohibiting suspicionless strip searches of persons arrested for minor offenses has facilitated smuggling into jails. Moreover, according to the brief, a report commissioned by the U.S. Department of Justice concluded that jail officials tended “to exaggerate a possible security threat” without expansive search rules, and other branches of the Department of Justice—including the Bureau of Prisons, the Department of Homeland Security and the U.S. Marshals Service—also require reasonable suspicion before minor offenders are strip searched.

Obama Administration Sides With The Jails

This evidence suggesting that minor offenders are not smuggling contraband into jails was not good enough for the Obama administration, which is asking the Supreme Court to endorse the restrictive strip search policy in Florence. At oral argument, a lawyer for the Obama Justice Department told the Supreme Court that “[p]rotest- ers...who decide deliberately to get arrested... might be stopped by the police, they see the squad car behind them. They might have a gun or contraband in their car and think hey, I’m going to put that on my person, I just need to get it somewhere that is not going to be found during a patdown search, and then potentially they have the contraband with them.” This position would probably be identical to that advanced by a Republican presidential administration.

Turner v. Safley and the recent trend in favor of strip searches for minor offenders looms over the Florence case. On the other hand, most federal courts sided with the arrestees prior to 2008. At oral argument in the Supreme Court, the Justices had a difficult time drawing a line between what is permissible under the Fourth Amendment when it comes to strip searching new inmates. According to journalist Lyle Denniston, who covered the argument for the SCOTUS blog, “The Justices were deeply concerned about protecting the security of jails, but also were highly skeptical of an ‘anything goes’ policy that would force every newly arrested individual to disrobe and have their bodies inspected, up close and perhaps with some manual manipulation. The members of the Court searched—at times in vain—for some guidance on just what potential threats to individual ‘dignity’ were too much to be constitutionally forbidden.”

Indeed, at oral argument, Justice Anthony Kennedy—who often serves as the swing vote on the Court—told the Obama administration lawyer, “I was somewhat surprised at the evidence, the amount of contraband that was discovered, and the amount of weapons that was discovered that is in the literature and citations was somewhat skimpy. I thought there would be a stronger showing than I found in the briefs.” For civil libertarians who worry that the Court will instinctively side with law enforcement on this issue, it was good news that even the conservative Justices gave pause to a rule that would allow for strip searches across-the-board for all incoming inmates, including non-violent ones.

If you've read this far, you obviously care about constitutional law. After reading the oral argument transcripts, I was cautiously optimistic that the Supreme Court would place limits on when local jails can strip-search detainees. I was wrong. The Court ruled 5-4 in favor of strip-searches no matter how minor the offense.

What does this decision tell us about the Supreme Court? It tells us that the current court has four rock-solid conservatives who give the government the benefit of the doubt on security-related matters. We call this judicial deference. There is one swing vote on the Court, Anthony Kennedy. He wrote the majority decision in the Florence case. I read a lot of court decisions. Few of them show such deference to authority as the Florence decision. It's a dangerous world out there, and jail officials know best. That's how the 5-4 majority sees it. As there are better ways to ensure that the jails are safe, such as pat-searching everyone and strip-searching only those with a reasonable suspicion of dangerous behavior (such as people with a history of violence or people arrested for violent or dangerous crimes) the Florence decision could have come out the other way.

The justices in dissent, as usual, offered a persuasive point of view from the other side. They noted that many law enforcement agencies do not endorse strip-searches for all detainees, only the dangerous ones. They also note that the risk level for undetected detainee contraband is low. That you have to look at these issues with an eye toward nuance. But the five justices who sided with broad-based strip searches abandoned nuance. Deference to authority is the new game in town. That brings us a step closer to a police state. And the next victim might be you.

December 23, 2011

The greatest rock and roll Christmas songs of all time

It is the nature of capitalism that success breeds imitation. Imagine writing that one song that becomes a Christmas classic forever. The Christmas Song, by Mel Torme. Or Have Yourself A Merry Little Christmas, by Judy Garland. Or Sleigh Ride by Johnny Mathis. We know these songs by heart. And the people who wrote them were set for life. This success breeds imitation. Every songwriter has his own Christmas song. And much of it is drivel. But the best of the best makes the season worthwhile, even if you might be trampled to death at Wal-Mart.

The world of rock and roll is no stranger to Christmas songs. But it's hard to capture the spirit of Christmas with electric guitars. Somehow, the people below were able to accomplish this. Most of these songs are rock and roll. Some are jazz. All are great.

The Ronettes - Frosty the Snowman. This is from the Phil Spector Christmas Album, released in 1963 and featuring Spector's famous Wall of Sound. He used the best musicians in music, including Hal Blaine on drums, who played on many of the hits from Los Angeles in the 1960's. Some of the best drumming I ever heard is on this song.

The Ronettes - Sleigh Ride. Another song from the Phil Spector album. Phil married the lead singer, Ronnie Bennett. She became Ronnie Spector. Which only proves that Jews sometimes give us the best sounds of the season. Phil Spector is now in jail, convicted of murder. Which proves that sometimes murderers give us the best Christmas music.

Vince Gauraldi Trio - Skating. This is from the Charlie Brown Christmas Special. Kids watching the TV show don't know that this is some of the best jazz of the 1960's. This is just a beautiful piece of music. The video shows people ice skating in Pittsburgh, for some reason.

Bruce Springsteen - Santa Claus is Coming to Town. Bruce is rock and roll's greatest live performer. This song is one of the few radio-friendly classic rock Christmas songs I can listen to without changing the station.

The Waitresses - Christmas Wrapping. This is a bona-fide original, not an interpretation of an old Christmas classic. The lyrics tell a nice story.

John Lennon - Merry Christmas/The War is Over. As wonderful as the Beatles were, they did not produce any great Christmas songs. The solo Beatles tried to write good Christmas songs, but they couldn't cut it. Except for John Lennon. Most Christmas songs are not political. This one was. It is hard for us to imagine what it was like to live through the late 1960s and early 1970s. Imagine being drafted to fight a war that you do not believe in. And being asked to kill and maim and possibly suffer the lost of a limb or post traumatic stress disorder. A very good argument can be made that for draft-age Americans during the Vietnam War, this country was a military dictatorship. Resist the draft, go to jail. Lennon was a little crazy, in my view. And he did contradict his humanitarian impulses on a regular basis. But this song truly captures his spirit. He may have been full of shit from time time, but he meant it on this song. Here we go, Johnny:

Barbra Streisand- Jingle Bells. Remember what I said about the Jews giving us the best Christmas songs? This is from her 1967 Christmas album. We blast this each and every year. Christmas on steroids, from Brooklyn, New York.

Beach Boys - Little Saint Nick. If you want to know what family dysfunction is like, read a book about the Beach Boys. The father was crazy, the drummer was crazy, Brian Wilson was crazy. They were all crazy, in a bad way. Not in a "cool" way. But this song is very pleasant, even if it was recorded in Southern California, where it is always warm and there is no snow at all.

Band Aid - Do They Know It's Christmas. In the 1980's rock stars decided to devote their talents for charity. In the U.S., the big hit was We Are The World by USA for Africa. We Are The World is one of the 10 worst songs in the history of rock music. I am serious when I say that. We Are The World is the worst garbage I ever heard. Over in England, the charitable contribution for Africa was Do They Know It's Christmas. That's Bono on vocals, and Phil Collins on drums. The guy who looks like a woman (Boy George) is really a guy. I have no idea if any of the money went to Africa. The haircuts in the video are outrageous. Everyone looks super-serious, as if they knew they were being filmed. But I always liked this song, especially the fade-out. Some of you may say, "but Steve, you are better than this. This song is sappy, a true band-aid in every sense of the word, which does nothing to stop the stranglehold that international lending institutions like the IMF and World Bank have on the Third-World." You are right. But I will say this, and I will say this in the true spirit of Christmas: go screw yourself. I love this song.

