All posts by victoriakwan

About victoriakwan

Victoria holds a J.D. from Columbia Law School and has recently completed a clerkship with a judge in Anchorage, Alaska. She tweets as @victoriakwan_ and posts primarily on legal issues, especially those involving the Supreme Court.

Some Thoughts on DOMA on the Eve of Supreme Court’s Ruling

Edie Thea
Thea Spyer and Edie Windsor. Windsor is suing the federal government for the return of over $363,000 that it charged her in federal taxes after she inherited her late wife Spyer’s estate. Had Windsor been married to a man instead of a woman, she would have been exempt from the tax. Picture via CNN.

We are now hours away from the last rulings of the Supreme Court’s term, and we know for certain that we’ll be getting a decision in United States v. Windsor, the challenge to the federal Defense of Marriage Act (as well as Hollingsworth v. Perry, the California Proposition 8 case). On the eve of what will surely be a historic day for gays and lesbians across the country, it’s worth going back and reading the March oral argument for the case. A few points I’d like to make1:

  • Based on the way the other Justices were falling in line behind his questions at the oral argument and some deduction skills on the part of SCOTUSblog, there’s a decent chance that Justice Anthony Kennedy has the majority opinion in Windsor.
  • Assuming that Windsor isn’t decided on a standing issue (and I freely admit that it could be), I expect a Kennedy opinion to discuss states’ rights. Traditionally, family law has been left exclusively to the states, and Kennedy seemed quite concerned at the oral argument about the federalism issues implicated by DOMA, which orders the federal government not to recognize same-sex marriages even if they are legally recognized by the state. At one point, he reminded Paul Clement, the attorney defending the law: “[DOMA] applies to over 1,100 federal laws… when it has 1,100 laws, which in our society means that the Federal government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”
  • Alternatively, if it does reach the merits of Windsor, the Supreme Court could strike down DOMA as a violation of the Fourteenth Amendment’s Equal Protection Clause (i.e. the law is unconstitutional because it singles out same-sex people for unfavorable treatment versus their opposite-sex counterparts). Such a ruling would, going forward, provide heightened legal protections for gays and lesbians in the face of discriminatory laws. However, this is also a much broader and groundbreaking route, and I’m not convinced that Kennedy will take it if he can decide the case based on a narrower states’ rights argument instead.

Associate Justice Elena Kagan Investiture Ceremony

While the lion’s share of attention re: DOMA has been focused on Kennedy (including, of course, this post, which has already given him three bullet points), I also want to highlight a couple of points that Justices Ruth Bader Ginsburg and Elena Kagan made at the Windsor oral argument:

        • Ginsburg drew big laughs at the argument when she compared the current state of same-sex marriage to “skim milk”i.e. not the real thing. Snappy sound bite aside, however, it’s interesting to note that Ginsburg–who by all accounts had a happy, fulfilling marriage to the late tax attorney Martin Ginsburg–was the one justice who focused the most on the everyday effects DOMA has on very real people and very real relationships. Again and again, Ginsburg steered the discussion back to the everyday hardships caused by this law–the loss of benefits, a higher tax burden, the inability to take leave to tend to a sick spouse–implicitly asking her colleagues to think about what a marriage really means. We need to strike down DOMA, she was saying, because it is unconstitutional to subject these Americans to a lower quality of life than what their heterosexual brothers and sisters expect and receive.
        • Whereas Justice Ginsburg made it a point to talk about (to put it in a cheesy way) love being love, Justice Kagan had an equally compelling observation about hate. Kagan’s strategy at oral argument was to focus on the people behind the law rather than the people the law affected. DOMA has no place in our society, Kagan suggested, because there are indications that it was motivated by “fear,” “animus” and “moral disapproval” against gays and lesbians–all constitutionally impermissible reasons for imposing differential treatment on a whole class of people. Memorably, she shut down Paul Clement when he tried to dispute this by reading aloud the House Report for DOMA: “‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.'”
        • Together, Kagan and Ginsburg’s arguments about the suspect motivations and unjust results of DOMA made for a pretty good one-two punch. Assuming, again, that Kennedy actually has the majority opinion and dispatches DOMA based on a theory of states’ rights, I’m really hoping for a concurrence or two from either (or both) of these Justices, laying the intellectual groundwork for an equal protection decision somewhere down the line.
        • If that is the outcome, we can expect at least one fiery dissent as well. My money’s on Justice Scalia, who just last Friday gave a speech to the North Carolina Bar Association insisting that courts had no business deciding moral issues, which should be left to the political process. (He forgets that mixed-race marriage was also considered immoral back when Loving v. Virginia [the 1967 Supreme Court decision overturning anti-miscegenation laws] was decided, and that it was the Court that pulled public opinion along on this, not the other way around.)

