"His silent presence on the bench has evolved into a weirdly compelling example of performance art," writes ACS board member Linda Greenhouse of Justice Clarence Thomas' persistent silence during oral argument. The fourth anniversary of Thomas' silence from the bench passed quietly last month, but not without being noticed.

Writing in The National Law Journal, Tony Mauro recently gave new life to a Florida Law Review article entitled "Why Justice Thomas Should Speak at Oral Argument." There, freshly minted law school graduate David A. Karp argued that Thomas' silence permits him to shield anachronistic or even bizarre legal perspectives from criticism. Rather than debuting his opinions during oral argument, the piece notes, where they could be challenged by counsel and his colleagues on the bench, Thomas saves his outlook from public scrutiny until it is proferred in an official opinion.

One such opinion, released last month, went overlooked until this week. In Wilkins v. Officer Gaddy, North Carolina inmate Jamey Wilkins alleged that he was "maliciously and sadistically" assaulted "[w]ithout any provocation" by a prison guard. The district court judge who initially reviewed Wilkins' allegations dismissed them, and the U.S. Court of Appeals for the Fourth Circuit affirmed this ruling in an unpublished one-paragraph opinion. 

Without even inviting briefs on the matter, the U.S. Supreme Court summarily reversed the Fourth Circuit, determining that Wilkins presented a prima facie case under Hudson v. McMillan. In that 1992 decision, the Court determined that a "significant injury" is not required for excessive force claims under the Eighth Amendment. Rather, under Hudson, a prisoner's excessive force claim may only be dismissed where "force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically cause harm."

Concurring in the judgment as a matter of stare decisis, Justice Thomas went out of his way to make his opposition to Hudson known once again. Thomas invited litigants to request reversal of Hudson based on his understanding that "the word ‘punishment' referred to the penalty imposed for the commission of a crime," in the late 18th century when the Eighth Amendment was ratified. Thus, under Thomas' analysis, the Eighth Amendment permits a prison guard to savagely beat a prisoner so long as they did not do so to penalize them for committing a crime.

This opinion was first highlighted by David Savage, who, writing in the Los Angeles Times, compared it to something that might be produced by Thomas' now-infamous former clerk John C. Yoo. During his time in the Bush administration, Yoo contributed significantly to the Torture Memos, which redefined torture as requiring bodily pain akin to major organ failure.

"Thomas' consistent record of dismissing claims of prison brutality ... shows that Yoo's view of torture was not that of a rogue lawyer," reports Savage. "Instead, it represents a strain of conservative thinking that looks back in history to define cruelty and torture, rather than toward what the court has called the 'evolving standards of decency.'"

[Image via Wikimedia Commons.] 

The use of the filibuster and other parliamentary maneuvers are on the rise to not only slow passage of legislation, but increasingly to delay action on judicial and other executive branch nominations. During an ACS panel discussion earlier this week, several experts explored the delaying tactics and their effect on the judiciary. The panel included Makan Deirahim, former chief counsel for the Senate Judiciary Committee, Martin Paone, former Democratic Secretary in the Senate, and Matthew Yglesias, fellow at the Center for American Progress Action Fund.

Yglesias, also a blogger at ThinkProgress, said:

Although the filibuster and cloture issue is technically about debate, and defenders of it talk about debate, I think it is worth being clear that actual debating of issues is almost invariably a red herring in these kinds of contexts.

When you have a minority of senators saying they we won't grant cloture on Craig Becker's nomination to the NLRB [National Labor Relations Board], that's not actually because they have more things they want to say about it. It's a tactic that you see has dual uses. One is to impose a super-majority requirement, to say that you can't pass a bill or confirm a nominee unless you have 60 senators, rather than 50. And the other, which in some ways I think has become more important and underrated, is to purely delay action. That the process of filing a cloture petition and letting it ripen takes quite a bit of time, particularly because you can sort of dual-track your refusal to grant unanimous consent and force multiple filings of petition to ever get to a final vote on an issue.

The entire panel discussion is available here or by clicking picture.