John Coltrane - My Favorite Things. Not really a Christmas song, though maybe it is. I can't remember. If it isn't listen anyway.

November 5, 2011

Smile is here ... finally

You may not know this, but the Beach Boys were not all about surfing, girls and cars. By 1966, the Beach Boys were a different band, as Brian Wilson stopped touring and worked full time in the recording studio with the best studio musicians in Los Angeles. This led to the much-loved Pet Sounds album, a record with none of the fun fun fun of the earlier albums and consisting instead of contemplative mood music that the Beatles easily could have created.

Brian was ambitious. After Pet Sounds, he began work on a follow up that would take him to the top of the mountain. He came close. The album was called Smile, and it was scheduled for release in 1967. This album could have changed the public's view of the Beach Boys for good. The Beatles were able to shed their moptop image, and the Beach Boys could have taken their image to the next level, too. But thanks to drugs, mental illness and resistance from the other Beach Boys over Brian's new direction, Brian had a breakdown and Smile was unfinished and remained unreleased. Somehow, most of it was bootlegged and those unauthorized releases became the Holy Grail of rock and roll bootlegs. The Beach Boys, meanwhile, released a few interesting albums to round out the late 1960s, but those albums were mostly ignored. As the 1970s got under way, the Beach Boys turned into an oldies act, and Brian further deteriorated mentally.


Out of the blue in 2004, Brian released a solo album of all the Smile songs with a new band and he even finished writing some of the songs were abandoned in 1967. The song were re-recorded from scratch. The Beach Boys had nothing to do with this. Brian Wilson Presents Smile is one of the best-reviewed albums of all time. This was great. Brian's voice was not quite how it sounded in the 1960s, but it was good enough, and for the first time, we could hear the album as it was intended. But we all waited for Capitol Records to finally release the original Smile. That day has arrived. The Smile Sessions came out on November 1, 2011. It's as good as we all thought it would be, even for those of us who have listened to the bootlegs for years.

Over the years, stories leaked out about what happened to the Smile tapes. Brian told the press that he destroyed the tapes, threw them in the fire. During one television documentary, he said the music was "inappropriate," whatever that meant. No one wanted to hear this. We wanted to hear the music. Smile became the most famous unreleased album of all time.

Now we get to hear it. For many Beach Boys fans, Smile is old hat. We've all heard the bootlegs, and over the years, the bootlegs got better; the sound quality improved and better versions of the sounds were leaked out. But nothing could ever sound like an official record company release. We have it now.

Smile sounds like the Beatles without John Lennon. It's all about the melody. Brian was a master songsmith, and the album incorporates 1960s psychedelia with American West imagery and far-out lyrics that make I Am the Walrus sound like Love Me Do. The vocal harmonies are sophisticated and gorgeous. Imagine psychedelic music with angelic harmonies. Brian handled the vocal arrangements. The tragedy is that not all the lyrics were written, so some of the cuts on Smile are instrumentals. But even the instrumentals are interesting, as Brian's creativity was growing by leaps and bounds, and he had the best studio musicians around to work with.

The release of Smile is a major event in the history of rock music. What makes the story all the more significant is that the music is great, and it shows that the Beatles were not the only creative geniuses in the 1960s. Throw away the surfboards. Smile is here!

Here's a few of the songs:

Heroes and Villains

Child is the Father of the Man

Do You Like Worms?

Good Vibrations, with added sections

Surf's Up


October 5, 2011

Court Allows U.S. Citizens to Sue Rumsfeld for Torture

By Stephen Bergstein
Z MagazineOctober 2011

A federal appeals court in Chicago ruled that two U.S. citizens who claimed they were tortured by U.S. military personnel in Iraq may sue former Secretary of Defense Donald Rumsfeld for violating their constitutional rights. The case is notable not only for the harrowing allegations of torture and mental abuse, but for the Court of Appeals’ rejection of the usual arguments against second-guessing military decisions during wartime. Unless the U.S. Supreme Court decides to hear the case, the plaintiffs will be able to subpoena documents from the government and take sworn testimony from government officials about U.S. torture policies.

In the August 8 decision, the Seventh Circuit Court of Appeals lays out the factual allegations in explicit detail. The plaintiffs, Donald Vance and Nathan Ertel, in 2005-06 worked for a privately-owned Iraqi security services company, Shield Group Security. Vance became suspicious that the company was involved in corruption and other illegal activity. After he met with an FBI agent, he and Ertel became informants by sharing documents with U.S. officials and reporting their observations that U.S. and Iraqi government officials were engaged in illegal arms trading, bribery, and the stockpiling of weapons. They also reported that their supervisor was trading liquor to American soldiers in exchange for U.S. weapons and ammunition that the Shield Group Security firm was using or selling for profit. This is classic whistleblowing. Everyone loves a whistleblower, right?

Evidently, whistleblowing was frowned on in Iraq. After the security firm began to question Vance and Ertel’s loyalty and confiscated their credentials giving them access to the Green Zone, Vance and Ertel appealed to the U.S. government for help. The government told them to barricade themselves inside the compound and that U.S. forces would rescue them. Instead, U.S. forces took Vance and Ertel to the Embassy for questioning. Then things got ugly. The Court of Appeals writes: “After two or three hours of sleep, Vance and Ertel, who were under the impression that they had been rescued by their government, were in for a shock. They were awakened and arrested, handcuffed, blindfolded, and driven to Camp Prosperity, a U.S. military compound in Baghdad. There, plaintiffs allege, they were placed in a cage, strip-searched, fingerprinted, and issued jumpsuits. They were threatened that if they did speak, they would have ‘excessive force’ inflicted on them. Vance and Ertel were then taken to separate cells and held in solitary confinement for what they believe was two days.”

Camp Cropper
Then things got even worse. Vance and Ertel were taken to Camp Cropper, another U.S. military facility, where “they experienced a nightmarish scene in which they were detained incommunicado, in solitary confinement, and subjected to physical and psychological torture for the duration of their imprisonment—Vance for three months and Ertel for six weeks.” The Court adds, “If the plaintiffs’ allegations are true, two young American civilians were trying to do the right thing by becoming whistleblowers to the U.S. government, but found themselves detained in prison and tortured by their own government, without notice to their families and with no sign of when the harsh physical and psychological abuse would end.”

The torture included techniques forbidden by the U.S. Army Field Manual and the Detainee Treatment Act. Their lights were kept on at all times, day after day. Their cells were freezing and there was feces on the walls. They were given a concrete slab for beds, but guards woke them if they fell asleep. They were often denied food and water and necessary medical care. Intolerably loud music was pumped into their cells. They were slammed into walls while blindfolded with towels over their heads. During interrogations, Vance and Ertel were told that if they did not “do the right thing,” they would never leave Camp Cropper.

Vance and Ertel survived the physical and psychological torture. They then sued Donald Rumseld, claiming he was legally responsible for the torture. Of course, if this kind of abuse had taken place inside an American prison, the courts would not have to decide whether this abuse was actionable under the Constitution. The Eighth Amendment prohibits cruel and unusual punishment. What complicates this case is the fact that the abuse took place in Iraq during wartime.

