Noblesse Oblige: Save Democracy and Save the Kittens

“In last week's decision in United States v. Stevens, Justice Alito was alone in arguing for the constitutionality of a federal law barring the commercial creation, sale, or possession of certain depictions of animal cruelty. Congress apparently enacted the law to stop the distribution of ‘crush videos,’ in which a woman slowly crushes a small animal to death with her feet; these videos apparently appeal to a small group of people with a bizarre sexual fetish.

But the Supreme Court held the law violated the rights to free speech and expression because it covered all sorts of protected content, like some hunting videos. Chief Justice John Roberts, writing for a majority of eight, strongly rejected the idea that the law was constitutional because prosecutors would in fact prosecute only the really irredeemable videos involving ‘extreme cruelty’ without social, scientific, or artistic merit: ‘The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.’

Justice Alito, writing for himself alone, dissented. He said the court should read the law narrowly to apply only to those videos showing extreme cruelty. He trusted the government to prosecute responsibly. After quoting a particularly graphic description of a crush video involving the awful killing of a kitten, he analogized the law to one protecting against depictions of child pornography: ‘Preventing the abuse of children is certainly much more important than preventing the torture of the animals used in crush videos. … But while protecting children is unquestionably more important than protecting animals, the Government also has a compelling interest in preventing the torture depicted in crush videos.’”
—Professor Richard L. Hasen, “Crush Democracy but Save the Kittens: Justice Alito's double standard for the First Amendment,” in Slate.

I loathe Samuel Alito and his brand of jurisprudence that confuses conservative Republican ideology, circa 1985, with actual law. Or, more accurately, that attempts, in case after case after case, to impose that ideology upon the law.

And, for (very) personal reasons having, I assure you, nothing at all to do with crush videos, I was absolutely elated to read Roberts’ opinion in Stevens—the strong, clear, eloquent language about the First Amendment’s protection of speech—and (for those personal reasons) the perfect timing of the release of that opinion.

But I am also an animal lover whose favor nonprofits are ASPCA and its international counterpart, WSPCA, and never sees a collection box for the local animal shelter without dropping in a dollar or two—and who keeps her copy of the book Merle’s Door at her bedside, like many people keep a bible.

So I had to fight the little pang of discomfort I felt that crush videos are, for the moment, not illegal.
Roberts and seven justices who joined his opinion are right, of course, that no one should have to rely upon the noblesse oblige of prosecutors (or any other government official) to allow the exercise of the First Amendment right to protected speech, and that the Fifth and Fourteenth Amendments’ due process clauses require that statutes be sufficiently precise to place the public on notice of what, exactly, the statute prohibits; the idea that judges can rewrite a criminal statute—or any statute whose purpose is to proscribe behavior, whether speech or actions—is anathema to the very concept of due process, not to mention the concept of equal protection of the law incorporated into those procedural Amendments.

And Alito is, in my opinion, right that the truth that the protection of animals against gratuitous cruelty is not as important as the protection of children against sexual or other physical abuse, it, like depictions of child sexual abuse, is important enough to merit a First Amendment exception, under the same justification as the exception regarding child porn: It photographs what actually occurred, and therefore requires an act in order to enable the speech.

This premise will be tested when statute that Congress is currently drafting is enacted and tested in court. And in that round in court, I hope Alito’s view prevails.

President Emanuel and His Time Warp

While the fight for Stevens' seat looks to the average American like a one-off, it happens amid a puzzling lack of passion over the judiciary from this White House. We may yet get a peek at a White House roaring into action this summer, to correct for the rightward tilt at the Supreme Court. Or we may watch the White House continue to put the courts second to everything else in its legislative agenda.
—Dahlia Lithwick, Slate magazine

Actually, this White House’s lack of passion over the judiciary is not puzzling at all. It is simply part and partial of the influence on important domestic policy that White House chief of staff Rahm Emanuel, at least by appearances, has.

Or, backing up one more step, it flows naturally from the president’s decision in the weeks following his election to stock his administration with Clinton administration official who think it’s still 1996. Among them, of course, Emanuel, who appears to have as much authority over policy decisions as Karl Rove had in the Bush administration. And like so much of political Washington, including Republican congressional types, Emanuel thinks the current conservative movement is the conservative movement of the ‘80s, ‘90s and Bush II era. It is not.