Judge Thomas Porteous became the fifteenth judge ever deterimined by the U.S. House of Representatives to have committed "high crimes and misdemeanors" -- the consitutional bar for impeachment. The House unanimously approved four articles of impeachment, today, against the New Orleans federal judge.

"The four proposed articles of impeachment accused Porteous of taking money, expensive meals and other gifts from lawyers and a bail bond company with business before him and making false statements in a personal bankruptcy filing," reports The Times-Picayune. "Though much of the 'improper conduct' occurred when he was a state judge, the [House] Judiciary Committee decided he had an obligation to disclose his actions during his nomination and confirmation process in 1994."

The articles of impeachment, recommended by the Judiciary Committee earlier this year, are now in the hands of the Senate, whose constitutional duty it is to conduct impeachment trials. After the trial, the Senate will then vote on whether to remove Porteous. Removal requires a two-thirds vote and would make Porteous only the ninth judge removed by the Senate.

Porteous continues to collect his $174,000 annual salary as a federal jurist, but is barred from hearing cases until September of this year. If the Senate does to remove him by then, and he does not resign, he may resume control of his docket. 

[Image via jmtimages [recharging...].]

Today, following a spirited Senate Judiciary Committee hearing, in which Senators on both sides of the aisle debated the Roberts' Court recent decision in Citizens United v. FEC, the Constitutional Accountability Center ("CAC") released a new comprehensive report on corporations and the text and history of the Constitution. The report, entitled A Capitalist Joker: The Strange Origins, Disturbing Past, and Uncertain Future of Corporate Personhood in American Law, examines the text and history of the Constitution and the Supreme Court's treatment of corporations from the founding-era through the Court's recent decision in Citizens United. The report, which is available here, demonstrates that the Court's opinion in Citizens United is completely divorced from the text and history of the Constitution. In upcoming months, CAC and ACS will jointly sponsor a series of events designed to bring attention to the decision's departure from constitutional first principles.

As detailed in CAC President Doug Kendall's testimony this morning, the Constitution's text reflects a fundamental difference between corporations and "We the People" identified in the Constitution's preamble. Corporations do not vote, they cannot run for office, and they are not endowed by the Creator with inalienable rights. "We the People" create corporations and we provide them with special privileges that carry with them restrictions that do not apply to living persons.

While the Supreme Court has long recognized that corporations may assert certain constitutional rights, corporations have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation. The Court under Chief Justice John Marshall, and many times since, has emphasized that because corporations are artificial entities that receive special privileges such as perpetual life and limited liability, they are subject to greater regulation by the state. Only once before, during the darkest days of the now-repudiated Lochner era, from 1897 to 1937, has the Supreme Court seriously entertained the idea that corporations are entitled to the same constitutional rights enjoyed by "We the People." And even in the Lochner era, equal rights for corporations never extended to the political process.

Citizens United is the culmination of a forty-year struggle by conservatives to reinvigorate the Lochner-era idea that corporations deserve equal constitutional rights. In 1971, Lewis Powell -- a Virginia corporate lawyer who would soon be nominated to the Supreme Court -- advised corporations to look to the courts for relief, noting that that "the judiciary may be the most important instrument for social, economic and political change." Powell's strategy started to come to fruition just seven years later in First National Bank of Boston v. Bellotti, when Powell authored a 5-4 ruling for the Court holding that limits on a corporation's ability to oppose a ballot initiative violated the First Amendment. The Citizens United ruling dramatically expands Powell's ruling, holding that corporations have the same constitutional rights to spend money on elections as living breathing persons, giving corporations a constitutional right to participate in elections for elective office for the first time in American history.

[Image via monkeyc.net.]

Most of the opposition to U.S. detention policy since 9/11 has focused on the detention camp at Guantánamo Bay. But for nearly as long, the United States has been operating a prison in Afghanistan that has been, in many ways, Guantánamo's uglier twin. Stories of abuse and mistreatment at the Bagram facility have been all too common. At least two detainees were killed by guards at Bagram, the consequence of repeated beatings and shackling in stress positions.