While the Constitution is the law of the land, certain public institutions are given the benefit of the doubt in litigation. Courts often defer to the judgment of prison and public school officials in disciplining inmates and students. Courts are also reluctant to second-guess military judgments. In the 1970s, the Supreme Court refused to rule on the constitutionality of the Vietnam War. Under the Feres doctrine, U.S. servicepeople cannot sue the government over war-related injuries and U.S. military bases are immune from most First Amendment regulations.

More broadly, courts often refrain from ruling on the constitutionality of federal decisionmaking through the so-called Bivens doctrine, named after a Supreme Court decision from 1971 that held that federal officials may be sued for constitutional violations only in limited circumstances. This restriction stands in sharp contrast to constitutional claims against state and local officials. While the lawsuits against state and local officials are governed by a civil rights statute, Section 1983, which provides for broad protection against constitutional abuses, there is no corresponding statute authorizing constitutional lawsuits against federal officials. In the Bivens case, the Supreme Court said that limited constitutional claims may proceed against federal officials if the victims have no other way to attain relief. A constitutional lawsuit against a federal official will fail under Bivens so long as the plaintiff can achieve a fraction of the relief through other means, even if that relief is unacceptable to the plaintiff. Many injustices have gone unremedied because of the Bivens rule.

Arar v. Ashcroft
A recent example of the federal courts’ refusal to intervene in military and national security judgements is Arar v. Ashcroft. In that 2009 case, the federal appeals court in Manhattan ruled that a foreign torture victim could not sue the federal government over its “extraordinary rendition” program, in which detainees are sent to other countries to be tortured. Arar, a dual citizen of Syria and Canada (where he lived), was detained at Kennedy Airport in New York City, but sent to Syria where he was beaten with a two-inch thick electric cable and with bare hands and interrogated about Osama bin Laden, Iraq, and Palestine. The Second Circuit Court of Appeals held that Arar was not entitled to his day in court because the case would require the courts to review national security policy. The following reasoning is typical when courts decline to review cases that implicate war-making and national security concerns: “A suit seeking a damages remedy against senior officials who implement an extraordinary rendition policy would enmesh the courts ineluctably in an assessment of the validity and rationale of that policy and its implementation in this particular case, matters that directly affect significant diplomatic and national security concerns. It is clear from the face of the complaint that Arar explicitly targets the ‘policy’ of extraordinary rendition; he cites the policy twice in his complaint, and submits documents and media reports concerning the practice. His claim cannot proceed without inquiry into the perceived need for the policy, the threats to which it responds, the substance and sources of the intelligence used to formulate it, and the propriety of adopting specific responses to particular threats in light of apparent geopolitical circumstances and our relations with foreign countries.”

Fortunately for Vance and Ertel, the Seventh Circuit Court of Appeals found a way around the Second Circuit’s Arar ruling. Unlike Vance and Ertel, Arar was not a U.S. citizen. The Seventh Circuit also took seriously its obligation to review Executive Branch policies and practices. This was a close case, however. The Court of Appeals ruled against Ashcroft by a 2-1 vote.

Seventh Circuit Ruling
After working around the presumption against second-guessing military judgments, Vance and Ertel had to navigate the qualified immunity doctrine, which grants government officials immunity from liability if the law was not clearly established at the time of the constitutional violation. The theory is that, in close cases, government defendants cannot be expected to know that a court in the future will find a certain practice illegal. Qualified immunity also holds that government officials need flexibility in making good-faith decisions without fear that their conduct in an uncertain legal context will be deemed illegal through the benefit of 20-20 judicial hindsight. But the Seventh Circuit said that what happened to Vance and Ertel was inherently illegal and that, if the torture allegations are true, Ashcroft knowingly violated constitutional law in permitting the use of torture in the interrogation of detainees.

This was a remarkable ruling by the Seventh Circuit. Many strong cases are dismissed on qualified immunity grounds. This is because some of those cases are so innovative that they raise novel legal issues that inherently fail under the qualified immunity analysis. Yet, in this case alleging that the Secretary of Defense was responsible for the torture of two American citizens in Iraq, the Court of Appeals denied Rumsfeld immunity even though cases like this are rarely brought and Rumseld’s attorneys argued that the legal landscape in this area was inherently unclear.

How did the Court of Appeals get around qualified immunity in this novel case? For the Seventh Circuit, it was an easy call. The Court writes, “plaintiffs have articulated facts which, if true, would show the violation of a clearly established constitutional right.... The plaintiffs have pled that they were subjected to treatment that constituted torture by U.S. officials while in U.S. custody. On what conceivable basis could a U.S. public official possibly conclude that it was constitutional to torture U.S. citizens?” The Court added, “the wrongdoing here violates the most basic terms of the constitutional compact between our government and the citizens of this country.”

Courts rarely address whether the Constitution prohibits torture against U.S. citizens. The question is whether the alleged conduct “shocks the conscience,” a legal standard under the Due Process Clause that serves as a catch-all when citizens challenge government conduct under the Constitution. Courts are reluctant to find that objectionable government action “shocks the conscience.” In order to prevent the floodgates from opening up new claims for relief, courts do not want to second-guess all governmental decisions, even if those decisions are unfair. But in this case, the Seventh Circuit said that “the physical and mental torture of U.S. a paradigm of conduct that ‘shocks the conscience.’” Borrowing its analysis from cases that struck down inhumane prison conditions, the Court concluded: “If a prisoner in a U.S. prison has his head covered and was repeatedly ‘walled,’ or slammed into walls on the way to interrogation sessions, we would have no trouble acknowledging that his...allegations, if true would describe a violation of his constitutional rights.... The plaintiffs in this case, detained without charges, have pled in detail allegations of such severe conditions and treatment, the likes of which courts have held unconstitutional when applied to convicted criminals in U.S. prisons.”

But the Court of Appeals still had to get around the strongest hurdle in this case: whether torturing U.S. citizens in a war zone violates the Constitution. And, as noted above, this is a Bivens lawsuit, which allows for constitutional claims against federal defendants in limited circumstances, usually when the lawsuit is the only way the plaintiffs can recover any relief. What distinguishes this case from those involving the unlawful treatment of American inmates is that Vance and Ertel were in a war zone. Aren’t courts reluctant to interfere with military decisions in times of war? Yes, but in this case, there is no way for Vance and Ertel to recover any damages for the torture other than the Bivens action. While the government said that these plaintiffs did have an alternative remedy in that they could have complained about the torture at the time of their detention, the Court of Appeals rejected that suggestion out-of-hand. Not only did torture emanate from the top, that is, from Secretary of Defense Rumsfeld, but “if, as the plaintiffs allege here, there was a problem stretching to the very top of the chain of command, it would make little sense to limit their recourse to making complaints within the same chain of command.” In other words, such complaints would be futile.

A Sweeping Defense?
Turning to the central issue in this case, whether torture claims against the military may proceed in court for conduct arising from a war zone, the Court of Appeals declines to defer to the war machine, reasoning: “The defendants’ principal Bivens argument is that, because this case arose in a foreign war zone, no Bivens claim should be recognized. This sweeping defense is proposed against a fairly narrow claim. The defendants are arguing for a truly unprecedented degree of immunity from liability for grave constitutional wrongs committed against U.S. citizens. The defense theory would immunize not only the Secretary of Defense, but all personnel who actually carried out orders to torture a civilian U.S. citizen. The theory would immunize every enlisted soldier in the war zone and every officer in between. The defense theory would immunize them from civil liability for deliberate torture and even coldblooded murder of civilian U.S. citizens. The United States courts, and the entire United States government, have never before thought that such immunity is needed for the military to carry out its missions.”

