Monday, February 08, 2016

Invisible Justices Part II: The Anonymous Writ of Certiorari

By Eric Segall

Every year the Supreme Court of the United States receives over 7,500 requests from litigants who have lost their lawsuits in the lower courts and urge reversal of those decisions. Lawyers spend thousands of hours working on briefs supporting those requests, and the parties pay those lawyers significant amounts of money. In recent years, the Court has granted approximately seventy-five to eighty of those requests per year. These requests come to the Court through the mysterious petition for a “writ of certiorari.”

The decision whether to grant or deny a certiorari petition is one of the most important decisions the Justices have to make. Which cases the Court deems worthy to review may dictate national policy across the spectrum of important social, legal, educational, political, and economic issues. Yet, although there are instructions concerning the timing and structure of the briefs that need to be submitted, and a few vague considerations the Court may take into account in the process of deciding whether a case is worthy of its attention, there are no written rules or statutes governing how many Justices it takes to hear a case or whether the votes of the individual Justices need to be recorded. The present informal (but consistent) practice is that it takes four Justices to agree to grant certiorari for a case to be heard. The Justices keep secret who votes to grant the petitions and (almost) never provide reasons for denying a petition to hear a case, although occasionally dissenting justices will write separately to argue that a denied petition should have been granted (which then sometimes prompts a Justice who voted to deny certiorari to respond by explaining why the case should not be heard). Amazingly, to the best of my knowledge, no formal record of the individual votes to grant or deny certiorari is kept by anyone.

The Court has not explained why it keeps the individual votes on whether to grant a writ of certiorari secret from the American people. Justice Stevens gave a talk at Georgia State College of Law in 2014 and said he had never considered in his thirty-five years on the bench why the certiorari votes are secret. He remarked that it might be because “it has always been that way,” but also frankly acknowledged that tradition alone may not constitute a good reason. There are strong arguments that this information is important and relevant to public discussion.

For example, shouldn’t we be able to trace the Justices’ personal certiorari votes over time to better understand how these public officials make important decisions? At the moment, we can make statements about the Court as an institution and the cases it decides to hear, but we have no way of assessing the work of each individual Justice when it comes to their certiorari votes. We would not allow Congress or state legislatures to record only their final votes without knowing who voted for the laws and who voted against them. We could judge the legacies of Supreme Court Justices more accurately if we knew their records on certiorari issues.

There are also reasons why litigants might be interested in which Justices voted to hear a case. It is well accepted that, at the time of this writing, Justice Kennedy is the swing vote on the Court in many important areas of constitutional law, including abortion and affirmative action. This year the Court will decide cases involving both issues, and we have no idea how Justice Kennedy (or any other Justice) voted on the certiorari questions. Knowing whether Justice Kennedy was one of the four (or more) votes in favor of hearing these cases might be relevant information to the parties. Lawyers litigate important cases in the lower courts with an eye towards the swing Justices on the Court, and they write the briefs that are filed in the Supreme Court in the same way. Knowing which Justices wanted to hear a case and which didn’t might affect litigation strategy.

Are there valid reasons to keep the Justices’ individual votes on certiorari secret? Some might argue that, if the certiorari votes are disclosed, the public might mistake a vote to hear or not to hear a particular case as an indication of that Justice’s views on the merits of that case. But even if that is likely to happen, the cure is more information about the certiorari process, not secret votes. As a general rule, the government is not allowed to hide truthful, non-privileged information from the American people simply because the information might be misinterpreted. In addition, disclosing the votes after the case is decided (not ideal but much better than the current process) eliminates that problem.

The invisible nature of the Justices’ certiorari process symbolizes a significant problem with the Supreme Court’s practices more generally. Normally, there should be (and usually is) a strong presumption in our society that government processes be open and transparent. When it comes to Congress and the President, there are strict disclosure requirements, including open-records laws and televised proceedings, and when the elected branches or the states want to keep secrets, we place the burden of proof on them to demonstrate the need for that secrecy. But with the Supreme Court, there seems to be an opposite presumption of secrecy and anonymity. This presumption should be changed. The Justices perform an immensely important public duty that affects all Americans when they decide which cases to hear and which cases not to hear. Why should they cast these final votes in secrecy with no accountability?

Sunday, February 07, 2016

Invisible Justices: Cameras in the Court

By Eric Segall

This Thursday, the Georgia State Law Review will host a comprehensive symposium on Supreme Court Transparency called “Invisible Justices.” Cameras, recusal, ethics rules the Justices’ papers, and the mysterious writ of certiorari are all on the agenda. In addition to co-moderating what should be a fascinating lunch time discussion with Adam Liptak, Robert Barnes, and Dahlia Lithwick, I also will open the day with a brief talk discussing all of these transparency questions. For the next four days, I will be presenting my views here on each of these issues. Today, I start with cameras in the Court.


Over two dramatic days during the last week of June, 2015, the Supreme Court handed down dramatic decisions providing gays and lesbians the right to marry in all fifty states and rejecting the attempt by a few libertarian lawyers and law professors to gut the Affordable Care Act. During this same time period, the Court also handed down important opinions on redistricting, the death penalty, and housing discrimination. Over the course of a week, much of the nation and the media focused their attention on the nine Justices.

