“How To Make The Supreme Court More Accountable”: The Most Powerful, Least Accountable Public Institution In The Country
Justice Samuel A. Alito’s sister is a high-powered labor attorney who represents management in disputes with workers. Justice Elena Kagan’s brother, a teacher at an elite public school in New York, has protested the school’s admissions process because of low minority enrollment. And Justice Stephen G. Breyer’s son co-founded a tech company that broadcasts civil court proceedings.
Does having relatives involved in labor disputes, affirmative action battles, and cameras in courtrooms affect how Supreme Court justices decide cases and manage their institution? They say no, and we’re supposed to take them at their word. But is “trust us” really good enough for the nation’s highest court?
A confluence of recent events has made the Supreme Court the most powerful, least accountable public institution in the country. It is time to make the justices more accountable to the American people.
The court rules on wide-ranging issues fundamental to American life — where we can pray, who is eligible to vote and marry, how much regulation businesses should face, and who has access to health insurance. And with Congress gridlocked and relations between the legislative and executive branches at a historic nadir, the court’s opinions are binding and irreversible. So much for checks and balances.
In spite of this vast power, the justices have little accountability. Not only do they decide for themselves when to recuse themselves from cases in which they have conflicts; they also aren’t bound to a code of ethics the way the rest of federal judiciary is. They can decide how much information on investments and travel to release in their annual financial disclosure reports, and they determine when and where people can demonstrate near their building.
Yet for all the flaws and impenetrability at the Supreme Court, the problems could be solved rather quickly. Unlike the consensus required to make changes in Congress, the Supreme Court is largely in charge of its own rules — and Chief Justice John G. Roberts Jr. himself could usher in most of the vital changes needed, including tightening requirements on recusals, requiring the justices to adhere to the Code of Conduct for U.S. judges, posting disclosure reports online, providing advance notice for public appearances and permitting live audio and video in the courtroom.
Roberts has been loath to implement any changes. Years ago when he was asked about the benefits of permitting live broadcasts of oral arguments, Roberts replied, “It’s not our job to educate the public,” as if saying he was comfortable hiding behind the cast-iron doors in perpetuity.
A new organization I’ve launched, Fix the Court, will take on some of what the court should be doing itself. Each week, we release information online about the justices related to five issue areas — recusals, disclosures, ethics, public appearances and media and public access. But public pressure is also needed to encourage the justices to be more transparent.
You may not have known, for example, that Justice Clarence Thomas ruled on Bush v. Gore while his wife was collecting candidates’ resumes to recommend to a new Bush administration. Or that Justice Ruth Bader Ginsburg spoke at a National Organization for Women conference soon after ruling on a case in which the group had submitted a brief to the court. (Ginsburg sided with NOW in the case.) Or that just last year, Justice Antonin Scalia was part of the court majority siding with anti-abortion advocates who said a Massachusetts law allowing a buffer zone around abortion clinics violated the 1st Amendment — even though his wife had been on the board of a pro-life organization and served as a “crisis counselor” to pregnant women. These are but a few of the examples where the justices may not have exercised proper discretion in hearing a case. There are dozens more.
Mustering public support for reform is the first step, and that shouldn’t be too difficult: Despite the well-documented political divisions across the country, Republicans, Democrats and Independents are united in their desire for a more accountable Supreme Court. Recent polling found that more than 85 percent of Americans of all ideologies support requiring the justices to follow the judicial code of conduct from which they are currently exempt. Large majorities also support cameras in the courtroom and compelling the justices to post disclosure reports online.
The recent elections were a stark reminder of how responsive and accountable Congress and the president can be to the will of the public. Frustrated voters displayed little reluctance sending a message to Washington lawmakers, kicking some out and starting over.
Supreme Court justices, rightly, can’t simply be voted out of office. But the time has come to end the special rules that exempt them from scrutiny by the American public.
By: Gabe Roth, Executive Director of Fix the Court, The Los Angeles Times; The National Memo, December 4, 2014
“Invasive And Humiliating”: Court Deals Blow To Drug Testing Of Florida Welfare Recipients
A federal appeals court on Wednesday upheld a lower federal court ruling that Florida Gov. Rick Scott’s crusade to conduct drug tests on welfare recipients as a condition of their benefits was unconstitutional.
