Nebraska just voted to end the death penalty?

As much as I’ve wanted to see the much-rumored left-libertarian convergence on criminal justice reform bear fruit, I’ve remained skeptical that sufficient numbers of conservatives would be willing to take on prosecutors, the prison-industrial complex, and the prospect of primary challengers accusing them of softness of crime. But last week, the Nebraska legislature surprised many observers, including me, by becoming the first conservative-leaning state in over four decades to abolish capital punishment, in all likelihood over the veto of Governor Pete Ricketts.

The coalition responsible for this measure brought together legislators with widely divergent reasons for supporting abolition. It included liberals who oppose the death penalty on principle and as a practice with racially disparate impacts. It also included small-government conservatives such as Nebraska Senator Laure Ebke, who asked, “If government can’t be trusted to manage our health care … then why should it be trusted to carry out the irrevocable sentence of death?” But other considerations brought a wider range of legislators into the abolitionist camp:

  • A claim, advanced by religious conservatives in the legislature, that self-identifying as pro-life compels opposition to the death penalty
  • Concerns about the costs of the legal and penal apparatus of capital punishment, compared to life without parole.
  • Shortages of drugs used for lethal injection
  • The infrequency with which the death penalty has been carried out in the state (no one has been executed in Nebraska since 1997)

Nebraska is not alone when it comes to legislative activity seeking to abolish or restrict capital punishment. According to the Death Penalty Information Center, since January abolitionist legislation has been introduced in 13 of the 31 states other than Nebraska that currently have the death penalty. My initial expectation was that these proposals would be quixotic efforts put forth by lone-wolf legislators. But abolitionist proposals are often accompanied by other measures designed to limit, if not end, capital punishment. We can group states as follows:

  • Abolition, and no other bills: Delaware, Kansas, Montana, Pennsylvania, Washington
  • Abolition, and separate bills limiting the death penalty or seeking further study of issues surrounding the death penalty: Kentucky, Missouri, Ohio, South Dakota
  • Abolition, and separate bills seeking to preserve or expand the death penalty: Arkansas, Indiana, Wyoming
  • Abolition, and separate bills on both sides: Texas

Optimistic abolitionists would label this activity a sign of genuine progress, in that bills have been offered in a number of staunchly conservative states. More skeptical observers would note the greater success of proposals protecting the death penalty, through either expanding the number of offenses qualifying for it, protecting suppliers of drugs used for lethal injections, or authorizing the use of alternatives to lethal injection. Abolitionist bills, with the exception of Arkansas’, have either failed to see action or have been voted down in committee. But whether you see the glass as half-empty or half-full, it’s hard to deny that the glass has gained water.


Standing doctrine as escape hatch in Obamacare 2.0?

The latest plot twist in the will-they-or-won’t-they drama surrounding the Affordable Care Act (ACA) concerns the four plaintiffs at the heart of the case currently before the Supreme Court, and raises the question of whether they’ve been dragged into a fight that isn’t really theirs. Thanks to some crackerjack reporting from Stephanie Mencimer in Mother Jones and Louise Radnofsky and Brent Kendall in The Wall Street Journal, we’ve learned that the plaintiffs’ connection to Obamacare is more hypothesized than real. From Mencimer’s account:

Three of the four plaintiffs are nearly eligible for Medicare, meaning their objections to Obamacare will soon be moot. Two of them appear to qualify for hardship exemptions—that is, they are not forced to acquire insurance or pay fines because even with a subsidy insurance would eat up too much of their incomes—so it’s unclear how Obamacare had burdened them. These two plaintiffs seemed driven by their political opposition to President Obama; one has called him the “anti-Christ” and said he won election by getting “his Muslim people to vote for him.” Yet most curious of all, one of the plaintiffs did not recall exactly how she’d been recruited for the case and seemed unaware of the possible consequences if she wins. Told that millions could lose their health coverage if the Supreme Court rules in her favor, she said that she didn’t want this to happen.