Although the script for the announcement of these decisions was in the complete control of the Justices, and although these were open public governmental hearings, no one but a few reporters and about 250 people actually saw the Court announce these decisions. C-Span offered to televise the proceeding so that those interested could gather around their televisions, tablets, and smart phones to observe history, but the Justices refused that request.

There will never be any video or even photographic evidence of these landmark cases. When law professors teach these cases to future generations of students, neither will be able to see how proud Justice Kennedy was to provide equal rights to gay Americans or how Chief Justice Roberts turned away a politically inspired challenge to President Obama’s signature legislation. Truly historic governmental business was transacted largely in private away from the American people.

As discussed below, there are important reasons to televise Supreme Court proceedings, both the oral arguments and the decision days, and few persuasive objections to keep them off the air. It is well past time the Supreme Court enters modern times and joins most of our states as well as the supreme courts of Canada, Brazil and the United Kingdom, and allow live television coverage of its official business.

The first argument in favor of cameras is the simplest one: The oral arguments and decision days are already public events, C-Span is willing televise them at its own expense, and there are obviously many Americans who want to witness the proceedings. We normally have a strong presumption that open, government hearings will be, well, open.

In addition to the normal presumption of transparency, there are a myriad of cultural, educational, historical, and civic benefits to allowing cameras at the Supreme Court. The American people could watch lawyers and judges argue over our most controversial, divisive, and sometimes partisan issues, with mutual respect, civility and deference. Especially during these increasingly partisan times, the oral arguments could set an example of how public officials can disagree, sometimes vehemently, without undue rancor or personal attacks.

Our museums could display the Court’s most important arguments showing the Justices debating the issues and announcing the results. Students in elementary and secondary schools, colleges and law schools could gain improved insight and understanding about the Court and great historical issues like race relations, abortion, gun control, and voting rights by actually seeing the Justices perform their duties. Perhaps most importantly, when the Court hands down landmark decisions like last term’s same-sex marriage opinion, millions of Americans could gather together in a moment of national pride (or anguish) and political engagement which would be markedly different from hearing the news second-hand from a few select journalists.

The arguments traditionally made against cameras are singularly unpersuasive. Some Justices have expressed concern that out-of-context snippets of Court proceedings might be distorted by the media if cameras were allowed in the Courtroom. For example, testifying in front of Congress on the Court’s budget, Justice Breyer said that “If you see on television a person taking a picture of you and really mischaracterizing [what you say], the first time you see that, the next day you'll watch a lot more carefully what you say. Now that's what's worrying me.”

Of course, all governmental officials who appear in public run the risk of being misquoted or having their statements used misleadingly by the media. But that is one of the risks of holding important government positions. As Dean Chemerinsky, who will be at the symposium, has remarked:  
I have heard justices express concern that if television cameras were allowed, the media might broadcast excerpts that offer a misleading impression of arguments and the court. But that is true when any government proceeding is taped or even when reporters cover any event. The Supreme Court should not be able to protect itself from misreporting any more than any other government institution …. 
The justices might be afraid that an excerpt of oral arguments might be used for entertainment purposes; perhaps they will even be mocked. But that is a cost of being a democratic society and of holding a prominent position in government. In no other context would Supreme Court justices say that government officials can protect themselves from possible criticism by cutting off public access.
 Some Justices have expressed fears that lawyers appearing before them, or even their fellow Justices, may misbehave and grandstand if cameras were allowed inside the Court. For example, Justice Kennedy has said that with cameras there may be an “insidious temptation to think that one of my colleagues is trying to get a sound bite for the television” and that would “alter the way in which we hear our cases, the way in which we talk to each other, the way in which we use that precious hour.” This is a remarkable statement by the nation’s most important judge. How the Justices themselves behave is in their own control and not an excuse to hide their public duties from the American people. To the extent the concern is over lawyers misbehaving, the Justices are more than capable of preventing lawyers from playing to the cameras in an inappropriate manner.

Perhaps the strongest (but still unpersuasive) objection to cameras in the Supreme Court is that the public may perceive or come to believe that oral arguments play a larger and more significant role in the Justices‘ final decisions than they actually do. Justice Sotomayor, one of many Justices who was more open-minded about cameras during her confirmation hearings than after ascending to the bench, has said that televising oral arguments “could be more misleading than helpful…. It's like reading tea leaves.” Justice Scalia has argued that televising oral arguments would present a “misleading” view of the Court both because oral arguments account for little of what the Court actually does and snippets of the arguments would be taken out of context.

First, none of these arguments applies to the dramatic June decision days when the Justices do nothing more than announce their decisions in nationally watched cases. There, the Justices completely control the message they want to send and how much or little information they provide to the public.

Second, it is just not up to government officials to decide what already public information should be shared with the public. If the American people overstate the importance of oral arguments or take “snippets” out of context, the Justices have many different ways to correct those misapprehensions. Moreover, keeping the arguments secret and hidden away might in fact give the arguments an importance out of proportion to their actual relevance. If the arguments aren’t that significant anyway, what is the harm of putting them on television for all the world to see?

