Liberal Rulings End 'Strange and Ill-Fated' Term

      A Supreme Court term that began with high hopes among conservatives and high anxiety among liberals has ended with stunning victories for progressives on abortion rights and affirmative action and no major outright wins for conservatives.
      Scattered among the rest of the term’s 81 decisions were a pair of inconclusive setbacks for the Obama administration on Obamacare and immigration and a mixed plateful of other decisions on criminal law, civil litigation, and other topics.
      The court’s conservative bloc suffered a mortal blow when Justice Antonin Scalia died on Feb. 13 with fewer than one-fourth of the term’s cases decided. But Justice Anthony M. Kennedy joined with the court’s four liberal justices to deal the conservatives unexpected defeats in a pair of Texas cases on affirmative action and abortion on the two final decision days of the term.
      Before Scalia’s death, conservatives had high and realistic hopes of winning both cases with decisions that would narrow the use of race in college admissions and fortify states’ power to regulate abortion clinics. Instead, Kennedy’s shift on the two topics produced decisions that provide a roadmap for colleges to follow in race-conscious admissions and appear to endanger abortion clinic regulations on the books in 25 other states.
      The three remaining conservatives — Chief Justice John G. Roberts Jr. and associate justices Clarence Thomas and Samuel A. Alito Jr. — were left to dissent in both decisions. Alito wrote long and impassioned dissents in each of the cases, which he emphasized by summarizing at length from the bench.
      Scalia would certainly have joined the dissenters in both cases, but his vote would not have affected the outcome in either. In the abortion case, Whole Woman’s Health v. Hellerstedt, the vote would have been 5-4 instead of 5-3. Scalia’s vote in Fisher v. University of Texas would have changed the 4-3 decision to a 4-4 tie that would still have upheld UT’s admissions policies but without setting a national precedent.
      The conservatives’ biggest victory for the term came on a 4-4 tie in the challenge by Texas and 25 other states to the Obama administration’s policy of protecting an estimated 5 million unauthorized immigrants from deportation. The justices were split sharply along conservative-liberal lines when the case, United States v. Texas, was argued in April. The tie vote upheld the decision by the federal appeals court in Texas upholding a lower court injunction blocking the administration policy.
      The justices were similarly divided along the usual ideological lines in arguments in the Obamacare case, Zubik v. Burwell. Religious schools and charitable groups had raised religious freedom claims in challenging the mandate to include cost-free coverage for contraceptives in their health plans for students and employees. The court resolved the impasse with an 8-0 decision sending the cases back to federal appeals courts with instructions to give the opposing sides time to try to reach a mutually acceptable accommodation.
      Conservatives were on the losing side, however, of another of the term’s inconclusive 4-4 ties. The court’s tie vote in Friedrichs v. California Teachers Association turned back a conservative-backed effort to block public employee unions from requiring nonmembers to pay a so-called agency fee to help cover the unions’ costs in representing all employees in collective bargaining and grievance procedures. Scalia’s vote likely would have favored the dissident teachers in the case and dealt a stunning blow to the finances of public employee unions nationwide.
      Conservatives were also hoping for a win in a case brought by some Republican voters in Texas to change the rules for equalizing populations in state legislative districts. The plaintiffs in Evenwel v. Abbott wanted to count voter-eligible citizens instead of total population, the standard practice under existing law. The proposed rule was seen as likely to benefit Republicans and disadvantage Democrats. The court refused in an 8-0 decision to require states to count only eligible voters, but two conservatives, Thomas and Alito, emphasized in separate opinions that states were free to do so.
      As in previous terms, a nominally conservative court favored criminal defendants and suspects in many of its decisions. Out of 22 decisions in argued cases, 12 favored defendants, nine favored the government, and one was mixed. The mixed decision in Birchfield v. North Dakota allows police to administer breath tests but not blood tests to drunken-driving suspects without a search warrant. Police scored a significant win in another search case, Utah v. Strieff, which allowed the use of evidence found after a warrant check on a suspect following an unlawful stop.
      In another major criminal case, however, the court extended on a 6-3 vote before Scalia’s death the impact of an earlier decision limiting life-without-parole sentences for juvenile murderers. The decision in Montgomery v. Louisiana to apply an earlier decision retroactively held out the possibility of releasing more than 1,000 prisoners serving life-without-parole terms for murders committed before age 18.