Finally, it bears remembering that exactly ten years ago, the Supreme Court issued its landmark decision in Lawrence v. Texas, striking down the criminal convictions of two men who had been arrested and tried under a Texas law that prohibited certain forms of sexual conduct between members of the same sex. In overruling an earlier Supreme Court decision that had upheld the application of state sodomy bans to gay and lesbian sexual activity, majority opinion author Justice Anthony Kennedy invoked the Founding Fathers:

They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

In a few short hours, we’ll find out just how committed Kennedy and the rest of the Supreme Court remain to this principle.


  1. With the major caveat, of course, that I realize oral arguments are not always an accurate indicator of the eventual outcome of a case. []

[Infographic] Supreme Court Strikes Down Key Section of Voting Rights Act

In a highly-anticipated 5-4 decision today, the Supreme Court struck down a key part of the Voting Rights Act, ending nearly a half-century of robust federal supervision over the election procedures of states with histories of racial discrimination.

At issue in Shelby County v. Holder was the Act’s requirement that certain states and districts obtain federal approval prior to changing their election laws, in a process known as Section 5 “preclearance.” To determine which areas of the country would be “covered” and therefore subject to preclearance, Congress in 1965 wrote into the Act a coverage formula, also known as Section 4. This formula asked whether a jurisdiction had a voting test in the 1960s or 70s, and had low voter registration or turnout at the time; if the answer was yes, then Section 5 applied to that jurisdiction.

In 2006, Congress renewed the Voting Rights Act without making any changes to the Section 4 coverage formula. Shelby County, a covered jurisdiction in Alabama, challenged the constitutionality of the Act. Today, a majority of Justices agreed that the coverage formula “can no longer be used as a basis for subjecting jurisdictions to preclearance,” saying that the decades-old data does not reflect the strides that states have made in eradicating voter discrimination. Chief Justice John G. Roberts’ majority opinion left it open to Congress to re-write a new coverage formula, but as Rick Hasen of the Election Law Blog notes, this is highly unlikely given the degree of polarization in today’s Congress. It’s interesting to note that the Court did not get to the constitutionality of Section 5, but it didn’t have to–invalidating Section 4 releases all jurisdictions swept up by the formula, effectively stripping the Voting Rights Act of most of its power.

Collectively, the majority opinion, concurrence and dissent run 68 pages long, but I’ve assembled some highlights from each Justice, which you can read by scrolling over the graphic above. (You can also enlarge the graphic by hovering over the icon in the top-left corner and selecting the link to “see more.”) Each dot will open up a box that shows key quotes from that Justice: one (or two) from the March oral argument, and one from today’s decision (if the Justice wrote an opinion, concurrence or dissent). The red dot indicates the author of the majority opinion. The yellow dots indicate the rest of the Justices who were in the majority, and the blue dots indicate the dissenters.

Waiting for #SCOTUS: now we know next week is going to be amazing

Thursday morning came and went without any decisions from the Supreme Court on same-sex marriage, affirmative action in public universities and the constitutionality of a key provision in the Voting Rights Act, meaning that next week (the last scheduled week of this term) is going to be amazing. We did get rulings in three other cases (Descamps v. United States on enhanced sentences for those with prior convictions, American Express v. Italian Colors on class action suits and arbitration clauses, and Agency for International Development v. Alliance for Open Society on government preconditions for aid and the First Amendment), leaving the number of yet-to-be decided cases at 11 now. Here’s the tweet recap (tweetcap?) of the frenzied period between 10:00-10:30 a.m. EST this morning:

Finally, of course:



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Waiting for #SCOTUS: Tweets from the Peanut Gallery

As the Supreme Court inches toward the end of its term in late June with fourteen cases still undecided, court-watchers are now surging toward Twitter and SCOTUSblog every Monday and Thursday morning at 10 a.m. EST in anticipation of history-making rulings on same-sex marriage, voting rights, and affirmative action in higher education. No one outside of the Court knows what and how many opinions are issued on any given day–and we did not in fact get any of the aforementioned “marquee” decisions today, which only adds to the tension for Thursday–but waiting is half the fun, right?

