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