Unlike prisoners at Guantánamo, however, whose habeas rights were restored by the Supreme Court in 2008, Bagram prisoners have never had a meaningful and adequate process to challenge their detention. Yet many Bagram prisoners have been held for years, without charge, without access to courts, without access to lawyers, and without even being told why they are being held. And according to official government investigations, reports by nongovernmental organizations, and interviews with former Bagram detainees and their families, many of the detainees at Bagram have never engaged in or been a part of groups engaged in hostilities against the United States. Many were instead originally picked up in the course of night raids, neighborhood sweeps, and cordon-and-search operations. Others were picked up by military forces acting on the basis of flimsy intelligence like anonymous tips from local rivals or business competitors. The risk that people at Bagram are erroneously detained is very high. It is therefore crucial that the people detained there have prompt access to a court or, at the very least, a fair, independent and impartial tribunal that can order their release. Just as with people held at Guantánamo, those imprisoned at Bagram must not be falsely imprisoned for years without charge.

Last week the ACLU filed habeas petitions on behalf of four people detained at Bagram. One petition is on behalf of two brothers: a 24-year-old Afghan who, until his capture by U.S. forces nearly 20 months ago, served as a translator for the U.S. military for four years, and a 25-year-old customer service representative for an Afghan Internet service provider, who has been imprisoned for nearly two years. The second petition is on behalf of a 61-year-old Afghan government employee, and his 27-year-old nephew, who have been imprisoned at Bagram for more than one year after U.S. forces seized them from their homes. Even though they have already been locked up at Bagram for well over a year (and for some, almost two), the government has never informed our clients of the reasons why they are being detained. Neither do our clients' families have any idea why their relatives are in prison. In fact, it was months after our clients' arrest before their families learned what had become of them.

The ACLU joins other dedicated lawyers, coordinated by the International Justice Network, who have also filed habeas petitions on behalf of other Bagram detainees. Last year, the D.C. District Court confirmed that at least some Bagram detainees have the right to petition for habeas corpus. That decision is currently on appeal to the U.S. Court of Appeals for the D.C. Circuit.

The ACLU has filed this habeas petition because it believes that the government must release our clients -- and others like them -- or else prove why they can be held in military detention. If the government does not have the authority to detain them militarily, they must be released or charged criminally under Afghan or U.S. law. Because the military's internal process for reviewing the detention of people held at Bagram is inadequate under both the Constitution and applicable international law, we are asking a court to vindicate our clients' habeas corpus rights by stepping in to review their detention.

Up until recently, the review process at Bagram was little more than a rubber stamp: detainees were not told why they were held, let alone given an opportunity to challenge their detention. The current Detainee Review Board ("DRB") policy, instituted by the Obama administration toward the end of last year, is an improvement over the prior process that existed at Bagram, but remains inadequate and unlawful. Among other defects, the DRBs are not independent or impartial -- they are composed of military officers who are not insulated in any way from the command hierarchy or other improper influences. Instead of looking only at the evidence, they are liable to be looking over their shoulders, worried that ordering the release of detainees will land them in hot water with their superiors or hinder their career progress. The DRBs also fail to afford the detainee the right to access counsel. There is therefore nobody who can stand between the detainee and the military, in order to ensure that they are treated fairly. The "personal representatives" that are assigned to detainees under the DRB process are nonlawyer military personnel responsible to the chain of command. In fact, personal representatives are appointed and removed by the same person who chooses the members of the DRB panel itself. Unlike lawyers, the "personal representatives" owe no duty of confidentiality to their "clients," and are not bound to advocate zealously on their behalf. To make matters worse, detainees are not given access to all of the evidence against them and the DRBs are not obligated to provide the detainee with evidence in the government's possession that tends to show the detainee's innocence. Furthermore, nothing in the DRB policy prevents the military from relying on testimony procured using torture or other cruel, inhumane, and degrading forms of coercion.

This isn't good enough. The current system of detention at Bagram is contrary to the Constitution and international law, and offends bedrock American principles of freedom and due process. The Obama administration should do the right thing not only at Guantánamo -- which should long since have been a distant memory -- but also at Bagram, where the indefinite detention of people without habeas rights or charge offends American values and undermines the United States' moral standing in Afghanistan and beyond.