Here’s a roundup of today’s action in tweet form, showing our collective breath being held, held, held and then released over the span of 30 long minutes (thus freeing everyone up with time to spare for the Edward Snowden Q&A). In all, #SCOTUS handed down five opinions today, including a couple of important criminal procedure decisions and an Arizona voter registration ruling that saw Chief Justice Roberts and Justice Scalia siding with the liberal wing of the Court against the state’s proof-of-citizenship requirement. It also agreed to hear oral argument in four more cases for its next term. We begin with the one and only SCOTUSblog, the definitive source for everything Court-related:

“Too Far, Too Fast:” A Timeline of Ruth Bader Ginsburg’s Disappointment with Roe v. Wade

Judging. Picture via AP.

Justice Ruth Bader Ginsburg made headlines this past weekend when she criticized the legal basis of Roe v. Wade at an event marking its 40th anniversary, saying that the 1973 decision had gone too far and “given opponents of access to abortion a target to aim at relentlessly.”

Ginsburg, who was at the time of the decision head of the ACLU’s Women’s Rights Project, told the packed audience at the University of Chicago Law School that the Supreme Court should have stuck to a narrower ruling striking down the Texas statute challenged in Roe. (That law had banned abortion in all cases except for those that would save the woman’s life.) Instead, however, the Court issued a sweeping pronouncement on the right to privacy encompassing a woman’s choice to end her pregnancy–a decision which, Ginsburg said, stopped the momentum of grassroots pro-choice groups and galvanized the anti-abortion movement.  Ginsburg also characterized Roe as not being “woman-centered” enough, as the opinion focused mainly on “a doctor’s freedom to practice his profession as he thinks best” rather than “a question of a woman’s choice.”

Though Justice Ginsburg’s remarks may be particularly relevant now–her preferred bottom-up, state-by-state approach to abortion mirrors the strategy that same-sex marriage advocates have been using–this isn’t the first time that the justice has publicly expressed disappointment with Roe’s lack of judicial restraint. Over the years, Ginsburg has been quite vocal about the many roads not taken, even while she approves of the outcome of increased access to abortion. The following is a timeline of Ginsburg’s comments from 1985 to present (you can zoom in and click on each box for more detail):



If I’ve missed any other quotes from Justice Ginsburg during this period, please let me know in the comments.

Right Question, Wrong Case: Louisiana Dodges a Bullet as Supreme Court Dismisses Inmate’s Speedy Trial Claim

Samuel Alito
Tl;dr version of today’s dismissal: Jonathan Boyer is a man who deserves to be in prison, so it’s not necessary to talk about what Louisiana’s criminal justice system might have gotten wrong. Picture of Justice Samuel Alito via PBS.

(Update: This post was revised on April 30, 2013. See the post history at the bottom for more details.)

Back in January, I wrote in this space about Boyer v. Louisiana, in which an indigent death penalty defendant argued that the state had violated his constitutional right to a speedy trial when it failed to provide funds for his court-appointed counsel, resulting in a seven-year wait for trial from prison. The Supreme Court had just heard oral argument on the agreed-upon question of whether Louisiana’s lack of necessary funds for defendants could be weighed against the state under the Court’s speedy trial analysis. My answer to this key issue then was (and still is) yes–regardless of Jonathan Boyer’s eventual conviction for the murder for which he was charged, the state needs to bear some responsibility for its failure to repair the infamous and well-documented funding crisis in its public defense system, which has led directly to long delays for the trials of indigent defendants.

Today, however, the Supreme Court dismissed Boyer’s case without even reaching this important constitutional question, seemingly unable to look past the heinous shooting death of which Boyer stood accused. In a one-sentence, 5-4 decision, an ideologically-divided Court stated that it had been “improvidently granted” (or, “DIG,” in Court-watcher parlance), meaning that it should have never agreed to hear the case at all. The reason? As Justice Samuel Alito explains in his concurrence,1 some of the justices do not accept the premise that it was actually Louisiana that caused the “lengthy delay between [Boyer’s] arrest and trial,” despite the state’s longstanding problems with indigent defense. Rather, they believe that the defendant himself convoluted and muddled the path to trial. Since they don’t think that Louisiana was at fault, the question that the Court had originally agreed to hear–which had assumed the state was the party responsible for the delay–was not the correct one the case should be decided on.