      Among other criminal cases, the court in Hurst v. Florida struck down Florida’s death penalty law because it allowed judges to make factual findings necessary to impose a death sentence. In another capital case, the court in Foster v. Chatham gave the African American defendant a new opportunity to overturn the verdict because of racial discrimination in jury selection. 
      The final decision of the term also favored criminal defendants: specifically, gift-taking public officials. The 8-0 ruling in McDonnell v. United States set aside the public corruption conviction the feds obtained against former Virginia governor Bob McDonnell for accepting an estimated $175,000 in gifts and gratuities from a businessman seeking favorable consideration from state agencies. In his opinion for the court, Roberts described the gift-taking as “tawdry,” but called the prosecution’s theory overbroad. The government gets another chance to show that McDonnell’s efforts in the businessman’s behalf amounted to “official acts” for purposes of the federal anti-graft laws, but the opinion seems tilted the opposite way.
      Business interests and legal conservatives were left with mixed decisions in areas where the Roberts Court has generally been friendly to them. In one decision, the court in RJR Nabisco v. European Community blocked European countries from using the federal anti-racketeering law to seek civil damages from the food and tobacco conglomerate for an alleged money laundering scheme to boost cigarette sales on the Continent. But in other cases the court allowed some use of statistical evidence to allow class actions to go forward (Tyson Foods v. Bouaphakeo) and blocked one defense tactic to neutralize class actions by settling with the named plaintiff (Campbell-Ewald Co. v. Gomez).
      The court ended the term with a vacant seat at the far right with no prospects for the empty chair to be filled before the new term begins on the traditional first Monday in October. President Obama’s nomination of federal judge Merrick Garland to succeed Scalia remains hostage to Senate Republicans’ unprecedented decision to keep the vacancy open until after the presidential election.
      The Washington Post’s veteran Supreme Court correspondent Robert Barnes captured the term well in his weekend preview of the final decision day by calling the term “strange and ill-fated.” The court added three cases for the new term in orders released on Monday, but the total number accepted so far — 21 — is low by historical standards. With only eight justices in place, the new term seems quite likely to be strange as well, whatever the judicial fates may be.

Police Gains Come at Fourth Amendment's Expense

      Score two significant wins for police from the Supreme Court last week and two setbacks for the Fourth Amendment and individual privacy.
      In the first of the decisions, the court gave police a fishing license to search just about anyone on the street as long as there is an outstanding arrest warrant for any offense as trivial as an unpaid parking ticket. In the second, police gained a half victory in drunken-driving cases by getting permission to administer a breathalyzer test without a search warrant following a lawful arrest.
      Both decisions were closely divided, with the court’s conservatives joined in each by Justice Stephen G. Breyer, a Fourth Amendment pragmatist who often parts ways with his liberal colleagues in search cases. Leading the dissenters in each was Justice Sonia Sotomayor, whose experience as an assistant district attorney in New York City left her with a healthy distrust of police and a heightened regard for individual rights.
      Sotomayor drew widespread attention with an impassioned dissent in the first case, Utah v. Strieff. The majority in the 5-3 ruling [June 20] blinked at the concededly unlawful stop that a Salt Lake City detective made in a drug investigation back in December 2006. As Sotomayor made clear, Justice Clarence Thomas’s opinion for the majority ignores all that the country has learned in the post-Ferguson era about the harm that police can inflict on ordinary citizens when they disregard constitutional limits on law enforcement.
      Detective Douglas Fackrell spotted Edward Strieff as he left a house the detective had under surveillance based on an anonymous tip. Fackrell tailed Strieff to a convenience store, stopped him, asked for identification, and radioed back to the station for a warrant check. Strieff in fact had an outstanding warrant for a traffic offense that was never specified in the court record.
      Fackrell placed Strieff under arrest, conducted what the courts call a “search incident to arrest,” and found some methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence as the fruit of an unlawful stop. Unsuccessful in the lower courts, Strieff won a unanimous decision from the Utah Supreme Court, which rejected the state’s argument that the discovery of the arrest warrant “attenuated” the connection between the Fourth Amendment-violating stop and the search.