It was a Bloomberg article published on Sunday that set off the current short-list talk, with its supposed scoop that “a White House official familiar with the deliberations” said the president is focusing on a group of three candidates and that threesome “includes U.S. Solicitor General Elena Kagan and federal appellate judges Diane Wood and Merrick Garland.”

Is the leakier, or planter—take your pick—Emanuel? Probably, given the makeup of the short list.

One sentence in particular in the article suggests this, or at least illustrates the time warp that the short list compiler exists in. It says that of the three short-listees, Garland “is perhaps the most conservative of the trio, often siding with the government on criminal questions.” Another article I read about the Bloomberg-reported short list phrased it in bald Reagan-Clinton-era terminology. Garland, the article said, has some strong law-and-order opinions to his name. These and other reports suggest that Sen. Jon Kyl, Republican Majority Whip and a Judiciary Committee member, is said to think Garland would be just fine.

And he would be—for those politicians who, like Kyl, haven’t noticed that the current rightist movement in this country is predominately antigovernment across the spectrum of issues. Unlike the conservative movement of the Reagan/Clinton era, this one is antigovernment across a broader range of issues, including those on which their predecessor rightwingers were decidedly pro-government. Today’s movement’s adherents oppose taxes and regulation of businesses, but they also oppose unlimited police and prosecutorial powers and therefore mechanically pro-government court rulings in civil rights and criminal cases. They elevate, or at least claim to elevate, individuals’ rights over government power, whether the government is federal, state or local.

This ideological divide between the older movement and the new one is significant in judicial-appointment politics, or at least it will be if the Obama administration recognizes and employs it, which it shows no sign of doing.

This conservative ideological split between older and new conservatives actually reflects a longstanding one between two factions of the Federalist Society, the national bar group from which four of the five conservative justices and most current Republican-appointed federal appellate judges hail. The pro-police-powers, pro-authoritarian faction of that organization has dominated in the group’s hierarchy, and so the Republican appointees to the federal bench reflect that faction’s ideology. And Kyl, Emanuel, and (apparently) Obama haven’t noticed that, beyond Washington and the Federalist Society, that ideology is, well, largely passé.

The key to political success for this administration in its nominees for the bench, including for the Supreme Court, is not to run on a 1980s treadmill but instead to educate the public about what that era’s brand of judicial conservative actually stands for—what it actually does, and how it affects ordinary people, in practice. They might start by illustrating the impact of the Supreme Court conservatives’ unremitting. decades-long assault—though procedural, jurisdictional, quasi-jurisdictional, and legal “immunity” gimmickry—on the right of access to court and access to appeal and on a panoply of substantive constitutional rights.

They might, for example, follow the lead of New York Times Supreme Court correspondent Adam Liptak, who discusses the impact of a 5-4 Supreme Court procedural ruling three years ago in criminal case on military veterans’ access to Veterans Administration medical benefits to which the veterans are entitled. And they might follow that with a discussion of the 5-4 majority’s whistleblower jurisprudence. And then with an explanation of that same majority’s overt rewriting of a procedural statute that states the extent of the facts that a person must recite in a complaint that opens a lawsuit in order to avoid a spontaneous dismissal of the lawsuit by the judge.

Or they could nominate candidates for the bench who can make these points, discussing one after another Supreme Court opinion issued within the last few years, almost none of which the general public knows exist.

For some people, the hot-button culture-wars issues such as abortion, employment discrimination and, yes, pro- or anti-government on criminal-defendants’ constitutional rights, will always be what judicial selection and judicial confirmation hearings are about. Like aging hippies who for decades after the era knows as “the 60s” ended, and like women’s-movement activists of the ’70s and ’80s—including female judges who have studiously built their I’m-a-liberal-judge credentials almost entirely on their high-profile women’s-issues judicial writings (because their handling of those issues is all that really matters to liberals, right?)—these folks lack the mental agility to recognize that, culturally, time has passed them by. They wear equestrian blinders, and cannot remove them.

Which is why they haven’t noticed that Willie Horton is dead and has been replaced with a tea bag.

A Blueprint for Avoiding the Younger v. Harris ‘Doctrine’ In Some Cases

The U.S. Court of Appeals for the 3rd Circuit last month enjoined a Pennsylvania county prosecutor’s office from indicting teenage girls who had sued in federal court because their county’s prosecutor was threatening “sexting” indictments unless the girls agreed to attend a months-long class devised by the prosecutor to educate the girls about the prosecutor’s sense of sexual morality for teen girls. The case is Miller v. Mitchell.