The Court added: “The unprecedented breadth of defendants’ argument should not be overlooked. The defendants contend that a Bivens remedy should not be available to U.S. citizens for any constitutional wrong, including torture and even cold-blooded murder, if the wrong occurs in a war zone. The defendants’ theory would apply to any soldier or federal official, from the very top of the chain of command to the very bottom. We disagree and conclude that the plaintiffs may proceed with their Bivens claims.”

This is great language for civil liberties advocates and those who opposed the war in Iraq and the use of torture in interrogating detainees. The government was suggesting that certain claims cannot proceed in court no matter how appallingly the plaintiffs were treated. That this language arises in a case against the former Secretary of Defense makes it even more noteworthy.

Relatedly, while the government argued that this case would require that the courts intrude upon national security decisions, here again, the Court of Appeals worked around this tried-and-true argument. It may be true that courts do not typically intrude upon matters of national security, but that is no reason to throw out the case. The better solution, the Court says, is to deal with the exposure of classified information as it arises. Trial courts are equipped to prevent the release of classified information. The court reasoned that “denying a Bivens remedy because state secrets might be revealed is a bit like denying a criminal trial for fear that a juror might be intimidated: it allows a risk, that the law is already at great pains to eliminate, to negate entirely substantial rights and procedures.”

This ruling does not find that Vance and Ertel were, in fact, tortured or that Rumseld is personally liable for that torture. All the Court does is allow Vance and Ertel to proceed with their lawsuit because their claims are enough to allege a constitutional violation. Still, this is an unprecedented ruling. Unless the Supreme Court intervenes, Vance and Ertel will be able to proceed like any other litigants in court, and they may presumably take sworn testimony from Rumsfeld himself. This decision confirms that, despite the conservative trend in the federal judiciary, judges with life-tenure who have no fear of political repercussions can still dispassionately rule against the highest-ranking governmental officials, even on matters arising from wartime in another country. The Court of Appeals’ ruling in Vance v. Rumsfeld shows that no one is above the law.

September 4, 2011

The Road to Marriage Equality in New York

September 2011
Z Magazine

By Stephen Bergstein

When the New York State Senate voted to legalize same-sex marriage on June 24, 2011, it became the largest state in the country to recognize marriage equality. The vote confirmed that the tide is turning in favor of same-sex marriages, including in liberal New York, where two years ago it was overwhelmingly rejected by the State Legislature. While the recent turn of events is cause for celebration, the irony is that this vote did not have to take place at all. It happened because the New York courts failed gays and lesbians in their quest for marriage equality.

Civil rights should not be up for a majority vote. But that’s what happened in Albany, when the State Legislature cobbled together enough votes to override the religious and moral objections raised by Republicans who mostly voted against the bill. Prior to this vote, courts had been taking up gay rights issues for over 20 years, with mixed results. While the conservative Supreme Court is slowly coming around on these issues, the highly-regarded New York Court of Appeals went out of its way to avoid recognizing same-sex marriages, forcing the State Legislature to take up the issue.

Bowers v. Hardwick: Same-Sex Prosecution in Georgia

The Supreme Court did not take up a case involving gay rights until 1986. The issue in Bowers v. Hardwick was whether the state of Georgia could criminalize consensual homosexual sex. In a 6-3 ruling, the Court said that these sexual relationships were not protected by the constitutional right to privacy, which only protected heterosexual relationships.

Justice Byron White framed the issue in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time.” In making reference to the long practice in many states to criminalize this sexual behavior, Justice White answered the question by asking it. But this was not an easy case. For one thing, the Eleventh Circuit Court of Appeals struck down the anti-sodomy law under the constitutional right to privacy. Moreover, although the Constitution says nothing about gay rights or even the right to privacy, prior Supreme Court rulings had extended privacy rights to the sort of private, heterosexual conduct that compared with the sexual and personal behavior at issue in Bowers, including contraception, child-rearing, marriage and family relationships in general.

The six justice majority in Bowers was dismissive of the plaintiff’s claims. In addition to repeatedly referring to the sexual behavior as “sodomy,” a word that carries more negative connotations than “same-sex relationships” or “private sexual behavior,” the Court stated: “Proscriptions against that conduct have ancient roots.” Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy and, today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.

The Court also used the logical fallacy of the slippery slope, stating, “If [plaintiff’s] submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.” Taking things further, Chief Justice Warren Burger stated in his concurring opinion that “[d]ecisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.... To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

The irony of Bowers is that one of the Justices who voted with the majority in rejecting the plaintiff’s claims was Justice Lewis Powell, who told one of his law clerks at the time that he did not know anyone who was gay. In fact, the law clerk himself was gay. In retirement, Powell publicly stated that he regretted his vote in Bowers.

Romer v. Evans: Striking Down Anti-Gay Bias In Colorado

Even if a Justice later regrets his or her vote, the precedent stands until the Supreme Court decides to overturn it. The Court rarely overturns its precedents and Bowers remained good law for years. In the meantime, as the composition of the Supreme Court changed, younger Justices slowly replaced their older brethren. If conventional wisdom holds that the younger generation is more open–minded about racial and sexual equality than its predecessors, the same may be true of Supreme Court Justices. In 1996, the Court struck down Amendment 2 to the Colorado Constitution, which made it illegal for the government to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Amendment 2 was enacted under a public referendum. Gays and lesbians in Colorado no longer had any civil rights.

Although the Supreme Court in 1996 had a conservative majority, the Court in Romer v. Evans ruled 6-3 that Colorado’s Amendment 2 violated the Equal Protection Clause of the U.S. Constitution for several reasons. First, “it identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.” In addition, Justice Kennedy reasoned, “If the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare...desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” The Court majority was essentially ruling that the public cannot pass hateful laws intended to disadvantage a particular social group.

Justice Kennedy is a Reagan-appointed Republican who often sides with his fellow conservatives on the Court on other issues. But he could not abide the implications of Amendment 2 and its effect on gays and lesbians. In striking down Amendment 2, Justice Kennedy easily rejected conservative Justice Antonin Scalia’s histrionic dissent, which referenced Bowers v. Hardwick in arguing, “If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct.” Known for his acerbic writing style, Justice Scalia further stated, “The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of ‘animus’ or ‘animosity’ toward homosexuality, as though that has been established as un-American. Of course, it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers.” The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons—for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homo- sexual conduct—that is, it prohibits favored status for homosexuality.

Lawrence v. Texas: Overruling Bowers

By 2003, public attitudes about gay and lesbian rights had further evolved. That year, writing for a 6-3 majority, Justice Kennedy put Bowers to rest, ruling in Lawrence v. Texas that the Constitution prohibited the State of Texas from making it a crime for people to engage in homosexual conduct. Only 17 years after the Supreme Court had issued the Bowers decision, this time around, the Court held that Bowers was wrongly decided and poorly-reasoned.

Justice Kennedy stated, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

This was music to the ears of civil libertarians, but not to Justice Scalia, who revived his emotionally-charged dissent from Romer v. Evans to further lambaste the Court majority for caving in to some kind of powerful homosexual lobby: “Today’s opinion is the product of a Court, which is the product of a law profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.

