Category: Cline on the Constitution

Cline on the Constitution – Universal Injunctions

Cline on the Constitution – Universal Injunctions

Just back from a few days at the coast, but in time for a new segment of Cline on the Constitution. In reading though some of the Supreme Court’s recent decisions, I came across an interesting issue which I’m sometimes asked about.


Universal Injunctions.


The situation is this. Congress passes a law or the President attempts to implement a new policy. An advocacy group such as the ACLU finds a client, picks a friendly federal district court and files suit.  The Judge then issues an injunction stopping the implementation of the law, not just as to the person before the court, but applies it to everybody nationwide.  And of late, it happens over and over virtually paralyzing the political branches of government.


Does the Constitution provide district courts with that kind of power?


Justice Clarence Thomas has seldom received the same accolades as his brothers and sisters on the bench.   But then he doesn’t seek the level of attention as some of them seem to crave and cultivate.  However, he has offered many intelligent, insightful and courageous opinions, often as concurring or dissenting opinions.


In a recent opinion he took up a very important issue the federal judiciary is reluctant to address because it goes to their own power and conduct.  Justice Thomas posited the question of whether local District Court Judges, who occupy the lowest rung on the Federal Judicial ladder, can constitutionally issue orders on cases before them and then apply those orders to the entire nation affecting millions of citizens and non-citizens who are not before them.   And can they restrain the entire federal government from acting everywhere.


The legal procedures used to exercise such great power are called “Universal Injunctions.”


A Universal Injunction was used by a district court in Hawaii to prevent the President from implementing orders banning certain non-citizens from traveling to the United States from foreign lands.  The Supreme Court overturned the actions of the Hawaii court and dissolved the injunction.


Justice Thomas in his concurring opinion in that case confronted the issue of Universal Injunctions and their constitutionality.


It is important to understand how the judicial power is being used when universal injunctions like the one found improper by the Supreme Court are used.


This is not a situation where an appellate court reviews the results of a trial in a lower court, i.e. a District Court, and rules something was done wrong in the lower court and issues an opinion.  This is not a situation where a case of national import is ruled on by the Supreme Court.


This is a situation where over six hundred local lower court judges have asserted the power to take a local case and rule nationally.


First of all, there is nothing more noble or intelligent about federal judicial officers than any other occupation or profession.  They have the same foibles and biases as the rest of us. Some have less.  Some have more.  They are largely political appointees, and too few leave their political views behind.


Yet, these six hundred individuals, when they issue Universal Injunctions, are in effect acting as an unelected, unaccountable super legislature.


Not exactly what our founders envisioned.


It is well to remember that all federal courts with the exception of the Supreme Court are creations of Congress and under the Constitution their jurisdiction is subject to restrictions and exceptions placed upon them by Congress.  The constitution provides only for One Supreme Court and “such other courts as Congress may from time to time ordain and establish.”  The lower federal courts were mostly established by the Judiciary Act of 1789.


Issuing a Universal Injunction is not a power expressly given to federal district court judges by the Constitution or act of Congress.  It is an extraordinary power the courts must carve out of the general judicial power based upon historically recognized principles.


In his opinion, Justice Thomas examined the history of a court’s power to use extraordinary remedies such as injunctions.


He traced its history to the ancient equity courts in England.  There the power was vested in the Exchequer of the Chancery to fashion remedies where the strictures of the common law could not find a way to deliver justice in unusual cases. However, the power was always severely limited, and it actually originated as an aspect of the “divine” power of the Kings.  Interestedly, it could not be used to restrain the Crown because that was the source of the power.


Justice Thomas went on and reviewed the debates over extraordinary equity powers at the time of our nations’ founding.  And he emphasized that In the federalist and anti-federalist papers the accepted wisdom was that there was a need for judicial restraint less the whole idea of functioning democracy be undermined.


Sounds familiar.


And finally, he noted that the use of “universal” injunctions did not debut in America until the 1960s. It first appeared in a case dealing with worker’s wages.  The constitutional basis for the power was never really considered in any depth.  Mainly because it was used rarely used.  At least until recently.


And it does seem that the unprecedented increase in their use was concurrent with the politicization of the federal judiciary. A politicization facilitated by the judiciary’s willingness even at their lowest level to intervene in affairs traditionally the responsibility of the other co-equal branches of government and to exercise power or millions of citizens who are not parties to the cases before them.


As Justice Thomas opined:


“American court’s tradition of providing equitable relief only to parties was consistent with their view of the nature of judicial power.  For most of our history, courts understood judicial power as “fundamentally the power to render judgements in individual cases.” Historically, Court’s only provided equitable relief to the parties to the suit.  They never ventured outside the case they were call upon to decide which is exactly what is done when a universal injunction is issued.


It is a fundamental rule of Standing that the Constitution limits the Courts as to who can sue to vindicate certain rights.  A person cannot bring suit to vindicate “public rights”, that is rights held by the community at large without showing of some specific injury to himself.  And a plaintiff cannot sue to vindicate the private rights of someone else, a third party.  Such claims have historically been considered beyond the authority of the courts. Otherwise the courts end up setting policy which they are not supposed to do.  The framers reserved public policy question to the legislative process.


The argument in the favor of the use of universal injunctions is that they give the judiciary a powerful tool to check the Executive Branch.  But the argument does not explain where the power comes from. As Justice Thomas explains,


“But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power.  They at best “boil down to a policy judgement” about how powers ought to be allocated among our three branches of government, but the people already made that choice when they ratified the constitution.”


Justice Thomas concludes by stating “in sum, universal injunctions are legally and historically dubious.  If federal courts continue to issue them, this Court is duty-bound to adjudicate their authority to do so.”