To reach DIG, Justice Alito had to step over the Louisiana Court of Appeals’ factual finding that “[t]he majority of the seven-year delay was caused by the ‘lack of funding’” and the state’s own admission that it could not free up adequate money to pay Boyer’s two court-appointed counsel to mount a capital murder defense. Attributing Louisiana’s admitted lack of funds to mere “confusion about which branch of the state government was responsible for paying [the defense attorney’s] fees,” Alito looks to the record and describes the state getting railroaded by the defendant’s counsel when in fact it was trying to bring Boyer to justice promptly. In Alito’s recounting, Boyer’s attorneys took advantage of the “confusion” by repeatedly delaying a funding hearing, as well as asking for multiple continuances of trial even after the state dropped its pursuit of the death penalty (thus making the case less expensive to defend). Explaining away the plain language of the Louisiana Court of Appeals’ conclusion about the cause of delay, Alito insists that the words “lack of funding” “most likely means” the hoopla surrounding the funding of the indigent Boyer’s trial (which to Alito was largely caused by Boyer himself), rather than, well, the state’s lack of funding.

Of course, in the eyes of the Supreme Court’s conservative majority, what really did Boyer in is the fact that he was eventually convicted of murder, a fact that makes him a less sympathetic plaintiff than if he had been exonerated at trial after languishing for seven years in prison. Just to remind us all of what kind of person the state was dealing with, Alito writes:

The evidence of petitioner’s guilt was overwhelming. He gave the police a detailed statement describing the murder; his brother, an eyewitness, agreed to testify about the crime; multiple other members of petitioner’s family told police that they had heard petitioner confess; and petitioner’s fingerprints were found in the victim’s truck.

Accordingly, a sense of “well, he deserved it anyway” permeates the concurrence–Jonathan Boyer was found guilty of shooting a man to death, so it’s no big loss to society to dismiss his case and avoid the larger question of whether Louisiana also did something wrong here. In fact, Justice Alito thinks that Boyer has already gamed the system through his delaying tactics and gotten a better deal out of the state as a result: “It is also quite clear that the delay caused by the defense likely worked in petitioner’s favor…[W]hat started out as a very strong case of first-degree murder ended up, after much delay, in a conviction for lesser offenses.”

Having successfully schemed his way to get out of the death penalty, Jonathan Boyer doesn’t deserve anything more from this court. What Alito pointedly ignores, however, is the fact that even if this is true in Boyer’s case, Boyer is not the only indigent inmate in Louisiana’s prisons who has seen a trial delay thanks to dithering (or “confusion”) on the part of the state.

Justice Sonia Sotomayor’s dissent against the improvident grant ruling points out as much. Writing for herself and Justices Breyer, Kagan and Ginsburg, Sotomayor doesn’t disagree with the jury finding that Boyer was guilty of second-degree murder, but she does think that the Court needs to take this opportunity to clarify the state’s speedy trial obligations, precisely because Boyer’s situation is not a unique or isolated one. Specifically, Sotomayor states that the lower court should have weighed the failure to fund against the state in Boyer’s speedy trial challenge:

Placing the consequences of such a delay squarely on the State’s shoulders is proper for the simple reason that an indigent defendant has no control over whether a State has set aside funds to pay his lawyer or fund any necessary investigation. The failure to fund an indigent’s defense is not as serious as a deliberate effort by a State to cause delay… But States routinely make tradeoffs in the allocation of limited resources, and it is reasonable that a State bear the consequences of these choices.

Justice Sotomayor warns that the Court may have avoided that constitutional issue today, but sooner or later, it will have to come up with an answer about the state’s accountability. In the meantime, indigent inmates in Louisiana continue to await trials from behind bars due to the state’s funding crisis, being treated as if they were guilty before proven innocent (or guilty)–a fact that Sotomayor backs up with empirical studies showing significant understaffing of Louisiana’s public defender services and average waits of 501 days between felony arrests and trials in some parishes. Jonathan Boyer’s case may have been particularly outrageous in just how long he had to wait for his, but, as Sotomayor writes, his case is indicative of “larger, systemic problems in Louisiana.” What Justice Alito and the majority forget is that the Sixth Amendment speedy trial guarantee applies to both the innocent and the guilty–and the longer the Court sits on its hands, the more likely it is that an innocent version of Jonathan Boyer will be needlessly imprisoned for years while awaiting acquittal.

