Religious Freedom

Religious Freedom is a term that has been thrown around a lot recently, and typically, the side throwing it around has been Team GOP. It was recently invoked in a political fight against the implementation of the Affordable Care Act. Religious Freedom been a canard in the fight against teaching science in public schools, and is a plank of the modern Home Schooling movement. Indeed, it seems that Religious Freedom is a fairly sophisticated dog whistle for Republican voters who want to believe that the President does not share their religious beliefs.

Religious Freedom is a common theme in the courts, as well. In February, a federal judge struck down an administrative rule from the state pharmacy board requiring pharmacies to stock and provide prescription contraceptives on the grounds that the rule prevented pharmacists from the free expression of religious beliefs, if those religious beliefs included a prohibition on providing contraceptives to people with prescriptions. The judge believed that this was a violation of the first amendment free exercise clause, but failed to consider or weigh patients' constitutional rights, see Griswold v. Connecticut. Regardless, I want to highlight a more recent judicial decision over 'religious freedom' that elucidates the slippery nature of the phrase.

Howes v. Fields Quick React

Howes v. Field No. 10–680, decided yesterday, is another update to a long line of Miranda cases. Michigan police interrogated and extracted a confession from Fields on sex crime allegations without informing him of his Miranda rights. The Michigan Supreme Court declined to review the case, so Fields appealed for habeas relief from the Federal Sixth Circuit. The appellate court granted review, and yesterday, the Supreme Court reversed the Sixth's decision.

First Reaction: The Michigan Supreme Court declined to review the case? Let's go to our checklist:

• Defendant convicted of a sex crime.
• Michigan elects their judges.

Case closed.

Consistency on WI Recount

There appears to be news from Wisconsin today that the initial election results were affected by a computer error, hiding some 7 thousand votes for incumbent David Prosser. This changes the math a little bit, putting him ahead by nearly six thousand votes. We'll see if there were other errors across the state in reporting, so the numbers could still move quite a bit.

Regardless of the outcome for the court, I am doubling down on my call for the loser of the election to forgo filing for a recount. A judicially overseen recount of a judicial election is a nightmare scenario for the perceived impartiality of the courts. Judges would be in the position of choosing their coworkers and bosses, inviting an already elite heavy institution to become downright oligarchic. The possibility of recounts is a major bug of the elected judiciary, but not an inescapable one. In Wisconsin's case, Kloppenburg could simply dismiss any evidence of fraud or mistakes, deciding not to file for a recount.

There is a bigger question for Kloppenburg, or any loser of a close election: does a recount secure accuracy of democratic results in elections? I find little evidence for the affirmative. If any real grounds for a recount are present, they could be ferreted out by journalists. The competitive search for shocking stories of fraud and abuse will drive enough inquiry into the matter. Would such an outcome leave the public without recourse? Of course not; political pressure would force any illegitimately elected official from stepping down. Recount procedures could quickly be put in place for the removal of intransigent officials.

Nobody who survived the 2000 election recount and abrupt court-ordered end to vote counting can trust courts to always decide political matters with a modicum of fairness or impartiality. That is precisely the lesson of the political question doctrine. Let political actors sort out the political. Vote counting is a technocratic field, not a suitably legal endeavor. If improprieties exist within the state vote counting apparatus, the legal system should involve themselves insofar as prosecuting offenders. The judicial branch has a few comparative institutional advantages to the political branches, but not when it comes to presiding over elections.

Prosser v. Kloppenburg

The Wisconsin Supreme Court election which pitted conservative incumbent David Prosser against Joanne Kloppenburg is heading towards a recount, which is a nightmare scenario for the perception of the judicial branch as an impartial mediator. Courts are typically involved in overseeing election recounts as candidates file legal challenges to the execution of the recount, which can at times deviate from the stated recount procedures. These lawsuits are an integral part of close elections, no less important or legitimate as campaigning.

With nearly 1.5 million votes cast for either candidate, only 204 ballots currently separate Prosser and Kloppenburg, with the challenger coming out narrowly ahead.

