I Have No Opinion

The Supreme Court recently decided the case of Franchise Tax Board of California v. Hyatt, a fairly interesting case in which a citizen of Nevada brought a lawsuit against a California government entity in a Nevada court. The factual details are not especially important to this post. What matters is how the justices voted to decide the case.

There were two questions. The first, whether an older case called Nevada v. Hall should be overruled, could not be definitively answered because the eight members of the Court tied in their vote. The second, whether the Nevada court applied the correct law when deciding the case, was answered in the negative by six of the eight. Of those six, Justice Samuel Alito merely concurred in the result but did not join the controlling opinion written by Justice Stephen Breyer.

Alito's concurrence is interesting because of its brevity.

When a justice "concurs in the judgment," they agree with the ultimate holding of the case (the end result) but disagree with the reasoning of the majority opinion. Normally, such a concurrence is accompanied by an opinion of its own, explaining exactly why the concurring justice agrees with the holding but departs from his or her colleagues on their approach.

Justice Alito's concurrence in Hyatt has no accompanying opinion. He agreed with the result of the case, disagreed with the majority's reasoning, but was for some reason disinclined to explain why.

Though this is now rare, it is not without precedent. This practice was actually quite prevalent during the reign of Chief Justice Roger Taney between 1836 and 1864, but has declined dramatically since. That said, Justice Alito himself concurred without an opinion in another case just three years ago: Los Angeles County Flood Control District v. Natural Resource Defense Council, Inc. Other examples of silent dissents and concurrences can be found here. 

Note that Justice Alito did not do anything wrong in Hyatt. There is no rule requiring Supreme Court justices to write a separate opinion if they concur or dissent in a case. But it is noteworthy when they do not, because they are so rarely reluctant to expound their positions elaborately whenever the opportunity arises.

The Duty Owed to the Guilty and Innocent Alike

The Sixth Amendment of the United States Constitution requires that "in all criminal prosecutions," the accused shall have "the assistance of counsel for his defense." That means anyone charged with a crime is constitutionally entitled to have an attorney defend them against the charges.

Many people charged with crimes are innocent. Many are guilty of heinous acts that offend the mind and turn the stomach. Nevertheless, the requirement that a person accused of a crime be represented by an attorney is unaffected. There is no "unless they're actually guilty clause" or "unless they're accused of something really nasty exception" to the Sixth Amendment.

Meanwhile, attorneys hired by or appointed to the accused - like all attorneys - are bound by the ethical rules of our profession. Those rules vary from state to state, but for the most part, they are very similar. And they all include a requirement that each attorney provide the best representation to their clients that they possibly can.

For example, the ethical rules for Kentucky attorneys require diligence. In the words of the Kentucky Supreme Court, that means:

A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.

Granted, attorneys aren't required to pursue any and all strategy imaginable to defend their client. They do retain some professional discretion as to strategy and tactics, may disagree with their clients, and must treat the court and other attorneys with respect. But the underlying requirement of diligence is a strong and important one - each person represented by counsel is owed a vigorous representation of their interests.

For those accused of a crime, avoiding conviction or minimizing the sentence they might receive upon a finding of guilt is their primary interest. To that end, criminal defense attorneys should pursue all "lawful and ethical measures" to reach a favorable result for their clients. Again, this is regardless of the details of the charges or the possibility that their client is actually guilty.

These constitutional and ethical requirements are the linchpins of our adversarial criminal justice system. That's why this post, by former Supreme Court clerk Carrie Severino, is so heinous and wrongheaded. In it, she attempts to smear potential Supreme Court appointee Jane Kelly. Kelly is a former public defender who now serves as a judge on the United States Court of Appeals for the Eighth Circuit, one level below the Supreme Court in the federal judiciary.

As Severino points out, in a faux-clinical way, Kelly once represented a convicted felon named Casey Frederiksen. As she was bound to do, Kelly defended Frederiksen and worked to get him a lighter sentence than the maximum allowed for his crimes. But Severino says these facts are "less convenient" than others that favor Kelly's nomination, insinuating that Kelly doing her job as a defense attorney should work against her.