For other writings by Phil Cline on the Constitution, visit



Cline on the Constitution-New Segment

Cline on the Constitution-New Segment

Roe v Wade


I have been studying with interest a series of decisions the Supreme Court rendered as their latest term came to a close. If the decisions shared one characteristic is was the impression that the Court was exercising unusual restraint in being definitive in their opinions.  It was as if they were engaged in a holding action.   Great fun for me, but not so much for those looking for final answers. Then before I could post any updates to my legal blog, Justice Kennedy announced his retirement.  That explained a lot about the tentativeness of the Court in taking a firm position.


As with almost everything else in our public life these days, Kennedy’s announcement sent the left’s commentariat into paroxysms of panic.  To hear it told, the pending retirement of an 80 plus years old justice is the latest harbinger of doom for the republic.  Batten down the hatches.  The fear of the change borders on the irrational.  Rather ironic considering the man who appointed Justice Kennedy was none other than President Ronald Reagan.


Will the seating of a new justice bring some changes to Constitutional Jurisprudence?  Sure.  Always does. Moreover, in an era of 5-4 decisions an evolution in some aspects of the how the Supreme court interprets cases is inevitable.


Does it spell the end? Of course not.


I thought it might be helpful to look beyond the fear mongering and scare tactics to explore some of the constitutional issues that will be getting a lot of discussion in the coming months as the process of appointment by the President and approval or rejection by the Senate progresses.  I’ll get back to the new cases in the coming weeks.   Lots of good stuff there, but it can wait a little while.


Two issues will receive a lot of discussion.  The first is Gay Rights.  Justice Kennedy penned a series of leading decisions in the area.  His approach was novel and not without controversy. And none of the decisions had the full support of the rest of the Supreme Court.  More 5-4 decisions.


I will explore the issue in a future blog, but first let’s discuss the biggest bogeyman of all: Roe v. Wade and the abortion issue.


Let me start with one simple proposition.  Some Senators and others have made statements to the effect that the Supreme Court will “criminalize” abortion.  The Supreme Court doesn’t criminalize anything.  Under our Federalist system, matters such as abortion traditionally were the province of the States.  The Supreme court is concerned with whether the legislative acts of states impinge upon rights guaranteed under the Constitution.  That is their role.  While I don’t believe Roe v Wade will be overruled, even if it was, it does not mean the federal government, or the Court will make abortions illegal.  It would mean that under our federalist system the issue would fall back to the states.  And there are those who have always believed that is the way should be. In the 1992 Planned Parenthood v. Casey case (more on this case later) Justice Scalia wrote about the abortion issue:


“. . . by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.  We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”


Roe v Wade’s central holding is that the Right to Privacy extends to a woman’s decision to choose an abortion.


I’ve written in prior blogs about the origins of the Right to Privacy.  Though not explicitly set out in the Bill of Rights, Privacy is a “liberty” protected by the Due Process clauses of the Fifth and Fourteenths amendments.  Under traditional analysis, the government may not interfere with such a right unless there is a compelling interest in doing so and the legislative act or regulation is narrowly focused to address the evil it purports to regulate.  This last is known as the Strict Scrutiny test. It doesn’t mean the government can never restrain a right, but if it attempts to do so, it must pass the Strict Scrutiny test which is very difficult to do.


In this context the development of constitutional law related to abortion rose first in various state governments attempts to restrict the distribution of contraceptive information and materials.  In Griswold v Connecticut in 1965 Justice Douglass wrote that the Right to Privacy protected a couple and their doctor from prosecution for trafficking in such materials.  Reproductive rights as a subset of the Right to Privacy came to its full flower in 1972 when the Supreme Court struct down similar laws restricting access to contraceptives to unmarried couples.  Justice Brennan wrote, “if the right to privacy means anything, it is the right of individuals, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”


The next year Roe v Wade came along.  It was a difficult decision for the justices.  It was actually heard once, including oral argument and an opinion was written and circulated.  But before it was published the Chief Justice decided to set the matter over to the following term to be reargued and a new opinion written.  There was a lot of infighting and back room maneuvering among the justices, but eventually the decision was written and published.


One of the striking things about the Roe v Wade is that the opinion was written by Justice Blackmun, an appointee of Richard Nixon.  And to the further surprise of many on the left at the time it was joined in by Chief Justice Warren Burger, also appointed by Nixon.  Which should engender a bit of caution to prognosticators. Being an unreformed prognosticator myself, I try to remember that predictions concerning how particular justices will come down on particular issues based on their party affiliation or the preference of the President who appoints them, once they are confirmed are notoriously inaccurate.


Roe v Wade was a natural development in the law of the Right to Privacy.  But it is also important to realize what the Roe v Wade rule is and where the fight has actually been.  At no time has the Roe v Wade or its progeny protected an unlimited right of a woman to have an abortion free of state regulation.  The fight has always been on the over WHEN during the pregnancy the government may restrict a woman’s right to choose and HOW the government may regulate in the area.


In Roe v Wade, the government’s interest in regulating was recognized in accordance with a trimester analysis.  The woman’s right was strongest in the first trimester and the government’s interest in the health of the woman and the fetus was most compelling in the last trimester.


Justice Sandra O’Connor before she was appointed to the Supreme Court (by Ronald Reagan) was especially critical of the trimester analysis.  She knew the science was wrong.  The real issue in her mind was the line of viability, that is when the fetus can survive outside the womb.  And she rightly predicted that the line would continue to be pushed back as science and understanding improve.


She wrote the opinion in Planned Parenthood v Casey in 1992.  And it was here where she and the Supreme Court abandoned the trimester analysis of Roe v Wade.  She changed the test.  Hence forth the test would be whether the government’s regulation was “unduly burdensome” on a woman’s right to terminate a pregnancy “pre-viability.”  But she also made it clear that Roe v Wade had established a woman’s right to choose.


O’Connor wrote: “The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v Wade.  It is a rule of law and a component of liberty we cannot renounce.”