The Justices do make the transcripts and audio recordings of oral arguments available for public inspection. But for new generations of young Americans raised on YouTube and iPhones, live video streaming and television coverage of important news events is the most important information currency.

Most states now allow use of cameras and/or video streaming throughout their systems including in their supreme courts. The O.J. Simpson case notwithstanding, there have been few complaints about the use of cameras, with judges and lawyers saying their presence does not adversely affect the proceedings. In addition, the high courts of Canada, the UK, and Brazil also televise their proceedings and report positive experiences.

It is past time for the Justices to join with most of our states and these foreign countries and remove their cloak of invisibility. Vague fears of lawyer or Justice showboating or possible public misperception of the nature of already open proceedings should not deprive the American people of access to their government. The Court should allow cameras into all of its proceedings where members of the public are already invited. Anything less than allowing that full coverage suggests that the Justices are hiding from the very people they are supposed to work for and who pay their salaries. That is no way to run our country’s highest Court.

Friday, February 05, 2016

The Silver Lining in a Potential Rubio Presidency

by Michael Dorf

As Prof. Buchanan noted on Tuesday, it is still too soon to coronate Marco Rubio as the  "establishment" alternative to either the external (Trump) or internal (Cruz) hostile takeover of the Republican party. Before writing off Jeb Bush, Chris Cristie, John Kasich, or their respective superPAC sugar daddies, the notoriously fickle voters of New Hampshire must have their say, and even after that, the notion that the Party elders will quickly corral the three governors into bowing out so as to consolidate the anyone-but-Trump-or-Cruz vote behind Rubio seems fanciful, absent a decisive Rubio victory somewhere. As of late yesterday afternoon, the most reliable number cruncher, Nate Silver, gave Rubio a sixteen percent chance of winning New Hampshire--much better than one might have expected a week ago, but still hardly a lock.

To be sure, if I were betting, I would put my money on Rubio to get the nomination. The Iowa political market has Rubio as a little bit better than a 50-50 chance of winning the nomination, with Trump a fairly distant second at 25%. Looking at the price history, it's clear that Rubio got a substantial bump from his third-place finish in Iowa. Meanwhile, Bernie Sanders did not get a bump from the virtual tie in Iowa on the Democratic side, perhaps because the market already anticipated a strong finish for him there. However, Hillary Clinton remains the overwhelming (roughly 4-1) favorite in the betting for the Democratic nomination.

The same political market that gives Rubio a better than 50-50 shot at capturing the Republican nomination gives the eventual Democratic nominee a better than 60% chance of winning the general election. That percentage has come down a little as Rubio's likelihood of securing the Republican nomination has gone up, and perhaps if one subtracts out the 42% probability of Cruz or Trump getting the nomination, the generic Republican ballot looks a lot better -- but perhaps not. As I said, the generic price didn't move a whole lot in favor of the Republican as Rubio's stock rose and Trump's fell. It thus looks like the people who are putting their money where their mouths are think that the usual sorts of factors (the economy, the Democrats' demographic advantage in presidential years, etc.) are more important than the sorts of factors that are peculiar to particular nominees. Still eight months away from the election, the money seems to be saying that Rubio probably loses to Clinton.

Yet to listen to Rubio on the stump, one would think that if he's the nominee, he begins as the clear favorite to defeat the Democratic nominee, and I'll admit that, were it not for the market numbers, I'd be worried that he might be right. Rubio has several distinct assets. As a Floridian, he puts that crucial state in play. He is an extreme reactionary along just about every policy dimension, which should energize the Republican base in the general. His path to the nomination would run through the "establishment lane," thereby permitting him to appeal to low-information independent voters; simply by not being Trump or Cruz, Rubio will lead a lot of these voters to think that he's not a reactionary madman. And Rubio is a lot younger than either Clinton or Sanders.

Thus, for this lifelong Democrat, the political markets are a kind of anti-anxiety medication. When I worry about the seemingly increasing likelihood of a Rubio presidency, I reassure myself that there's still a better than a coin toss likelihood of a Democratic victory.

Another self-soothing strategy is to look for potential upsides from a Rubio presidency. I think I've found one. Earlier this week, some House Republicans released a report and supporting documents to show that, contrary to prior statements of the Obama administration, in the recent past the Treasury Department has formulated contingency plans to "prioritize" certain spending over other spending in the event that Congress did not raise the debt ceiling in time for the government to meet all of its obligations. What does that have to do with Rubio? Let me explain.

As regular readers of this blog know, Professor Buchanan and I have been pretty much obsessed with the possibility of a debt-ceiling crisis. (I was going to provide links, but there are too many. If you're just tuning in, Google "Buchanan Dorf Debt Ceiling" and go down the rabbit hole.)

The conventional wisdom holds that if Congress fails to raise the debt ceiling as borrowing authority is needed to make payments, the administration would have no choice but to "prioritize" some spending over other spending. We think that conventional wisdom is wrong, because the many decisions about what spending to prioritize would be fundamentally legislative, at least absent any delegation by Congress to the president of the power to make these decisions. In our view, it would be "less unconstitutional" -- because it would usurp less legislative power -- for the president to issue bonds in excess of the debt ceiling.