The court’s opinion gained widespread attention in legal circles. And not only because it concerned the hot topic of teen sexting. The ruling was based, surprisingly, not on grounds specific to sexting but instead on the prosecutor’s interference with what the court said was the kids’ parents’ constitutional right to decide, free of state interference, what “ideas of morality and gender roles” their children will be taught. And on what the basis that the prosecutor’s indoctrination-by-extortion plan violated what the court said was the kids’ free speech rights to not be compelled by the state to write a mea culpa essay in conformance with the prosecutor's sense of morality.

The opinion is being hailed as a civil rights victory. And it is a civil rights victory, but not just for the obvious reasons. Other civil rights advocates thought, “This is a big free-speech victory." And, “This is a big parents’-rights victory.” Me? I thought, “This sets a blueprint for avoidance of the Younger doctrine.”

The Younger doctrine?

The Supreme Court regularly engages in the extracurricular activity of proclaiming court-created ‘doctrines’ that undermine the Civil Rights Act of 1871, 42 U.S.C. § 1983, the statute that is the main federal statute that provides for access to federal court in order to challenge the constitutionality of a federal, state or local law or government policy, or an action of a particular government official or employee.

One of those court-created doctrines is the “Younger abstention doctrine,” named for a 1971 Supreme Court opinion called Younger v. Harris, 401 U.S. 37(1971), the case in which the doctrine originated. The essence of that doctrine originally was that, in the name of neo-federalist comity toward states, federal courts are required to “abstain” from hearing any civil rights claims brought by a person who is currently being prosecuted for a matter arising from that claim. The Supreme Court later expanded the doctrine to require the lower federal courts to abstain from hearing constitutional challenges to a state court’s procedural or substantive handling of civil cases during the pendency of the case in state court. The doctrine does have a few eye-of-the-judicial-beholder exceptions, which are rarely invoked.

The companion court-created Rooker-Feldman doctrine is (erroneously) interpreted by the lower federal courts to prohibit them from hearing such constitutional claims in civil lawsuits once the state-court case is over, ostensibly for lack of subject-matter jurisdiction. (Rooker-Feldman will be the subject of a later article.) Habeas corpus law does allow challenges to the constitutionality of state-court criminal proceedings once the state-court appellate process is completed, but the two doctrines combine to effectively remove constitutional restraints from the judicial branches of state governments in civil cases.

The Supreme Court has never explained why it believes that these types of court-created federalist comity should apply to state judicial branches but not to the other two branches of state government. But I suspect it is a matter of professional courtesy. Or a matter of what they think they can get away with without dismay from the public. The very purpose of this jurisprudential “federalism” ideology is to flip the meaning of the Constitution’s Supremacy clause.

Justice Clarence Thomas, a professed originalist/testualist, speaks, for example, eloquently about what he and other federalists call the “dignity” of the states as sovereigns that will suffer humiliation by interference from a federal court. The dignity of the states trumps the dignity of the individual. Unless some specific right dear to his particular heart is at issue. Think Second Amendment. Or Fifth Amendment’s “takings” rights.

The kids who along with their parents sued in Miller were lucky. Had they waited until an indictment was issued, they could not have challenged the constitutionality of the criminal statute as it was being applied to them, and they could not have challenged the constitutionality of the prosecutor’s conduct, however bizarre and clearly violative of constitutional rights. The Younger doctrine would have prevented it. They would have had to endure a full prosecution and, if convicted, years of appeals, and if necessary, the years-long federal habeas process, in order to test in federal court the constitutionality of the prosecutor’s actions. Instead, because they filed their lawsuit before any indictment was issued, the legal process for them ended swiftly with a federal-court-issued temporary restraining order.

The moral of this story is that individuals who are in danger of prosecution under a statute they wish to challenge as unconstitutional, or who want to contest the constitutionality of the prosecutor’s conduct of the investigation, have a blueprint for avoiding the Younger doctrine: they can file their lawsuit under § 1983 before the indictment is filed in state court.

In civil (non-criminal) matters, though, the dignity of the states will have to rest upon the continued evisceration of § 1983 and the Supremacy Clause.