These two appointees of Presidents Richard Nixon and Ronald Reagan established the right of a woman to terminate a pregnancy and confirmed it as a rule of law which cannot be renounced. It cannot be gainsaid that just because the new justice may be have been vetted by the Federalist Society does not lead to the conclusion that the reversal of Roe v Wade is inevitable.


The real issue is how the Court will decide cases concerning State attempts to regulate how abortions are performed and access to services.  For example, imposing restrictions on the licensing of abortion clinics, or hospital privileges for doctors who perform abortions.  That is actually where the fight has been and will continue to be. Not whether a woman has the right. She does and that is unlikely to change.


In a 2016 case, Whole Women’s Health v Hellerstedt the undue burden test fashioned by O’Connor was fleshed out to be whether “unnecessary health regulations have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion” and so “impose an undue burden on the right.”


Can we predict how the Supreme Court will rule on future cases dealing with right to abortion? Here is a salient point.  Roe v Wade in 1973 was decided 7 to 2.   Casey in 1992 was decided 5 to 4.  Whole Women’s health in 2016 was decided 5 to 4.  Kennedy in both Casey and Whole Women’s Health was one of the five in the majority.


It would seem to indicate a change was very possible.  However, in the individual opinions the debate was largely what test to apply to a particular regulation, not whether the central holding of Roe v Wade, the right of a woman to terminate a pregnancy, would be upheld.  That central holding is not going to change.













Executive Discretion

Executive Discretion

I took a little hiatus from Cline on the Constitution to recharge the old batteries.  Lots happening at Supreme Court and elsewhere. Will try to catch my readers up over the next few weeks.


Executive Power


Out of the overheated debates on the situation at the border, lost among the shrieking and gnashing of teeth, is the question of the President’s responsibility for enforcing the laws of the United States.


There is little question that adults with children in tow have traveled from Central America across Mexico either with assistance of the Mexican government and the human trafficking cartels the leaders of Mexico allow to operate in their country. Arriving at the border, these people intentionally violated federal statues by illegally entering the United States.


Some claim they require asylum, some of the claims are legitimate, some fraudulent.  In order to properly evaluate asylum claims, federal law requires the persons making the claim to appear at designated Ports of Entry and not illegally sneak across the border attempting to avoid apprehension.


This administration recently announced a “Zero Tolerance” policy.  That is, they will arrest, detain, and prosecute the adults for violating the criminal statues of the United States without exception.  Because of federal laws, federal court decisions and consent decrees administered by the federal courts with the arrest of the lawbreakers, the separation of the adults from the children occurs. Some of the children belong to the adults.  Some don’t.


The President has demanded corrective legislation from Congress.  Members of Congress respond that he should simply order federal officers not to enforce the law.  The latter is consistent with past practice.  In the past the adults were released after solemnly, under oath promising to return for court proceedings. They of course lied.  After breaking the law and swearing to return, the vast majority absconded.


That sets the Constitutional issue.  May the President refuse to enforce the law?


Article 2, section 1, clause 1 of the Constitution vests all Executive Power in the President of the United States.  And Article 1, section 3, provides that the President shall, “take Care that the Laws be Faithfully executed.”  He is explicitly charged with the responsibility to “Faithfully Execute the Law.”


On the face of it there would be no choice.  The law is the law and the President is required to carry it out.  Right?  That would appear to be the meaning of “faithfully executed.”  However, it’s just not that simple.  The Supreme Court has long recognized that there is an element of discretion that is granted the Chief Executive.  It is the same discretion that is granted locally elected District Attorneys across the nation.  In fact, as applied to the Presidency the Court even used the term “Prosecutorial Discretion” interchangeably with “Executive Discretion.”


Having served over three decades as a prosecutor, two of those decades as the elected District Attorney, it’s a subject I know something about. When I teach about the subject I use the phrase “The Power of No.”


To appreciate the phrase a little history is useful.  The evolution of the “independent” prosecutor developed during the flowering of Jacksoninan Democracy. Andrew Jackson lead the movement of having local office holders freely elected instead of being appointed by Governors or legislatures. District Attorneys across the nation during his term started breaking away from being an arm of the judiciary until by the time of the Civil War, most were being independently elected. As that evolution occurred, one of most hotly debated issues was prosecutorial discretion, “The power to say No.”  That is, it didn’t matter who wanted a case filed, or prosecuted, the discretion of the local prosecutor meant they could refuse to proceed with the case and no one could make them do so.  The thoughtful legal scholars of the time thought that too much power.


Over the decades, the discretion to not proceed with a prosecution has been justified in numerous ways. As a means for saving resources, for being able to tailor justice in exceptional cases and other reasons.  And it continues to this day.  President Obama’s administration decided not to enforce the federal marijuana laws and refused to enforce the Defense of Marriage Act (DOMA) that defined marriage as being between one woman and one man for purposes of federal law. The present administration, like past administrations has indicated they may not spend the money allocated by Congress in the budget just passed, in effect impounding the funds.


On the other-hand some legal scholars have also argued that a President refusing to enforce the law is unconstitutional.  They point out that it constitutes an interference with Article 1’s delegation of all legislative power to the Congress.  If the President refuses to enforce the laws passed by Congress, does that not transfer the legislative power to the President, in effect giving him a super veto power over legislation that can’t be overridden by Congress?


In those situations where holder of the executive power refuses to enforce the law, what is the remedy? What can be done about it legally?


It’s not a “Congressional Oversight” question.  Congressmen like that term, but in reality, though they share some powers, they don’t have constitutional oversight of a co-equal branch of government.


The remedy usually recognized is a democratic one.   The elected executive/prosecutor can be replaced through the process of an election. If the voters don’t like that the laws are not being enforced, they can replace the official.  One could argue, I suppose, that that occurred when President Trump was elected ostensibly in part to enforce the immigration laws that had been benignly neglected by past Presidents.


