Like and Unlike - Sandy and the Notorious RBG

I like to call it "The Case I Almost Won in the Supreme Court."

"Almost won" is, of course, an awful lot like lost, except maybe it sounds better.  Sigh.

Here's what happened.  No votes to grant cert, which made sense.  The issue had been resolved by the Supremes decades earlier except that Ohio didn't get the memo.  And really, it wasn't (anymore) the least bit controversial.  Not even in Ohio where there was no controversy since it was as if it had never happened.

It wasn't a death penalty case.  Millions weren't at stake.  The republic wasn't in any particular peril from a rogue Ohio court.   My client had been convicted of a low level drug offense and sentenced to some 6 months in the hoosegow.  Why would anyone down in D.C. call for full briefing and oral argument?  Hell, I wouldn't have.

But Justice Breyer figured that since this was the 2001 and the issue had been resolved in 1958, well, maybe it was time to pass the word to the folks in the Buckeye State.  So he wrote what they call on First Street a "Statement . . . respecting the denial of the petition for writ of certiorari."  Three others signed on, the usual suspects for such a thing: Justices Souter, Stevens, and Ginsburg O'Connor.

Wait, did I say O'Connor?  Did I strike out RBG?  That's not the usual suspects at all.  And it's not what should have been a losing hand.  After all, I got the Justice who was never in the minority.  But I lost the presumed liberal.

And while the plural of anecdote is not data, the story says something about the Justices Linda Hirshman calls "sisters in law."  In fact, she makes that the title of her new book, a joint biography of the two: Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.  

O'Connor and Ginsburg are, of course, an oddly matched duo. But matched they are.  O'Connor, the child of an Arizona rancher, born in El Paso in 1930, raised on the ranch and sent off to boarding school.  Ginsburg, born and raised in Brooklyn in 1933, educated at the local public schools.  Both academic stars at college and at the top of their classes in law school.  Both denied opportunities they'd have gotten after law school had they been men.*

O'Connor ended up practicing law and volunteering like crazy back in Arizona.  Then she got elected to the legislature and then appointed to the Arizona Supreme Court.  Ginsburg taught law and developed and ran the ACLU's Woman's Rights Project and argued landmark cases advancing gender equality before the U.S. Supreme Court.

In 1981, Reagan appointed O'Connor to the Supreme Court.  The first woman ever in that men's club. Ginsburg, who had been appointed to the D.C. Circuit Court of Appeals in 1980 by Jimmy Carter, joined O'Connor on the Court in 1993.  As they both acknowledged repeatedly over the years, life on the Court for each was better when the other was also a Justice than during the years (fewer for Ginsburg) when she was the only woman there.

Those are the facts.  Hirshman sets them out clearly, balancing them, adding stories as she goes.  And Hirshman's a good storyteller.  (She demonstrated that in her previous book, Victory: The Triumphant Gay Revolution.)

The meat of the book, though, isn't in the biography or the personal tidbits (O'Connor cooked up meals for meetings with her clerks; Ginsburg didn't cook at all but her husband was a terrific chef). It's in the discussion of the cases and the law, that part of the subtitle about how they "Changed the World." 

Ginsburg, Hirshman says repeatedly though rarely as explicitly as I;m going to make it sound, has an agenda.  Her goal as a litigator and as a justice has been to eradicate gender inequality in the law.  Completely. She advocated for the goal (brilliantly and with remarkable success) in the work she did at and for the ACLU.  She had a strategic plan, modeled on how Thurgood Marshall went after racial discrimination leading to Brown v. Board of Education.  It's an incremental approach, winning the easy cases that establish precedents that make the harder cases inevitable.  (It's using the uppercase L Law that I've regularly say I don't much believe in.)

She maintains that agenda on the Court, but she's frequently been blocked at advancing it because she can rarely garner 5 votes for the sweeping language she wants to put into opinions.  As a result, she either has to tone down her opinions or to write stirring dissents.

O'Connor has no agenda.  Like Ginsburg, she's a feminist, but unlike Ginsburg she's a secret one  She agrees with all Ginsburg's goals (except on abortion where she voted to keep it legal but make it extraordinarily difficult for women who aren't rich to obtain) but doesn't actually favor advancing them very far.  Rather, she simply votes not to make things worse.  Because she has neither agenda nor philosophy she chooses to decide cases in ways that provide no precedent for anything and no guidance for the lower courts.** 

She was almost always in the majority but routinely limited the reach of that majority.