There is no inconvenience in the fact that Kelly, by all accounts, vigorously represented her client to her best ability. That is what good lawyers do, even when they have bad clients. Unless Ms. Severino knows of legal or ethical violations committed by Kelly during the course of her representation of Frederiksen, her criticisms read like a cynical, political effort to unfairly smear a fellow member of the bar.

That, unlike anything Kelly is accused of doing, is unbecoming of an attorney.

The President is the Chief Executive, not a Legislator

In my time on this planet, I have so far survived nine presidential elections. For as long as I can remember, the media circus surrounding each has focused on the legislative goals of the candidates. By that I mean the main topic of discussion has always been what particular policies the would-be presidents supported, such as their takes on health care law or abortion law or business regulation or tax law.

If your perception of the presidency was informed entirely by watching the news, you might think that the President of the United States functioned as some kind of Super Legislator, as someone who wielded the enviable power of both proposing new laws and then enforcing them upon enactment. Thus, under that framework, whatever a particular candidate suggested we do about health care (for example) would not just be important or influential, but supreme.

But if your perception of the presidency is informed instead by the U.S. Constitution, you might be curious why so much focus is placed on legislative prerogatives. Most of the President's job is defined by Article II, which gives him or her various executive tasks: appoint judges and executive officers, command the military, make treaties, grant pardons, apprise Congress of the state of the union, and "take care that the laws be faithfully executed."

The legislative role is instead vested entirely with Congress, those wily Representatives and Senators who haunt the halls of the U.S. Capitol. Their duties are described by Article I, chief of which are the passing of new laws and the modification or repeal of old ones. That said, they can't legislate on their own. The President does play a part in this process, and makes an appearance in Section 7 of Article I:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law.

The Presidential "objections" to which the Constitution refers are known as a "veto," which can only be overridden by a two-thirds majority of Congress. The presidential veto is a powerful tool that is used sometimes often and sometimes rarely, depending mostly on the partisan makeup of Congress compared to the party affiliation of the President. When Congress is dominated by Republicans but the White House is occupied by a Democrat (and vice versa), vetoes are more common than when the same party controls both.

But why the lesson in basic civics? Because there is now, as there always is, a debate raging among liberal commentators about the various legislative prerogatives of the top two Democratic candidates, Bernie Sanders and Hillary Clinton. There is much hand-wringing and finger-pointing about the more radical (or perhaps not radical enough) policies that Sanders supports compared to Clinton. For example, Sanders has long touted the need for universal single-payer health care. He opposes restrictions on abortion. As an independent member of Congress since 1991, he has repeatedly introduced and supported bills with liberal or outright leftist policy goals.

Clinton, however, is regarded as a centrist if not right-leaning. She has repeatedly voiced support (as First Lady, Senator, and Secretary of State) for conservative legislation like welfare reform, the Defense of Marriage Act, and mandatory minimum sentences for federal crimes.

Because Congress is currently controlled by Republicans, Clinton, as the centrist, is considered by some to have the more "viable" legislative prerogatives or abilities, and therefore is a more viable candidate for the presidency whereas Sanders would be "a gamble." After all, how effective can President Sanders be if has no hope of passing his pet bills through a hostile Congress?

Very effective, actually. At least in other realms. When faced with a hostile, conservative Congress, sometimes the most important role of a liberal president is that of legislative gatekeeper unafraid to wield the sword of veto. Though his or her own policy goals may not pass, he or she retains the power to prevent worse bills from becoming law. For example, we may not see universal single-payer make any headway during the next four years, but we might see the next president strike down a bill rolling back the incremental gains of the Affordable Care Act.

And the President wields incredible power beyond his or her role as bill signer. First, the President, as Commander in Chief, can determine whether the United States invades a foreign country without provocation or summarily executes its own citizens abroad with airborne drones (Congress' constitutional role in warmaking has been seriously restricted over the past several decades). The President also oversees executive agencies like the EPA and IRS, thus controlling the enforcement of the nation's environmental and tax policies (for example).