      In Thomas’s telling, Fackrell had been guilty of nothing more than “an isolated instance of negligence” and the discovery of the warrant “broke the causal chain” between the unconstitutional stop and the discovery of the evidence. He saw “no indication . . . of any systemic or recurrent or police misconduct.
      Thomas may have been right in the individual case, but Sotomayor countered by bluntly depicting the ruling as an open invitation to police misconduct. “This case,” she wrote, “allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.”
      Far from an isolated case, Sotomayor emphasized that law enforcement databases have more than 7.8 million outstanding warrants on file and police manuals instruct officers to run warrant checks after any stop, lawful or not, in hopes of discovering a warrant that will give grounds for a search. Sotomayor acknowledged that Strieff is white, but aptly noted that “people of color” are “disproportionate victims” of the kind of suspicionless stop.
      The majority’s ruling, Sotomayor added, “tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time.” Justice Ruth Bader Ginsburg joined her opinion, except for what Sotomayor called a final “personal” section. As the third dissenter, Justice Elena Kagan similarly mocked Thomas’s exoneration of Fackrell’s conduct. The stop, she said, was “far from a Barney Fife-type mishap,” but “a calculated decision.”
      The Fourth Amendment took a less serious beating three days later in a decision that allows police to dispense with obtaining a search warrant before requiring a drunken-driving suspect to submit to a breathalyzer test. Justice Samuel A. Alito’s seeming compromise opinion in Birchfield v. North Dakota [June 23] does require a search warrant before a more intrusive blood draw. But it goes on to uphold laws that allow states to punish drivers who refuse the breath test not only by suspending their driver’s licenses but also by prosecuting them criminally.
      Again, Sotomayor was joined in a strong dissent by Ginsburg, though not by Kagan. As Sotomayor pointed out, police ordinarily perform a breathalyzer test not at roadside but back at the station. This “built-in window” allows time to obtain a warrant in the modern era of instantaneous communication, she said. That “small burden,” she said, was needed to make prevent the Fourth Amendment from becoming “an empty promise.”
      Somewhat confusingly, Thomas dissented from the opposite perspective. He argued that no search warrant was needed for the breath or blood test. But he complained that Alito’s justification of the breath test as a search incident to arrest distorts that doctrine. He argued instead that police could dispense with the warrant under a different doctrine: “exigent circumstances.” The court rejected that argument in a decision three years earlier, Missouri v. McNeely. As authority for his view, Thomas cited his lone dissent in that case.
      As Sotomayor pointed out in Strieff, the Fourth Amendment protects everyone: white, black, brown, yellow. But it protects only if courts enforce its provisions against police who find it an inconvenience all too easy at times to circumvent.

Roberts' Blind Spot on Judicial Ethics

      Chief Justice John Roberts broke ranks with his conservative colleagues one year ago by writing the 5-4 decision to uphold judicial ethics rules prohibiting candidates for judicial office from direct solicitation of campaign contributions. Roberts wrote in Williams-Yulee v. Florida Bar (2015) that the state has a “vital” and “compelling” interest in preserving public confidence in the judiciary.
      Puzzlingly, however, Roberts seemed oblivious to that interest this month [June 9] in the Supreme Court’s latest case on judicial ethics. Roberts dissented from the 5-3 decision in Williams v. Pennsylvania that Pennsylvania’s former chief justice should have recused himself from ruling on a death row inmate’s post-conviction challenge.
      As Philadelphia district attorney 30 years earlier, Ronald Castille had made what the majority called the “critical” decision to seek the death penalty in the murder case against Terrance Williams. Roberts saw no need for Castille to step out of Williams’ latest attempt to get a new sentencing hearing even though Williams was directly challenging the conduct of the prosecutor’s office in the case.
      Roberts’ sense of judicial ethics was finely tuned in the campaign contribution case, but much less so in the new decision or in another recusal case seven years ago. Roberts had dissented in that case, Caperton v. A.T. Massey Coal Co. (2009), when a 5-4 majority rebuked a West Virginia Supreme Court justice for failing to step out of a case involving a big-money contributor to his successful election campaign.
      As chief justice of the United States, Roberts appears to recognize his need to serve as institutional spokesperson-in-chief for judicial independence and integrity. But he disserves that role by resisting any constitutional standards for judges to recuse themselves when their impartiality is rightly called into question.