What is clear, however, is that the Court would most probably recognize the President does have discretion not to enforce the laws requiring the arrest of individuals illegally entering our country.  He does have the power to say No.


Whether this would be heartwarming in the short term by reuniting the child with the adult or heartbreaking in the long term by encouraging endless lawlessness on our border, is a difficult question.  “Executive Discretion”, the power to decide when to go forward or when to say “No” is real power.  Knowing when and how to apply it is not that easy.


For more article and writing by Phil Cline, you are invited to visit




Fresno State

Fresno State

I have followed with interest the discussions regarding hateful tweets concerning Barbara Bush by a Fresno State college professor.  As expected the President of the College declined to do anything.  College presidents across the nation are not exactly distinguishing themselves with displays of courage and leadership no matter how embarrassing the conduct of their staff or students.  If you expect them to take a stand don’t wait outside in the rain.  You will expire of pneumonia before they take any definitive action.  Today a college presidency is more about public relations and fundraising than leadership.  Not sure “President” is a descriptive term for their role anymore.


Now to the tweets and the Constitution.


The first question is simple.  Was this a freedom of speech issue?  The First Amendment, as interpreted by the Supreme Court, provides that no action of the government may “abridge freedom of speech.”  Nothing was done to her by the government.  Could there have been?


She is an employee of a public university that operates with public funding. It was something of a cop out to maintain she did this privately. There is no doubt she was speaking as a college professor.  She knows she is speaking as an employee of the college and even brags about the six-figure salary she is paid from the public treasury.  She even adds that tenure makes her untouchable.  She, therefore, according to her lights, can say what she wants to say, no matter how vulgar or hateful.  It is striking that she has so little regard for the hard-working people who pay the highest state taxes in the nation, people trying to make ends meet and feed their families, so she can lounge around lobbing F bombs.


Were Fresno State to proceed against her, because of its public status, it would constitute state action and, therefore, the protections of the First Amendment apply.


The next question is how far does the First Amendment go in protecting her as a public employee?


In 1892 the famous jurist Oliver Wendel Holmes, in addressing whether the speech of public employees could be restricted without violating the First Amendment said, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.  There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him.”


Holmes was a great legal mind, but his view, did not prevail.  Over the next century, the Supreme court sought to find a balance between the interests of the public employer in promoting the efficiency of the public services it performs through its employees and the interests of the employee as a citizen. Generally, they upheld the right of the employee to speak out on matters of public interest.


In 1983, a little over a hundred years after Holmes pronouncement, in the case of Connick v Myers, the court upheld an employer’s right to dismiss an employee who engaged in speech activity that interfered with the operation of the public office.  But emphasized the speech activity did not rise to a matter of public concern. The case involved a deputy district attorney who was fired for attempting to organize a group of employees to complain about work assignments.  Justice White wrote, “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the [First Amendment].”


He went on the state that the “…. balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.”


This line of cases reached its fulfillment in Rankin v. McPhersonin 1987 which has similarities to the present situation.  In that case, A clerical employee was fired for remarking after hearing of the attempted assassination of President Reagan, “if they go for him again, I hope they get him.”


Justice Marshall wrote the opinion of the court. In a close 5 to 4 ruling, the court held that the employee’s remarks were protected.  The majority determined the remark did concern a matter of public concern and in balancing the interests of the state in the “effective functioning” of the office against the employee’s interest in free expression, they came down on the side of the free expression. However, they found it important that this was a single off-hand comment to a co-worker.   Not sure what we heard from the professor was a single off-hand comment.


Justice Scalia wrote for the four justices who dissented from the ruling.  He said, “no law enforcement agency is required by the First Amendment to permit one of its employees to ride with the cops and cheer for the robbers.”


One further consideration in this area has not gotten a lot of discussion.  California has a mini “Hatch Act.”  A Hatch act prohibits active political campaigning by public employees under certain circumstances, especially while on duty.  The Supreme court has repeatedly upheld Hatch Act prosecutions.


Do we really believe that this is a private expression, that these same sentiments and worse have not been propounded in a classroom to a captive audience of public college students?

If so, (and it would be easy to find out and prove if there was a sincere interest on the part of the college administration to prevent such reprehensible conduct), the courts might not be so solicitous of her expressions.



The second major issue involves the evident encouragement and actual threats of violence the woman made. The leading case in the area comes from the Brandenburg case decided in 1969.   Brandenburg was a Klan leader who inartfully encouraged his followers to use guns to exact what he termed, “revengeance.”  I must say, from what I read, the college professor’s language skills appear to be about on a par with Mr. Brandenburg.


In Brandenburg, the court revised rules from a half century of supreme court decisions to form what is known as the Brandenburg rule.  It states that government may not suppress speech unless the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”


There doesn’t appear to be an incitement to “imminent” lawless action by the professor. The timing is ambiguous.  Beyond that one has difficulty over the “likely” element.  After all, can we really imagine this disgusting woman waddling out in front of an army of insurrectionists marching forward to spark a revolution? The only entity one can imagine being in actual danger would be a Dunkin’ Donuts shop along the way.


One of the underlying values of the First Amendment is to allow the venting of even the most awful expressions of the lowest of society.  The utterances of this person are on a level with Louis Farrakhan, the Klan, and the virulent anti-Semitism of the Fascist regimes of World War II.  Their raw expressions are protected by the First Amendment.  The difference is this person’s hateful racist comments emerge from behind the protective curtain of a public university.

Due Process

Due Process

Due Process


The President of the United States recently questioned whether some people’s reputations and lives are being unfairly destroyed by public charges of misconduct, including allegations of domestic violence.  He wondered withal Due Process?


The persons he was referring to may indeed be guilty of what they are alleged to have done, but what is this reference to Due Process all about?


