But the same scholars warned that the court’s conservative majority, reinforced by the recent appointment of Justice Brett Kavanaugh, also could grant greater power to corporations and curtail affirmative action, reproductive rights, and protections for immigrants and LGBT people.

The scholars—law professors with expertise in areas from guns to government regulation to education—were addressing the central question of the event, “How Will the New Supreme Court Change America?” at the National Center for the Preservation of Democracy in downtown Los Angeles. But they offered their predictions with caution and caveats, with one panelist, UCLA Law School’s Adam Winkler, noting that law professors have poor records of prognostication.

The moderator, The Wall Street Journal Supreme Court correspondent Jess Bravin, noted in his opening that the court is unique in that “it’s only answerable to itself.” And so despite the justices’ general respect for precedent, the court can break new ground. Bravin pressed the panelists on where they think that ground might lie.

Beth Colgan, a UCLA School of Law professor who teaches and researches criminal procedure and juvenile justice, pointed to the new questions technology is raising about privacy. Recent cases, including one that limited law enforcement’s use of cell phone data, and some words from the relatively new Justice Neil Gorsuch, suggest that the court is skeptical of the power that technology gives the police to gather information on our lives.

She said future cases could look at automatic license plate readers used by police and examine surveillance tactics in Baltimore, where planes fly over the city to record and store everything taking place, so that police can use it later. “I always tell my students that I fear our future robot overlords, but I think the court does too,” she said.

Winkler of UCLA School of Law, a specialist in constitutional law who has written about gun rights and corporate rights, said the newer justices—Gorsuch and Kavanaugh—seem likely to curtail the ability of administrative agencies in the government to regulate corporations. He also asked whether the logic of a recent decision, in Janus v. AFSCME, which prohibited public employee unions from collecting fees from non-union employees they represent, might be applied to challenge union prerogatives in private employment.

“If that’s the case, it’s hard to see how unions can survive even in the private workplace,” he said.

When Bravin pressed for other areas where the court could make big shifts, Winkler cited reproductive rights, which he argued have already been reduced by state laws that have forced the closing of clinics that provided abortions.

“The only question is whether the court will overturn Roe v. Wade,” Winkler said. “And I think undoubtedly that it will,” he added, to gasps from some audience members.

Justin Driver, a University of Chicago Law School professor who clerked for Justice Stephen Breyer and former Justice Sandra Day O’Connor, said he too saw change coming in reproductive rights. He noted that some justices seemed to be avoiding the mention of important abortions rights precedents in their decisions, a sign that they may be preparing to overturn those precedents.

Driver, author of the new book The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, also predicted that race-conscious college admissions and other forms of affirmative action “may be on their way out.” And he expressed concern that if states pass laws taking away public benefits from undocumented immigrants—including the right to attend public school—the current court might back the states.

Driver pointedly challenged the conventional wisdom that the U.S. Supreme Court tends to reflect the views of American society at large. He said that far more important than public opinion are the views of particular people on the Supreme Court. He suggested that if same-sex couples had not fought for marriage rights while a sympathetic Justice Anthony Kennedy was on the court—and instead waited for the current court—those rights might have not been vindicated by the Supreme Court in a 5-4 decision in 2015.

Indeed, Driver and Winkler both expressed concern that the current court’s inclination to protect the religious rights of businesses to refuse to serve LGBT customers—as in a recent case in which the court sided with a Colorado cake shop that wouldn’t bake a wedding cake for a gay couple—might portend more decisions unfavorable to gay rights. Driver said that, while Republican-appointed justices of previous generations sometimes drifted left while on the court, that seems less likely to happen with the younger GOP-appointed justices, who all had worked in the executive branch under Republican presidents.

Colgan, though, pointed out that, while the U.S. Supreme Court “sets a floor” for the law, state supreme courts and state legislatures have the ability to push forward into new legal frontiers. She expected states might be willing to lead in reform in the criminal justice arena that would go beyond what the U.S. Supreme Court could do. “Oftentimes, we put the Supreme Court on a pedestal, but it’s not the only place where we get to change the law,” she said.

During the question-and-answer session, one audience member said she found the discussion “incredibly depressing” and asked, when it comes to the Supreme Court, “what do we have to look forward to?”

