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Stevens, who died on July 16 at the age of 99, is being remembered today as a justice who combined passionate advocacy with civility, a thoughtful bow-tied figure who was unafraid to change his mind, a trait often in short supply among the leadership class. But it is just as accurate to remember him as a deep pessimist about what has happened to the high court as an instrument for expanding justice, a man who believed that the radical shift in the Courts direction required radical remedies.

Six Amendments was Stevens clearest expression of this sentiment. And when you remember that this book was written before Neil Gorsuch and Brett Kavanaugh joined the court, it can be read as a distant early warning of what is yet to comeand why only the nuclear option of constitutional amendments can change this course.

One of his proposals would overturn Citizens United and a series of other decisions that have steadily eroded Congress power over campaign financing, by declaring: Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

Another would change the Second Amendment to erase the individual right to bear arms pronounced in District of Columbia v. Heller. The Second Amendment would, in Stevens version, say only: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed. On its face, this would permit authorities to outlaw guns of every sort, hand guns and long guns alike.

A third amendment would explicitly prohibit states from gerrymandering legislative districts for partisan political advantage. His proposal flatly says a state must justify any departure from compact and contiguous districts and that The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.

A fourth would end the death penalty once and for all by defining it as a cruel and unusual punishment forbidden by the Eighth Amendment.

Why do these proposals give evidence that Stevens possessed a pessimistic frame? Because they represent an acknowledgement that the philosophy that dominated the Court for three-quarters of a century is moribund, with virtually no possibility of resuscitation.

Some of the conditions Stevens addressed in Six Amendments are the products of 5-4 decisions that represented a radical departure from settled precedents at the hands of majorities that were anything but practitioners of judicial restraint. The Heller case establishing an individual right to bear arms was a reading of the Second Amendment that former Chief Justice Warren Burgernot exactly a poster child for the ACLUcalled one of the greatest pieces of fraud on the American people that I have ever seen in my lifetime.

Citizens United saw a one-vote court majority reach far beyond the contours of the case before it to strike down Congress power to regulate much of the money flooding into the political system.

The Deaths That Shook Politics in 2019

And Stevens proposal to outlaw partisan gerrymandering anticipated this years 5-4 decision that such practices present political questions beyond the reach of the federal courts. More than half a century ago, the Court rejected the political question argument when it mandated one man one vote districts. Likewise, it has regularly thrown out district maps that were based on race. Further, the Pennsylvania courts had no problem in throwing out congressional maps that gave Republicans seats out of all proportion to the votes they received. In another time, a U.S. Supreme Court might have been receptive to the idea that grossly partisan districts effectively deprived voters of a fair chance to make their votes count.

As for the death penalty, Stevenswho regularly upheld the sanction in his first years on the Courtbecame steadily more skeptical, until in 2008 he said that the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes should be banned as a violation of the Eighth Amendment. Here, Stevens was clearly reflecting the view that the Constitution must be read as a living documentthat evolving standards make a punishment that was common in the late 18th century unacceptable today.

That living document notion has been under attack for decades by originalists such as Antonin Scalia and Clarence Thomas, who have argued that the living Constitution idea permits judges to turn their personal preferences into law. Its a view embraced by the newer justices; in a lecture honoring the late Chief Justice William Rehnquist, future Justice Brett Kavanaugh embraced Rehnquists rejection of the idea that nonelected members of the federal judiciary may address themselves to a social problem simply because other branches of government have failed or refused to do so.

What Stevens did in his book was to concede the ground on which judicial liberals had triumphed so often. On issues from civil liberties to abortion to gay rights to criminal justice, justices appointed by Democratic and Republican presidents alike located a panoply of rights and powers in the Constitution that were not explicitly set down by the framers. Those days, Stevens implicitly argues, are over. The policies we want, Stevens is saying to his ideological allies, will not be won by interpreting the Constitution, but by amending it.

This is, of course, a prospect with no chancenoneof success in the current political universe. The idea of two-thirds of the House and Senate, and three-fourths of the states, ending the right to own a gun or the death penalty, or permitting federal campaign finance regulation, is on a par with the idea that small states will agree to give up equal representation in the Senate.