Seeming to vindicate our view that the president cannot simply pick and choose what authorized spending to cut, the Obama administration had taken the position that it had no plans to prioritize in the event of a failure to raise the debt ceiling. For public consumption, administration officials were also saying that the president couldn't issue debt-ceiling-violating debt, but given that in a real crisis something would have to give, we thought that there was at least a possibility that the administration's real secret plan was to issue such debt.  However, the newly released report and documents suggest that the administration's lawyers were actually secretly preparing a prioritization plan.

The Republicans who released the report and documents are making two points, one possibly correct and the other definitely incorrect. The possibly correct point is that the Obama administration was dishonest when it stated publicly that it had no contingency plans to prioritize spending.

The definitely incorrect point is that the documents somehow show that the administration was wrong to say that there is no way to prioritize. Of course it was never the case that it was literally impossible to formulate a prioritization rule. I can think of dozens of such rules. E.g., set aside enough money to make interest payments on bonds coming due for the next three months; if there's excess revenue, then make Social Security payments on a less-than-par basis if necessary; etc. The claim that the administration was formerly making was that existing law provides no basis for prioritizing some spending over others. That was and remains true. The fact that the Treasury Department nonetheless made up its own contingency plans based on its own priorities and an analogy to the quite disanalogous circumstance of a government shutdown in no way demonstrates that prioritization was or is constitutionally possible.

There is a bigger takeaway here, however. Clearly the Republicans who released the report and documents think they show that a failure to raise the debt ceiling would be no big deal, because Treasury could simply set priorities in the way that it does during a government shutdown. That's wrong, but the fact that Republicans believe this makes it more likely that in a future debt-ceiling crisis they would conclude that a Democratic president who says she cannot prioritize spending is bluffing in order to pressure a Republican Congress to raise the debt ceiling cleanly. What Professor Buchanan and I have previously called President Obama's "staredown strategy" won't work if Republicans think they can simply call the bluff of the next president to use it. Thus, the release of the report and supporting documents indicate that in the next debt-ceiling crisis we are more likely to go over the cliff.

Given current revenue projections, the government's borrowing authority will run out (absent a debt ceiling increase or its equivalent) early in the term of the next president. If that president is a Democrat facing a Republican-controlled House, we can expect emboldened brinksmanship, with Republicans now believing that the staredown is a bluff.

However, if the next president is a Republican, then a Republican-led Congress would be very unlikely to confront him. Instead, a Republican Congress would work with a Republican president to adopt a horrible set of spending and tax laws, albeit ones that do not spark a debt-ceiling crisis. That is the silver lining in the possibility of a Rubio presidency.

Thursday, February 04, 2016

Skittish Liberals and the Self-Defeating Stories They Tell About Unions

by Neil H. Buchanan

My most recent Verdict column, published last Thursday, asks: "Have Democrats Rediscovered Unions Too Late?"  There, I note that the recent embrace of labor unions by mainstream liberals needs to be seen in the context of decades of disdain for organized labor by those same liberal elites.  This was epitomized by the anti-labor Democratic Leadership Council, which capitalized (pun intended) on liberals' panicky fear in the 1980's and 1990's about accusations of being "in the pocket of special interests."  You know, special interests like workers, women, racial and ethnic minorities, and all of the other people who had it so easy.

Much of my column is devoted to a description of the economic case -- yes, an efficiency-based case -- for labor unions.  I do not claim, of course, that every labor-management interaction is going to lead to an ideal outcome, but rather that the costs imposed by unions are outweighed by the benefits that they create for the overall economy (to say nothing of workers themselves).  It turns out that "Do what I say, and if you don't like it, there's the door!" is not a great strategy for getting human beings to do their best work.  Who knew?

Here, I want to turn from that economic story to the political story behind many liberals' decisions to distance themselves from unions over the years.  The deep explanations, I think, are historical and class-based.  As a matter of relatively recent history, Baby Boom liberals grew up at a time when unions were often politically conservative.  Beamed into the living rooms of middle-class America, the classic breakthrough sitcom "All in the Family" depicted the hostile relationship between unions and social liberals.  The bigoted Archie Bunker and his union buddies were strongly in favor of the Vietnam War, and it was not just on TV that blue collar workers were fighting college kids over that war.  The 1968 Democratic National Convention in Chicago was an especially ugly result of this conflict.  (And there is not enough time here to get into the history between unions and women.)

Even within the labor movement, there has always been conflict over political strategies.  Liberals were often dismayed to find that unions representing skilled workers were not especially interested in spending time on efforts to increase the pay of unskilled workers.  (One head of a skilled-workers union once said: "Why should my members care about the minimum wage?  Our contract already gets them $40/hour!"  Solidarity forever.)  It is only recently that union leaders have figured out a way to get nearly everyone on the same page with regard to supporting minimum wage increases.

In addition to history, there is class.  A lot of leading liberals evince an attitude that seems to say that, although working people are of course to be supported, it would be ever so nice if working class people were not so, you know, working class.  With images of fat, cigar-chomping "union bosses" in their minds, it was easy for white collar liberals to think that there was something rather unseemly about those (presumptively corrupt) union men.