Driver answered that he saw potential for progress if liberals and libertarians find common ground in advancing the law in creative ways. He thought they could succeed, for instance, in eliminating corporal punishment in schools at last. Colgan said she thought the court might rule in ways that would protect Americans against excessive fines and financial penalties—as when police seize the cars of defendants accused of low-level drug dealing.

Bravin, the moderator and veteran Supreme Court reporter, closed by urging people to go to the Supreme Court web site and listen to audio of the oral arguments. He said that while Americans are not terribly impressed by the oratory and thinking they see in Congress, Supreme Court justices do handle difficult questions thoughtfully and seriously.

“I’ve found that almost anyone who actually comes to watch a Supreme Court argument walks away having their expectations exceeded,” said Bravin, adding that people may be impressed even when they “listen to the justices that you expect to disagree with.”

The post The Supreme Court Gets Ready to Remake America, But How? appeared first on Zócalo Public Square.

Dig deep enough into any of California’s biggest problems, and you’ll eventually hit upon a common villain: our court system.

California’s housing shortage, its poverty, its poor business climate, and its failing infrastructure all are explained in no small part by the failure of our underfunded, delay-prone courts to provide anything resembling timely justice. But in public narratives of what’s wrong with the state, we have mostly let the courts dodge responsibility for their many crimes against California’s future.

This is, in part, because, our courts have been broken for so long that we’ve stopped expecting them ever to work. In the meantime, we have become lazily addicted to blaming our favorite perpetrators—our regulators, our politicians, our media, our unions, our businesses, and, more recently, President Trump—for our collective failure to build a state that meets its population’s needs.

But the biggest reason why we’ve allowed the courts to skate responsibility involves a public lack of understanding of the courts, and a resulting underestimation of their importance. State government has been treating the courts, which account for less than 3 percent of state spending, as a small problem, distinct from the state’s other maladies. But the courts’ impact is far larger than their budget imprint, making them a dangerously faulty foundation for our state’s economy and government.

If you want to block a project in California, your best bet is to get it into the courts, where you can delay for years until the project’s supporters can no longer afford to go forward. This happens regularly in California’s housing battles. But rather than blaming the courts, real estate types routinely blame a law—CEQA, the abbreviation for the California Environmental Quality Act—for the state’s struggles to build sufficient housing and infrastructure.

At a recent conference at Chapman University in Orange County, Emile Haddad, the chairman and CEO of FivePoint, the largest developer of mixed-use communities in coastal California (from the Great Park Neighborhoods in Irvine to Candlestick Point in San Francisco), pointed to the courts instead.

“I’m one of those probably odd developers who say they love CEQA,” he said, praising environmental laws that protect communities and add to quality of life and the value of housing.

The real problem, he said, is “the entire legal system.” He recounted a project that got local government approval in 2003, but still hasn’t happened, as his company is now litigating the project’s 30th lawsuit.

With each challenge or problem with permits, he loses even more years, Haddad said, because “I have to go through the same courts that have approved me already … because I cannot go directly back to the Supreme Court or the appellate court and tell them that I’ve done what they needed me to do.”

Such legal delays bear a heavy responsibility for our historic housing shortage and add to housing costs that are more than twice the national average. In turn, costlier housing is a huge factor in California’s highest-in-the-nation poverty rate and its high incidence of homelessness.

Poverty is now highest in coastal areas with the most development restrictions, which produce more litigation and costlier housing. And the clogged courts make it harder for poor people to challenge evictions from housing, or mistreatment by people and financial institutions that prey on the poor.

The same court-related delays and resulting costs also plague any number of transportation and water projects, and of countless attempts to launch new businesses. The most high-profile example is the state high-speed rail project. While the state authority in charge of the project has drawn withering coverage for its mistakes—construction remains at an early stage, nearly nine years after voters approved the bonds for it—most of the delays involve the courts.

The state itself has a long history of using the courts to delay meeting even its meager funding obligations to schools and health programs. The state courts so utterly failed to resolve California’s prison overcrowding problems that federal receivers and the U.S. Supreme Court had to step in.

Meanwhile, the courts are being asked to do more with less. Newer reforms on criminal justice resources (Governor Brown’s realignment), sentencing (Propositions 47 and 57), and recreational marijuana (Proposition 64) have created new questions and petitions that boost court workloads.

At the same time, the Great Recession and budget crises were particularly tough on the courts. Thousands of court staffers have lost their jobs in the last decade, and more than 50 courthouses and 200 courtrooms have been shuttered. Delays have more than doubled; it now can take more than five years to have your civil complaint heard by a judge or jury. (One prominent lawsuit, by California local governments against lead paint manufacturers, is now 17 years old.)