The potential problem, from the standpoint of the law’s detractors, is that the legal doctrine of standing limits eligibility to file suit to actors who can show that they have suffered a particularized injury as a result of the challenged policy, and that a judicial remedy exists that can redress the injury. Merely being a concerned citizen who holds strong objections to a law will not suffice to provide access to the federal courts. And plaintiffs bear the burden of establishing standing, which means that even though the Obama administration inexplicably did not raise the issue in its brief, it might still be able to prevail because of it.

Does the consideration of standing transform the battle over the ACA’s legality by offering an escape hatch for justices who find the petitioners’ position questionable yet are hostile to the ACA? The problem with this hypothesis is that the justices who voted to grant review in King v. Burwell already had an opportunity to pass on Obamacare 2.0, but instead they jumped on the opportunity to hear the case. At the time they granted review, the D.C. Circuit Court of Appeals had already agreed to vacate its panel’s ruling in a parallel ACA case and to hear the case en banc, which meant that there was no intercircuit conflict of the type that gives the Supreme Court a more compelling reason to grant review. The justices who voted to review the 4th Circuit case (King) could have waited for the D.C. Circuit’s ruling, and had the D.C. Circuit followed the lead of its panel and struck down the subsidies for insurance purchasers using the federal exchange, the Supreme Court would have had its intercircuit conflict. The fact that at least four justices—the lack of transparency concerning certiorari means we won’t know for decades which justices voted for review—chose not to wait indicates an eagerness to decide this case that has caused no shortage of worry for the ACA’s defenders.

On the other hand, given the 5-4 line-up in the original litigation on the constitutionality of the law’s individual mandate, it is unlikely that more than five justices have agreed to review King. The justices who voted to grant certiorari might be confident that they have the fifth vote lined up, but as was the case in the earlier Obamacare litigation, their confidence might be misbegotten. All it would take to avoid deciding the contentious statutory issue is for Anthony Kennedy or John Roberts to find the escape hatch appealing. And if one or both did, it’s hard to imagine that the liberal justices wouldn’t follow suit.

There is ample precedent for using standing to duck politically vexing questions; one notable example came with the Court’s dismissal in 2003 of an Establishment Clause challenge to the inclusion of “under God” in the Pledge of Allegiance. And using standing would not preclude future challenges, as opponents of the ACA could refile with new plaintiffs who would be able to establish standing more credibly. Conservative justices might feel more comfortable tossing King if they know that they aren’t closing the door to claims relying on the substantive issue at hand in King.

Should defenders of the Affordable Care Act rejoice if standing proves decisive here? Even if all four petitioners are deemed to lack standing–and it’s plausible that only some, but not, petitioners will meet that fate–opponents of the Act could refile with plaintiffs who not only have standing, as noted above, but could present themselves as more publicly compelling figures whose challenge might be viewed more sympathetically. And they might believe that by the time a new case reached the Supreme Court, the composition of that body might change so as to become more inviting to the statutory challenge to Obamacare. But depending on the 2016 election results, the Court could just as easily become more hostile to such challenges. And more delay means more people benefit from the ACA, which raises the political cost of repealing the subsidies. Once the law becomes more firmly entrenched, legal challenges rooted in questionable methods of statutory interpretation will seem increasingly quixotic. So supporters should be happy to see this case disappear, irrespective of why it disappears.

They’ve seen the needle and the damage done? (UPDATED 1/28/15, 5:15 PM)

Death penalty opponents have long been accustomed to taking their legal gains small and discrete, given the Supreme Court’s lack of interest in reconsidering its stance on the legality of capital punishment writ large. Over the past 12 years, abolitionists have had no small shortage of such gains, including bans on executing mentally disabled defendants, juvenile defendants, and those convicted of offenses other than murder. Their success concerning who may be executed and what they may be executed for, however, has not extended to questions of how they may be executed.