Stevens obviously knew this, which is why his book should be read with an elegiac sensibility, He was acknowledging that the Supreme Court that he was part of for 35 years is dead.

Politico Magazine first published a version of this obituary on July 17, 2019, shortly after Stevens' death.

Read this article:
John Paul Stevens: The Pessimist of the Supreme Court - Politico

Garrett Epps: Dont let the First Amendment forget DeRay Mckesson

This is a theory of liability unknown to the First Amendment. In an important case arising from the civil-rights movement, the Court held in 1982 that protest leaders cant be sued for the violent actions of others unless the plaintiffs can show that the leaders themselves either engaged in violence or incited or directed the violence. Doe alleged incitement, but made no real attempt to show it.

Garrett Epps: Dont let the First Amendment forget DeRay Mckesson

The First Amendment and civil-liberties communities were shocked by the Fifth Circuits original decision, issued in April, which brushed aside the First Amendment with the breezy bromide that the First Amendment does not protect violence. The decision was unanimousWillett was on the panel, but the opinion was written by Judge E. Grady Jolly. (Judge Jennifer Walker Elrod was the third member.) That opinion was a dagger pointed at the heart of the treasured American right to protest against government action. If protest organizers can be sued, and possibly ruined, by lawsuits if anyone at their protest (even, say, an undercover police officer) turns violent, no ordinary citizen would dare organize protests.

Mckessons lawyers asked the Fifth Circuit to rehear the case en banc (as a full court); in response, the same panel withdrew its original opinion and substituted a new one that said, in legal verbiage, We agree with ourselves and by golly, we are right.

The case landed in the Supreme Courts inbox on December 6. Mckessons petition for the Court to hear the case, written by lawyers from the American Civil Liberties Union, pointed out that the Fifth Circuit panel decision flatly defied the Courts own precedent in a landmark case called NAACP v. Claiborne Hardware. Advocates of free speech were holding their collective breath waiting to see whether this Court, which preens as a First Amendment champion when the rights of corporations or the rich are at issue, would call out the wayward panel or silently ratify its radical change in the law.

The latter course just got harder. Willett, a Trump appointee and former Texas Supreme Court justice, has now changed his vote and issued a full-throated defense of the idea that free speech covers even unruly protest.

I have had a judicial change of heart, Willett wrote. Admittedly, judges arent naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, Wisdom too often never comes, and so one ought not to reject it merely because it comes late.

The words are true, and the practice of judicial self-examination is, while not unheard-of, regrettably rare. In this case, reexamination led Willett to see two gaping holes in the majoritys case. First, he pointed out, despite the panels earlier decision, its not clear that even Louisiana tort law would support a lawsuit against Mckesson. To reach that conclusion, the panel had to, in essence, make new Louisiana state law. Every second-year law student knows that is a practice courts of appeals are supposed to avoidespecially when doing so creates a federal constitutional issue.

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A Stunning Vote Reversal in a Controversial First Amendment Case - The Atlantic

Something very unusual happened in the United States Court of Appeals for the Fifth Circuit this week. A Trump appointee to that court acknowledged that he was wrong when he voted to strip a prominent civil rights activist of the activists First Amendment rights.

The case is Doe v. Mckesson, and it involves Black Lives Matter activist DeRay Mckesson.

Mckesson allegedly helped lead a protest near the Baton Rouge Police Department building. During that protest, an unknown assailant who is not DeRay Mckesson allegedly threw a rock at a police officer (referred to as Officer Doe in this suit), injuring them.

Last April, the Fifth Circuit held that Mckesson could potentially be held liable for the actions of this unknown assailant, despite the Supreme Courts holding in NAACP v. Claiborne Hardware (1982) that civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence. All three of the judges who joined this decision are Republicans.

On Monday, Don Willett, one of those three judges, admitted that he was wrong. I originally agreed with denying Mckessons First Amendment defense, Willett wrote in a rare dissenting opinion issued months after the courts initial decision, but I have had a judicial change of heart.