[Image via takomabibelot.]

Convicted murderer Lawrence Reynolds now has until next Tuesday to recover from an apparent suicide attempt before Ohio state officials carry out his death sentence.

When Reynolds was found unconscious in his cell over the weekend, the state faced a predicament: save the inmate scheduled to undergo lethal injection in a matter of days at taxpayer expense, or let him die. The state chose the former option, and has rescheduled his execution, which was previously planned for today.

"We have a constitutional duty to provide health care for this inmate until the execution commences," said a spokesperson for the Ohio Department of Rehabilitation and Correction. "And we are legally responsible to carry out executions under the law. We will meet both our legal obligations."

Reynolds' execution was initially scheduled for last October, following that of inmate Romell Broom. Officials badly botched Broom's execution, however, failing to find a functional vein in either of the former intravenous drug-user's arms. The attempts to execute Broom were terminated by Gov. Ted Strickland after two hours and as many as 18 insertions of a needle which reportedly struck muscle and bone. In response to a temporary reprieve on the execution of Reynolds and another inmate, granted by the U.S. Court of Appeals for the Sixth Circuit, the state then became the first to adopt a one-drug lethal injection protocol. Since then, Washington State has followed suit.

This is the first time an inmate on Ohio's death row has attempted suicide. A full investigation into how Reynolds obtained the drugs on which he attempted to overdose is underway. 

[Image via Wikimedia Commons.]

The four-judge federal trial court in Delaware has operated one judge short for almost four years and is on the verge of losing another. One Delaware attorney who frequently appears before the federal bench told the Wilmington News Journal, "Despite the heroic efforts of the remaining judges, plaintiffs and defendants are left languishing. It is a disaster here."

Only three judges have strived to manage the U.S. District Court for Delaware's docket since December 2006, when Judge Kent Jordan left to claim a spot at the U.S. Court of Appeals for the Third Circuit. And, earlier this year, Judge Joseph J. Farnan Jr. announced his resignation from the court, effective this July. No nominations have been announced yet to fill either position, though a White House official informed the Delaware paper that potential nominees currently are being vetted.

The situation has proven so dire that the district's Chief Judge Gregory M. Sleet reached out to district court's in New Jersey and Pennsylvania, which have taken on portions of the Delware court's civil docket. Even with the assistance, though, one judge's civil calendar for 2010 is already full. The Delaware court maintains exclusive control over its criminal docket.

According to U.S. Attorney for Delaware David Weiss, if there is not at least one nomination announced and confirmed by July, "there is no doubt that would be devastating."

There are currently 101 vacancies on federal courts: 19 on courts of appeal and 84 on district courts. Another 22 federal judges have informed the president of their intent to retire. Pending before the Senate are 31 nominations to the federal bench made by President Obama.  

[H/T: Main Justice. Image via University of Delaware Library.]

On Tuesday, the Supreme Court heard oral argument in McDonald v. City of Chicago, which raises the question whether the Second Amendment's guarantee of a right to bear arms applies to states and local governments. Going into argument, incorporation of the Second Amendment right seemed a given - after all, states already have to obey virtually every right in the Bill of Rights. The critical question was whether the Court would breathe new life into the Privileges or Immunities Clause, and honor the part of the Fourteenth Amendment's text that clearly protects substantive fundamental rights from state infringement.

The Privileges or Immunities Clause was intended to be the centerpiece of the Fourteenth Amendment, but it was written out of the Constitution by the Supreme Court in the 1873 Slaughter-House Cases. The decision has been regarded as one of the worst in the Court's history, and roundly condemned by the Amendment's framers in the 1870s, Justice Harlan in the early 20th century, and Justice Black in the 1940s. The overwhelming consensus among scholars across the ideological spectrum - reflected in a law professors' brief filed by CAC in McDonald - is that Slaughter-House obliterated the text and history of the Clause through a profoundly incorrect interpretation of the Constitution.