Flat pay and a heavy workload have led to walkouts by court workers, and sparked bitter infighting among state judges. Court officers in 49 of 58 counties warned in a February letter to Gov. Brown that without more money in this year’s budget, they’ll need to cut existing levels of service.

The pressure on the courts would be even worse if the total number of court filings hadn’t declined by 25 percent over the last decade. But that may be bad news. Almost all the decline has been in small claims, challenges to infractions, and minor civil cases. Regular Californians have simply given up on seeking justice in our courts.

“Inadequate funding and chronic underfunding of the courts is just one way a justice system can become unjust,” warned California Supreme Court Chief Justice Tani Cantil-Sakauye in a recent speech, noting that since 2011 the state has added 6,408 laws while the judiciary budget lags.

I recently walked three blocks from my office to the Stanley Mosk Courthouse, the state civil courthouse in downtown Los Angeles. Like other central courthouses in California’s increasingly glittery city centers, the court building stands out as an eyesore, its exterior scars clashing with the new park and federal courthouse next to it.

Inside, nothing—from bathrooms to Wi-Fi—works particularly well. Lawyers receive trial dates that are usually more than two years in the future, court reporters are scarce, and overworked clerks scramble to keep things from breaking down. A lawyer acquaintance who took me around quoted Charles Dickens’ Bleak House, a 19th-century novel about the delays and injustice of England’s Court of Chancery.

Broken courts, Dickens wrote, promote a crippling fatalism through a society, “a loose belief that if the world go wrong, it was, in some off-hand manner, never meant to go right.”

It’s way past time for California to pull itself out of this Dickensian muck. Yes, fixing our court system—making it the fastest and most efficient in the country—would be challenging politically. But it also would be relatively cheap, just a couple billion more dollars a year in a state with a $150 billion budget and a $2.5 trillion economy.

Justice delayed is justice denied. This budget season, let’s return timely justice to the courts, and stop this crime against California’s future.

The post The Verdict Is in—California’s Dickensian Courts Are Failing Us appeared first on Zócalo Public Square.

That reality could be upon us shortly—any time after Donald Trump is inaugurated into the White House. Following the November 2015 Paris attacks, Mr. Trump had called for the registering and tracking of American Muslims. Just after his election in November, the press and internet exploded with news that his transition team was seriously considering a Muslim registry. Then, members of his camp began to cite Japanese internment as precedent for a Muslim registry.

Carl Higbie, a prominent Trump supporter, gave an interview with the New York Times in which he conceded that the internment camps were “horrific,” but insisted that Korematsu serves as “historical, factual precedent to do things that are not politically popular and sometimes not right, in the interest of national security.” For many Americans familiar with Korematsu and the history of Japanese internment, such statements were shocking.

The Korematsu decision has long been widely discounted as precedent in legal circles and taught as a tragic failure of American values in history classes. By now, it is evident that the internment of 120,000 Japanese Americans—three-quarters of whom were U.S. citizens, the rest immigrants who were not permitted to become citizens, and all of whom were interned without due process—was based on fear, panic, and racism.

Korematsu is widely acknowledged as a civil rights disaster. Earl Warren, who as Attorney General of California had been a leading proponent of internment, came to deeply regret his role. Scalia—commonly remembered as one of the most influential conservative justices to sit on the nation’s highest court—ranked Korematsu among the most egregious decisions in Supreme Court history, along with Dred Scott, while Justice Stephen Breyer has written that Korematsu has been so thoroughly discredited that it is hard to conceive of any future court referring to it favorably or relying on it.

In 1988, President Ronald Reagan signed the Civil Liberties Act, issuing an apology and compensation as redress for the wrongful internment of Japanese Americans. And in 2011, the Department of Justice—finally—officially conceded that it committed grave error in the Korematsu case 67 years prior when the government submitted false and incomplete evidence, and suppressed the fact that FBI and military investigations refuted claims of Japanese American disloyalty. This concession obliterated any lingering doubt over Korematsu’s utter lack of value as legal precedent for interning American citizens.

Korematsu, in other words, is a lesson of what not to do.