In my profession we always started off any case of spousal abuse assuming the victim was being truthful, and insuring an environment was created for the safe reporting of the crime and the preservation and presentation of evidence.  As the understanding of the dynamics of domestic violence increased over the years we even adopted a policy of removing the discretion of whether to proceed with the case from the victim.  Doing so insured they could not be pressured either by the abuser or the abuser’s lawyer to drop the case.


But those measure aside, we were also mindful of our duty regarding the Due Process rights of the person being accused. Due Process isn’t just a legal nicety.  It is a fundamental tenet of our system of laws. We might have railed against the exclusionary rule which could lead to the unreasonable suppression of probative evidence, but never Due Process.  Due Process is foundational.


The Bill of Rights has two different amendments concerning Due Process.  The Fifth Amendment protects persons from a deprivation of life, liberty or property without Due Process of Law.  It applies to the Federal Government.  The Fourteenth Amendment, passed after the civil war, provides the same protection from State governments and their political subdivisions.


Taken together, at every level of government, local, state or federal, when someone is deprived of life, liberty or property they are entitled to Due Process.  And, yes, Jobs and reputation are recognized as property interests protected by the Due Process clause.


As the Supreme Court has interpreted and developed the jurisprudence surrounding the clauses they have concentrated on two different dimensions of Due Process.


The first is “Procedural Due Process” or what one can refer to as the “How. ”How” is life, liberty or property to be taken away?   The second is “Substantive Do Process” which is concerned with the “What.” That is, “What” rights and interests and liberties are protected?  In other words the deprivation must adhere to standards in “How” it takes place and the deprivation must be of something recognized as a fundamental liberty, “the What”.


The later deserves detailed treatment since it is ultimately the means by which other rights or “liberties” including implied rights such as Privacy, are protected. But the Reference the President made really was really about Procedural Due Process, that is the “How.”


Procedural Due Process is about “Fairness.”  A person must be afforded adequate notice of what exactly he is being charged with, he must be given an opportunity to respond to allegations, the ultimate decision must be made by a neutral fact finder and there should be a right to appeal an erroneous decision. It’s the ultimate guard against anyone being rode roughshod to destitution or prison for that matter. And as regards our system of laws, indeed our Constitution, it is fundamental.


It is striking that a President referring to this deep seated American value is met with such rabid, virulent, vehement responses, both by certain members of the press and those who should know better.   No doubt, he should have expressed concern for the victims but, in truth his question about Procedural Due Process, about punishment visited on an accused without a full and fair hearing, was apropos.  It was wholly consistent with principles that form the foundation of our Democracy.


And contrary to some commentary, Principles like Due Process are not limited to the Courtroom.  They apply in the workplace and everywhere else where life, liberty and property interests are involved. As described by the Supreme Court, these principles are “implicit in the concept of ordered liberty” and are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Slouching Toward Oligarchy

Slouching Toward Oligarchy

Slouching Toward Oligarchy


Shortly after the current Supreme court term opened in October, Chief Justice John Roberts used the term “Sociological Gobbledygook” during oral argument on a Gerrymandering case.  Under the “political question doctrine,” drawing district lines for seats in Congress has traditionally been reserved to state legislatures. However, rather than fight the gerrymandering at the polls or in the halls of the legislature, interest groups sought the intervention of the federal courts. Why? Because it is easier than going to through the democratic process.   Especially, if you prefer government by federal judges, who with each passing day evolve more and more into a class of unelected, unaccountable oligarchs.


The Chief Justice said to the attorney arguing the case, “…the whole point is you’re taking these issues away from democracy and you’re throwing them to the courts pursuant to . . . I can only describe as sociological gobbledygook.”  A short time later, Justice Stephen Breyer used the same term urging the advocate to press his argument “without going into what I agree is pretty good gobbledygook.”


Justice Robert’s comment generated a number of scathing reactions from across the Social Science industry.


Some of the responses were thoughtful defenses of using social science in legal cases while others were over the top denunciations of anyone who would dare question the underpinnings of so-called social science.


The exchange shined a light on a larger question.  Just how much should the courts rely on social theory or social studies in fashioning their decisions?


The Starting point is usually Brown vs. Board of Education.  For most of us in the legal profession the opinion is the lodestar, the standard for great and momentous decisions.  The case led to the dismantling of institutionalized racism in Education by overruling Plessy v Ferguson, the infamous 1896 decision upholding the “separate but equal” doctrine.  And the court in Brown justified its conclusion that segregation of the races in the classroom had long term detrimental effects on minority students by relying on social studies that had reached that conclusion.


In the subsequent years and modernly at an accelerating pace, many case decisions of the Supreme Court, some of them momentous, relied on social studies.  I tend to think that the term “social studies” is more accurate than “social science.”  Though there are plenty who will argue the opposite, the fact of the matter is there is little that is empirical or universally true in the subjects covered. The fact of the matter is there are no eternal verities in social studies.  Even the venerable Brown v Board of Education decision is being hollowed out by gender and ethnic based studies on college campuses, which exclude and denigrate other races and genders.   It seems segregated housing is all the rage,  evenexcluding people of a certain race from the campus itself for special days ostensibly to add to the comfort level for minorities.  In fact, a college in the Ivy League no less, just agreed to build housing where students can be separated based on sexual orientation.  The fact that this re-segregation is promoted by liberal professors and students doesn’t change its nature.


Other social studies fields can be just as problematical, especially modernly.  History studies are more driven by trendy thought, political correctness, and rank speculation then actual provable fact.  Psychology, while it undoubtedly can and does help individuals with mental or emotional problems, when applied to broader society can be a joke. As a trial lawyer who specialized in trying homicide cases for 7 years,  I found there was great fun in cross-examining defense psychologists. They literally started squirming in their seats when they found I intended to test their conclusions using their own diagnostic texts, especially in demonstrating how often what is and is not a symptom of a dysfunction is arrived at by a majority vote of committees.


