Ginsburg, Gorsuch Don't Play Well Together

      Justice Ruth Bader Ginsburg had her doubts about Neil Gorsuch long before President Trump chose him to join Ginsburg on the Supreme Court as successor to Ginsburg's longtime pal, Antonin Scalia. Now that she and Gorsuch are colleagues, the early report cards show that the two justices do not play well together.
      Gorsuch went up against Ginsburg for the second time in his short tenure by leading four dissenters last week in a long riposte to Ginsburg's opinion for a five-justice majority in the kind of complex procedural case that is Ginsburg's forte. The two justices — Ginsburg, the oldest, and Gorsuch, the youngest — had a similar face-off in a decision at the end of the previous term in a case that, like this week's, played to Ginsburg's strength and to Gorsuch's swaggering self-confidence.
      Rewind the tape to recall Ginsburg's ill-advised comments last summer about the worrying prospects of a Trump presidency for the country and for the Court itself. "For the country, it could be four years," Ginsburg opined in an interview with The New York Times' Adam Liptak in mid-July as Trump was emerging as the presumptive Republican nominee. "For the Court, it could be —  I don't even want to contemplate that," Ginsburg went on.
      Ginsburg eventually apologized for her remarks and promised to be "more circumspect" in the future. While Ginsburg fretted about a Trump presidency, she probably expected that President Obama's choice for Scalia's seat, Judge Merrick Garland, would eventually join her on the Court. Trump's election paved the way instead for Gorsuch's nomination and eventual confirmation on a historically narrow, mostly party-line Senate vote.
      Ginsburg joined the other justices for Gorsuch's oath-taking in a White House rose garden ceremony on April 10. The Washington Post published a picture of the justices at the ceremony, with a caption that noted the justices' applauding after the swearing-in. A keen-eyed reader noted on Twitter, however, that Ginsburg was in fact not applauding.
      With Gorsuch barely in his third month on the Court, he took on Ginsburg in dissent in a complex case on the appellate route for a discharged federal employee to challenge an unfavorable ruling in a so-called "mixed motive" claim. Writing for a seven-justice majority in Perry v. Merit System Protection Board, Ginsburg construed the applicable statute to direct the employee's appeal — with its mix of civil service and other illegal discrimination claims — to a federal district court instead of a federal court of appeals with more deferential review.
      Gorsuch apparently forgot that Ginsburg was studying Swedish civil procedure before he was even born. Undeterred, he accused Ginsburg of rewriting the statute instead of faithfully construing its convoluted text. "If a statute needs repair," Gorsuch wrote in a snarky dissent joined by Justice Clarence Thomas, "there’s a constitutionally prescribed way to do it. It’s called legislation."
      When the new term opened, Gorsuch and Ginsburg were at it again. Gorsuch skeptically asked during the Oct. 3 arguments in the Wisconsin gerrymandering case, Gill v. Whitford, about the source of the Court's authority to review state legislative district maps. As Jeffrey Toobin noted in The New Yorker, Ginsburg answered with a none-too-subtle bench slap. “Where did ‘one person, one vote’ come from?” Ginsburg asked, in an unmistakable reference to the Court's early decisions from the 1960s allowing federal court challenges to malapportioned state legislatures.
      Fast forward to last week's decision in Artis v. District of Columbia [Jan. 21]. The issue was how to interpret another complex federal statute: one that "tolled" the statute of limitations on a plaintiff's state law claim while the claim was pending in a federal court as related to a distinct federal law claim. The law, 28 U.S.C. §1367(d), gave a plaintiff 30 additional days to file in state court after a federal court dismissal of the federal claim.
      Stephanie Artis, the discharged D.C. health inspector, lost her federal court case and then refiled her claims under D.C. law in D.C. Superior Court, 59 days after the dismissal of her federal court case. The District argued and the D.C. courts agreed that Artis had filed too late, but Ginsburg wrote for a 5-4 majority in holding that the District's three-year statute of limitations had been "held in abeyance" — that is, "tolled" — while her case was in federal court.
      Ginsburg said she was following the "dictionary definition" of "tolled," but the committed textualist Gorsuch instead read the federal law to provide a 30-day grace period instead of stopping the clock on the District's three-year statute of limitations. The case, he said, represented a constitutionally dubious "intrusion" on "traditional state functions." Ginsburg countered by accusing Gorsuch of "unsettling" the definition of "tolled" in his interpretation of the act and by citing an earlier precedent that described the federal provision as "conducive to the due administration of justice in federal court."
      Gorsuch's opponents made much during the confirmation fight of Gorsuch's dissenting opinion in what came to be called the "Frozen Trucker Case." In that case, he would have narrowly interpreted a federal truck safety law so as to leave a stranded trucker with no legal alternative to risking freezing to death while waiting for his company to send a rescue.
      Tellingly, Gorsuch's two dissents so far in argued cases —  in Perry and now in Artis — have both sought to impose his narrow construction of federal statutes in a way to disadvantage workers challenging adverse personnel actions. Gorsuch answered his critics at the Senate confirmation hearings by insisting that there were "plenty of" cases where he had ruled in favor of the proverbial "little guy." At the Supreme Court, however, so far: not so much.