This class issue is not, moreover, limited to wealthy liberals who grew up wealthy but who have some sense of noblesse oblige.  "Knowledge economy" professionals seem to be especially prone to agreeing with Republicans that unions are a problem.  Few people embody that kind of conflicted liberal professional better than New York Times columnist Nicholas Kristof.  Kristof frequently reminds his readers that he is a farm boy from Oregon, evidently believing that he needs to show that he is authentic and not only a product of Harvard and Oxford.  He spends a great deal of time tut-tutting fellow liberals about any of a number of pet issues, recently including guns, and he frequently chastises college professors for a litany of imagined sins.

As I noted in last Thursday's Verdict column, Kristof made a big announcement early last year.  After years of being "wary of labor unions," he announced that he had been wrong.  "The abuses are real. But, as unions wane in American life, it’s also increasingly clear that they were doing a lot of good in sustaining middle class life."  At the time, I thought to myself: "Well, better late than never."  Kristof is hardly the only liberal who failed to see the importance of unions for far too long, and we can only hope that he and others did not come to their senses too late, as I noted in my Verdict column.

What I found especially interesting in Kristof's announcement (which, as always with Kristof, carried more than a whiff of self-congratulation) were two of the three "abuses" that had evidently always bothered him about unions.  (Lacking systematic evidence, he simply listed a few examples.)  Weirdly, his first example cites "[f]ull-time union stagehands at Carnegie Hall earning more than $400,000 a year."  Good pay for workers is per se evidence of abuse?

But the example that really caught my eye was his reference to "[a] union hailing its defense of a New York teacher who smelled of alcohol and passed out in class, with even the principal unable to rouse her."  That sounds bad.

The link provided by Kristof takes the reader to a famous 2009 article in The New Yorker by an investigative journalist named Steven Brill: "The Rubber Room."  I plan to write a separate Dorf on Law post critiquing that still-important article, but for present purposes, what is most interesting is Kristof's reliance on that article as evidence that a union would not only defend a drunken teacher, but that it dared to hail that defense.  Perhaps I should not have been surprised that Kristof's rendition of the situation is highly misleading.

Brill recounts a story about a New York City public school teacher who was found unconscious in class, with some witnesses saying that they smelled alcohol.  Two years later, that teacher reached an agreement with the Board of Education in which "she would teach for one more semester, then be assigned to non-teaching duties in a school office, if she hadn’t found a teaching position elsewhere. The agreement also required that she 'submit to random alcohol testing' and be fired if she again tested positive."  Two years after that, she evidently fell off the wagon again -- not in a classroom, but at an office job -- and was fired.  As of the time of the article, Brill wrote that she said "that she is now sober and starting a school for recovering teen-age substance abusers."

Brill's article is deeply problematic in a lot of ways, but the story that he tells simply does not fit Kristof's version.  At worst, the union that supposedly hailed its defense of a drunken teacher was, even in Brill's jaundiced description, inaccurately saying that the teacher had been targeted because of an effort by the school system to remove senior teachers.  Brill insinuates that the teacher was used by union leaders for political purposes, and he tells a convoluted story in which he hints that the union was being uncooperative with his investigation.  He does not, however, state anywhere that the union was hailing its defense of a drunken teacher.  In fact, the union announced that this teacher was the victim of the kind of job action that unions are supposed to protect their members against.

But this really should not surprise anyone.  Attacks on unions typically include misleading statements such as these, much in the way that criminal defense attorneys are accused of "being on the side of criminals."  And for Kristof, the idea that someone with a drinking problem -- who, even according to Kristof's source, was not a problem in a classroom again -- was defended by the teachers' union is proof positive that the union defends people who do not deserve to be defended.  Notably, even when Kristof announced his newfound support of unions last February, he could not help qualifying that support, pointing "especially" toward "the private-sector unions that are now dwindling."  He just could not bring himself to throw his support to unions wholeheartedly.

I should not be too hard on Kristof.  One can pick up a newspaper any day and find someone who should know better defaulting into that kind of mindless, damaging thinking.  For example, in an article in yesterday's New York Times about a bipartisan group of scholars that has agreed to a (pretty bad) set of anti-poverty proposals, Eduardo Porter quotes the liberal academic Sheldon Danziger saying that the proposals are "modest.  If we had a system where people were not fearful of the Tea Party or of unions, you could get 60 percent of the House and 60 percent of the Senate to agree."  Danziger thus argues that unions are in the same category as Tea Partiers, stubbornly opposing enlightened policies and bringing members of Congress to heel.  And he's the liberal.

When even the people who need to rely on unions to advance their political goals are so deeply uncomfortable with organized labor, it is no wonder that conservatives are having a field day.

Wednesday, February 03, 2016

What Terms to Use in Discussing Abortion?

by Michael Dorf

Whenever I write something for or appear in the general-purpose media, as opposed to the self-selecting group of people who read DoL, Verdict, or, even more self-selectingly, my academic work, I am reminded of how lucky I am to have such terrific readers. Even when readers disagree strongly with my views, comments on this blog are of high quality and on the merits. As for the broader truck (not a series of tubes) that is our mediaverse, let's just say that the principle of charity--whereby one reads others' statements in their best light--is not universally observed.