      Writing for the majority in the Pennsylvania death penalty case, Justice Anthony M. Kennedy reasoned that Williams had a due process entitlement to a hearing before a tribunal with no risk of bias. Castille’s refusal to recuse himself — and leave the decision to his six state supreme court colleagues — created “an objective risk of actual bias,” Kennedy wrote in an opinion joined by the court’s four liberal justices.
      In the main dissent, Roberts found no need for Castille to recuse himself because he had no prior knowledge of the contested facts in Williams’ post-conviction challenge nor made any decision on the questions raised. Williams based his fifth post-conviction plea on evidence discovered long after his 1986 trial. Under Pennsylvania law, Williams had to show either that he could not have obtained the information earlier or that the government had prevented him from discovering the information. Castille “had not made up his mind” on that question, Roberts said.
      Roberts adopted almost willful blindness in taking that position. Castille ran for the state supreme court by boasting that he had sent 45 people to Pennsylvania’s death row — Williams one of them. In the new petition, Williams accuses the trial prosecutor of misconduct by failing to disclose information helpful to his defense. A state judge sitting in effect as a habeas court agreed, barred Williams’ execution, and ordered a new sentencing hearing.
      State’s attorneys asked the Pennsylvania high court to overturn that decision. As Kennedy rightly wrote, “it would be difficult for a judge in [Castille’s] position not to view the [habeas] court’s findings as a criticism of his former office and, to some extent, of his own leadership and supervision as district attorney.” But Castille rejected a motion that he recuse himself. Instead, he wrote a concurring opinion that called Williams’ petition “frivolous,” criticized Williams’ attorneys for an “obstructionist anti-death penalty agenda,” and faulted the habeas court for having “lost sight of its role as a neutral judicial officer.”
      Castille’s bias was in plain view, but not to Roberts or the other dissenting justices: Samuel A. Alito Jr. and Clarence Thomas. The split in the case corresponds to the division in the earlier West Virginia decision. Roberts spoke for all four conservative dissenters in that case, with Kennedy writing for a majority that included the four liberal justices at the time.
      Roberts had a more realistic understanding of judicial ethics in the Florida campaign contribution case. A judicial candidate’s direct participation in fundraising, he wrote then, “creates the public appearance that the candidate will remember who says yes, and who says no.” The decision upheld ethics rules on the books in some 30 states. As one of the four dissenters, Kennedy argued that the solicitation ban violated candidates’ political speech rights.
      Roberts’ differing positions in the cases may be explained on federalism grounds, according to one leading expert on judicial ethics. Amanda Frost, a professor at American University’s Washington College of Law, notes that Roberts sided with states in each of the three decisions. Indeed, Roberts noted in the Pennsylvania case that many states have rules that would have required Castille to recuse himself.
      Roberts may also have been looking over his shoulder, Frost suggests, at the risk of creating recusal standards that could come back to haunt the justices themselves. The justices have steadfastly refused to explain their own recusal standards and have resisted any efforts in Congress to lay down rules. Whatever his reasons, Roberts does the judiciary no good by turning a blind eye to judicial bias — whether actual bias or even if only its appearance.

From Texas, Two Dubious Death Cases for Justices

      Where would the Supreme Court find work but for Texas? The Lone Star state provided four of the biggest cases for the current term on such hot-button issues as abortion, affirmative action, immigration, and voting rights.
      One justice shy of a full complement, the court seems to be very slow in lining up cases for the term that will begin a few months from now on the traditional First Monday in October. But last week [June 6] the justices dug deep into a backlog of petitions to grant review in two death penalty cases from Texas (Buck v. Stephens; Moore v. Texas).
      Texas has been one of the leading states in death penalty cases for years and these two, like so many from Texas, seem strong candidates for reversal. In one, Texas’s Court of Criminal Appeals insisted on using an outdated standard for judging a death row inmate’s claim of intellectual disability instead of the standard adopted by the Supreme Court in 2014. In the other, the federal appeals court for Texas refused to let a death row inmate challenge the use of race-based testimony in his penalty-phase hearing.