On Friday, however, the Supreme Court signaled a potential willingness to scrutinize execution methods more closely, in the wake of highly publicized lethal injections gone horribly amiss. Under its current standard, established in 2008 in Baze v. Rees, an execution method may be held to violate the Eighth Amendment only if it presents a “clear risk” of “severe pain” relative to what an alternative protocol might inflict. The existence of a less painful alternative, in and of itself, would not constitutionally compel the state to abandon its current methods. In reconsidering this precedent, the Court is also addressing two related questions: (1) whether three-drug execution protocols are unconstitutional if the sedative fails to do its job sufficiently, thus exposing the individual to significant pain from the other two drugs; and (2) whether a death-row inmate’s challenge to an execution proposal requires him or her to demonstrate the existence of a superior alternative.

The decision to grant review in Glossip v. Gross should not be read as a sign that Justice Anthony Kennedy, the Roberts Court’s quintessential swing vote, has changed his mind on the issue. Only four votes are needed to grant review, but five are needed to grant a stay of execution. The result is a curious state of affairs in which a death-row inmate could win his case, but have the victory come too late to save his life. To date, the Court has refused to stay the three scheduled Oklahoma executions at issue in Glossip, thereby suggesting that the fifth vote for overturning the Baze precedent has not yet emerged. (On Monday, Oklahoma did apply to the Court for a stay of execution limited to the three inmates involved in the case, but their application proposed that the Court lift the stay if the state can procure the drugs needed for an alternative protocol.)

What’s interesting to me is the strategic calculus of the four justices voting for the stay, whom we can presume were also the four who voted to grant review. Perhaps they feel confident that after oral argument, a fifth vote will emerge to constrain states when they carry out executions. (Indeed, one of the rationales for the Court’s adoption of the “rule of four” is that it leaves open the possibility that oral argument and intra-Court deliberation might change minds. At the very least, the rule might discourage outside observers from viewing the vote to grant review as equivalent to a vote on the merits.)

Such optimism, however, seems misguided in light of the absence of a fifth vote to grant a stay; any justice seriously entertaining a vote against death-penalty states presumably would want to prevent said states from executing death-row inmates while their claims are still pending. To be sure, Oklahoma’s request for a stay is predicated on that stay being lifted once the state has identified an alternative protocol. In the state’s view, discontinuation of the sedative at issue, midazolam, would remove any barriers to executing the inmates, whose guilt is not being contested. But any alternative protocol would have to undergo the same level of scrutiny the Court is currently devoting to midazolam, or the possibility would still exist that an inmate could be executed using a method that violates the Eighth Amendment. If the liberal wing is hoping that Justice Kennedy would join it, after he had passed on the opportunity to delay the executions for five months while the case was pending, there is a strong possibility that its hopes are misguided.

But what if the liberal justices, rather than acting misguidedly, are taking a longer view of which strategic actions will serve their interests best? Perhaps those favoring review are fully aware that they could lose on the merits, yet still benefit from the Court’s airing the various issues surrounding lethal injection as currently administered. Half a dozen years ago, the Court that decided Baze treated as speculative the prospect that lethal injections might not go according to design. Hearing the Oklahoma cases returns to center stage not just Clayton Lockett’s agonizing botched execution, but all lethal injections that looked like his. Death-penalty states have worked very hard to safeguard their practices from public scrutiny; as such, a victory at the Supreme Court will feel Pyrrhic to them if it is accompanied by a highly publicized accounting of how states do death. Conversely, for the liberal justices Glossip v. Gross becomes a no-lose proposition: either the Court constrains death-penalty states, or the continuing negative publicity leads to pressure on state legislatures to change their policies, and on their drug suppliers to refrain from participating in lethal injection. Come April, when the Court holds oral argument, we should have a better sense of whether the liberal bloc’s short-term tactics paid off. But if the Court sides with Oklahoma, we’ll have to wait much longer to determine whether losing the battle will help them win the war.