Accordingly, after my most recent 15 seconds--in which I expressed concern about the potential chilling effect of the indictment of the makers of the anti-Planned Parenthood videos--I expected to take some heat from people who are pro-choice on abortion. And as I noted on Monday, I did. But I've also gotten some blowback in the other direction.

For example, one line of criticism arose in the comments section of a conservative blog that excerpted a couple of paragraphs from the CNN op-ed, in which Prof. Colb and I repeated a point I made last summer in a Verdict column: that the pro-life Center for Medical Progress (CMP) could potentially face civil liability for defamation for misleading editing of the videos. The commenters angrily pointed out that the CMP released the unedited videos alongside of the edited ones, so, they asked rhetorically, how could that possibly be defamatory?

I addressed just that question in the Verdict column, where I argued that simultaneously releasing a non-defamatory statement alongside of a defamatory one does not necessarily eliminate the possibility of defamation liability. That's clearly true with respect to words. To use the example I gave in the column, if Deirdre falsely accuses Peter of murder, the fact that she also makes statements saying that Peter is not a murderer might mitigate damages but does not eliminate the possibility of liability for the defamatory statement. There's no reason in principle to treat video differently.

Now it turns out that my column may have been too generous to CMP in characterizing the longer videos as "unedited." Planned Parenthood hired independent analysts to look at the longer videos, and they concluded that the supposedly unedited videos were in fact edited significantly. Some of these cuts were hardly subtle, as when the counter shown in the video jumps forward by 30 minutes. Because of this analysis, Prof. Colb and I thought it fair in the CNN op-ed to refer to misleading editing as a possible basis for civil liability, without including a disclaimer about the simultaneous release of ostensibly "unedited" video.

Meanwhile, an article on a pro-life website discussing our CNN op-ed appeared under the headline "Why Prosecuting the Center for Medical Progress Leaves Even Pro-Abortion Activists Worried." Although the attention is flattering, the "pro-abortion" characterization rankles, because we have written an entire book in which we take care to note the moral seriousness of the abortion of sentient fetuses and also respectfully examine the argument that abortion of pre-sentient fetuses is morally problematic. Moreover, even less reflective supporters of abortion rights cannot fairly be characterized as "pro-abortion." I do not know anyone who is pro-choice who thinks that women ought to be coerced or even encouraged to have abortions they don't want.

More generally, the "pro-abortion" language provides an opportunity to think about the inadequacy of the terms we have for talking about social and political movements with respect to abortion.

There is a sense in which both "pro-life" and "pro-choice" are carefully crafted terms like "death tax"--designed to appeal to listeners at a subconscious level that biases the conversation. Indeed, "pro-life" is practically the mirror image of "death tax," in suggesting that those who are not pro-life must be pro-death. "Pro-choice" is also loaded, because, in our generally libertarian society, choice is almost always seen as a good thing. By omitting what one chooses when one exercises the right to choose, pro-choicers seek to bypass discomfort about abortion.

In our book, we nonetheless generally use the terms "pro-life" and "pro-choice" to refer to the respective positions. After all, that is what the groups themselves want to be called. There is clearly less at stake here than there is in referring to historically disadvantaged groups by terms that many of their members now deem offensive (as I discussed here), but some of the same logic applies. Other things being even close to equal, members of a group, rather than outsiders, should be the ones to say what their group is called. Thus, our desire to be even-handed led us to use the terms "pro-life" and "pro-choice." No doubt members of the pro-life movement would prefer that the pro-choice movement be described as "pro-abortion," just as members of the pro-choice movement would prefer that the pro-life movement be described as "anti-choice."

Our terminological decision is not entirely satisfying, however, because, as noted above, both "pro-life" and "pro-choice" are somewhat tendentious. "Anti-abortion" is sometimes used to describe the pro-life movement, but that is not entirely accurate either, insofar as it suggests that people who are not anti-abortion are--as Prof. Colb and I were described--"pro-abortion." Perhaps the closest we can come to a neutral description of the two movements would be to describe them, respectively, as "anti-abortion-rights" and "pro-abortion-rights." But each of those terms is a mouthful, and if they were to enter into common usage, I suspect they would be shortened to "anti-abortion" and "pro-abortion," leaving us back where I started.

Finally, I am aware of a certain (postmodernist) view that says that the quest for a neutral description is in vain. Just as there is no "view from nowhere," there is no non-perspectival language. Words have embedded assumptions, including ideological ones. I think this critique is technically correct but generally unhelpful, because we do need to have conversations. My bottom line is that we ought to have those conversations in ways that minimize the use of rhetorical dice-loading as a substitute for argument. I just haven't been able to land on a way to do that very well when talking about views about abortion, and so, by default, I have adopted the terms of the contesting positions.

Tuesday, February 02, 2016

The Jeb! Comeback Story, Coming Soon to a News Outlet Near You?

by Neil H. Buchanan

Three weeks ago, I wrote as an aside in a Dorf on Law post: "Speaking of fake moderates, I might be the only person outside of Kennebunkport who thinks that the Republicans will end up nominating Jeb Bush this year.  I will explain that view in a future post ... ."  The future is now.