Willetts new opinion argues that protest leaders like Mckesson are generally protected by the First Amendment if a rogue member of their protest commits a criminal act. While there is no question that Officer Doe can sue the rock thrower, Willett concludes that the Constitution that Officer Doe swore to protect itself protects Mckessons rights to speak, assemble, associate, and petition.

That means that police officers cannot chill protests by imputing the actions of third parties to the protest leaders. If protest organizers can be held liable for the actions of people they cant control, few people will be willing to lead protests because they could potentially be sued for illegal activity committed by anyone at the protest.

In the short term, Willetts change of heart matters very little. The two other judges on the Mckesson panel adhere to their previous decision. So Mckessons best hope to vindicate his First Amendment rights lies in a petition he filed in the Supreme Court earlier this month.

The Fifth Circuit majoritys opinion is at odds with the Supreme Courts decision in Claiborne Hardware. According to Judge E. Grady Jolly, who wrote the majority opinion, Mckesson allegedly directed the demonstrators to engage in the criminal act of occupying [a] public highway near the police building. That, Jolly suggests, can be enough to strip Mckesson of his First Amendment rights.

In order to counter Mckessons First Amendment defense at the pleading stage, Jolly wrote, Officer Doe simply needed to plausibly allege that his injuries were one of the consequences of Mckessons decision to lead protesters into the street.

The case is still at an early stage of litigation. If the Supreme Court does not intervene to protect Mckesson, there will still be a trial where Mckesson may attack Officer Does factual claims. But if the Fifth Circuits decision is allowed to stand, that decision could have a chilling effect on all organized protest.

Claiborne Hardware did not hold that protest leaders are stripped of their First Amendment rights if they commit a minor illegal act during a protest. To the contrary, Claiborne Hardware held that the First Amendment protects protest leaders unless they authorized, ratified, or directly threatened acts of violence. And there is no allegation that Mckesson did any such thing.

As Willett notes, Officer Doe does not allege that Mckesson gave any particular order to commit violence. Nor does he claim that Mckesson controlled or directed the unidentified assailant. The only allegation of illegal activity against Mckesson is that he led people into a public highway and street protests are a common tactic used by civil rights marchers.

Willett concludes his opinion with a rhetorical flourish. Dr. Kings last protest march was in March 1968, in support of striking Memphis sanitation workers, he writes. But as King led the largely nonviolent protest down Beale Street, some young men began breaking storefront windows. The police moved in, and violence erupted, harming peaceful demonstrators and youthful looters alike.

If Jolly is correct about the Constitution, then Martin Luther King Jr. gave up his First Amendment rights the minute he violated a traffic law. Its now up to the Supreme Court to decide if Jollys decision should stand.

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Trump judge recants attack on Black Lives Matter and the First Amendment - Vox.com

You almost never hear a judge say my bad, but that is exactly what Fifth Circuit Court of Appeals Judge Don Willett did this week, reversing his opinion in a First Amendment case legal experts say could chill the right to protest.

The case involves activist Deray Mckesson, who was sued by a Baton Rouge, La., police officer after a protester allegedly threw a rock at the cop at a demonstration Mckesson helped lead.

To be clear: Mckesson didnt direct the unknown protester to allegedly throw the rocka point on which both Mckesson and the team representing the unnamed officer in the lawsuit (Officer Doe) agreed. What Does team successfully argued in front of a three-judge panel was that Mckesson was liable simply because he helped organize the march outside the Baton Rouge Police Department in 2016. To put it another way, Mckesson can be sued because he didnt prevent the protester from throwing the object (regardless of whether he was even aware of it at the time).

Willett was part of the panel that decided in favor of Officer Doe in April, reports Vox. On Monday, Willett issued a new dissenting opinion laying out the faults of his original decision.

I originally agreed with denying Mckessons First Amendment defense, but I have had a judicial change of heart, Willett wrote (h/t The Atlantic).

Consistency is a cardinal judicial virtue, but not the only virtue, he continued. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, Wisdom too often never comes, and so one ought not to reject it merely because it comes late.

Willett now argues that activists like Mckesson are protected by lawsuits like Does under the First Amendment.

From Vox:

While there is no question that Officer Doe can sue the rock thrower, Willett concludes that the Constitution that Officer Doe swore to protect itself protects Mckessons rights to speak, assemble, associate, and petition.