“One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is ‘an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.’ It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Although the states cannot outlaw homosexual conduct, Lawrence v. Texas was not the final word on gay and lesbian rights. It remains legal under federal law to discriminate against employees because of their sexual orientation, as efforts to expand Title VII of the Civil Rights Act of 1964 beyond protections against racial, gender, and religious discrimination have failed. The other frontier was same-sex marriage, which was barely a blip on the horizon when I was in law school in the early 1990s. Yet, this movement gained steam over the last decade, as mayors from large and small municipalities began officiating same-sex marriages. That a Green Party mayor in his 20s took this initiative was no surprise. It was also no surprise that a much older District Attorney prosecuted the young mayor for violating the law in officiating these marriages. The next generation always takes things a step forward from its predecessors, who sometimes hold firm on yesterday’s values.

Hernandez v. Robles: Blue-State Justice In New York?

Yet, while New York is a blue state that consistently elects Democratic Party candidates, its Court of Appeals in 2006 rejected a state constitutional right to same-sex marriage, engaging in contorted legal reasoning that re-framed how courts traditionally analyze the right-to-marry cases. As the Court of Appeals is the highest court in New York, this decision closed the door on same-sex marriages for another five years.

When the Supreme Court rules on marriage cases under the Constitution, it frames the legal standard in a precise way. As the Constitution is written in broad terms, few legal problems can be resolved solely by reading the relevant constitutional provision. The Supreme Court has therefore devised multi-part balancing tests that allow it to apply the Constitution in light of competing social, political and legal interests.

Here’s the general framework for courts to apply in deciding whether to strike down marriage restrictions. Under the Constitution, there are certain “fundamental” rights, like the right to travel, the right to privacy, the right to raise your children as you see fit, and the right to marry. The language we usually see in these court rulings is that a fundamental right is something that is “deeply rooted in our tradition.” In Loving v. Virginia, the Supreme Court in 1967 held that it was illegal for the Commonwealth of Virginia to prohibit interrracial marriage. In addition to striking down the anti-miscegenation law on the basis that racial discrimination violates the Constitution, the Court further stated that the law arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. By the late 1970s, rounding up the Court’s marriage jurisprudence, the Supreme Court flatly stated,“The right to marry is of fundamental importance for all individuals.” For this reason, even inmates can get married.

If a right is “fundamental” under the Constitution, it cannot be abridged or restricted without a “compelling” reason. Few compelling reasons can overcome the existence of a fundamental right. Under this framework, if two consenting adults wish to marry, the state cannot prohibit them from doing so absent a compelling reason, i.e., to prevent minors or family members from marrying or to prohibit bigamy.

The New York courts took up same-sex marriage in the mid-2000s. In 2005, a New York City trial court in Hernandez v. Robles followed the traditional framework in noting that “the Supreme Court has ‘long recognized that freedom of personal choice in matters of marriage and family is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.’” Under the “compelling interest test,” the trial court further ruled that the New York Constitution protected same-sex marriage because the state could not identify any compelling reason to prohibit it. It is not a compelling reason under the Constitution to argue that, “We’ve always done it this way.” Nor are deeply- rooted religious concerns a compelling interest. Once the court found that marriage between consenting adults was a fundamental right, its final conclusion in favor of same-sex marriage was a fait accompli; the government is rarely able to justify the abridgment of a fundamental right.

That ruling was overturned by the New York Court of Appeals, which held that the State Constitution does not recognize a right to same-sex marriage. The state’s highest court ruled that, while “the right to marry is unquestionably a fundamental right,” same-sex marriage was not a fundamental right because it is not “deeply rooted in this nation’s history and tradition.” Courts invoke language about this nation’s history and tradition in determining whether an activity or entitlement is a fundamental right that cannot be abridged without a compelling interest. Yet, since marriage itself is a fundamental right, the Court of Appeals engaged in a slight-of-hand in further breaking down the legal analysis to include a sub-question: whether same-sex marriage—as opposed to marriage between two consenting adults—is part of our national tradition. In dissent, Chief Judge Judith Kaye saw through the majority’s tactic, noting that “fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new’ right to same- sex marriage, the Court misapprehends the nature of the liberty interest at issue.”

The irony is that, as the New York Court of Appeals framed the issue, the Supreme Court’s interracial marriage decision in 1967 would have come out the other way, as interracial unions were not deeply rooted in American tradition, either. Moreover, under the New York Court of Appeals’ narrow inquiry, the Supreme Court’s prior cases allowing prison inmates to marry also would have come out the other way, for the same reason, as there is no national tradition allowing inmates to marry. In rejecting the right to same-sex marriage, the New York Court of Appeals moved the goalposts to achieve the outcome it wanted, semi–apologizing for its result by stating that this issue is best left for the State Legislature.

In ruling as it did, the New York Court of Appeals only required the State to justify its prohibition by advancing a “rational basis.” This makes it much easier for the government to defend its policy, since “rational basis” in constitutional law means any conceivable purpose that the legislature might have considered in passing the law. The government nearly always wins under the rational basis test. Here is how the New York Court of Appeals found it rational for New York to prohibit same-sex marriages: “The Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite- sex couples who make a solemn, long-term commitment to each other.

“The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

“There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule—some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes—but the Legislature could find that the general rule will usually hold.”

In other words, reckless sex between heterosexual couples can produce children. The State wants to prevent children from growing up without a mother and father, so we induce the lovers to get married to save the children. The State can deny the same marriage right to gays and lesbians because, although they can adopt children, they cannot “naturally” reproduce. The State Legislature can thus distinguish between same-sex marriage and heterosexual marriage. And, the Court ruled, the Legislature can rationally decide that children are better off with a mother and father rather than a father and father.

The same-sex marriage decision by the New York Court of Appeals was not a proud moment. In any event, it did shift the debate over to elected representatives and an argument could be made that this important issue was now before New Yorkers in a more democratic posture. But that argument assumes that constitutional rights should be up for a popular vote. They are not, which is why constitutional values are counter-majoritarian and rightly so, in order to prevent the majority from crushing the minority out of discriminatory animus. There is nothing wrong with a court altering the social structure if that result is compelled by constitutional values. In 1954, the Supreme Court struck down racially-segregated schools in the south. No one suggests that the state legislatures in, say Arkansas or Alabama, were going to mandate equal rights for schoolchildren on their own. Yet, no one suggests that the Supreme Court in Brown v. Board of Education improperly usurped the will of the people.

The New York State Legislature eventually took up the issue of same-sex marriage, finally recognizing marriage equality in June 2011. While Hernandez v. Robles is not as hateful as Justice Scalia’s dissenting opinions in Romer v. Evans or Lawrence v. Texas, it reflected excessive caution on the part of some New York judges to fairly apply constitutional principles to knock down discriminatory barriers. While activists celebrated the legislature’s vote in June 2011, lost in the shuffle was the recognition that the Court of Appeals’ questionable ruling in Hernandez v. Robles is now a dead-letter.

Stephen Bergstein is a lawyer in upstate New York. He writes about civil rights issues at

June 11, 2011

Supreme Court Lets District Attorney Off The Hook

By Stephen Bergstein
Z Magazine
June 2011

The case before the Supreme Court asked whether a man who narrowly escaped the death penalty for a murder he did not commit could sue the Orleans Parrish District Attorney for not properly training his staff on how to provide criminal defendants a fair trial. In a 5-4 decision, the Justices in late March 2011 held that John Thompson could not sue Harry Connick, Sr., whose deputies withheld exculpatory blood evidence that confirmed that Thompson was innocent.