But ultimately, the two working together advanced women's equality in absolute terms.  And it couldn't have happened without both of them working together.

Hirshman plays that out with discussion of case after case.  She gets into the behind the scenes maneuvering on how opinions get written and the internal dynamics of the Court and the Justices. (Lewis Powell comes off particularly poorly.)

The problem with the thesis is that it's too bold, doesn't quite follow from the evidence she presents, and frankly ignores too much.

For most of her time on the Court, Ginsburg has been the closest one there to being what we think of as a liberal.  Yes, she's voted strongly in favor of gender equality - which has had, by the way, some serious success at the Court.  But she's pushed other traditional liberal causes, too.  She has been, and remains consistently among the Justices favoring due process in criminal cases, government regulation of business, and the welfare state.

In each of those areas, O'Connor has been, shall we say less enthusiastic.  Not the most avid voice of traditionally conservative values and positions, her case-by-case jurisprudence, her disinclination to set rules and precedential guidance made her the Court's swing vote when opinions otherwise divided along traditional lines with four votes on each side of an issue.  Win O'Connor, and you carried the day even if it didn't do much for the next case up.  (My case, of course, was an exception, dammit.) Win Ginsburg and, well, you won Ginsburg.

So did they "change the world"?  Hardly.  They changed the complexion of the Court itself, of course.  And that has had consequences.  It's given the lie to the claim that women can't.  It's allowed them to serve as role models for a couple of generations now.  And it's affected some votes and, therefore, some rules of our society.  They moved a set of issues - important ones, but just one set.   And in very large part, Ginsburg moved it before either of them got on the Court and O'Connor resisted undoing what she'd achieved. 

Hirshman's occasionally just wrong about something.  She defines "borking," a term growing out of the confirmation hearings of Robert Bork (who of course did not get on the Court) as "killing a nominee by letting him expand upon his weirdly marginal beliefs." Not so.  Borking is the systematic, unfair, and dishonest vilification of someone - especially a candidate for public office. (Whether Bork was actually borked is a arguable; the question depends on whether the attacks on him were fair, a matter of some dispute.)  

Hirshman's prose is sometimes too glib and at times jarringly colloquial.  Some of her characterizations veer toward caricature (especially of Lewis Powell, who's almost borked himself here).  There are things one would like more of - including the less than cordial relationship William Brennan had with O'Connor after he, in dissent, derided an early opinion of hers as an "exercise in judicial activism."  Hirshman references the story, then lets it go.

These are quibbles.  Sisters in Law is on the whole engaging and informative.  Hirshman has an eye for the telling anecdote.  An if O'Connor and Ginsburg haven't changed the world, they've certainly made their mark.

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*The stories are well known.  
O'Connor, getting no traction on the job market after law school because firm after firm explained that they didn't hire women, finally used connections to speak with one of the big shots at Gibson, Dunn & Crutcher.  She was told that the firm never hired a woman lawyer and never would.  "Our clients wouldn't stand for it."  But he did offer her a shot at a job as a legal secretary.
Ginsburg, too, was not offered a job at a firm after law school.  But some of her professors thought she could do better.  They recommended her to their close connection, Justice Felix Frankfurter, urging him to hire her as a law clerk.  Nope.  "I'm not hiring a woman."

**O'Connor's vote in the case I almost won is a perfect example.  This is settled law, she joined Breyer in saying, just, do what we told you 43 years ago.  Ginsburg's vote remains to me a mystery.
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My thanks to Harper Collins for sending me an advance copy of the book to review.

Against My Better Hopes

I was talking with another lawyer about an appeal someone might be filing.  He thought it surprising that instead of rooting for a defense win, the criminal defense bar might actually be hoping that the prosecutor prevailed.  On the particular facts of the case, it would make better law.

No big deal, I said.  It's the sort of thing that happens more than you'd imagine.  I want to win the case for this client, but on the peculiar facts, the government's argument would do more good for the defense bar.

A variation involves getting a case into the Supreme Court - Ohio's, the U.S., or maybe the high court of your state.  Any court that gets to decide whether it will hear the case.  Consider:  

The supreme court hasn't ruled on an issue, but we've lost in an intermediate appellate court.  It's in the client's interest to get heard by the high court.  After all, whatever the odds, we might win and he'd get some relief (a new trial, a lesser sentence, sent home with an apology, whatever).  On the other hand, the court could take in the case and turn bad local law into bad statewide/nationwide law. 