As it turns out, Boyer v. Louisiana is a prime example of the right question coming before the Supreme Court but with the wrong facts and the wrong plaintiff. The Court surely would have been more hesitant to dismiss the case wholesale had the defendant been more sympathetic, the crime less horrible, the facts more ambiguous. The Boyer DIG also highlights the unique difficulty of Sixth Amendment speedy trial cases: because the Supreme Court said in 1973’s Strunk v. United States that the proper remedy for a speedy trial violation is an outright reversal of any conviction (or dismissal of indictment), courts are very hesitant to permit such a drastic measure unless they are convinced of the defendant’s innocence. This was undoubtedly a result that Justice Alito and the conservative majority did not want to see with Boyer, who they (and a non-unanimous jury) have decided deserves to spend life in prison without parole. Due to the zero-sum nature of speedy trial disputes, however, the Court’s dismissal today lets the state of Louisiana off scot-free for its failure to fix its admittedly broken indigent defense system.

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  1. Justice Alito’s concurrence was joined by Justice Clarence Thomas, who, as you may remember, stole the show at the January argument by breaking a nearly seven-year silence and cracking a joke about the quality of Boyer’s defense counsel. []

When Bad Things Happen to Good Justices: Justice Breyer Falls Off Bicycle, Part III.

It could not have happened to a nicer justice: Justice Stephen Breyer reads to children on Dr. Seuss Day in 2003. Picture via NPR.

Whenever you hear about a piece of bad news befalling a Supreme Court justice, eight times out of ten it’s going to be about Justice Stephen Breyer. The 74-year-old has been the victim of quite a few strokes of bad luck since stepping into the public eye, including a 1993 accident in which he was struck by a car while biking in Boston and suffered a punctured lung and several broken ribs, a 2011 fall off his bicycle that resulted in a broken collarbone, and not one but two home robberies in 2012 (one of which involved a machete-wielding stranger). On Saturday, the Supreme Court issued a press release stating that Justice Breyer had been involved in yet another bicycle spill, this time fracturing his right shoulder and necessitating surgery. Breyer is currently recuperating at a Georgetown hospital and is expected to be released early next week.

Perhaps partially because of his unlucky streak1 and partially because of the “lull” in Supreme Court news this weekend–oral arguments for this term just wrapped up on Wednesday and the press corps is still anxiously awaiting the Court’s opinions for affirmative action and same-sex marriage–Justice Breyer’s accident has received rather heavy coverage in the media. With all of his bike mishaps, I’m a little surprised that someone hasn’t already set up a Kickstarter campaign for getting the man a Segway. Given Breyer’s reputation as the Court’s most cheerful and optimistic justice, though, and the fact that his previous falls don’t seem to have stopped him, I’m sure Washington, D.C. residents will be seeing him zipping around on his bike again in no time. The jury’s still out, however, on just how long it will take before Justice Antonin Scalia–his long-time sparring partner and the sarcastic, temperamental yang to Breyer’s eager, sanguine yin–teases his colleague in public about this.

  1. On the bright side, it hasn’t been all bad news for Justice Breyer this month, as the francophile was recently inducted into France’s ultra-exclusive Académie des Sciences Morales et Politiques. []

Divergent Views about the United States’ Place in World as Supreme Court Limits Reach of Alien Tort Statute

Kiobel v. Shell
Esther Kiobel stands in front of supporters. Picture via Amnesty International.

The Supreme Court on Wednesday curtailed victims’ ability to seek recourse in the United States for human rights abuses committed abroad, in a 9-0 ruling that sought to protect American corporations from being tried overseas for the same. Though all justices concluded that there was no place in American courts for an Alien Tort Statute (ATS) suit brought by a slain Nigerian activist’s widow against multinational company Shell, they seemed to agree on little else. In particular, Chief Justice John Roberts’ majority opinion and Justice Stephen Breyer’s concurrence revealed sharply divergent views about the United States’ role in the global human rights landscape.