To Make America Great, Trump Has to Go

      One year into the Trump presidency, America is not "great again," but divided at home and diminished abroad. The president's actions and statements have reduced the United States' global leadership, eroded democracy at home, weakened the country's commitment to economic and social justice, encouraged racial and religious bigotry, and deepened the ethical swamp that he promised to drain.
      These conclusions emerge in year-one assessments from, among other organizations, the respected nonpartisan human rights group Freedom House. The group's annual report, released this week [Jan. 16], paints a picture of democracy in serious crisis worldwide and endangered in the United States accompanied by a blistering critique of President Trump's policies.
      With democracy already in retreat, Freedom House blamed Trump for "the accelerating withdrawal of the United States from its historical commitment to promoting and supporting democracy." Far from promoting democracy, Trump has "expressed feelings of admiration and even personal friendship for some of the world's most loathsome strongmen and dictators" — Russia's Vladimir Putin and Filipino president Rodrigo Duterte by name.
      In the United States itself, Freedom House also found an accelerating decline in political rights and civil liberties based on a rare three-point drop from 89 to 86 in its scoring system within a single year. Trump was accused of using attacks on the media and the judiciary to threaten their legitimacy. The report cited the "pressure" on those institutions in listing the United States among 10 countries that face "turning points in their democratic trajectory" during the coming year.
      Domestic civil rights and civil liberties groups were even more dispirited in their one-year assessments. Sherilynn Ifill, president of the NAACP Legal Defense and Educational Fund, described Trump's first year as "an affront to civil rights." Ifill's article cited, among other policies, the Justice Department's reversals in key voting rights cases, including federal court challenges to Texas's voter ID law and Ohio's aggressive deregistration of inactive voters. With police and minority community relations tense in many cities, Ifill also noted Attorney General Jeff Sessions's decision to stop monitoring local police departments for violations of constitutional or civil rights.
      Trump's men at Justice, Sessions and Solicitor General Noel Francisco, also worked to diminish or challenge LGBT rights through the year, as detailed in a downcast report by the Boston-based Fenway Institute. The solicitor general's office argued in a critical Supreme Court case for giving some commercial businesses the right to discriminate against LGBT individuals based on religious or moral objections — for example, to same-sex weddings. The report also noted the administration's rescission of the Education Department policy that public schools allow transgender pupils to use bathrooms or locker room facilities based on their gender identity.
      Beyond these policy retreats, the administration has also contributed to increased religious, racial, and ethnic intolerance — most notably, in the federal court-blocked ban on travel to the United States by people from half a dozen predominantly Muslim countries. Trump has demonizied and denigrated immigrants from Mexico, Central America, and other "shithole countries." Worse, he has given aid and comfort to white supremacists by saying, after the violent confrontation with civil rights forces in Charlottesville, Va., that there were "good people on both sides."
      Trump's supporters and apologists answer this critique by pointing to his appointment of federal judges, including Supreme Court Justice Neil Gorsuch. But Gorsuch and the record first-year pace of judicial appointments bode ill for equal justice in the long term. None of the Trump judges shows much sympathy for the courts' role in protecting civil rights, and several have records of overt hostility to LGBT rights. At the Supreme Court, Gorsuch dissented from a decision to protect married lesbian couples' ability to list both women as parents on a child's birth certificate.
      Trump's defenders also cite the relatively good economic times as evidence of his success in office. But the job growth that Trump touts is actually the slowest since 2010 and wage growth has likewise been slow. In a setback for economic justice, the trillion-dollar tax cut that Trump pushed through the Republican-controlled Congress bestows most of its benefits on well-to-do taxpayers at the expense of future generations. The year-long fight over Obamacare may end with millions thrown off health insurance. Other deregulatory initiatives have reduced protections for workers, consumers, investors, and the environment.
      Meanwhile, the watchdog group Citizens for Ethics and Responsibility in Washington (CREW) labeled Trump's first year "the most unethical presidency" in U.S. history. Trump's very presence in the White House, with business interests undisclosed and undivested, amounts to an ongoing violation of the Constitution's Foreign and Domestic Emoluments Clauses, an issue that CREW is litigating in court. CREW's report notes the conflict of interest in Trump's 100-plus visits to Trump properties and the even more unsavory conflicts in the appointment of industry insiders to executive branch posts regulating their former industries.
      Trump has no interest in changing any of these policies, so the country will move again toward greatness only with a new president. Unfortunately, the two constitutional methods for removing him — the 25th Amendment or impeachment — lack political support even though most Americans disapprove of Trump's performance. A nation divided and diminished looks anxiously to the future with the very idea of America under severe stress as the Huckster in Chief makes empty promises to make America "great again." Fittingly, Trump's first year ends today [Jan. 20] with a partial government shutdown as the self-styled dealmaker balks at any bipartisan compromise to resolve the growing impasse between Republicans and Democrats on Capitol Hill.