UPDATE (1/28/15, 5:15 pm): The Supreme Court has ordered Oklahoma to postpone lethal injections using midazolam until the Court has ruled on the legal challenges surrounding its use. The Court, however, did not say whether the state could conduct executions using some other protocol.

Some slightly belated thoughts on MLK Day

Thinking about Martin Luther King, Jr. Day evokes in me an unexpected kinship with others who view “their” holidays as coopted. I come to empathize with those devout Christians who lament the commercialization of the latter fourth of the calendar year and urge us to put the Christ back in Christmas. I understand better the frustration of military veterans who would like the American public to treat Memorial Day more as a commemoration of fallen soldiers than a celebration featuring beaches, BBQ and baseball. With regard to the King holiday, the danger is that the canonized version of King will dominate public remembrances and will cause us to lose sight of just how radical true belief in America’s promise could be.

It is hard to envision J. Edgar Hoover doing battle with the canonized version of King for reasons other than bigotry-fueled bullying. Remembering the more radical version–the one who took bricks in Chicago and put to bed any notion that segregation was purely a Southern phenomenon; the one who jeopardized allegiances with powerful Democrats, including Lyndon Johnson, by steadfastly opposing the Vietnam War; the one who launched the Poor People’s Campaign and noted that seats at lunch counters had limited value if you couldn’t afford to buy a burger; the one who died while organizing sanitation workers in Memphis–helps us remember how King gave Hoover something real to fear. The Civil Rights Act of 1965 and Voting Rights Act of 1965 deserve to be labeled the most consequential civil rights legislation in American history, but what King promoted after 1965 threatened a farther-reaching redistribution of economic and attendant political power.

Remembering what King considered necessary to make the American Dream more than a cruel joke for millions of African-Americans also compels a rejection of the revisionist view that were he around today, he would favor the conservative reading of equal protection as requiring color-blind public policy. (Here are one hijacker’s recent colorful remarks on the subject.) Consider, to start, the numerous statements King made directly calling for race-conscious remedies for past discrimination. But even if you could write these statements off as inapplicable to the wide range of programs currently falling under the banner of affirmative action, is it plausible to believe that someone with such a strong sense of the linkages between economic development and political power would posit formal equality, without a sustained effort to reduce centuries of comprehensive substantive inequality, as an end goal? If we believe that adherence to non-violence equals political naivete, then we haven’t learned much from King at all.

Is it possible that King, had he lived to see both the gains and the disappointments of the post-1968 era, would have become more conservative? Would he be lecturing young black men about the need to pull their pants up and speak ever-so-respectfully to law enforcement officials, instead of advocating economic transformations that would provide genuine opportunity for marginalized peoples? There is certainly precedent for this kind of shift. But perhaps King would have become more radical as the limits of formal equality became more evident. I don’t think he would abandoned non-violence, a concept at the core of his political identity, but I could envision his becoming more skeptical about the prospect that economic and social justice could be achieved within existing frameworks.

What is ultimately troubling for me about King Day is that as his era grows more distant, we increasingly view civil rights opponents’ behavior as inexplicable, the product of a more benighted era. When we read King’s “Letter from a Birmingham Jail” and encounter King’s admonition to white Southern clergy counseling patience, we empathize with King’s frustration over being asked to bear the burden of racism indefinitely while white people of good will gradually come around. But do we consider the possibility that our attitudes and behavior echo those of King’s addressees? Are we counseling patience to people who simply don’t have the luxury of waiting for the larger society to evolve? Reflection is hardly a strong suit of American politics, irrespective of issue. But it’s especially unfortunate to see insufficient reflection about race relations on a day devoted to someone who urged us to engage in such reflection.

Obamacare 2.0 litigation: time to panic?