Connick v. Johnson teaches us a number of lessons about how the Supreme Court decides cases and how the majority and dissent opinions sometimes talk past each other by emphasizing different evidence and legal principles.

To understand the ruling, a few elementary legal principles need clarification. First, thanks to a Supreme Court ruling from 1978, you cannot sue a municipality like a city or county simply because one of its employees broke the law. You have to show that a policymaker is responsible for the civil rights violation. One way to do that is by showing that a policymaker, such as the district attorney or mayor, failed to adequately train subordinates, and that this dereliction caused a foreseeable civil rights violation.

While the victim can always sue the subordinate personally under civil rights laws, lawyers in the district attorney's offices are immune from suit, one of the few public officials exempt from personal liability. The only way that Thompson could recover damages in this case was by naming the district attorney.

Thompson was certainly aggrieved and his story resembles something from fiction. He was arrested for attempted armed robbery. Somehow, the robber's blood ended up on the victim's pants. The prosecution was supposed to provide that blood evidence to Thompson's lawyers under the well-settled principle under Brady v. Maryland (1963), which holds that prosecutors must turn over any exculpatory "Brady evidence" to the defense team. Two days before trial, Assistant District Attorney Whittaker received the crime lab report that showed the robber's blood type: it wasn't Thompson's. On the first day of trial, Assistant District Attorney Deegan brushed aside the blood evidence and it never came up at trial. The jury convicted Thompson of armed robbery. Thompson certainly could have used that blood evidence to prove his innocence.

Meanwhile, Thompson had a pending murder charge. The prosecutors opted to try Thompson first on the armed robbery charge, reasoning that if the jury found him guilty of robbery, in order to prevent the jury from learning about his robbery conviction, he would elect not to testify on his own behalf at the murder trial. Had he testified, the robbery conviction would have come up on cross-examination, destroying his chances of a murder acquittal. Following his one-sided murder trial in which he could not testify on his own behalf, Thompson was convicted and sentenced to death. All of these events happened in 1985.

Fast-forward to 1999. Thompson went to jail, but his legal team was still challenging the conviction. Thompson's investigators eventually discovered the crime lab report that showed that the robber's blood type was not Thompson's. The execution was stayed and the robbery conviction thrown out. The courts then overturned the murder conviction because the Brady violation compelled Thompson not to testify in his murder trial, which meant the murder trial wasn't fair.

When the district attorney tried Thompson again for murder, he testified in his own defense (the robbery conviction could no longer haunt him) and the jury easily acquitted him. Also that year, Assistant District Attorney Riehlmann revealed that his former colleague, Deegan, had made a deathbed confession in 1994 that he had "intentionally suppressed blood evidence in the armed robbery trial of John Thompson that in some way exculpated John Thompson." Riehlmann kept this information to himself as Thompson sat on death row.

This is the evidence that the Supreme Court set forth in its majority opinion, written by Clarence Thomas and joined by conservatives Anthony Kennedy, Antonin Scalia, John Roberts, and Samuel Alito—all appointed by Republicans, the last two by George W. Bush. This case reached the Court after a jury decided that District Attorney Connick was deliberately indifferent in failing to train his attorneys in their Brady obligations, awarding Thompson $14 million for the pain and suffering of being unjustly convicted of murder and spending years on death row. It was that jury finding that the Supreme Court overturned in March 2011. Justice Thomas wrote that the above evidence of a single Brady violation was not enough to show that the district attorney had failed to train his staff on its Brady obligations such that an obvious consequence would be John Thompson's unjust murder conviction. The Court anchored its reasoning on the theory that Thompson had only proven a single incident Brady violation: the failure to produce exculpatory blood evidence. Since the district attorney's assistants all went to law school and have to abide by the profession's ethics rules, Justice Thomas reasoned, "the obvious need for specific legal absent here."

Four Justices dissented, revealing once again the fault lines on the Court, where the five Republican appointees outnumber the Democrats. While the majority opinion summarized the case in tidy fashion and offered straightforward reasoning, the dissenters seemed to describe a different case entirely, emphasizing the deep-rooted failure on the part of the New Orleans district attorney's office to train its lawyers on Brady obligations. Drawing from a voluminous evidentiary record from Thompson's civil rights trial against Connick (which Justice Thomas ignored or explained away as irrelevant), Justice Ginsburg pointed out:

· An eyewitness to the murder said the killer was a six-foot black male with "close cut hair." Contrary to District Attorney's Brady obligations, this information was not turned over to Thompson's lawyers. Thompson is five-foot-eight and styled his hair in a large "Afro." This evidence alone would have probably resulted in an acquittal.

· Shortly after the murder, a "witness" named Perkins approached the victim's family, which had offered a $15,000 reward for information leading to the murderer's conviction. The police tape-recorded Perkins's conversation with the victim's family in which he made it clear that he wanted money for his cooperation. Perkins identified Johnson as the killer after the family assured him that "we want to try and help you." While Perkins testified at the murder trial that he volunteered information to the police with no knowledge of the reward money, Thompson's lawyers were unable to impeach this critical witness because, contrary to its Brady obligations, the district attorney's office never provided them with the tapes of the conversation with the victim's family. In closing argument, the prosecution actually emphasized that Thompson had presented no "direct evidence" that Perkins' testimony was motivated by reward money.

· The prosecution did not turn over a contemporaneous eyewitness account of the murder that suggested that the murderer wore his hair in a style that was quite different from Thompson's. This was additional Brady evidence that the district attorney's office did not produce to Thompson's lawyers. As Justice Ginsburg wrote, "the omission left defense counsel without knowledge that the prosecutors were restyling the killer's 'close cut hair' into an 'Afro.'" Prosecutors finessed this discrepancy at trial by having a police officer testify that the killer's hair was "black and short, afro style."

Ginsburg noted, however, that "as prosecutors well knew, nothing in the withheld police reports, which described the murderer's hair simply as 'close cut,' portrayed a perpetrator with an Afro or Afro-style hair." Justice Ginsburg also summarized "abundant evidence [that] supported the jury's finding [in Thompson's civil rights trial] that additional Brady training was obviously necessary to ensure that Brady violations would not occur." This evidence included the following:

· Connick testified at Johnson's civil rights trial "that his earlier understanding of Brady, conveyed in prior sworn testimony, had been too narrow." Shockingly, he also testified that there could be no Brady violation arising from "the inadvertent conduct of an assistant under pressure with a lot of case load." Courts rarely, if ever, excuse the violation of civil rights on the basis that the wrong-doer was too busy to honor constitutional obligations.

· One assistant district attorney admitted that he never reviewed police files, relying instead on the police to flag any potential Brady information. The attorneys thus deferred to the police about the criminal defendants' entitlement to relevant information. Of course the district attorney's office should engage in independent analysis in handling evidence.

· Another assistant incorrectly testified that Brady material did not include documents that could be used to impeach a prosecution witness "to show that he's lying." This misunderstanding of Brady would allow the prosecution to put on witnesses whose reliability cannot be impeached by the defendant's attorneys, thereby destroying the adversarial nature of criminal trials necessary to ensure that the jury is able to arrive at a truthful verdict.

· While police reports said that the murderer had "close-cut hair," a prosecutor testified that the office was not required to turn them over because newspaper articles suggested that witness descriptions were inconsistent with Thompson's appearance and that therefore Thompson already "had everything."

· Connick himself conceded that his office's Brady training was inadequate, as shown by his admission that his office gave new attorneys no Brady guidance and had installed no procedures to monitor Brady compliance. While Connick relied on supervisors to train their young attorneys, he did not ensure whether the supervisors understood the importance of teaching new lawyers about Brady. One attorney in the office testified that he could not "recall that [he] was ever trained or instructed by anybody about [his] Brady obligations."