At the heart of Kiobel v. Royal Dutch Petroleum lies the claim that Shell helped Nigeria’s Sani Abacha dictatorship perpetrate a number of horrific human rights atrocities in the 1990’s. Esther Kiobel, whose husband Dr. Barinem Kiobel had served as a prominent voice for the Ogoni people in the Niger Delta, alleges that Shell recruited the dictatorship to help quell opposition after the Ogoni mobilized against the corporation’s activities in that region. Shell purportedly gave food, money, transportation and the use of property to the Nigerian military as it raped and killed its way through Ogoni villages. Dr. Barinem Kiobel was one of the local activists the military arrested and executed.

After fleeing the country and obtaining asylum in the United States, Esther Kiobel and eleven other Nigerian nationals filed an Alien Tort Statute claim in federal court against Royal Dutch Petroleum (Shell’s parent company) for aiding and abetting torture, extrajudicial killings and other crimes against humanity. The ATS was originally written in 1789 to provide a cause of action for three things: acts of piracy, violations of “safe conduct” and assaults on foreign ambassadors in the U.S. It lay largely dormant for the next two centuries, until enterprising human rights lawyers dusted the statute off and began using it to bring civil suits against retired foreign government officials suspected of violating international law (typically the torturing and killing of their countrymen). While this modern use of the ATS has been controversial–particularly in pro-business crowds that fear a landslide of ATS claims against corporations working with unsavory regimes abroad–courts have generally accepted its application to extraterritorial human rights abuses. This reading stems from two rationales: (1) the plaintiffs, who are usually asylees and other immigrants who have escaped brutal regimes elsewhere, are unlikely to receive justice in the country where the crimes were perpetrated, and (2) as a defender of human rights, the United States should send a message that such violations are unacceptable regardless of where they occurred.

The Supreme Court, however, definitively rejected this permissive interpretation yesterday, pulling back the ATS to cover only a very small subset of human rights violations committed abroad. Chief Justice John Roberts, writing the majority opinion for himself and Justices Kennedy, Scalia, Alito and Thomas, expressed concern that a far-reaching ATS would trigger conflict between the laws of the United States and other nations. Because this statute implicates foreign policy–a field that the judiciary has traditionally been very reluctant to step into–Roberts began with a “presumption against extraterritoriality,” which is a fancy way of saying that we assume Congress wanted the statute to apply only to conduct in the United States, unless it says otherwise.

The Chief Justice then looked through the text, history and the purposes of the ATS for any indication that Congress wanted the statute to apply to acts abroad (spoiler alert: he found none). While there is in fact evidence that the Congress of 1789 had intended for the ATS to cover some overseas crimes–one of the main objectives for its passage, after all, was to combat acts of piracy, which by definition take place on the seas, outside of the United States–Roberts stated that pirates “may well be a category unto themselves” because of the way they operate outside of any jurisdiction. Drawing a firm line between the stateless nature of the high seas, which lie “beyond the territorial jurisdiction of the United States or any other country,” and a sovereign territory with an established legal system such as Nigeria, the Chief Justice worried that “unwarranted judicial interference” in the legal processes of the latter would produce serious foreign policy ramifications. Thus, corporations accused of aiding human rights abuses abroad should not be “fair game” in the same way that pirates are.

Echoing Solicitor General Don Verrilli’s warnings at the oral argument about reciprocity, the Chief Justice’s opinion also reflected concerns that a favorable ruling for Kiobel could lead to Americans (both individuals and corporations) being tried in foreign courts for human rights abuses committed in the United States “or anywhere else in the world.” Furthermore, the Chief Justice soundly rejected the idea that the presumption against extraterritoriality can be overcome because the United States must act as a human rights watchdog for the world. “There is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.” He concluded that courts must assume the ATS does not apply to overseas conduct, save for a very small and nebulously-defined exception: cases where the connection to the United States has “sufficient force to displace the presumption against extraterritorial application.”