With something resembling voting having just taken place at yesterday's caucuses in Iowa, the long slog toward the presidential nominations is set to become a frenzied sprint for the next month or so.  Notwithstanding the "everything is different this time" story lines that have emerged regarding both parties' races, at least the Democrats appear to be readying themselves to run true to form.  Early excitement for the upstart, somewhat-to-the-left candidate (think Gary Hart, Bill Bradley, John Edwards, and at various times Jerry Brown) will give way to the realization that money, organization, and endorsements have already determined the outcome of the race.

This, in part, explains my gut-level sense that Jeb! is not finished, notwithstanding all of the evidence to the contrary (including his sixth-place finish last night).  There have been plenty of times when the inevitable nominee on the Republican side looked dead in the water (most recently, John McCain in late 2007), and when everyone was abuzz with talk about how that year's outcome would be a big surprise.  Yet the only surprise was that anyone ever expected an unexpected outcome.

Still, this year really could turn out to be different, so it would be helpful at least to have some story to tell myself about why I think that Jeb! is still alive.  A few thoughts:

(1) Bush really is the candidate about whom Republicans were saying "It's his turn" before he announced.  As I noted in a Dorf on Law post at the end of the 2012 primary season, Republicans in particular have been very rigid about nominating the guy who is somehow seen as being next in line.  In that post, discussing whether Rick Santorum's second-place finish in the 2012 fight placed him in the favorite's position going forward, I wrote: "Jeb Bush (who also stayed out this year) could jump in front of everyone to be dubbed the next guy in line for 2016."  When he announced his candidacy, that is exactly what happened.

(2) The status as "next" is not merely a matter of politicos' loose talk.  Being next means money and endorsements, and Bush has both in abundance.  The Bush campaign's own cash hoard is merely third among Republican candidates, but his SuperPAC's have more than four times as much money on hand as those supporting Marco Rubio, and almost double the money as those backing Ted Cruz.

(3) The Cruz victory in Iowa yesterday seems especially reminiscent of earlier years' false storylines about the old order being disrupted, with the added twist that Cruz himself is the most hated man that anyone can remember in American politics.  Strange things can happen, but there really would have to be a complete revolution in that party for Cruz to win the nomination.

(4) The long-awaited cracks are already appearing in the Trump phenomenon.  In an analysis a few months back, a commentator wondered what would happen when Trump lost a caucus or primary.  The ego-driven response could be to try harder, but it could also be to say, "If I can't win every time, this is no fun."  And even if he were to try harder, there is no reason to think that Shrill Donald will perform better than Arrogant Donald.

(5) When Cruz and Trump are ruled out, the plausible field narrows to Bush, Rubio, Kasich, and Christie.  All are incorrectly viewed as "moderate" by the political press and by Republican insiders.  It is possible to tell stories in which Kasich or Christie becomes the nominee, but it is extremely difficult to tell either story with any conviction.  Christie does connect with some voters in ways that I find utterly mystifying, but in addition to all of his baggage, he is a loud, obnoxious, unattractive person about whom party leaders would have to be very, very excited before they lined up behind him.  Kasich received a sort-of-endorsement from the NYT editorial board, which will actually hurt him with both voters and leaders on the Republican side.

(6) Rubio is the flavor of the moment, and I can see why he is currently the bettors' favorite in a "Trump implodes, Cruz is unacceptable" story.  Even so, he is widely untrusted and disliked in the Senate (looking good only by comparison to Cruz, which is no trick).  He also comes across as incredibly slick, with a fidgety demeanor that makes him seem nervous and lacking seriousness.  Finally, his efforts to compete in Iowa have resulted in his loudly touting his long-held extreme policy positions (completely banning abortions, for example) that will make it ever more difficult to sell him as a faux-moderate.

(7) Bush is no moderate, either, but at least he did not become super-religious, as Rubio did in the last debate.  Moreover, Bush's people evidently hold a special hatred for Rubio, and they have shown that they are willing to go after the youngster.  Loyalty is big with Poppy and the boys, and if the pro-Bush SuperPAC's do nothing else with their money, they seem willing to use it to punish Rubio.

(8) Importantly, Bush does not need things to go right in order to have staying power in the race.  He has the money, he has the connections, he has the organization in place nationwide.  All he needs to do is stick around, and his numbers will go up, simply because the number of competitors will go down.  If, for example, Kasich or Christie have a bad day in New Hampshire, it is pretty much over for them.  And even if they do well, experience has shown that -- as Sanders will also show on the Democratic side -- the creation of the front-loaded multi-state "Super Tuesday" primary calendar is a nearly impossible barrier to outsiders.  This was by design, with both parties' leaders figuring out long ago that insurgencies cannot be stopped in Iowa or New Hampshire, but they can simply be forced to cover too wide a field soon thereafter.

(9) Jeb!'s best hope going forward is that he will be viewed as a safe, familiar leader whom no one hates.  This view is already widespread among political pundits.  And with the political press's horse-race approach to covering the campaign, reporters are absolute suckers for comeback stories.  Imagine the headlines.  "Bush, Once Thought Out of the Race, Surprises in _____.  Party Leaders Take Notice."  "Strong Third-Place Finish in ______ Re-energizes Bush Supporters."  You get the idea.