In September, I presented the D.C. Circuit’s decision to rehear the most recent challenge to the Affordable Care Act (ACA) as an example of how hyperventilating over lower court rulings often proves unnecessary. On Friday, however, the Supreme Court opted not to wait for the D.C. Circuit en banc hearing, instead choosing to grant review of the Fourth Circuit’s ruling upholding the ACA’s subsidies to insurance purchasers in states whose exchanges are run by the federal government. Is it time for ACA supporters to break out the paper bags?

Reasons for panic:

* The fact that the Supreme Court took the case at all, given the absence of a lower-court split on the issue. With the D.C. Circuit’s rehearing scheduled for December, the justices could have waited to see if the issue resolved itself. Instead, they decided to review the Fourth Circuit’s ruling now, and given the fact that the Court is more likely to grant review to reverse a lower court’s decision than to affirm it, ACA supporters have reason for concern. It is true that only four justices’ votes are needed to review a case, and as such, a vote to review is not necessarily a vote on the merits of the case. But if the four dissenters in the 2012 ACA case were uncertain that they had a fifth vote, why rush to take the Fourth Circuit case?

* The persistence of a dubious legal claim. The short version is that the reference in the ACA to “an Exchange established by the State” precludes the provision of federal subsidies (the part making the Act’s care affordable) to purchasers in states that chose not to create their own health exchanges, instead relying on the federal government to do it. In this rendition, the reference to “the State” reflects not an isolated instance of sloppy drafting at odds with the statute’s other references to the exchanges. Instead, it reflects a deliberate policy choice to compel states to set up their own exchanges by denying subsidies to residents of states declining to do so.

The fact that this alleged purpose was unknown to the people who actually drafted the ACA, voted on it, and contemporaneously commented on the debate surrounding it, or that this interpretation would eviscerate the statute’s overall purpose of expanding access to health care, matters not at all. If several million people have to lose health coverage–and some of them will die as a direct result–well, that’s the fault of the legislators who drafted the statute this way, not of judges looking for an excuse to wipe out an opposing party’s president’s signature legislative accomplishment. It is tempting to laugh off a legal claim of the sort being offered here, but the Commerce Clause argument raised in the Obamacare 1.0 litigation wasn’t taken seriously either until it came up one vote shy of voiding the ACA entirely.

Reasons not to panic:

* The ACA survived the first round of litigation, despite concerns that the Court might use a restrictive reading of the Commerce Clause to void the act. Chief Justice Roberts had a kill shot lined up in 2012 and chose not to pull the trigger, at a time when striking down the law would have had minimal practical (though significant electoral) consequences. Why would he be more likely to use a less solidly grounded legal claim to do in 2015 what he was unwilling to do in 2012?

* The status quo makes ACA repeal less politically palatable. In 2012, the status quo was the prospect of affordable health insurance for millions of people. Today, the status quo is the reality of affordable health insurance for millions of people. A ruling against the government’s position would strip the subsidies that make the mandatory health insurance affordable, and then subject them to penalties when they can no longer afford insurance. Will the Court inflict tangible misery on millions of people in the service of a ruling that would have minimal precedential value and would serve no other purpose than kneecapping the president’s legacy? A politically tone-deaf Court that chose to rule as it saw fit, and let the political chips fall where they may, might be willing to undertake such action. But

* Chief Justice Roberts has shown enough of an instinct for strategic behavior that he might hesitate to unleash the political chaos that would accompany a ruling against the subsidies.The 2012 ruling on the Affordable Care Act demonstrated these instincts vividly. The majority ruled in ways that undercut the ACA’s effectiveness (making the Medicaid expansion optional) and that lay the groundwork for future restrictions on Congress’ authority to legislate under the Commerce Clause. At the same time, though, Roberts provided the fifth vote to leave the act standing, despite his hints at misgivings about the act’s policy soundness.