· While some young attorneys in his office asked him about Brady from time to time, Connick conceded that he had "stopped reading law books...and looking at [court] opinions" when he became district attorney in 1974. For this reason, Thompson's expert witness testified that Connick's supervision as to Brady was "the blind leading the blind." This expert witness was eminently qualified, having authored the authoritative guide on prosecutorial misconduct used by the prestigious federal defender program. He further testified that the evidence showed "complete to what Brady required prosecutors to do."

· A survey of attorneys in Connick's office showed that more than half believed they had received inadequate training to do their jobs. The office policy manual at the time gave a cursory summary of the district attorney's Brady obligations, and "this slim instruction, the jury learned, was notably inaccurate, incomplete and dated." No surprise, then, that over the course of 10 years, courts had overturned four convictions because of Brady violations.

All this evidence was relevant to Thompson's civil rights case against the district attorney. In Thompson's civil case, the judge told the jury that it could consider all evidence presented at trial, not just the blood evidence, in determining whether the district attorney provided his assistants adequate training. In light of this evidence, the dissenters were astounded that the majority Justices found that Thompson had not shown that Connick was deliberately indifferent to properly training his attorneys about their Brady obligations.

Justice Ginsburg wrote, "had Brady's importance been brought home to prosecutors, surely at least one of the four officers who knew of the swatch and lab report would have revealed their existence to defense counsel and the court." Yet, while Ginsburg's dissent established that "no fewer than five prosecutors" were responsible for Thompson's wrongful conviction, the majority made it appear as if a single rogue prosecutor was responsible, and only because of the blood evidence.

In throwing out the civil rights verdict in Thompson's favor, the majority strained to explain away Connick's cavalier approach to Brady. While Justice Thomas noted that four criminal convictions were overturned because of Connick's Brady violations in the ten years prior to Thompson's conviction, he wrote that "these four reversals could not have put Connick on notice that the office's Brady training was inadequate with respect to the sort of Brady violation at issue here. None of these cases involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind." This reasoning places the focus on Connick's training as to the precise circumstances that led to Thompson's unjust conviction, and not Connick's broader obligation to comply with Brady in general. This is how judges explain away contrary evidence in pursuit of the results they wish to achieve.

Justice Thomas also suggested that the district attorney cannot be deliberately indifferent to Brady training because his assistant district attorneys all graduated from law school and are required to take continuing legal education classes (CLE) post-graduation. But, as Justice Ginsburg noted, lawyers in Louisiana were not required to take CLE classes at the time, and one lawyer in that office testified that his criminal procedure class in law school did not even cover Brady. Criminal procedure is not a required course in some law schools, and even if it were, court decisions are routinely handed down that further interpret and refine the Supreme Court's Brady precedent.

The majority in this case went out of its way to reject Johnson's claim, even after a jury ruled in his favor and the Court of Appeals twice upheld the verdict. Justice Thomas stated that this case lacked merit because, in 1989, the Supreme Court suggested in a footnote what a hypothetical "deliberate indifference" case would look like: "arming a city police force without training them about the use of deadly force." But there is no basis for the Supreme Court to limit a civil rights entitlement to a narrow set of facts, and the majority's emphasis in Johnson's case about the assistant district attorneys' independent Brady knowledge would seem to foreclose any further claims against a district attorney's office on a failure to train theory.

When a jury hears all the evidence and renders a verdict, appellate courts presume that the jury got it right unless the trial judge committed a serious error at trial. Verdicts are rarely overturned on this basis. When the Supreme Court does so (after the Court of Appeals upholds the verdict), it's because the Court wants to take the law in a different direction. In this instance, any fair reading of Justice Ginsburg's comprehensive dissenting opinion suggests that the majority ignored her scathing attack on Connick's Brady training because it wants to make it more difficult for civil rights victims to prevail against municipalities, particularly in failure-to-train cases.

For Thompson, this new direction is heartbreaking: the 5-4 decision throwing out his verdict erases the $14 million award for his wrongful conviction and death row anxiety. A prosecutorial failure of monumental proportions goes unremedied.

Stephen Bergstein is a civil rights lawyer in New York. He blogs on civil rights cases at

May 5, 2011

Caustic Political Speech And The Supreme Court

Z Magazine
May 2011

By Stephen Bergstein

The Supreme Court frequently lets progressives down on the First Amendment. The Citizens United case from 2010—which gave corporations an unlimited First Amendment right to contribute to political campaigns—is only the latest example. In 2006, the Court sharply restricted the rights of public employees who blow the whistle on government misconduct, holding in Garcetti v. Ceballos that the First Amendment does not protect them from retaliation if the speech relates to official job duties, a restriction that knocks out the most important whistleblowing.

A thread that runs through the Court's First Amendment cases lately is an absolutist approach to free speech, unless it affects government efficiency in the public workplace or other institutions, such as public schools. But even the conservatives on the Court have broadly extended speech rights in "pure speech" cases on the street and in the media. The recent case upholding the Westboro Baptist Church's right to protest military funerals shows that the Court is able to hold its nose on the most offensive speech imaginable in order to stand on the broader principle that anything goes in the public forum, so long as no one is hurt.

Four cases since 1970 drive this point home. Each case involved vulgarities or deliberately offensive conduct and speech. Had public opinion controlled the outcome, the speech would have been restricted in each case. Instead, the Court rejected calls for censorship in ways that laid the groundwork for controversial political speech in the future.

"Fuck the Draft"

No speech case highlighted the tensions of the Vietnam War more than Cohen v. California, decided in 1970. After Paul Cohen walked into a California courthouse with a jacket reading "Fuck the draft," he was convicted of disorderly conduct and given 30 days imprisonment. The Supreme Court noted that, "[t]he conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only 'conduct' which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon 'speech.'" This language allowed the Court to step away from the O'Brien ruling (1968), which gave the government leeway to punish certain speech-related conduct, including draft-card burning.

Ruling in Cohen's favor, the Court stated, "[a]t least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistent with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected." Cohen prevailed in the Supreme Court for two reasons: case law interpreting the First Amendment did not give the Court any reason to restrict the speech and, more interestingly, the Court decided that speech like this—no matter how offensive to the older generation—had a place at the table. In particular, the offended parties were not a captive audience and Cohen's jacket was not unprotected "fighting words." Perhaps never before had the Court tolerated such language in the public sphere.

In famous language that opened the door to vigorous and even offensive political speech, Justice Harlan (a Republican appointed by President Eisenhower) wrote: "Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's [sic] vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual."

Nazis in Skokie

By 1978, the public may have been forgiving of Vietnam protesters. Even President Carter pardoned draft resisters a year earlier. As the 1960s turned into the 1970s, vulgarities were more commonplace in American culture, but memories of the Holocaust were still fresh in the minds of Americans who fought in World War II and lost family members in Nazi Germany. The case that gave Nazis the right to assemble in Skokie, Illinois—home to many Holocaust survivors—became a flashpoint. Even free speech advocates turned their backs on the American Civil Liberties Union, which represented the Nazis in court. This had to be the most controversial speech case ever litigated in the American courts, though it never reached the Supreme Court, which declined to hear the case.

