The Most Important Legal Developments of 2004:
Gerrymandering, Torture, Guantanamo, and Equality for Gays

By EDWARD LAZARUS
Thursday, Dec. 23, 2004

In a nation obsessed with lists, it seems only appropriate to end the year with a column remarking upon the most important legal developments of 2004.

In a perfect world, I could pull this off in the form of a song like "The Twelve Days of Christmas." But, alas, a list, categorized and briefly annotated, will have to do.

2004's Top Legal Story: Democracy Imperiled; a Supreme Court Unwilling to Intervene

To my mind, the top legal story of 2004 was the continued impoverishment of the quality of our democracy, and of the integrity of our institutions of government.

This is now a long-running saga that has seen many highlights over the last decade. We've suffered through the partisan impeachment of a popular, recently re-elected President on the ground that he'd lied about an affair. And, in 2004, we temporarily surrendered democratic governance to nine unelected, life-tenured judges who took it upon themselves to usurp power that should have belonged to the American People, and lawlessly declare George W. Bush the winner of the 2000 election.

This year's contributions to the arteriosclerosis in our democracy are far less spectacular than either the impeachment of Clinton or the crowning of Bush. But two 2004 developments do deserve special mention:

First, this year, in Vieth v. Jubelirer, the Supreme Court declined to place any constitutional limit on the increasingly aggressive practice of gerrymandering electoral districts to achieve purely political or partisan ends. As a result, we are stuck with a system where, after every census, incumbents will continue to enjoy basically unlimited power to carve out safe seats for themselves. Inevitably, the political party in power, by redrawing districts however it please, will help itself (as Texas Republicans did this year) to a grossly disproportionate number of legislative seats.

In the end, democracy comes out the big loser. The effect of such partisan gerrymandering is to block new entrants into high political office and to make the result of almost every congressional election a foregone conclusion. This, in turn, effectively disenfranchises all those voters who don't support the pre-ordained winner.

The Department of Justice's Decision to Bless Legally-Proscribed Torture

Turning from the election of our government's officials, to the vibrancy of its institutions, the lowlight of 2004 must surely be the revelation that top lawyers in the Department of Justice's Office of Legal Counsel meticulously crafted an opinion memorandum that was, in essence, a road map for justifying the torture of all detainees from the war on terror -- including anyone merely suspected of being (but not proven in any way to be) an Al-Qaeda or Taliban member.

The OLC "torture memo" is disturbing on two levels. As a matter of substance, the memo provides a lawyer's brief for justifying the inhumane and immoral. The memo concludes that the Executive Branch simply is not bound by statutes prohibiting the use of torture, insofar as those laws impinge on the President's "wartime powers." The memo also proposes a legal theory for circumventing similar prohibitions against torture in the Geneva Convention.

The message: All those treaties we signed? We didn't really mean that. The part of our Constitution that says treaties are the law of the land? We didn't really mean that either. Sorry if you thought we did - and treated our prisoners in compliance with international law. We won't be able to do the same favor for yours. Sorry 'bout that.

From an institutional perspective, moreover, the memo suggests an unfortunate debasing of the Office of Legal Counsel (OLC). OLC is the arm of DOJ that is charged with providing authoritative advice to the executive branch about its legal powers and obligations. As former members of OLC observed in a recently released statement of principles, this office prides itself on a rich tradition of protecting the rule of law by sticking to an unbiased, balanced, and non-partisan approach to the opinions it renders - even when these opinions conflict with the declared policy goals of the sitting president.

The torture memo powerfully disserves this tradition. Instead of providing a balanced and nuanced assessment of the President's wartime authority, the memo is a work of pure advocacy in support of President Bush's policy goals. It strives for plausible rationales - not persuasive, convincing arguments. Perhaps even worse, its analysis is fatally incomplete - paying no heed, for instance, to the notion that, as Justice Hugo Black put it, "great nations, like great men, should keep their word."

OLC is meant to provide a vital institutional check on the legality of presidential policy initiatives. But the memo gives every indication that it has been transformed into just another stop on a "yes man" freight train running through the Executive Branch.