Justice Stephen Breyer, on the other hand, still believes that the United States has a role to play as an international human rights leader. Though he ultimately agreed that the United States courts are not the appropriate fora for this specific case, Breyer favors a more expansive reading of the ATS’ reach. His concurrence, which was joined by Justices Ginsburg, Kagan and Sotomayor, rejected Roberts’ presumption in favor of a “sufficient ties to the United States” test that would apply to both claims of domestic and overseas human rights abuses. American courts should be able to hear a ATS claim if one or more of three things can be shown: (1) the alleged abuse occurred on American soil, (2) the defendant is an American national, and/or (3) the defendant’s conduct implicates a “distinct American interest,” which in Breyer’s estimation would include the United States’ interest in not becoming a “safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.” Justice Breyer found that Kiobel’s case failed to satisfy any of these three requirements, as the alleged violations occurred in Nigeria, the parties were all foreign nationals, and Shell was not directly responsible for the torture or the killing.

Breyer’s concurrence presents a markedly more optimistic picture of the United States as a “custodian” of human rights (albeit one that may not be warranted given the unending stream of news about the United States’ use of torture post-9/11 and its continued drone strikes in the Middle East). It leaves considerably more wiggle room for ATS jurisdiction over extraterritorial claims, especially where the alleged perpetrators of violations committed abroad–the “pirates of today,” according to Breyer–have relocated to the U.S. Whereas Roberts’ diminishing of the ATS insulates Americans from human rights litigation in foreign courts but leaves the U.S. open as a haven for rights violators, Breyer’s approach reverses the incentives: it deters war criminals from escaping to the United States and sends the message that the U.S. is against acts of torture and genocide, but may leave Americans vulnerable to reciprocity overseas (as well as accusations of gross hypocrisy).

In all, the Kiobel decision comes as a huge relief for corporations, with one miniscule silver lining for human rights activists. While it will be much harder to bring foreign abuse cases in the United States courts, the Supreme Court did leave the door slightly open for future litigation on whether corporations can be liable for human rights abuses.1 This was the original, narrower question on which the lower courts had decided Esther Kiobel’s case, before a group of attorneys representing corporations other than Shell asked the Supreme Court to consider instead the far broader claim of the ATS’ applicability to all extraterritorial conduct, whether perpetrated by individuals or corporations. Chief Justice Roberts’ limitation of the ATS gave them what they wanted this time. But there may well come a day when the right case with the right facts–one with “sufficient force to displace the presumption against extraterritorial application”–will fit through that tiny sliver of space and land before the Supreme Court. A battered ATS lives to see another day, but just barely.

  1. Congress could also, as Roberts indicated in the majority opinion, retool the ATS or author a new statute that explicitly imposes liability on companies that have abetted atrocities abroad and have corporate presence in the United States. This seems very unlikely to happen, though. []

The Supreme Court decision will (not) be televised

Courtesy of
…Even though the world might be a better place with Sotomayor reaction GIFs. Picture via

I’m of two minds about Al Tompkins’ Poynter piece (excerpted below) advocating cameras in the Supreme Court, which Andrew Sullivan highlighted on The Dish yesterday:

This is at the heart of what courts do every day in America; they hear the people’s business. It’s not entertainment, like Judge Judy. It is a living civics lesson, and exactly what the public should be able to see.

Live coverage would give the people unfettered access to the words the justices say, and would make it harder for journalists to add their own spin. Live coverage would also help us visualize what’s going on much more than words can.

My thoughts can be divided into roughly two camps: (1) SCOTUS’ Problem with Embracing Technology (or, Why I Think We Will See Live Video of Arguments In the Future), and (2) SCOTUS’ Problem with Protecting Court Integrity (Why Cameras are Both Good and Bad). Continue reading The Supreme Court decision will (not) be televised

DOMA likely to fall, but how much further will Kennedy go?

Edie Arrives in Court

Edith Windsor, the 83-year-old plaintiff challenging the Defense of Marriage Act, arrives at Court with attorney Roberta Kaplan. Picture by Chip Somodevilla/Getty Images, found via ABC News.

Justice Anthony Kennedy had a choice to make this morning. In deciding the fate of the Defense of Marriage Act, should he go with a theory of federalism that emphasizes respect for states’ rights, or a wider-ranging theory of equality that might result in heightened legal protections for gays and lesbians across the United States?