That means that police officers cannot chill protests by imputing the actions of third parties to the protest leaders. If protest organizers can be held liable for the actions of people they cant control, few people will be willing to lead protests because they could potentially be sued for illegal activity committed by anyone at the protest.

The primary issue is that the judges first ruling flies in the face of a precedent: the Supreme Court case, NAACP v. Claiborne Hardware(1982), which found civil liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence.

In order for First Amendments to be overwritten, protected speech has to rise to the level of incitementDoes case doesnt argue this competently, Willett wrote.

From Willetts opinion (emphasis mine):

Not one of the three elements of incitementintent, imminence, likelihoodis competently pleaded here. Nor does the complaint competently assert that Mckesson directed, intended, or authorized this attack. Our Constitution explicitly protects nonviolent political protest. And Claiborne Hardware, among our most significant First Amendment cases, insulates nonviolent protestors from liability for others conduct when engaging in political expression, even intentionally tortious conduct, not intended to incite immediate violence. The Constitution does not insulate violence, but it does insulate citizens from responsibility for others violence.

In fact, the only thing Mckesson did illegally in Baton Rouge, as far as anyone in the case is concerned, is leading marchers onto a public highwaya common practice among protesters. In fact, Willett invoked foundational acts of protest in his dissent, noting that acts like dumping tea into the Boston Harbor, or walking from Selma to Montgomery as did Dr. Martin Luther King Jr. and marchers (an act that also took place on public highways) would not be considered protected speech under this Fifth Circuits ruling. Further, if a marcher did so much as jaywalk, King himself could have been sued. (Well get back to the jaywalking example in just a moment.)

Unfortunately, Willetts dissent is still outnumbered by the other two judges (all three are Republican), who wrote the judicial equivalent of I said what I said to Willetts opinion this week. Constitutional law professor Garrett Epps captured the crux of their opinion for the Atlantic (back to the jaywalkers!):

Imagine protesters speaking out on a heated political issue are marching in a downtown district, they write. As they march through the city, a protester jaywalks. To avoid the jaywalker, a car swerves off the street, and the driver is seriously injured. If the dissenting opinions interpretation of Claiborne Hardware is correct, the First Amendment provides an absolute defense to liability for the jaywalker in a suit by the driver. This misstates the facts. There would be no protection for the jaywalker. But the First Amendment would, and should, protect the organizer of the protest. Doe is suing Mckesson because he cant find the jaywalker.

Mckesson appealed the Fifth Circuits decision, which the Supreme Court must now decide if it will hear. If it doesnt, it will essentially cosign the lower courts decision, irreparably damaging one of the most essential qualities of American democracy.

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Federal Judge Reneges on Opinion in Deray Mckesson Case, Takes a Stand for First Amendment Right to Protest - The Root

The Supreme Court granted certiorari in two cases on Friday in addition to taking up appeals surrounding President Donald Trumps financial records.

The issue in McGirt v. Oklahoma is whether the prosecution of an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries is subject to exclusive federal jurisdiction. The petitioner, McGirt, is seeking release from incarceration by petitioning the court that Oklahoma lacked jurisdiction to convict him for sex crimes committed against a child within Creek boundaries. In the writ of certiorari, Oklahoma argued that Sharp v. Murphy should have rendered the petition moot.

The court is reopening United States Agency for International Development v. Alliance for Open Society International, Inc. In 2013 the court held that the First Amendment bars enforcement of Congress directive to have a policy explicitly opposing prostitution and sex trafficking as a condition of accepting federal funds to combat HIV/AIDS abroad. The current question presented is whether the First Amendment further bars enforcement of that directive with respect to legally distinct foreign entities operating overseas that are affiliated with the Alliance for Open Society International, Inc.The United States Agency for International Development is arguing that the foreign recipients have no First Amendment rights to deny, while the Alliance for Open Society International is arguing that the previous decision should be final because it is the application of settled principles and there is no circuit split or conflict with the current precedent. Justice Elena Kagan took no part in the consideration of this petition.

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Supreme Court to hear Native American criminal procedure case and First Amendment question for foreign entities - JURIST