This is not simply a case of hindsight. When the Korematsu Court decided to uphold the government’s decision to intern Japanese Americans as a “military necessity,” it did so even as the government was dismantling the internment policy. The rounding up and internment of Japanese Americans had begun in May 1942, but before the end of the year, many young Japanese Americans were released from the camps to attend colleges in the Midwest and the East, while others were released to provide much-needed labor, especially in the fields.

Never mind that the government never interned Japanese Americans en masse in Hawaii, which had the highest concentration of Japanese Americans in the country, and which was the physical location of the Pearl Harbor attack that triggered the mass incarceration. Concerned that the removal and exclusion of Japanese residents would cause economic ruin for the territory, officials rejected the idea of wholesale internment on the islands.

Then in early 1943, the government circulated the infamous “Loyalty Questionnaire,” with the hope of recruiting interned Japanese Americans into the military. The irony was not lost on the interned, who had been forced behind wire fences based on racialized notions of ancestry and disloyalty—in other words, suspected as persons incapable of ever fully becoming Americans—and then were asked to fight for the U.S. On February 1, 1943, President Roosevelt announced his decision to let Japanese Americans enlist, and more than 26,000 served in the U.S. Army during the war. On December 17, 1944, Roosevelt issued Public Proclamation No. 21, ordering the internment camps to be closed and all remaining Japanese Americans to be released.

The very next day—December 18, 1944—the Supreme Court released its Korematsu decision, upholding the constitutionality of the government’s internment policy and affirming the conviction of Fred Korematsu, 23-year-old Japanese American welder from San Leandro, California who had defied the government order to move to an internment camp. But that was not all.

On the same day, the Court also released its decision on another lesser-known but arguably more important case dealing with internment: Ex Parte Endo. Mitsuye Endo had lived in the California capital of Sacramento, worked for the California Department of Motor vehicles, was a practicing Christian, could neither speak nor read Japanese, and had a brother in the U.S. Army. Nonetheless she’d been subjected to the extreme discrimination all Japanese Americans were made to endure at the time, and had been forced into an internment camp.

In the Endo case, the Court unanimously ruled that the U.S. government could not continue to detain a citizen who was “concededly loyal” to the United States. It stressed that “[a] citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is a matter of the heart and mind, not of race, creed, or color. He who is loyal is, by definition, not a spy or a saboteur.” The Court found that as a loyal citizen, Endo was entitled to unconditional release from the internment camp.

It has never been clear to me why the case of Endo—the case which legally brought the internment camps to a close—has been so overshadowed by Korematsu. But if we are to call upon history to help us make decisions today, we need to look at the whole picture, and not rely upon selective memories. By the time the Supreme Court rendered its decisions, the government’s decision to intern Japanese Americans based on assertions of “military necessity” and wartime exigencies were directly undercut by its own actions.

Indeed, the same Court that seemingly upheld the internment of Japanese Americans in Korematsu affirmed in Endo the right of those very same Japanese Americans to not be detained and interned. One could distinguish the niceties of the different constitutional or legal bases underlying the two cases and varying outcomes, but the very need to make such fine jurisprudential distinctions, I would argue, points to the practical inconsistencies. The history that some are invoking as support for a Muslim registry is not at all what they think it is.

If the next administration tries to pass a Muslim registry, it will test our core values as a nation and as a people. Admittedly, historians have been a bit more wary of narratives about American exceptionalism, but one thing that historians—from the most conservative to the most liberal—have not backed away from is the Constitution, and the idea that America should live up to its foundational ideals. Fear, prejudice, racial and religious antipathy should never be the basis for government policy, at least not in a republic that has worked so hard for nearly two and a half centuries to protect and promote a Constitution cherished for its democratic values and commitment to freedom.

Inter arma enim silent leges. This was the ancient saying that Scalia frequently invoked to explain how bad history could still repeat itself. “In times of war, the law may fall silent.” But we, the people, can’t. Nunquam iterum–never again.

The post The Supreme Court Ruled Wrong, Then Right, on Japanese American Internment appeared first on Zócalo Public Square.

In some ways, it makes sense that Shakespeare’s plays stage many legal situations. Renaissance London, like America today, was full of widespread popular interest in legal goings-on. Moreover, law and literature were far more intertwined. The Inns of Court, which were the law schools of Shakespeare’s day, were also the training grounds for all kinds of writing, and many well-known Renaissance authors—including Sir Thomas More, Walter Raleigh, and John Donne—passed through their doors. The young men at the Inns acted in scripted and improvised festive holiday performances. Members of professional acting companies performed there. Law students sometimes took roles alongside the professional actors. Some early-20th-century biographers even theorized that Shakespeare had been a law clerk or a lawyer himself.