The unanimous ruling came from a bipartisan panel of judges and broadly concluded that people cannot be forced to surrender their constitutional rights as a condition of receiving a government benefit. The decision came just two weeks after the 11th U.S. Circuit Court of Appeals judges heard arguments in the case.
In an exhaustive, 54-page ruling, Judge Stanley Marcus concluded that “citizens do not abandon all hope of privacy by applying for government assistance.” He said that “the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable” and that “by virtue of poverty, TANF applicants are not stripped of their legitimate expectations of privacy.”
In 2011, Scott initiated a program to require drug testing as a condition for welfare applicants to receive Temporary Assistance for Needy Families benefits. The ACLU sued the state on behalf of Luis Lebron, a Navy veteran and single father.
In a statement, Maria Kayanan, ACLU of Florida associate legal director, said she was “pleased” by the court’s opinion.
“This is a resounding affirmation of the values that the Fourth Amendment of the U.S. Constitution protects — that none of us can be forced to submit to invasive and humiliating searches at the whim of the government, and that the Constitution protects the poor and the wealthy alike,” she said.
A circuit court judge ruled in 2013 that the program was an unconstitutional violation of the 4th Amendment protections against unreasonable searches and seizures, and halted testing. Scott appealed to the federal appeals court and a hearing was held Nov. 20.
The Florida Department of Children and Families had argued that the drug tests were warranted for all TANF recipients because the state had an interest in protecting children of welfare recipients who were using drugs. But Marcus concluded that “the State has presented no evidence that children of TANF parents face a danger or harm from drug use that is different from the general threat to all children in all families. After all, the State acknowledges that drug use harms all individuals and families, but the State does not — and cannot — claim an entitlement to drug test all parents of all children.”
In a separate case, Marcus wrote the opinion that struck down Scott’s attempt to randomly test state workers for drugs. Scott has considered appealing that ruling to the U.S. Supreme Court after removing from the list about half of the state’s classes of workers who would be eligible for drug screening.
By: Mary Ellen Klas, The Miami Herald (TNS); The National Memo, December 3, 2014
“Justice Must Satisfy The Appearance Of Justice”: The System Must Counteract Prosecutors’ Natural Sympathies For Cops
“Justice must satisfy the appearance of justice,” Felix Frankfurter wrote, in a Supreme Court case 60 years ago.
That edict — a foundation of democracy — has not been observed in some recent high-profile cases in which grand juries have refused to indict police officers for killing unarmed African-Americans. The resulting injury is not just to criminal justice but to the legitimacy of the government itself.
As a former prosecutor let me put this as directly as possible: Blame the prosecutors, not the grand jurors. There is one reason that Daniel Pantaleo is not being charged in the death of Eric Garner. It’s because District Attorney Dan Donovan of Staten Island did not want him to be.
Why not? The cynical point of view is that Donovan was playing to his base. Staten Island is the whitest and most conservative borough in New York. It’s also home for many cops. Maybe Donovan figured he would take heat however the grand jury came out, but the people who would be protesting in the street in the event of no indictment did not include most of his electorate.
But there is a more benign explanation. Maybe Donovan just appreciates that cops have one of the most difficult jobs in the world, and so, he cuts them some slack. It’s a very human reaction.
I speak from whence I know. One reason I became a prosecutor is that I had a number of bad experiences with the police where they racially profiled or just generally disrespected me. I thought I could go in as an undercover brother and change the system from the inside. What happened instead is that the system changed me.
When you work with cops every day you definitely gain more respect for their difficult work. And you need them to help you make your cases (every prosecutor has experienced having a police officer catch an attitude, sometimes in the middle of a trial, and purposely ruin your case because they don’t like you).
And finally policing is like most other employment — a few people do most of the work. So prosecutors see the same cops over and over, and they bond with them. It’s not so much that they excuse egregious misconduct as that they cast a blind eye. Nothing irks a cop more than an elitist prosecutor treating him or her like “some suspect.”