      Duane Buck and Bobby James Moore are two of the 263 inmates currently on Texas’s death row. Lawyers from the Texas attorney general’s office have plenty of experience pulling out all stops to defend dubious death sentences — for example, in a notorious case from Houston where the defense lawyer slept during parts of the trial. These two cases stand out because doubts about their validity emerged at the state level long before they reached the U.S. Supreme Court.
      Buck was convicted of killing his former girlfriend and her male friend in 1995 and sentenced to death after a penalty-phase hearing that focused on the issue of future dangerousness. Psychologist Walter Quijano testified as a defense witness that Buck, who is African American, was unlikely to pose a future threat because the crime was not a random act of violence. On cross-examination, however, Quijano agreed with a prosecutor’s question that race, specifically being black, increases future dangerousness.
      As Austin’s American-Statesman recounts, the state attorney general’s office under now-Sen. John Cornyn had confessed error in half a dozen cases where Quijano had linked dangerousness to race while testifying for the prosecution. In Buck’s case, however, the state contends that the defense bears the onus for the race-based testimony because Buck’s own lawyer put him on the stand. The Fifth U.S. Circuit Court of Appeals refused to let Buck’s new lawyers reopen the case on the grounds of constitutionally ineffective representation at trial.
      Moore has spent 35 years on death row after his conviction for killing a store clerk during a robbery in 1980. He is seeking to take advantage of a pair of Supreme Court decisions. The court in 2002 barred execution of defendants with what is now called “intellectual disability” (Virginia v. Atkins) and then in 2014 prohibited states from using a fixed IQ test score to determine the issue (Hall v. Florida).
      A trial court found Moore intellectually disabled and thus ineligible for execution, but the Texas Court of Criminal Appeals — the state’s highest court for criminal cases — ruled that the lower court should have used the standard set out by the legislature back in 1992. Moore’s lawyers, backed by psychiatric and human rights organizations, argue that the use of outdated standards violates the Constitution.
      The justices have been slow to add cases for the coming term ever since Justice Antonin Scalia’s death in February. The Texas cases bring the number granted review so far to 13, much lower than usual at this time of the year. Arguments are likely in November in front of a court with one seat still vacant barring any change of heart by Senate Republicans to act on President Obama’s nomination of federal judge Merrick Garland to fill the seat.
      The Supreme Court’s current term has been a favorable one for critics of the death penalty with only one exception. In what proved to be his final opinion for the court, Scalia wrote the 8-1 decision in Kansas v. Carr upholding death sentences for two Kansas brothers in the so-called Wichita Massacre and for a third defendant in a separate Kansas case. Justice Sonia Sotomayor was the lone dissenter.
      A week earlier, however, the court in Hurst v. Florida struck down Florida’s previous death-penalty system because it allowed judges, instead of juries, to make factual findings necessary to impose a death sentence. Sotomayor wrote the decision, with Justice Samuel A. Alito Jr. the lone dissenter. Sotomayor had previously criticized Alabama for allowing judges in capital cases to overturn a jury’s recommendation not to impose a death sentence. In May the court sent an Alabama death case, Johnson v. Alabama, back to the state court to consider whether Hurst applies.
      Later in May, the court threw out, on a 7-1 vote, a Georgia death sentence because prosecutors had used peremptory challenges to keep blacks off the jury (Foster v. Chatham). And last week [June 9] the court gave a Pennsylvania death row inmate a new chance to challenge his death sentence because the state’s chief justice had refused to step out of the case despite his role as district attorney decades earlier in deciding to seek the death penalty (Williams v. Pennsylvania).
      None of these decisions suggests the court is on the verge of abolishing capital punishment, as Justices Stephen G. Breyer and Ruth Bader Ginsburg argued in dissent last term. Even with a conservative orientation, however, the court gives death penalty cases some extra scrutiny — an unfavorable omen for the so-called great state of Texas in the coming term.

Trump's Latest Seen as Threat to Rule of Law

      Who’s afraid of Donald Trump? Leading conservative and libertarian legal scholars, to name a few. They see Trump’s attacks on the federal judge hearing the suit against him by former Trump University students as evidence that Trump poses a genuine threat to the rule of law in the United States.
      Trump, the presumptive Republican nominee for president, unleashed a rambling, 12-minute tirade against U.S. District Court Judge Gonzalo Curiel on May 27 right as the judge was ordering the unsealing of damning evidence in the suit. The brief clips that have been shown on newscasts cannot convey the total incoherence and utter emptiness of Trump’s attack on a judge he described as “a hater” and a case that he called “a disgrace.”