In the pending litigation, however, he won’t have any compromise position. Either the statute’s overarching purpose and context, coupled with the Court’s longstanding position of judicial deference to agency interpretations, will prevail, or a literalist reading of one clause taken in isolation will. The latter will compel state officials in 34 states to decide whether to strip their citizens of subsidies. It is true that Republican governors and legislatures had no problem denying the Medicaid expansion to their neediest citizens, despite the fact that funding for the first three years would have been supplied entirely by the federal government. But stripping ACA subsidies would harm middle-class households, which have much more political clout than the least affluent. It would also throw the private health insurance market into disarray. Maybe conservatives on the Court don’t care about any of these things. But the ACA will survive as long as one conservative justice does.

What happens at oral argument will tell us more about what to make of the Court’s action. But the fact that we’re having this conversation at all says something profound about the Roberts Court.

Harry Reid’s to-do list now should have just one item

The shellacking Democrats took on Tuesday should have the effect of sharpening Senate Majority Leader Harry Reid’s focus as the lame-duck session of Congress approaches. He must know that no legislation of consequence will be allowed to emerge from his chamber, given the looming transfer of partisan control. He also must know that, protestations of comity to the contrary, no judicial nominee to the left of Anthony Kennedy will get a vote on the Senate floor when Mitch McConnell has control. (Whenever a Kennedy clone would fare better is unclear.) Indeed, many potential nominees will never get hearings in the Senate Judiciary Committee once Chuck Grassley takes power.

Unless Reid is ready to become the legislative equivalent of a teacher who spends the last week of school showing videos to his students, he has one thing he can do to make productive use of his remaining time as majority leader: process judicial nominations. The shortage of remaining time precludes consideration of new nominees, and probably of the 18 nominees who have not cleared the Judiciary Committee. But there are 16 nominees who have already been reported out of committee and need only a floor vote. Republicans will look to run out the clock, and even without the filibuster in place, there will be ample delaying techniques at their disposal. But even in the face of maximum delay, there will be time to confirm at least some nominees. And even incremental gains in the federal judiciary are crucial to a president who will have limited ability to do anything other than defend his accomplishments from erosion if not outright obliteration.

Someone still uses Courier?

I understand that state and local governments often face budgetary constraints that prevent them from adopting the latest technology. Nonetheless, I was astonished to see that the Massachusetts Supreme Judicial Court insists on giving its published opinions a strong retro flavor:

The court’s opinions all come down in Courier, the old-fashioned typeface designed to mimic electric typewriters. Courts are known for being tradition-bound, but today the SJC is one of only five state high courts that still issue opinions in Courier. And Massachusetts is one of only three states—along with Alabama and New Jersey—that essentially force appeals court attorneys to file their briefs in the font.

As a result, Massachusetts court proceedings have an almost uniquely retro look. The US Supreme Court publishes its opinions in neat, literary Century type. The State Department defected from Courier a decade ago in favor of Times New Roman. Even middle-school students can print their papers in high-toned Bodoni or Garamond.

The advantage to Courier is that, as a monospaced font (each letter has the same width and spacing), it frustrates efforts by attorneys to stretch page maximums by playing with fonts. Indeed, Massachusetts has explicitly defended its policy as a way to enforce the state’s 50-page limit for appellate briefs. (The state’s trial courts have much more lenient rules for brief submission.)
Now I can understand why the state might want to prevent attorneys from gaming the system. If I don’t include font and spacing requirements in the instructions for my writing assignments, I can guarantee that a critical mass of students will seize the tacit invitation to use fonts creatively. (Unlike the Massachusetts attorneys, though, they will be stretching prose to fill a page minimum.) But why cling to a policy made obsolete by technological advances, including the not-all-that-advanced advance of word processors with a word count option?
I suppose that when most appellate briefs filed in your state are still the dead-tree variety, word processing might seem by itself to be a significant advance. But presumably, the documents printed in Courier are not being generated on Smith-Corona manual typewriters. Until the state switches to all-electronic filing, why not continue to accept paper and require filers to include a flash drive, from which court personnel could open the relevant file and do a word count? Ultimately, without pressure from within the system (and there seems to be very little), there will probably be little impetus to change. Moral: never underestimate the power of inertia.

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