Regardless of the particular dynamics of the current presidential race, the general trend of viewing candidates through a legislative lens overlooks the tremendous power of the office. Instead of asking whether any candidates' particular policy prerogative has a chance of passing through Congress as it is currently comprised, the main questions should be centered on the use of executive power. How would each candidate react to a crisis abroad? Will each candidate continue the "War on Terror" and its related drone and surveillance schemes? How will the IRS operate under each candidate; will it audit and prosecute aggressively or will it cut back its staffing? Who would each candidate appoint to the Supreme Court, or to any other vacancy in the federal judiciary? Will the NSA, FBI, and CIA continue to spy on our communications without serious constraint? These are all critical questions.

This is not to say the president does not play an important, influential role in the proposal and eventual passing of legislation. A candidate with strong left wing views like Sanders will inevitably face more resistance in the current House and Senate than a Republican or a conservative Democrat. But to hang support of any particular candidate on his or her ability to pass any particular policy through Congress alone is to miss the constitutional point of the presidency.

We Meant Well

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment to the U.S. Constitution (emphasis added)

"We Meant Well" is not just the title of Peter Van Buren's excellent book about the futile and wasteful attempt of the U.S. to rebuild Iraq after invading it. It's also the universal plea of all those who, despite good intentions, really made a mess of things somehow.

This week, Pew Research released the results of a poll about freedom of speech. For the first time ever, they asked whether respondents believed government should be able to prevent people from saying things offensive to minority groups. Two-thirds said no. Twenty-eight percent said yes.

If you're a proponent of free speech, or, rather, opposed to the government criminalizing speech, the results should be reassuring to you. It seems there is little support for a crackdown by police and other state actors on offensive utterances. America isn't England, after all. We have a tradition of allowing people, by right, to say pretty much anything they want to say no matter how borish or offensive it might be, with few exceptions.

But digging deeper into the poll results reveals something peculiar. "Millennials," those wily scamps aged 18-34, support so-called "hate speech" laws more than anyone else. Forty percent are OK with government restrictions on speech offensive to minority groups. Nobody else comes close. Both Gen X (my generation) and Boomers (my parents) manage less than thirty percent support for such a proposition. It may or may not shock you that the "Silent Generation" (my grandparents) aren't keen on laws against racist commentary at all - eighty percent say no.

The racial breakdown is also not especially surprising. Non-whites support anti-racist speech laws at a rate fifteen points higher than whites. So the two biggest contingents of support come from young people and people of color.

If you run in academic circles or pay attention to the various anti-racist protest movements around the country, you might be inclined to believe that the vast army of non-white PC fascists on college campuses is the force behind this sentiment. But the poll shows that support for hate speech laws declines as college education increases. Granted, there are a LOT more college graduates both older and whiter than the current crop of college protesters fighting for "safe spaces" and racial justice across America's quadrangles, but it still suggests that most support comes from those who haven't graduated high school - though the rank of high school graduates now includes more Millennials than it excludes due to age alone.

No matter which demographic breakdown seems more illuminating, it is important to point out the problems with the underlying premise of outlawing "statements that are offensive to minority groups." How does one determine what is "offensive?" I'm not trying to be obtuse here. There are certain racist things that pretty much everybody can understand to be offensive by their very nature. But if we're going to criminalize certain speech (or, as the poll describes it, let the government "prevent" it), we'll need to define it some way. Who gets to define it?

The answer, of course, is legislators. Leaving aside for a moment the fact that most legislators at all levels across our country are white men, we couldn't outlaw offensive speech unless we had a law defining what counts as offensive. Do we let the police arrest only those who use the "N-word?" Or do we let them arrest someone for saying anything up to and including vaguely troublesome dog whistles like "you people?" Where is the line drawn?