      Legal ethics experts dismiss out of hand Trump’s imputation that Curiel is biased in the case because of his Mexican ancestry. “A judge’s race, ethnicity, sex and the like aren’t grounds for recusal, even if the case directly involves questions that relate to one of those factors,” UCLA law professor Eugene Volokh writes in a post on his blog, The Volokh Conspiracy. And Russell Wheeler, a former deputy director of the Federal Judicial Center and now a fellow at the Brookings Institution, told the Washington Post that Curiel “has been nothing but fair in the case.”
      Beyond the point-by-point refutations, Trump’s outburst prompted criticisms couched in ominous terms. In posting a full transcript of Trump’s remarks, the libertarian South Texas law professor Josh Blackman minced no words. “His jaw-dropping comments reflect an utter ignorance about what judges do, and amount to a dangerous attack on the fairness of our court system,” Blackman wrote on his blog.
      Among several who commented to The New York Times was Randy Barnett, an outspoken libertarian professor at Georgetown Law School and one of the major architects of the constitutional challenge to President Obama’s health care reform. “You would like a president with some idea about constitutional limits on presidential powers, on congressional powers, on federal powers,” Barnett told the Times’s Supreme Court correspondent Adam Liptak, “and I doubt he has any awareness of such limits.”
       David Post, a retired Temple law school professor now affiliated with the libertarian Cato Institute, was similarly concerned. “This is how authoritarianism starts,” Post remarked, “with a president who doesn’t respect the judiciary.”
       Trump is facing the possibility of a multimillion-dollar judgment in a class action brought by former students who think they were fleeced by the promised instruction in the Trumpian arts of real-estate dealmaking. Trump chose a rally in San Diego, where Curiel’s court sits, to question the judge’s impartiality — significantly, not in a formal, substantiated motion that the judge recuse himself.
      “We are in front of a very hostile judge,” Trump said. The audience booed as Trump noted that Curiel is an Obama appointee. He then went on to say that Curiel “has given us ruling after ruling, negative, negative, negative” — but with no specifics cited.
      Found in the depositions released under Curiel’s order was a blunt description by a former Trump U sales manager. “I believe that Trump University was a fraudulent scheme,” Ronald Schnackenberg wrote, “and that it preyed upon the elderly and uneducated to separate them from their money.”
       Curiel ordered the release of the documents in response to a motion by the Washington Post, which argued that Trump’s presidential candidacy made the depositions a matter of public interest. In his order, Curiel noted that Trump had publicly raised questions about proceedings in the case.
       In the San Diego remarks, Trump raised Curiel’s Mexican ancestry in the insidiously backhanded way that is now a hallmark of his campaign. He refers to “the judge, who happens to be, we believe, Mexican, which is great, I think that is fine.” With no difficulty whatsoever, reporters and commentators quickly noted that Curiel is in fact American by birth: born in Indiana to immigrant Mexican parents and then educated at Indiana University and IU’s law school.
      Beyond his birth and degrees, Curiel gave evidence of devotion to country in 17 years as an assistant U.S. attorney in San Diego. There, he took on Mexican drug cartels vigorously enough that he was once targeted for assassination and subjected to security precautions for a while. His judicial career began with appointment to a state court bench by California’s Republican governor, Arnold Schwarzenegger, and then advanced with Obama’s appointment to the federal bench in 2012.
      In interviews, Trump and others on his behalf have tried to flesh out some basis for questioning Curiel’s impartiality. The bill of particulars is thinner than thin — for example, Curiel’s membership in a Latino bar association. As far back as February, Trump citied his stance on immigration to question Curiel’s role in the case. “I think it has to do with perhaps the fact that I’m very, very strong on the border,” Trump said then. “Now, he is Hispanic, I believe. He is a very hostile judge to me.”
      Some elected Republican officials are rejecting Trump’s attack. House Speaker Paul Ryan called Trump’s remarks “out of left field for my mind.” For his part, Senate Majority Leader Mitch McConnell offered assurances that White House counsel would keep President Trump in line. But nothing in his campaign to date suggests that Trump recognizes any restraints, even the rule of law.