Not a happy prospect.  But we do it anyway.  Because whatever we might wish to see happen, we don't represent the cause.  We represent the client.

And so, Richard Glossip, John Grant, and Benjamin Cole.  And the problem of counting to five.

Bring us a case, said Stephen Breyer joined by Ruth Bader Ginsburg.  Call the question.  It's time, once again, to ask whether the death penalty is unconstitutional for all these reasons.  

And he laid them out, those reasons he and RBG had, for 40 pages in a dissent from the decision to allow Oklahoma to kill Messers Glossip, Grant, and Cole using a mix of drugs including midazolam. If it were so inclined. 

It's clear that the two of them would vote, if they had a clear opportunity, to say that the death penalty is unconstitutional.  It's a fair assumption that the Generalissimo and the empathetic Latina would join them.  And then?

I spent a few days earlier this month with a couple of hundred death penalty lawyers.  Many of the top capital defense lawyers in the country were there.  And there was much talk about that fifth vote. 

It's Anthony Kennedy, of course, if it's anyone.  Lots of folks are ready to trust him.  As one smart, thoughtful, knowledgeable guy explained, neither Breyer nor especially Ginsburg is so naive as to call for a frontal assault on the death penalty without being damn sure that they'd win.

To which many of the others present, said

Maybe.  But maybe not.

And it's a hell of a risk to take.  

But the world is complicated.  And while the capital defense bar scrambles and tries to decide and works at putting together a strategy, the court in Oklahoma set dates for Richard Glossip, John Grant, and Benjamin Cole. On Friday, they filed a petition for rehearing.  They made this pitch.

The Court Should Grant Rehearing To Consider Whether The Death Penalty Is Unconstitutional Per Se. 

Which is what the lawyers had to do for their clients.  And what I imagine the State of Oklahoma will either oppose or ignore in the hope it goes away so they can get on with the killin'.  But what in their heart of hearts at least some in the prosecutorial, kill-'em-all community will wish the Court would take in.  To drive another nail into the abolitionist position.  Here's Bill Otis immediately after Glossip was decided.

1. Justice Kennedy joined Justice Alito's strong opinion for the Court and did not pen any kind of concurrence. For those who thought (or hoped) Justice Kennedy was on the verge of disbanding capital punishment, this is hugely important.
2. If either of President Obama's appointees were inclined to outlaw capital punishment per se, now was the time to go on record by signing on to at least some part of Justice Breyer's dissent (with Justice Ginsburg). Neither did. It would thus appear that there are seven solid votes against the abolitionist position, including the five youngest Justices.

I'm not sure Bill's right about the conclusions he draws from any of that.  In fact, I think he's wrong on 2. But on 1?  I don't want to find out.

And so, I - along with many other folks who oppose the death penalty and believe that it really is unconstitutional - find myself rooting against Glossip, Grant, and Cole.  Do I want them to be killed? 

No.  

Do I want the folks in Washington to take up their request - which may be their only hope?

No.

Damn.  This is fucked up.

To Dissent or To Enable, That Is the Question

A bit of blog context.

About 15 months ago, I wrote about the Honorable A.J. Wagner, Judge of the Court of Common Pleas of Montgomery County (Dayton), Ohio.  He'd been on the common pleas bench for 10 years, but just found himself with his first capital case.  And he took himself off of it.  

As he explained in his Request for Recusal, he believed (whatever the higher courts might think) that the death penalty was unconstitutional.  More important to his request, he believed it was morally wrong.

I have given life sentences in the past and would not hesitate, given the proper circumstance, to impose life without parole. Death, however, is different.
The Ohio Code of Judicial Conduct Rule 2.11 (C) states that a judge "may disclose on the record the basis of the judge's disqualification." Thus, below I give my reasoning for recusal. Although it boils down to my refusal to order the killing of a human being based in my belief that life is sacred, I believe a broader explanation is in order. This explanation is in two parts.
The first is an explanation as to why, in my opinion, the death penalty is unconstitutional. This is not a ruling, but a list of the injustices that I cannot ignore because they result in the State putting someone to death. These same arguments would not necessarily apply to a life sentence for which I would not see the need to recuse myself.
The second explanation covers my spiritual reasoning for recusal. In every trial I advise prospective jurors, "The Court will instruct you concerning the law as it applies in this case and it will be your sworn duty to follow that law as instructed; is there anyone, perhaps for religious or personal reasons, that cannot accept the law as it will be explained to you by the Court and apply it to the facts in this case and ultimately reach a verdict solely upon such facts and exhibits that are admitted into evidence?" The judge is likewise sworn to uphold the law and when she or he cannot do so for any reason, the judge must disqualify herself or himself.