Let's create a hypothetical rule to answer that question. Let's outlaw any explicitly racist slur. The "N-word," of course, but also "Chink," "Wetback," "Negro," and the like. If you use one of those words, in any context, the police can arrest you and you can be charged with a misdemeanor. Also, we'll outlaw any terms or statements that are critical of an entire race as a whole. Anyone who says "black people are animals," or "Hispanics are lazy criminals" or anything broadly nasty such as that can also be arrested and charged. 

This rule is passed by a legislature of some sort. Let's call them Congress a decade from now. We've had a couple of elections and we'll presume that a Democratic wave has recaptured both houses. In an effort to appease the liberal base and move the country closer to racial justice, Congress passes the Hate Speech Act that outlaws racist slurs like what we've identified above.

Things go smoothly for a few years. Racist jerks are being arrested and charged and the incidents of public hate speech are on the decline. The law is an effective deterrent for nasty racist commentary. But something else is still happening. Black men are still being killed by police officers at a disproportionate rate. Protesters and angry commentators are still saying and posting things very critical to police forces all over the country.

Then Congress shifts back to the GOP. And, seizing the power of the Hate Speech Act, they amend it to include anything critical of police officers. They call it the Blue Lives Matter Act. Soon, protesters opposed to police brutality get arrested and charged for hate speech by the dozens, and are easily convicted. The law, after all, paints with a wide brush because hate speech can come in varying forms. And why should only racial minorities be protected? Why not police officers, our heroes and protectors?

Such is the danger of criminalizing speech. There is no doubt that racist rhetoric is poisonous to our civil discourse and traumatic to those who are targets of it. Freedom of speech or not, good citizens should not be lobbing hateful comments at each other. Racist slurs and insults reinforce societal inequalities that must be combated and torn down somehow.

But we must resist the urge to "do something" about it if doing something restricts the freedom of expression we enjoy as a right under our Constitution. Not because hateful rhetoric is OK or racists should not be scorned or shunned, but because criminalization of anything increases the power of the police state and gives more power to those who would abuse it. The vague notion that something is "offensive" to someone can be manipulated to benefit the privileged against the oppressed, even if the initial intent was noble.

In 1798, in the wake of the French Revolution, President John Adams signed into law the Sedition Act, making it a crime to criticize the national government. Many people (mostly members of Thomas Jefferson's Democratic-Republican Party) were fined and arrested and imprisoned under the law. Though obviously unconstitutional (the First Amendment expressly prohibits Congress from abridging the freedoms of speech and the press), the Supreme Court of 1798 was not the same as it is now. There was no way to have such a law declared unconstitutional. Only after Jefferson became president and the Democratic-Republicans took office was the Sedition Act allowed to expire.

More than a century later, Congress amended the Espionage Act of 1917 to outlaw "disloyal, profane, scurrilous, or abusive language" aimed at the U.S. government during World War I. The amendment was known as the Sedition Act of 1918 and was not repealed until 1920, two years after the war ended. It was even upheld as constitutional in the case of Abrams v. United States, 250 U.S. 616 (1919). Violation of the law carried a jail sentence as long as twenty years. The most famous person convicted under the law was Eugene Debs, the socialist labor union organizer and critic of the U.S. government (he spoke out against conscription).

The Sedition Act and its later incarnation as an amendment to the Espionage Act, though draped in the nobility of national security and unity, were tools for those in power to consolidate their control and dominance. And that is the risk posed by any restriction on speech. The people in power need only tweak the definition of what speech is criminalized, then aim the coercive power of the police toward their preferred targets. Perhaps that's not scary if you're the one in power and not the current target of the restriction. But political power can be transitory in this country and your tight hold on government could vanish overnight.

Racist speech is reprehensible and indefensible. Yet criminalizing it would only expand the power of the privileged (who fill the seats of government) and the police (who physically assert their will). Pass a hate speech law against racism today, tomorrow it could easily prohibit the critical speech that fuels effective protest movements against government overreach and police abuse.

As the police batons come cracking down on the heads of outspoken troublemakers merely for uttering the wrong words and they find themselves convicted under laws they once supported, surely some will think to themselves, "but we meant well."