And in some fields, studies and reports are so blatantly driven by political agendas as to be laughable were they not used in such serious ways. As a prosecutor I can’t tell you the number of times that some misleadingly named justice foundation issued a study on the justice system that was inaccurate, poorly researched and sometimes intentionally misleading.


And what’s more, the press was often complicit in the perpetuation of the fraudulent theories.   They regularly allowed the “institute”, or the “foundation” to “embargo” the report until the “go “was given for publication.  The Press knew that the embargos were imposed to get the maximum coverage with a minimum of critical examination.  By the time the study could be analyzed, and even obvious errors pointed out the media had lost interest.  They uniformly failed to publicize corrections.  Not exactly the peer-review you would expect of real science.


The question is not necessarily whether social studies should be relied on, but what weight should be given them.  To say that a teenager’s brain is not fully formed, and their judgement is not fully developed is one thing, but to say then they are not fully responsible for the premediated torture murder of a child is something beyond the realm of social science.  Yet we see more and more decisions based on such nebulous values as “societies evolving sense of decency.”  They lead to federal courts imposing their own values regarding the death penalty for certain classes of individuals, changing the institution of marriage, and making their evaluations of what is necessary for national security when they are singularly unqualified to make such judgements.  Those are the matters that the Constitution contemplates being decided by the Congress and the Presidency who, in a democracy, are accountable to the voters.


A recent column by the venerable Dan Walters makes the point about misplaced reliance on social studies very clearly.  He relates that how in 1986, a powerful California state legislator had a pet theory that one answer to rampant crime, educational failure and many other social ills was a lack of self-esteem.  John Vasconcellos, the legislator, was successful at directing tax-payer funds to the University of California for a study.  Two years later the study was released. Its conclusions were dutifully and breathlessly reported by the press.  The report concluded that indeed promoting self-esteem would have positive effect on correcting these societal ills.  Of course, then colleges, high schools, and grammar schools, based on the UC study changed curriculums. They hustled to adopt self-esteem programs.  Other government and private entities did the same.  But there was a problem.


It was recently uncovered that the real conclusions of the study were actually just the opposite.  It was concluded that “the association between self-esteem and it’s expected consequences are mixed, insignificant or absent.”  It turns out The University of California suppressed the real findings and changed the conclusions to satisfy the desires of the powerful Mr. Vasconcellos, whom they feared would make moves to reduce their annual budget.


I don’t doubt that the Supreme Court will still find social studies useful both in the case on gerrymandering and other issues.  But it behooves them in deciding an over-arching question of law and society that they treat the studies with a healthy skepticism.  Some social studies may be valid.  Others may be just so much pre-determined and paid for Gobbledygook.




Privacy Continued

Privacy Continued

Another case on the Frontiers of the Privacy concept.


In another context we have a case that was just argued to the Ninth Circuit Court of Appeals.  Since it’s the Ninth, we can’t tell what the outcome will be except that what is healthy and good for larger society will not be a major consideration of most justices occupying that bench.


This case involves a disabled male who wished to procure the services of a prostitute in the privacy of his own home and three former sex workers who wished to satisfy his desires.  Seems reasonable enough.  Except for a troublesome state law that specifies Prostitution is a crime. One can go to jail for soliciting a prostitute or engaging in sex for money.


It’s always interesting to see who files Friend of the Court briefs in such cases.  Of course the ACLU supports overturning the prostitution statue, but so does Black Women for wellness, the California Women’s Law Center and even something called Children of the Night.  No doubt the women in these organization would march against any man who boorishly pats their fanny or puts his hand on their knee, but think nothing of defending the exploitation of women by pimps, drug dealers and gang members.


And then there is the moral underpinning of the law.  Not so much a consideration in a society increasingly proud of its secularlism.


Oh well, so how did we get here?


Let’s look at a couple cases on Privacy of sexual relationships.


In 2003 the Supreme Court decided Lawrence v. Texas.  Justice Kennedy wrote the majority decision (6-3) which held that a law which permitted heterosexual sodomy, but banned homosexual sodomy was unconstitutional under the Fourteenth Amendment’s Due Process clause.  It was found to deprive persons of a fundamental liberty to make decisions regarding adult, consensual, and private sexual activity.  It is a landmark decision and since its publication it has been used to challenge a whole host of governmental regulations.


Justice Scalia writing in dissent pointed out a fundamental problem with relying on a court decision to change rules and regulations governing society.  He carefully argued that while he is not adverse to gay rights, it is not a proper role of the courts to change the rules.


He said, “Let’s be clear I have nothing against homosexuals or any other group, promoting their agenda through normal democratic means.  Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. . .  But persuading one’ fellow citizens is one thing, and imposing ones’ view in absence of democratic majority will is something else. . . (as by) the invention of a brand new “constitutional right” by a Court impatient of democratic change.   It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress”; and when that happens, later generations can repeal those laws, but it is the premise of our system that those judgements are to be made by the people, and not be imposed by a governing caste that knows best. . . “


This defining debate continued on in the Obergefell v Hodges cases decided in 2015.  Again, the majority decision (5-4) was written by Justice Kennedy and found the right of same sex couples to marry was a fundamental liberty protected by the Fourteenth Amendment Equal Protection and Due Process clauses.  Justice Kennedy’s words are echoed in the cases by both sides of the argument.  He said, “new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”


In a similar vein he wrote “that the nature of injustice is that we may not always see it in our own times.  .  . and so we entrusted to future generations a charter protecting the rights of all persons to enjoy liberty as we learn its meaning.”