Talk is cheap.  How much would I bet on Bush at this point?  Given how much I truly despise him, and what a phenomenally weak candidate he has been to this point, it would be easy to dismiss everything that I have written above as a mere exercise in political storytelling.  I can certainly see the possibility that he simply sinks further from here, lurking in the background for a couple of months only out of stubbornness and cluelessness.  Rather than calling this an affirmative prediction, maybe it is more accurate to say that I will not be in the least bit surprised if Bush makes the comeback that I described above.

In any event, the horse-race style of reporting in American presidential politics has a long record of being very wrong about the fresh, new, different, game-changing people who are supposed to surprise the old order.  The preferred candidate of the old order is sustained by money, name recognition, money, respect (even unearned respect), money, family connections, and money.  And by a credulous press that is anxious to tell a big comeback story.

I might be wrong.  As a matter of substance, in any case, every choice on the Republican side is a bad one.

Monday, February 01, 2016

A Contrarian View of the Planned Parenthood Reverse-Indictment

by Michael Dorf

Last week's news that a Houston grand jury had cleared Planned Parenthood of any wrongdoing and had instead indicted anti-abortion activists David Daleiden and Sandra Merritt was generally greeted with the kind of joy that only schadenfreude can bring. For example, in a gleeful Daily Show segment, Trevor Noah compared the "twist ending" to the grand jury deliberations to a Hollywood movie in which the seemingly invincible villain is satisfyingly brought down at the last moment. Although I am also pleased that Planned Parenthood was not indicted, I take a dimmer view of the indictment of Daleiden and Merritt.

If you watch the Daily Show segment linked above closely, you will see that (at the 4:12 mark) it briefly borrows some footage from a CBS Evening News segment on the indictments. The full version of that CBS News segment in turn includes a few seconds of me talking (beginning at the 0:54 mark and again at the 1:36 mark), in which I warn that the prosecution of Daleiden and Merritt could chill legitimate journalism and other undercover investigations on matters of public interest. The CBS producers of the segment connected the prosecution of the makers of the Planned Parenthood videos to a chilling effect on environmental and animal rights activists--a linkage I have also drawn in the past (e.g., here).

After I appeared on the CBS News segment, I received some polite and some not-so-polite inquiries from people who wanted to know more about my view. Some of the questioners simply assumed--falsely---that I was expressing sympathy for the anti-abortion/anti-Planned Parenthood goals of Daleiden and Merritt. But others thought that I was missing an important distinction. Journalists aren't supposed to break the law in conducting their investigations, they said. I know that's true under existing law, but as Sherry Colb and I now explain in an op-ed on, perhaps journalists need special protection so that, in some circumstances, they should be licensed to violate the law.

As our op-ed acknowledges, granting journalists exemptions from general laws would require resolving some difficult questions, most prominently: who is a journalist? As we note, Daleiden and Merritt do not work for any news organization. Nor do most of the environmental, animal-rights, and other activists who wish to go undercover to bring public attention to activities conducted in secrecy. Does anybody who wants to go undercover get to take advantage of the exemption we favor for journalists?

That's a hard question, but it's not an entirely novel one. The question of who counts as "the press" has arisen under state laws that permit reporters to shield their sources. Most state laws (e.g., California and New York) only grant the privilege to persons working for or otherwise connected with more or less conventional media. However, these laws generally pre-date the internet, while some of the more recently amended or enacted state laws (e.g., Connecticut) include a catch-all that is broad enough to cover at least the publishing, broadcasting, or internet news arm of an activist organization. Given that there is no general obligation on journalists to be "objective", the fact that the news webpage for a pro-life, workers' rights, animal rights, or other activist-oriented organization has a perspective shouldn't distinguish it from, say, FoxNews. I'm not saying that courts necessarily would or should apply an exemption from general laws regarding undercover operations exactly the same way that they apply reporter-source privilege laws, but the basic problem of "who is a journalist?" is at least familiar.

Another line of questions from viewers and readers asked whether a privilege for undercover reporting is needed. After all, journalists don't have one now, and yet they seem to do all right. Perhaps so, but the objection relies on the dubious empirical assumption that journalists (and activists) are currently uncovering all of the important secret information that is important for the public to know without breaking any laws in order to go undercover.

In any event, the need question could be addressed by a carefully limited privilege. In order to escape criminal liability under a general law, a journalist (or activist) could be required to show: (a) that the information was of genuine public interest; (b) that breaking the law was necessary to obtain it; and (c) that the public interest in the information outweighs the interest in enforcing the particular law. The foregoing is not meant to serve as anything like a model statute, but it does at least suggest one approach that could be adopted by a state legislature or by a court as a common-law defense.

A narrower approach--which I endorsed as a construction of the First Amendment in a prior post--would be to permit journalists and activists to escape criminal liability only where they were singled out for prosecution because of hostility to the content of their speech or reporting. But I take that proposition to be the law under the federal First Amendment already. And while it might, in principle, provide sufficient protection for journalists and activists operating undercover, in practice it would be under-protective because of the difficulty of proving illicit motive.

Finally, I want to be as clear as possible that nothing I've said here, in the CBS News segment, or in the CNN op-ed endorses the proposition that Daleiden and Merritt would escape criminal liability under a properly drafted and limited statutory or common-law exemption for undercover investigation. I am only saying that their case presents a question of broader significance.