Since he couldn't follow Ohio law if the law required a death sentence (I don't believe it ever does in practice though it can in theory; prosecutors disagree, but that's a different question), he determined to recuse himself.

In that post, I drew a contrast between Judge Wagner and an appellate judge who I knew to be opposed to the death penalty but took a different approach.  As he explained to me once when we were talking about it over cocktails (this is a paraphrase)

You have to be willing to affirm so that you can be there to reverse when that's appropriate.

It's different when you sit on the Supreme Court of the United States.  You're not constrained by precedent about what the Constitution does or doesn't allow.  You get to decide, and if in dissent, so be it.  In time, maybe your view will become the majority.  And while it's surely true that if you can't set aside your religious beliefs and rule strictly on the law you ought not sit on a case, it's equally true that you can, and maybe must, rule on the law as you believe proper.

So it is that in case after case, for years, Justices Brennan and Marshall would dissent from denials of stay in capital cases one or the other writing

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the  Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976) (BRENNAN, J., dissenting), I would grant the application and stay the execution of applicant [whoever].

Sometimes they'd add to that.  Other times not.

Near the end of their days on the Court, Justices Blackmun and Stevens had concluded that the death penalty was unconstitutional.  Blackmun, in the little time he had left, opposed every death sentence and execution.  Stevens declared his position in Baze v. Rees, in a concurring opinion finding that Kentucky's lethal injection protocol was not, on the record before the Court, unconstitutional.  He, unlike Blackmun then (see here), and at least in Baze, continued to 

tinker with the machinery of death.

And now we come to Ruth Bader Ginsburg.  You know, the 78-year-old, twice survivor of cancer, Supreme Court Justice.  The one who on Wednesday had to take the emergency evacuation slide to get off a plane at Dulles on her way to speak to law students at the Hastings College of Law in San Francisco.*

As reported by Bob Egelko of the San Francisco Chronicle, she had important things to say about equality for gays and lesbians (and as I assume would follow, bisexual and transgender people).

We should not be stopped from pursuing whatever talent God has given us simply because we are of a certain race, a certain religion, a certain national origin, a certain gender or gender preference

She talked about the importance of standing up for liberty in the face of false claims of security.

"If we allow security concerns to so overwhelm our deep attachment to fundamental values, to the dignity of each person," Ginsburg told the students, "we will come more and more to look like our enemy."

And she said that what she'd like to achieve, in her last years on the Court, is. Wait for it.

I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand.

And so we have Ruth Bader Ginsburg, abolitionist. But with a caveat.

Ginsburg described review of impending executions as "a dreadful part of the business," and said she has chosen not to follow the path of the late Justices Thurgood Marshall and William Brennan - who declared in every capital case that they considered the death penalty unconstitutional - so that she could maintain a voice in the debate.

I wondered, back when I wrote about Judge Wagner, whether the abolitionist who would be willing nevertheless to vote for a death sentence was an enabler of the killing state.  I wonder that still.  But Wagner is a trial judge, bound to follow the law as he understands it.

Ginsburg sits on the Supreme Court and can, within the bounds of doing what she believes the law permits or requires, do as she pleases.  Of course, she knows that she can't end the death penalty in this country.  She doesn't have the votes and, as she acknowledged, isn't likely to.

[T]hat's not likely to be an opportunity for me.

But does she have more of a voice by voting to allow an execution now and again rather than voting to stop every one?  She could, after all, while dissenting from every killing, do as the other abolitionist judges and in appropriate cases offer additional explanation of why this particular killing ought to be stopped even if the death penalty itself were constitutional.

I understand the desire to explain at length and to engage in debate.  (Hell, if you've read this far you already know that.)  But consistent dissent, refusing to be an enabler, that's something else.

And really, as her good buddy Antonin Scalia could tell her over a glass of port after an evening attending a performance of La Traviata.

Dissent is not silence.

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*"I had not planned that as part of my journey," she said.