Kennedy picked the former route and clung tightly to it today in a 110-minute oral argument for United States v. Windsor that put the swing Justice on firmer jurisprudential ground than yesterday’s Proposition 8 case. While the facts of Hollingsworth v. Perry pitted states’ rights and equal protection for gays directly against one another, leaving Kennedy confused as to which of a variety of unpalatable options he should choose, the legal issues in the Windsor case presented no such conflict. Rather, the state’s voters and the law’s challengers aligned in Windsor, where they merely asked the federal government to respect nine states’ decisions to recognize same-sex marriages. Here, the principles of federalism and equal protection both point to the unconstitutionality of DOMA.

Assuming that the Court doesn’t decide the case based on standing grounds, Justice Kennedy seemed perfectly content on Wednesday to limit any eventual ruling to the first question about states’ rights. He repeatedly reminded Paul Clement–the attorney tasked by the House of Representatives to argue in support of DOMA, since the Obama administration refused to defend it–that the right to define marriage (and the rest of family law) is “the essence of the State police power.” Kennedy also expressed concern over the sheer number of federal benefits provided based on marital status–1,100 and counting–noting that this means “the Federal government is intertwined with the citizens’ day-to-day life,” interfering with the state’s traditional “prerogative.”

Despite earlier rulings on gay rights cases that indicated a willingness to extend heightened judicial protections to gays and lesbians under the Fourteenth Amendment–an equality-based argument that would have far greater reach and be far more potent against discriminatory laws than a states’ rights takedown of DOMA–Kennedy appeared very hesitant to reconsider equal protection principles today (an issue on which he had also shown confusion at the Proposition 8 discussion yesterday). Several times during the oral argument, a fellow Justice or attorney would bring up Fourteenth Amendment considerations, and Kennedy would immediately steer them back to the federalism issues.

Sensing that its crucial fifth vote was reluctant to revisit arguments about equality, the liberal wing of the Court was happy to run with Kennedy’s line of thinking and echoed many of his concerns in follow-up questions. (One of the many perks of being a swing justice must be getting to set the tone for the oral argument and watching the rest of your colleagues follow along.) Justice Sotomayor asserted that the states, and not the federal government, control the institution of marriage, Kagan made reference to “historic State prerogatives,” and Ginsburg reiterated Kennedy’s sentiment that DOMA touches “every aspect of life” in a “pervasive” manner.

Kennedy’s hesitation notwithstanding, Justice Kagan in particular seemed intent on exploring heightened legal protection for gays and exposing DOMA as outdated legislation impermissibly based on animus. At one point, she dismantled Paul Clement’s arguments about legitimate government purposes for DOMA–he’d insisted that the federal government passed the law for purposes of uniformity across the states–by reading to him the 1996 House Report that clearly states that DOMA sprang from “moral disapproval” of homosexuality. While this rationale was once constitutional, basing discriminatory laws on disapproval toward a particular group has since been prohibited in 2003’s Lawrence v. Texas, the majority opinion for which was authored by–you guessed it–Anthony Kennedy himself. Clement was forced to backpedal and say that while some legislators may have had “improper motives” for DOMA, not all 84 of the Senators who voted for the law bore animus toward gays and lesbians.

Just as the liberal justices tailored their questions toward Kennedy’s views, the conservative Justices, led by Chief Justice John Roberts and Justice Scalia, tried to assuage Kennedy’s concerns by pressing Solicitor General Donald Verrilli, Jr. and Edie Windsor’s lawyer, Roberta Kaplan, on states’ rights. Roberts repeatedly asked both parties if there was truly a federalism problem–a bit of a trap for Verrilli in particular, who as the representative of the United States federal government has no interest in ceding too much power to the states–and became audibly annoyed whenever Kaplan or Verrilli attempted to tie their answers to an equal protection argument. While Roberts and Scalia tried to compel the DOMA challengers to say that federal overreach was not really an issue here, Justice Alito brought up the practical point that a DOMA defeat would mean that gay couples could be treated differently whenever they moved across state lines–and therefore, that the equal protection problem is ultimately unavoidable.

Of course, Justice Alito is spot on here. Regardless of how Anthony Kennedy decides to decide this case, marriage equality is spreading throughout the United States, and the Supreme Court will eventually have to decide what level of judicial protection gays and lesbians deserve. As the swing vote firmly in control of the wheel, however, Kennedy has the luxury of slowing down the train if he wants to, and it looks like he’s going to do just that in the name of federalism. It won’t be as big of a step as many had hoped for, but come June we will likely be one tiny step closer to a more perfect union.