Unfortunately, the Privileges or Immunities Clause received a chilly reception from the Court on Tuesday, especially from those Justices who most profess to take the Constitution's text and history seriously. Justice Scalia belittled the Clause, accusing Alan Gura, McDonald's attorney, of "bucking for some place on some law school faculty" by advancing an argument that was "the darling of the professoriate." Scalia, supposedly the Court's chief originalist, wouldn't even consider the merits of the argument. Chief Justice Roberts, too, refused to follow the Constitution's text and history where it leads. He explicitly worried that the Privileges or Immunities Clause would allow for broad protections of substantive liberty; he preferred to rely on the Due Process Clause, since that text is about process, and does not easily lend itself to protecting substantive fundamental rights. While Roberts and Scalia were content to rely on substantive due process to protect gun rights, they seemed to want to reserve the opportunity to bash the doctrine in future cases involving rights they don't recognize. Other Justices were less overtly hostile, but none seemed willing to revive the Clause.

In light of its reception at the Court, was Gura too bold?

Of course, we don't know what the Court's opinion will ultimately say; it is quite possible that much of the privileges-or-immunities history Gura cited will form the basis for the Court's opinion, which would make the case a great victory for all who care about the Constitution's text and history even if the Court relies on the Due Process Clause. But even if the Court ignores text and history, pushing to revive the Privileges or Immunities Clause was the right decision.

First, if not now, when? The Second Amendment is the only substantive provision of the Bill of Rights not already incorporated against state action. There may never be a better chance to argue that the Clause protects substantive fundamental rights against state infringement.

Second, McDonald has been a teaching moment: thanks to terrific coverage in editorials and stories in the New York Times, Washington Post, and other papers, millions of people now know that protection of substantive fundamental rights was written into the clear text of the Constitution. Thanks to this coverage, debates about whether the Constitution protects fundamental rights will not be the same. Whatever the Court says in its opinion, Americans should remember that the Privileges or Immunities Clause was written to ensure all Americans enjoy broad protections of substantive liberty, including fundamental rights not enumerated in the Constitution. And the Justices certainly are now aware of the overwhelming scholarly consensus that the Clause has been long-mistreated by the Court.

Finally, Justices have pushed to revive the Privileges or Immunities Clause for over a century, and there is no reason to think McDonald will be the last word. It is possible that, in future cases, the Court's liberal Justices may find that the Clause's text and history is a powerful weapon. When the Court next considers the right to reproductive choice recognized in Roe or the right of sexual intimacy recognized in Lawrence, the text and history of the Privileges or Immunities Clause may be a powerful rejoinder to the arguments by Justice Scalia and others that protecting substantive fundamental rights through the Due Process Clause is "judicial usurpation." The Clause's text and history, which show that that the framers were concerned about ensuring that the newly freed slaves had rights as citizens to marry, decide whether to bear children, and control their family life, gives the Court's liberal Justices powerful ammunition to root protection of rights of heart and home directly in the Constitution's text and history.

[Image via Sam Ruaat.]

The Washington Post today reported: "Obama advisers are set to recommend military tribunals for alleged 9/11 plotters." The report indicates that the Obama administration now leans towards trying self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed (KSM) and his co-conspirators in military tribunals. Reactions were swift and are offered below without comment.

"Obama said that the choice between our security and our ideals is a false choice. He was right," writes Adam Serwer at The American Prospect. "The real choice was always between our ideals and our politics, and if the above story is true, then Obama will have made the obvious, if profoundly disappointing, choice."

At Harper's, Scott Horton introduced "Barack Obama's new attorney general: Rahm Emanuel," apparently blaming Emanuel for the administration's shift in policy. Marcy Wheeler seemed to agree.

"Three is the number of people who have been convicted in the military commissions system. Two of the men convicted in the military commission system are free today," the ACLU offerred at their blog. "Compare that to the more than 300 who have been convicted on terrorism-related charges in our federal criminal courts and are incarcerated in federal prisons."