There is no automatic recount in Wisconsin; Prosser would have to ask for a recount. Because the total separating the candidates is less than .5% of the vote however, the state will pay for the recount of ballots. Prosser will be allowed to pick and choose wards to recount, though there is also nothing to prevent Kloppenburg from lodging a similar recount request in wards that she believes undercounted her votes. The most important thing about filing a recount in Wisconsin is that there must be specific grounds for believing that a count in a particular ward or municipality are mistaken or fraudulent. Because the recount petition is filed with an administrative body and not a court, there does not seem to be a fact-finding stage of the process to determine the validity of the grounds for recount. However, this is certainly a stage of the recount where the court is likely to be brought in. If Prosser files a recount alleging fraud or mistakes on poor evidence, Kloppenburg may go to the courts to enjoin the recount of districts where the evidence of irregularities is not sufficient.

I say that this is a nightmare scenario for the perceived impartiality of the courts in Wisconsin because such a legal challenge would undoubtedly be appealed up to the Supreme Court within a matter of weeks if not days. The Supreme Court cannot pretend to be impartial. It is a group of nine people working closely together. They certainly have professional and personal biases against or for either candidate, and with any electoral issue before them, the court would be able to choose between retaining Prosser or firing him and gaining Kloppenburg. Even in non-political arenas, this would be an impossibly sticky situation for the judges. Imagine that at your work place, your immediate team and hiring and firing power over a coworker. It's a coworker that at has publicly called your team leader a "total bitch." Judges are idealized to take into account only the issue before them, but petty office politics could easily win the day when the judges retreat to their chambers to come up with a decision.

My point is not that Prosser is doomed if his case comes before the Supreme Court.

Kloppenburg v. Prosser

Possibly the most closely watched judicial election ever in the United States Click the top link- I can't get it to go straight from this page.

The Problem with Electing Judges

The case of Rahm Emmanuel's campaign to become the next Mayor of Chicago illustrates the more classic objection to electing judges. An appeals court ruled that because Emmanuel had been serving the President in the District of Columbia for the previous year, he had forfeited his residency status and was thus ineligible to run for mayor. The Illinois Supreme Court overturned that decision today, declaring that Emmanuel would remain on the ballot for the February election.

Illinois elects their judges, so it is perhaps no surprise to find this paragraph at the top of the New York Times story on the case:

When Thomas L. Kilbride, the chief justice of the Illinois Supreme Court, studied the legal briefs in the case over Rahm Emanuel’s eligibility to run for mayor, the name of one lawyer involved in the residency dispute should have been familiar to Mr. Kilbride: Michael J. Kasper.

Mr. Kasper, the election-law specialist for Mr. Emanuel and for the state Democratic Party, offered his free expertise to Mr. Kilbride’s successful Democratic campaign last year to remain on the state’s high court, Mr. Kilbride’s campaign manager said.

Because judges must retain the services of campaign operatives, lawyers, and political partisans to become elected, the impartiality of the state bench is corruptible. I personally think that the Emmanuel residency claim was finally settled correctly, but that doesn't detract from the deep unease that I feel when an elected judge makes that decision, even in consultation with 6 others.

Novel Argument Against Elected Judges

I'm just beginning to pay attention to the fascinating debate over how judges should be placed in office. Minnesota currently has a mess of a mixed system, in which 90% of judges are appointed, and tend to resign rather than face a reelection campaign. Most of the discussion surrounding appointment/election has to do with distrust of elites, rule of law, the myth that courts protect minority rights, legitimacy, and of course, the evils of elections. I think I may have found the first pro-democracy argument against electing judges:

Even when an unpopular justice is removed by a majority, there are serious difficulties for the rule of law and the fulfillment of popular policy goals. Because we live in a democratic, Constitutional republic, when the rule of law is stifled, it means the will of the majority is prevented from taking effect. If the effort to remove a justice is successful, can it be said that the public has overturned the decision? It is an unclear point. A self-interested justice may in the future refrain from relying on precedent which appeared central to a successful removal campaign, but the legal community may well regard it as a standing precedent. The situation becomes doubly confusing if the legislature does not engage the judiciary on a substantive point, which they are unlikely to do if they believe the voters have already repudiated a decision. Treating judges like legislators creates problems for democracy, even if they are already making policy.