So the problem stems from the culture of the prosecutor’s office, compounded by the fact that, like most lawyers, prosecutors are competitive and ambitious and the way you move ahead is to win your cases, and the way you win cases is get your star witnesses — the cops — to go the extra mile. All that makes it really tough to try to send one of them to prison — even when they have messed up big time, as I believe Pantaleo did when he placed Eric Garner in a banned chokehold.
In a democracy, no one should be above the law. It’s fine for citizens to profoundly respect the men and women who serve as law enforcement officers. But when those people break the law, they must be held accountable just like anyone else. The automatic appointment of special prosecutors in criminal investigations of police is the best way to avoid district attorneys’ natural biases and make sure that justice satisfies the appearance of justice.
By: Paul Butler, Former Prosecutor and a Professor at Georgetown University Law Center; The Opinion Pages, Room for Debate, The New York Times, December 4, 2014
“Adding Insult To Injury”: First Mike Brown, Then Eric Garner; Prosecutors Can’t Be Trusted To Try Cops
A New York City man who was at most guilty of selling loose cigarettes on the street was tackled and placed in a chokehold by a police officer in late August. The man, Eric Garner, protested that he couldn’t breathe, but the officer with his arm around Garner’s didn’t let up. Today, a grand jury announced that it would not indict the officer, Daniel Pantaleo.
The lack of indictment comes just a week after a grand jury in Ferguson, Missouri, did not indict a police officer there, Darren Wilson, for his role in the shooting death of an unarmed teenager, Michael Brown. Both Eric Garner and Michael Brown are black and their deaths, within just days of each other in August, helped reignite a national conversation—as well as protests—about disproportionate police violence against the black community. At a time when black men are killed by police with disturbing regularity, Garner and Brown’s deaths added urgency to a long-simmering but woefully unaddressed crisis.
I’ll leave it to the legal analysts to rehash the evidence presented to the Pantaleo grand jury. Hopefully there will be a transparent accounting of what was introduced. But the fact that two grand juries in fairly rapid succession have failed to indict police officers involved in highly questionable deaths of unarmed black men should give us all pause. In Panaleo’s case, the grand jury’s refusal to indict him despite his use of dangerous and violent tactics doesn’t pass the smell test. Add in historic patterns of NYPD abuse against black men in New York—Amadou Diallo, Abner Loiuma, stop and frisk generally—and the lack of an indictment downright stinks.
Combined, the two cases suggest that more should be done to decouple criminal investigations of police abuse from the conventional prosecutorial system. Attorneys who usually work hand-in-hand with the police in pursuing other criminal cases can’t honestly be expected to be impartial and aggressive in then prosecuting those same officers. It’s worth noting that when prosecutors nationwide decide to bring charges before a grand jury, they usually succeed. In 2010, for instance, federal prosecutors sought indictments in about 162,000 cases and in only 11 cases did grand juries not return indictments. In the face of those statistics, these two non-indictments are glaring.
Even worse, the failure to indict the officers who killed both Eric Garner and Michael Brown deprives their communities of the transparency and accountability that trials ensure. No one is saying that the officers should be tried if there’s not sufficient evidence, but many legal analysts have agreed there’s enough in both cases to at least warrant a trial. There are questions about facts in terms of both Michael Brown and Eric Garner’s movements before their death, questions of fact that should be debated in a court. There are questions about the officers’ states of mind—questions that could be fleshed out and better understood if the cases went to trial.
But the lack of indictments, now twice in a row, seems to add insult to injury—that not only are black men routinely, disproportionately victimized by the police but they are victimized by a legal system that refuses to hold the police accountable.
By: Sally Kohn, The Daily Beast, December 3, 2014
“No Voice Of Reason”: ‘I Can’t Breathe!’ ‘I Can’t Breathe!’ A Moral Indictment Of Cop Culture
The grand jury has spoken, but that does not change what Eric Garner cried out in the cellphone video taken as police pinned him to a Staten Island sidewalk.
“I can’t breathe! I can’t breathe!” Garner said again and again that August day.
And even though the grand jury has now chosen not to bring criminal charges in Garner’s death, the video footage that follows those cries constitutes a moral indictment not so much of what the police did but of what the police did not do.