Justice Scalia, again in dissent does not quarrel with the concept, but only with whether it was left to future generations of citizens to exercise their democratic prerogatives or future generations of judges who would decide for the rest of us. He wrote “Today’s decree says that my ruler and the ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court . . . With each decision of ours that takes from the People a question properly left to them – with each decision that is unabashedly, based not on law, but on the “personal judgement” of a bare majority of this Court-we move a step closer to being reminded or our impotence.”


And he means by that at some point, the Supreme court will face a harsh reminder that the judiciary is indeed the weakest branch of government with neither the power of arms or the purse.  He clearly sees a danger in the “hubris” of the court.


If you are a member of a group being denied the same rights as other citizens, how patient must you be and for how long must you be?  It’s hard to truly appreciate how our fellow citizens feel, unless you are a member of that group.  On the other hand, what of democracy?  Slow, plodding, inefficient democracy?  Do we believe in it or not?


Returning to the Prostitution case, the sides argued a plethora of “liberty” issues may be involved, all the way from freedom of association to privacy of relationships.  They asked can there be such a thing as privacy of relationships  when there is money on the table or I guess you could say “skin in the game.”  (Pardon the pun). But the ultimate question is whether these matters are for the people to decide through their elected representatives or is up to the court to overturn a law criminalizing conduct that has been against the laws of most states (though not all) for the life of the republic.  Who gets to decide?


We are still working it out.







A man was suspected of masterminding a series of robberies. He was apprehended and convicted. On appeal he alleged the police violated his rights when they recorded his movements and locations by accessing cell phone data from his service provider. In November, that case argued before the United States Supreme Court. A decision is pending.


Fifteen years ago, a police officer wanted to know where a suspected drug dealer was going. He surreptitiously placed a GPS device on the undercarriage of the man’s car and remotely monitored his travels. He was caught and convicted. He also alleged his rights were violated and appealed the case to the Supreme Court. The Supreme Court agreed and reversed his conviction.


Are the cases similar? Sure. Well, except for the technology.


Will the cases be decided the same? Being a true lawyer, I will answer like a lawyer does. “Well, maybe, but not necessarily.”


The Fourth Amendment states, “the right of the people to be secure in their persons, houses, papers, and EFFECTS, against unreasonable searches and seizures, shall not be violated.” (emphasis added.)


In United States vs. Jones, decided in 2012 the justices of the Supreme Court decided the car owner’s Fourth Amendment rights had indeed been violated by the attachment of the GPS device to the man’s car. What makes the case interesting and what it may portend for the pending decision concerning cell phones is the majority opinion penned by Justice Scalia.


Because though all the justices agreed on the outcome, they didn’t all agree on why or how they arrived at their conclusion. And Justice’s Scalia’s opinion drew the ire of other members of the court. Though he focused on the original meaning of the Fourth Amendment, ironically some of the justices considered his approach novel.


Two intellectual tracks are at play here. One is the jurisprudence that has grown up around the Fourth Amendment since the landmark case of Katz v. United States decided in 1967. In that case the government placed a listening device on the outside of a telephone booth. (For you oldsters out there, I show my students pictures of telephone booths since many of them have never seen one!).


In the Katz case a concurring opinion established a test later decisions of the Supreme Court made the standard. It held that the person inside the phone booth had a “reasonable expectation of privacy” and the listening in by the police was a search and was illegal.


Not to overly simplify, but the term ”reasonable expectation of privacy” became the jumping off point for 50 years of litigation afterwards.


What Justice Scalia opinion in the Jones case did and which other justices found objectionable was to depart from the “reasonable expectation of privacy” test and go back to the Fourth Amendment’s language and consider the matter from a “property” viewpoint? After all it does say, “persons, property, papers and effects.” 75% of that phrase refers to property.


In referring to the English antecedents to the Fourth Amendment he cited Lord Camden who once said, “Our law holds the property of every man so sacred, that no man can set his foot upon his neighbor’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbor’s ground, he must justify it by law.”


Justice Scalia went on to discuss the “close connection” of the Fourth Amendment to property rights. He points out if that were not the case the words “Persons, houses, papers and effects,” would have been superfluous. The drafters of the Constitution were master wordsmiths. One thing they didn’t do was use superfluous language.


Justice Scalia, in the Jones case, held the automobile was an “effect” and the government’s attachment of a monitoring device to its undercarriage was an illegal search. It cannot be gainsaid that the other justices engaged in an attenuated argument to say that one has a “reasonable expectation of privacy” in the undercarriage of a car. It’s open to the road and accessible to any mechanic or member of the public who cares to bend over enough to observe its contours or walk by it while it is up on a rack for an oil change. However, when you consider the protection afforded the Fourth Amendment from a property perspective, the argument that there was an illegal search is stronger. Being an “effect”, like Justice Scalia stated, the car is protected by the Fourth Amendment and the Government would need a warrant supported by probable cause and signed by a neutral magistrate before attaching their tracking device.


Now we return to the pending decision concerning cell phones. The argument that we reasonably expect to keep the information on our cell phones private is problematical. Departing from my lawyer language, it really doesn’t hold water.


Every person with a modicum of intelligence knows the information on a cell phone is shared with hundreds if not thousands of people. If it’s out there on the Cloud, how can we say we have an expectation of privacy?   And in fact the Government in the pending case is arguing that sharing the information with the operators of the servers shows it is not expected to be kept private. One can persuasively argue that Privacy as we understand it, at least in this context is a dead concept anyway.   Just consider how much of your activity online is tracked by public and private interests. It’s why when you look on Amazon for a car cover, you all of a sudden begin receiving advertisements on Facebook about car covers.


The more logical argument to make on the pending case is to say cell phones are property: they are our “effects” and the Fourth Amendment protects them against the trespasses of the government.


Justice Scalia is gone now, but it will be interesting if any of the other justices embrace his approach. Given the rapid change in technology. The old tests are going to have to be revised in some fashion.