Just as the Westboro Baptist Church protests military funerals to promote its homophobia, the National Socialist Party was looking for a provocative way to promote its bigotry. It could not have found a better vehicle than a demonstration in Skokie, a move that triggered extensive media coverage and hand-wringing. Surely, many citizens said, there must be limits on even peaceful speech. The federal courts did not agree, though the judges in this case opened up their legal analysis with the following disclaimer: "The conflict underlying this litigation has commanded substantial public attention, and engendered considerable and understandable emotion. We would hopefully surprise no one by confessing personal views that NSPA's beliefs and goals are repugnant to the core values held generally by residents of this country, and, indeed, too much of what we cherish in civilization. As judges sworn to defend the Constitution, however, we cannot decide this or any case on that basis. Ideological tyranny, no matter how worthy its motivation, is forbidden as much to appointed judges as to elected legislators."

Although the Nazis wanted to demonstrate on public property (normally a safe haven for assemblies and speech), the court noted that the government may regulate the time, place, or manner of speech so long as the restrictions are not in reaction to the content or message of the demonstration. But in this case, the municipality acknowledged that it wanted to restrict the speech out of hostility toward the hateful message. The Seventh Circuit Court of Appeals would not go there, noting that speech may not be restricted on the basis of content unless it is obscene, libelous, encourages an imminent danger "of a grave...evil," or constitutes fighting words. Courts are loathe to add to that list.

None of these exceptions applied in Skokie. The only way to rule against the demonstrators was the repugnancy of their message. The trial court in this case stated, "if any philosophy should be regarded as completely unacceptable to civilized society, that of plaintiffs, who, while disavowing on the witness stand any advocacy of genocide, have nevertheless deliberately identified themselves with a regime whose record of brutality and barbarism is unmatched in modern history, would be a good place to start."

While sympathetic with that view, the Seventh Circuit stood firm: "there can be no legitimate start down such a road." For this reason, the most compelling reason to restrict this speech—avoiding the psychic trauma visited upon Holocaust survivors whose presence in the community inspired the demonstration in the first place—could not be squared with settled First Amendment principles as outlined by the Supreme Court. The Court of Appeals reasoned: "It would be grossly insensitive to deny, as we do not, that the proposed demonstration would seriously disturb, emotionally and mentally, at least some, and probably many of the village's residents. The problem with engrafting an exception on the First Amendment for such situations is that they are indistinguishable in principle from speech that 'invite[s] dispute...induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.' Yet these are among the 'high purposes' of the First Amendment. It is perfectly clear that a state may not "make criminal the peaceful expression of unpopular views."

Hustler v. Falwell

If Cohen v. California and the Skokie cases taught us anything, it was that the government cannot censor unpopular or even vulgar speech. But what about private lawsuits against offensive speakers? These cases do not neatly fit within the censorship definition, but they pose other risks: jurors might award money damages against the most hated speakers and groups in American society on the basis of a civil tort, such as "intentional infliction of emotional distress," a judge-made doctrine that allows victims to recover for the pain and suffering caused by extreme and outrageous conduct.

The Supreme Court dealt with this problem head-on in 1988, this time in a case that highlighted two other products of the post-1960s culture: pornography (Larry Flynt) and religious evangelists (Jerry Falwell). The public held both men in low regard, but Flynt, publisher of Hustler magazine, took it one step further when he insulted Falwell's mother. Running an advertisement parody in Hustler, Flynt portrayed Falwell as an incestuous drunk whose first sexual encounter took place in an outhouse with his mother. The parody drew from the liquor ads that employed double entendre in asking celebrities about their "first times," but at the bottom of the page Flynt wisely noted that this was parody, "not to be taken seriously."

A jury in Virginia awarded Falwell damages in the amount of $150,000 for emotional distress. In Hustler Magazine v. Falwell, the Supreme Court unanimously stated: "This case presents us with a novel question involving First Amendment limitations upon a State's authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most."

Flynt's speech probably offended the Supreme Court even more than Cohen's jacket. Whatever the Court may have thought of Falwell, what did his mother do to deserve this public ridicule? The Court, though, could not retreat from age-old precedents that sharply restricted caustic speech against public figures.

Writing for a unanimous Court, even arch-conservative Chief Justice William Rehnquist could not deny the harms associated with punishing Flynt for this speech: "[t]he sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large'."

Ruling in Flynt's favor, the Justices ruled that civil tort claims cannot override Flynt's right to parody a public figure, and that since no reader would have taken it seriously, Falwell could not argue that the parody was libelous.

Tipping its cap to political satirists, the Court explained why it could not reach any other result: "Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damage awards without any showing that their work falsely defamed its subject. Webster's defines a caricature as 'the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect.' The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events—an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided."

Westboro Church

Perhaps no speech repulsed Americans more than the antics of the Westboro Baptist Church, which deliberately provoked hostility in picketing military funerals with signs that celebrate dead soldiers and 9/11 as God's retribution for America's tolerance of gays and lesbians. It is fair to say that no rational human being would support the church's decision to picket military funerals with such hateful speech. This is why Snyder, whose son died in Iraq, prevailed at trial on a civil tort against the church, winning millions of dollars in damages for emotional distress. The public euphoria over this victory was snatched away when the Court of Appeals threw out the verdict.

In an 8-1 decision in Snyder v. Phelps (March 2011), the Supreme Court also sided with the church, but not before issuing the usual disclaimer: "Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder's funeral, but did not itself disrupt that funeral, and Westboro's choice to conduct its picketing at that time and place did not alter the nature of its speech."

The Court's decision is in two parts. First, it noted that the protest addressed matters of public concern. After taking note of the church's speech (including signs reading "God hates the USA/Thank God for 9/11" and "Priests Rape Boys"), Chief Justice John Roberts stated, "[w]hile these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import," even if a few of the signs were directed at Snyder's son. Second, "the church members had the right to be where they were" in that they complied with local public assembly requirements, situated themselves some 1,000 feet from the funeral, and there was no shouting, profanity, or violence. "Given that Westboro's speech was at a public place on a matter of public concern, that speech is entitled to 'special protection' under the First Amendment."

The Supreme Court had never decided a case like this. While it has repeatedly upheld the right of protesters to assemble in public parks and on streets and sidewalks, and it has also protected the use of caustic and offensive speech, having sidestepped the Nazi/Skokie case, it had never decided whether the First Amendment protected intentionally provocative speech under these difficult circumstances. None of the precedents cited in the Westboro case resembled this one. The Court fused together from other cases the "public concern" and "public place" theories. And, drawing from legal principles outlined in the Hustler case, it expressed concern that a jury being asked to award damages on the basis of outrageous speech could easily allow its subjective hatred for the message to influence its verdict. "In a case like this, a jury is 'unlikely to be neutral with respect to the content of the speech,' posing a real danger of becoming an instrument for the suppression of...'vehement, caustic, and sometimes unpleasant' expression."

Apologizing for this result, the Court ended the opinion as follows: "Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case."

The Supreme Court went out of its way to rule in favor of the Westboro Church. The short-term harm posed by the case is that the church will continue to picket military funerals with its outrageous homophobic slander. But the church is a radical sect that will remain on the fringe; no one else is picketing military funerals. In deciding in favor of the church, the Court ensured that other provocative speech will not be censured as long as no one is physically injured. While the Court's speech absolutism may damage this country's electoral process in allowing corporations to buy elections, the Westboro case protects not only conservative Tea Partiers, but liberals and radicals who protest U.S. policies at home and abroad. The message is clear when it comes to this kind of political speech: anything goes.


Stephen Bergstein, a lawyer in upstate New York, writes on civil rights issues at

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