Sen. Russ Feingold notes this track record of military commissions and warns that "[t]he best way to bring these terrorists to justice swiftly is through our civilian courts."

Spencer Ackerman is tracking commentary from former military officers opposing military tribunals for KSM.

Steve Benen wonders if fault for any potential policy shift ultimately lies with Congress, who "spent the last year cowering whenever national security came up, and threatening to side with Republicans on cutting off funding for trials and Gitmo closure."

Folks at The Atlantic's politics blog conjectured that the Post's "story is merely a test balloon."

Less charitable commentary was provided by Jeralyn Merritt at TalkLeft and Glenn Greenwald at Salon, who both voiced grave disappointment with the admistration's reported shift in position.

A final notable quote is from Attorney General Eric Holder, a former ACS board member, in an exchange with a reporter from The New Yorker earlier this year. In an extensive report on his decision to try KSM in an Article III Court, Holder eagerly defended what was then the administration's position:

"I don't apologize for what I've done," [Holder told The New Yorker]. "History will show that the decisions we've made are the right ones." Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as "the defining event of my time as Attorney General." But, he added, "between now and then I suspect we're in for some interesting times."

If the commentary above is any indication, interesting times may well be upon us.

[Image via The White House.]

[Part I of "Supersizing the Second Amendment?" is available here.]

So why do I still say that gun control advocates are also seemed to be big winners?

Because the Justices seemed to think that, regardless of incorporation, state and local governments would retain wide leeway to enact gun control. The only words used as much as "fundamental" and "implicit in ordered liberty" in the argument were "reasonable regulation."

Numerous Justices expressed their support for the idea that the Second Amendment did not prohibit reasonable regulation of firearms. Justice Kennedy said that lawmakers still "have substantial latitude and ample authority to impose reasonable regulations." Justice Ruth Bader Ginsburg said that she "thought that Heller allowed for reasonable regulation." Justice Scalia didn't use that catchphrase, but went out of his way to say that Heller "was very careful not to impose" severe limits on the federal government "precisely because it realized that" gun violence "is a national problem."

There are two ways to think about "reasonable regulation." The first is what I've long endorsed: the Second Amendment should be governed by the formal "reasonable regulation" standard uniformly used in state constitutional law. Forty-two states have constitutional protections for the individual right to bear arms and all of them apply a deferential standard by this name. Under that test, any regulation will be allowed to stand so long as it doesn't effectively destroy or nullify the individual's right to have a gun for self-defense. Some types of weapons can be banned so long as individuals have access to others. Applying this test, almost all gun control survives.

The second way to think about "reasonable regulation" is not as a formal test but as shorthand for allowing lawmakers broad leeway to regulate guns. This seems to be what the Court did in Heller. The Justices did not formally adopt the state law standard of review. Instead, they adopted categorical rules and recognized a number of gun control "safe harbors." While they don't create a standard of review, the exceptions listed out in Heller encompass most forms of gun control. None of these are constitutionally infirm under the Second Amendment.

The distinction between these two ways of thinking about reasonable regulation may be more theoretical than practical. The legal effect of Heller has been to permit the vast majority of gun control laws to survive judicial review. In fact, not a single law has been invalidated for violating the Second Amendment since Heller. That's not for a shortage of cases. There have been over 150 federal court decisions on the constitutionality of gun control since Heller and none ruled that the Second Amendment was infringed. Whether the Court promotes the state law standard of review or approaches the Second Amendment with categorical reasoning, the effect on gun control is the same. It almost always survives.

Of course, even if the Court makes clear in McDonald that most gun control laws don't run afoul of the Second Amendment, there are certain to be some laws invalidated in the future. Permitting or licensing laws that give unfettered discretion to police chiefs over who can have or carry a firearm are troublesome, and open the door to arbitrary determinations. Constitutional rights shouldn't be subject to anyone's discretion. But even if that type of law is invalidated, almost all other sorts of gun control laws seem destined to survive.

Maybe McDonald will "supersize" the right to bear arms by applying it to the states. But the effect on gun control is likely to make this landmark case little more than a small fry.

[Image via slimmer_jimmer.]