The Supreme Court's Trio of "War on Terrorism" Decisions

Which brings me to the next most important development of 2004 - the Supreme Court's modest but correct decisions in the Guantanamo detainee cases and Hamdi v. Rumsfeld. Despite their limitations, these decisions were momentous because of the legal proposition they resoundingly rejected.

These are very narrow decisions. In Hamdi, the Court held only that U.S. citizens arrested in a combat zone abroad are entitled to fair procedures to determine whether, in fact, they qualify as "enemy combatants."

And in the consolidated Guantanamo cases - Rasul v. Bush -- the Court merely declared that Guantanamo detainees have a right to challenge the legality of their detention through a habeas corpus proceeding. But it did not spell out what substantive or procedural safeguards would guide such challenges.

But if the Court left many, many questions unanswered, it did emphatically repudiate the very dangerous position of the Bush Administration. Specifically, the Administration had claimed that the Executive Branch has the unilateral, unreviewable constitutional authority to deem any person (even a U.S. citizen here in the U.S) an "enemy combatant" - and, on that basis, to detain that person indefinitely without access to lawyers or courts. Thanks to a nearly unanimous Court (only Justice Clarence Thomas dissented), this step towards despotism was avoided.

A Massachusetts Decision on Equality for Gays Had Profound National Impact

Every year, of course, the Supreme Court hands down a number of highly significant decisions, but in 2004 the next most significant ruling came from a state court - the Massachusetts Supreme Judicial Court. In the case of Goodridge v. Dep't of Public Health, that court declared, by a 4-3 vote, that the state's constitution guarantees gay couples an equal right to marry.

Few legal decisions spawn national cultural phenomena. This one did. Images of gay couples joyously marrying in San Francisco and elsewhere are now indelibly imprinted in the national mind. With a political backlash against gay marriage in full swing, even if one does not subscribe to the theory that this issue cost John Kerry the presidency, the question remains: What hath Massachusetts wrought?

Will States - and Attorney Generals Like Eliot Spitzer - Now Fill a Regulation Vacuum?

Speaking of states, 2004 also saw the emergence of a state attorney general, New York's Eliot Spitzer, as the nation's top corporate watchdog in an era of widespread corporate malfeasance.

This is more than the story of one man's energy, guts, and ambition. Spitzer's popularity (outside corporate boardrooms) reflects a widespread populist yearning that someone needs to stand up for the little guy - the individual consumer, pensioner, or stockholder -- and that this someone is not to be found in Washington.

Some years ago, when the Supreme Court started cutting back on civil rights and civil liberties, a number of prominent liberals, including Justice William Brennan, starting talking about state constitutions and state courts as substitute guarantors of rights the federal government would no longer protect. In general, this turned out to be much more talk than reality (the Massachusetts gay marriage decision notwithstanding).

But now, with the decline of federal regulation, Spitzer's ascendancy suggests that perhaps states will fill the new vacuum that has emerged. That is a tall order, even for Spitzer. But the difficulty only underscores the significance of the enterprise.

The Shoe That Didn't Drop: A Surprisingly Unlitigated Election

Finally, I would note the much predicted monumental event that never happened - namely, another battle in the courts to determine the winner of 2004's presidential election.

Both sides had prepared assiduously for this legal apocalypse -- to the point of enlisting literally thousands of lawyers to monitor, advise, and draft potential filings. After all, what choice did they have? Under Bush v. Gore's (il)logic, the list of potential legal challenges to ballot counting is nearly endless.

This time, however, Bush's margin of victory was just big enough to stave off disaster. But if Ohio had been 50,000 votes closer, the nation might be listening to state or U.S. Supreme Court oral arguments again, even today.

As a nation, we seem to take all these legal developments completely in stride -- as though the system will continue to run reasonably well and reasonably fairly, come what may. It would be distinctly Grinch-like to cast doubt upon this sunny approach, much as I might like to.

So, for now I'll simply wish you all a very happy, healthy, and legally interesting New Year.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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