Bill of Rights, Part Four

Bill of Rights, Part Four

The Bill of Rights – Part Four


In this series we explore 1) the Source of the Bill of Rights, 2) Who’s rights are protected 3) Whom are the rights protected from, and 4) What rights are protected.


In the final part of this series we address what rights are protected by the Bill of Rights.


In order to appreciate the scope of the rights protected by the Bill of Rights it helps to understand there are two major categories. The first are “Enumerated” Rights and the Second are “Unenumberated” Rights.


The Bill of Rights is traditionally understood to comprise the First Ten Amendments to the Constitution. Those amendments are essentially a list of rights. They are “Enumerated.” And include the most venerated of our rights, rights that were clearly on the mind of our framers as human rights that needed protection from overreaching by the new powerful government of the United States.


Freedom of Speech, Freedom of Religions, the Right to Bear Arms, the Right to be Free from Illegal Search and Seizure, the Right against Self Incrimination, the Right to Counsel, to a Public Trial and the Right not to be subjected to Cruel and Unusual Punishment all are explicitly set out as a list of enumerated rights.   But that isn’t the end of the story.


As my previous posts explained the Ninth Amendment states “The Enumeration in the Constitution of certain rights shall not be construed to deny or disparage OTHERS retained by the People.” (emphasis added.) This language is the primary source for “Unenumerated” Rights, which though not expressly listed, are protected by the Bill of Rights.


Essentially the Supreme Court has held that there are, in Justice Cardozo’s words, certain “principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and that “neither freedom or justice would exist if there are sacrificed.” And the concern that no list could encompass them all lead to the inclusion of the Ninth Amendment and its reference to “other” rights.


The recognition of “Unenumerated” rights was given modern impetus by Justice Douglas’s writing in Griswold v. Connecticut. In that case he stated “Our cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create a Zone of Privacy.” “Penumbras” to Douglas represented shadows that exist in the other Amendments that taken together give rise to a Right of Privacy.


Over the years since Griswold was decided in 1965, the Right to Privacy has been expanded by the Supreme court into an umbrella of concepts under which exists the right to Abortion, the Right to Interstate Travel, the Right of Adults to engage in any consensual sexual activity they choose, and the right of Gay couples to marry, among others.


The latest case in this rapid expansion of “Unenumerated” rights (Oberegefell concerning Same Sex marriage) seems to be a harbinger of a new generation, an even wider array of previously unrecognized rights. In that opinion, Justice Kennedy observed, “New insights and societal understandings can reveal unjustified inequality within our fundamental institutions that once passed unnoticed and unchallenged.” He went on to say, “The nature of injustice is that WE MAY NOT ALWAYS SEE IT IN OURSELVES. The generation that wrote the Bill of Rights did not presume to know the extent of freedom in all its dimensions, and so ENTRUSTED TO FUTURE GENERATIONS a charter protecting the rights of all persons to enjoy liberty AS WE LEARN IT’S MEANING.” (emphasis added.)


Fair enough, but one is left to wonder if the framers meant to leave such determinations to a “future generation” of unelected, unaccountable committee of nine judges instead of the larger society of a practicing democracy—you know—that portion of the future generations which includes the rest of us.




Bill of Rights – Part Three

Bill of Rights – Part Three

The Bill of Rights – Part Three


In this series we explore 1) the Source of the Bill of Rights, 2) Who’s rights are protected 3) Whom are the rights protected from, and 4) What rights are protected.


In Part Three we discuss from Whom are the rights in the Bill of Rights protected.


In short the Constitution protects us from the Government. Private conduct, generally, is not the subject of the protections afforded by the Bill of Rights. We can be as foolish, cruel, or nasty to our fellow men and women as our nature dictates for the worst reasons or no reason at all without running afoul of the Constitution.


(That is not to say that the law will completely ignore private conduct in all instances. Civil Rights legislation both at the Federal and State levels does reach what would in other instances be private conduct. But that legislation can be changed without the arduous process of amending the Constitution, the Supreme Law of the land.)


For most of the life of the Republic the Bill of Rights only protected from actions of the Federal Government. For example, the First Amendment reads “Congress shall make no law” abridging Freedom of Speech or Religion. It says nothing about whether the States can pass laws abridging Freedom of Speech or Religion. To be sure, States have always had their own constitutions that protected specific rights, but the coverage of U.S. Constitution was limited to the Federal government.


That changed with the passage of the Fourteenth Amendment after the Civil War. The Fourteenth Amendment Due Process clause provides “nor shall any State deprive any person of Life, Liberty, or Property without Due Process of Law.”


We already had a Due Process clause (see the Fifth Amendment), but the Fourteenth Amendment specifically applies to the States. And it is that word “Liberty” that opened up a pathway for the Supreme Court.


In a series of decisions over a number of decades The Court held that most of the Bill of Rights were individual “Liberties” and the Due Process clause applied to protect our these “liberties” of our citizens from not only the Federal Government, but the State Governments and all their political subdivisions, including Counties, Cities, School Districts and other governmental entities.


This is the Selective Incorporation Doctrine. It is Selective because it took a while and was not wholesale. Between 1896 and 1972, one by one, case by case, all but a few of the provisions of the Bill of Rights were incorporated into the Fourteenth Amendment Due Process clause and made applicable to the States.


Included are the First Amendment (Speech and Religion), Second (Arms), Fourth (Arrest, Search and Seizure), Fifth (Self-Incrimination, but not the guarantee of Grand Jury Indictment), Sixth (Counsel and Trial), Eight (Cruel and Unusual punishment, but not excessive fines or bail.)


Lastly, as we will more thoroughly discuss in the next segment, certain “unenumerated” rights, that is those that are not specified in the Constitution, but which the Supreme Court has defined as “Liberties” such as Privacy (abortion, sexual practices, Gay marriage) are also protected from encroachment by all levels of government.