“At that point, forget the cop side,” a longtime veteran police officer not party to the incident says of the moment Garner cries out. “The human side comes in.”
Yet the cops do not seem even to hear Garner.
“I don’t see anyone in that video saying, ‘Look, we got to ease up,’” says the veteran officer. “Where’s the human side of you in that you’ve got a guy saying, ‘I can’t breathe?’”
The veteran officer goes on, “Somebody needs to say, ‘Stop it!’ That’s what’s missing here was a voice of reason. The only voice we’re hearing is of Eric Garner.”
The veteran officer believes Garner might have survived had anybody heeded his pleas.
“He could have had a chance,” says the officer, who is black. “But you got to believe he’s a human being first. A human being saying, ‘I can’t breathe.’”
What may have saved Police Officer Daniel Pantaleo from indictment is that a close examination of the video shows he had had released his chokehold on Garner just before the 43-year-old father of six began crying out that he could not breathe. Pantaleo by then was shifting around to press the prone man’s head into the pavement.
None of the cops in the video are beating Garner. And in two hours of questioning by the grand jurors on Nov. 22, Pantaleo apparently convinced them that he had not intended to injure Garner, only to place him under arrest. Pantaleo was held blameless even though the medical examiner had ruled the death a homicide resulting from “compression of the neck [chokehold], compression of chest, and prone positioning during physical restraint by police.”
But the absence of criminal charges does not make the indifference to Garner’s distress any more forgivable. There were still those cries, cries that rose again Wednesday afternoon from the same grimy patch of pavement where Garner died, voiced by two dozen members of the community who stood shocked and angered by the news that no cop would be charged.
“I can’t breathe! I can’t breathe!”
They added a chant that rose in Ferguson, where another grand jury had declined to indict Police Officer Darren Wilson in the death of 18-year-old Michael Brown.
“Hands up! Don’t shoot!”
A 25-year-old man named Alexander Cooper strode up the sidewalk holding his 3-year-old daughter, Alexis, by the hand. He told her what he also would have said had they been walking in Ferguson, no matter what the differences between the two cases.
“I just told her that a black man was killed and there were no charges,” he said.
He added, “As I father, I want to live and watch my children grow.”
Cooper spoke of how pained he was that Garner will never get that chance with his own kids. Little Alexis pulled on his hand.
“I have my daddy right here!” she announced.
Cooper had little Alexis pose for a picture on the exact spot there Garner was pinned. Alexis did not know to act differently than she might for any other picture taken of her by her daddy. Her bright little smile in this place of senseless death constituted a challenge to all of us to make the future more in keeping with this sparkle of life at its most pure and innocent.
“I’m going to show it to her in the future,” Cooper said of the picture. “I’m going to show her she was here.”
We can only hope that she will marvel at how much the city and country have changed.
Earlier in the day, before the decision became known, Jonathan Mejia and Natassia McClean had come up to this spot pushing a stroller that bore an even younger challenge of the future, their 6-month-old son, Jerimiah. Mejia looked at a rain-sodden sign reading “BIG ERIC R.I.P.” and flowers left after Garner’s death that had wilted during the four long months of the grand jury’s investigation.
“I knew somebody else killed by the police,” 21-year-old Mejia said.
The couple had recently moved to Staten Island from the Bronx, where Mejia had been buddies with 18-year-old Ramarley Graham. Police had burst into Graham’s home in 2012 after seeing him in the street adjusting something in his waistband that might have been a gun. He was in the bathroom, perhaps trying to flush some pot down the toilet, when a cop burst in.
The cop shot and killed Graham, later saying the teen had reached for his waistband. No gun was found, and in this instance the cop was indicted. A judge then tossed the indictment out, saying the prosecutor had made an error in presenting the evidence. A second grand jury declined to indict the cop.
Mejia now stood where Garner died and spoke Graham’s name aloud.
“That was my friend,” he said.
This second tragedy reconfirmed in Mejia’s mind what the earlier killing had led him to conclude about the police and people of color.
“They don’t look at us like regular human beings,” he said.
The baby was dozing as Mejia and McClean pushed him on down the street, the parents not seeming to take any great comfort in the police having transformed New York into the safest big city in America in recent years.