Few today believe that to be true. But even for his era, Shakespeare—who wrote trial scenes about twice as often as his contemporaries—seems particularly attuned to legal culture. Measure for Measure troubles over the interpretation of statutes and the consequences of both rigid enforcement and laxity. Much Ado About Nothing and Othello dramatize the damages done by slander, and the ease with which persuasive evidence can be fabricated. A Midsummer Night’s Dream makes delightful comedy of marital laws. King Lear, Richard II, and As You Like It explore and critique laws of property ownership and inheritance. The Winter’s Tale, Macbeth, and the three Henry VI plays dramatize the era’s pervasive fear of treason.

Shakespeare’s ability to probe juridical issues by putting imaginary persons in legal situations has been a part of the U.S. legal system for a century now. The early-20th-century law and literature movement incorporated history and fiction into the law school curriculum to help re-humanize the profession. Today, many well-known authors appear in law school syllabuses. Unsurprisingly, though, Shakespeare occupies the central place. And during the past several decades, literary scholars also have brought more attention not only to the presence of law in the plays but also to the ways literature shapes legal ideas.

What, for instance, can Shakespeare tell us about our Supreme Court’s division over how to interpret the Constitution? The Merchant of Venice offers one possibility. Shylock, a Jewish moneylender in 16th-century Venice, has a notarized written contract with Antonio, a wealthy merchant. The terms are admittedly odd—if Antonio fails to repay Shylock within three months, Shylock may take a pound of flesh from anywhere he chooses on Antonio’s body. When Antonio defaults, the characters battle in court over the meaning and authority of the contract. Antonio’s lawyer, Portia (a woman disguised as a male lawyer), strives to find some loophole in the contract that will prevent Shylock from taking his pound of flesh. Finally, after rereading the document, Portia grants Shylock what he was asking for—rigid interpretation. Since there is “no jot of blood” expressly mentioned, Shylock can take Antonio’s flesh but not his blood—which is, of course, impossible. The argument anticipates innumerable legal disputes. Here is our modern American debate about the Constitution: What it means and includes “literally” is not at all self-evident, as centuries of interpretation show us.

The play’s conclusion also anticipates another issue that came before the Supreme Court earlier this week: the status of non-citizens. Before Shylock is allowed to leave the court, Portia cites a statute that indicts any “alien” who attempts harm to a citizen of Venice: He may lose his property and even his life. Shylock’s status makes him vulnerable to extremes of punishment not inflicted on citizens of Venice. Though he is allowed to live, he is required to forfeit his goods and renounce his religion. The scene requires audiences and readers to confront the brutal, inequitable, but “legal” treatment of the non-citizen.

Ultimately, Shakespeare’s works are knowledgeable about law but skeptical about lawyers and legal proceedings, often depicting them as flawed, corrupt, or simply incapable of addressing at the most significant level the deep desire of a society for justice. Nonetheless, justices still invoke his works as though their legal concerns were unambiguous. Sometimes, they’ll cite Shakespeare to add rhetorical flair and finesse to a ruling, and sometimes to bolster a decision by referring to works that have cultural authority. But sometimes, significantly, the quotations are doing central judicial work—as when the late Justice Antonin Scalia quoted Richard II while defending the Sixth Amendment right of the accused to confront witnesses against him: “Then call them to our presence—fact to face, and frowning brow to brow, ourselves will hear the accuser and the accused freely speak.” Or when, in a dissent in an Eighth Amendment case on the meaning of “fines,” former Justice Sandra Day O’Connor cited Prince Escalus in Romeo and Juliet: “I have an interest in your hate’s proceeding. / My blood for your rude brawls doth lie a-bleeding; / But I’ll amerce you with so strong a fine. / Then you shall all repent the loss of mine.”

In these cases, and many others, Shakespeare becomes not only a writer about law but also a voice within it. Shakespeare’s plays don’t just reflect legal culture but also help to shape it. Meanwhile, legal and literary studies continue to bring to light new insights into the legal role of the Shakespeare canon—as an antique repository of early modern English law and a modern necessity through which we continue to imagine and reimagine a just society.

The post What Shakespeare Can Teach the Supreme Court appeared first on Zócalo Public Square.