In truth, the police routinely place themselves in great danger while continuing to bring crime in New York to record lows. And many of them live by words that Pantaleo at least professed in a statement released Wednesday through the Patrolmen’s Benevolent Association.
“I became a police officer to help people and to protect those who can’t protect themselves,” Pantaleo said.
He went on to say, “It is never my intention to harm anyone and I feel very bad about the death of Mr. Garner. My family and I include him and his family in our prayers and I hope that they will accept my personal condolences for their loss.”
Nice sentiments from a guy who seemed deaf to Garner’s pleas that he was unable to breathe.
“The time for remorse was when my husband was yelling to breathe!” Garner’s widow, Esaw Garner, told a press conference Wednesday.
Pantaleo comes from Eltingville, the overwhelmingly white section of Staten Island that was home to Police Officer Justin Volpe, who is presently in prison for sodomizing Abner Louima with a wooden stick in a stationhouse bathroom. Eltingville is not known for being progressive on matters of race, but Volpe’s family is said not to have been racist, and he had a black fiancée. Pantaleo is also not necessarily a manifest racist.
“I think it’s just cop culture,” a longtime Eltingville resident said Wednesday.
That unfairly characterizes the many decent cops, but there is indeed one element of cop culture that tends to dehumanize or at least objectify suspected lawbreakers of whatever race. The instant you are deemed a candidate for arrest, you become not so much a person as a “perp.”
“You’re dehumanizing the person,” the veteran black police officer says.
In the view of some cops, perps merit little concern or sympathy. This is particularly true when such cops are focused on effecting an arrest. The result can be the indifference that appears so chilling in the Garner video.
“You’re not even hearing [the perp] at this point; you’re dealing with this non-human,” the veteran police officer says.
The veteran officer notes that even in the most extreme mixed martial arts bouts, a fighter can “tap out,” signaling he has had enough.
“Eric Garner didn’t have a chance to tap out,” the veteran officer says.
The whole incident becomes all the more shocking when you consider that Garner was being arrested for selling “loosies,” individual and usually untaxed cigarettes. The police had arrested him repeatedly in the spring and into the summer in response to orders originally with Chief of Department Phil Banks, third in command of the NYPD. Banks’s office had reportedly been receiving complaints from local storeowners about people selling loosies in the street. One caller had mentioned “a man named Eric.”
“They feel like they’re driven to produce, and producing means arrests,” the veteran officer says of fellow cops in such instances.
For reasons entirely unrelated to Garner’s death, Banks retired in October. He happens to be black, and his departure was seen as a blow to the NYPD’s efforts to establish better relations with communities of color.
With the grand jury’s failure to indict Garner and the recent accidental shooting of an unarmed young man by a jittery rookie cop in a darkened housing protect stairwell in Brooklyn, those relations have become decidedly tense, despite the city’s proudly progressive new mayor, Bill de Blasio.
Garner’s family and their supporters are hoping the U.S. Justice Department will indict Pantaleo on civil-rights charges, as it did Police Officer Francis Livotti, who employed a chokehold on 29-year-old Anthony Baez some 20 years ago in the Bronx, with fatal results. The Livotti case led to the NYPD’s prohibition against the use of chokeholds, which it defines as bringing pressure to bear on the airways.
On Wednesday evening, some residents of Staten Island boarded the ferry to join protesters who were gathering in Times Square, not far from Rockefeller Center, where the big event of the night was scheduled to be the annual Christmas tree lighting.
As a precaution against a possible disturbance, the ferry was escorted by a police boat, its blue lights flashing. The boat was named in memory of Det. Dillon Stewart, a black police officer who was shot to death in the line of duty in Brooklyn in 2005, leaving two young daughters. The whole city mourned Stewart’s loss and honored him as a hero in the ongoing effort to make New York safe.
There was no trouble on the ferry as it reached Manhattan and a few of the passengers boarded the subway to the protest uptown. The cry that rose up into the night signaled a moral indictment no matter what the grand jury had said.
“I can’t breathe! I can’t breathe!”
By: Michael Daly, The Daily Beast, December 3, 2014
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