On Partisan Gerrymandering, Time's Up?

      Politicians have been making mischief out of legislative or congressional district maps for more than two centuries, ever since the early 19th century Massachusetts governor Elbridge Gerry unwittingly lent his name to the disreputable practice. But only now, two decades into the 21st century, has a federal court found, for the first time ever, an instance of partisan gerrymandering so blatantly political as to violate the Constitution, for that reason and no other.

      The Supreme Court first said that partisan gerrymandering might be unconstitutional as such in an inconclusive decision three decades ago, Davis v. Bandemere (1986). The justices and lower courts have struggled ever since with trying to find a manageable standard to define when political line drawing goes too far. The federal court that struck down North Carolina's congressional redistricting plan last week [Jan. 10] resolved that conundrum by boldly declaring it constitutionally unacceptable to draw lines to advantage one party or disadvantage another.

      The three-judge court's unanimous decision in Common Cause v. Rochco lifted the hopes of good-government groups that courts would finally a way to tame the beast of gerrymandering. Those hopes fell just one day later, however, with the decision by a fractured three-judge court in Agre v. Wolf [Jan. 11] to reject a similar challenge to congressional redistricting in Pennsylvania. The two cases have parallel facts: in both, Republican-controlled legislatures drew congressional districts with the undisguised intent — and the eventual effect — of imbalancing the states' congressional delegation in the GOP's favor.

      The dueling decisions underscore the Supreme Court's critical role, with two other cases already under review this term, in deciding whether courts can and should tell politicians that time's up for partisan gerrymandering. The two cases, Gill v. Whitford and Benisek v. Lamone, show that both major parties play the  game when they can. Wisconsin's Republican-controlled legislature drew legislative maps in 2011 to help the GOP win a lopsided majority in the state assembly, while Maryland's Democratic-majority legislature drew congressional district lines to leave Republicans with only one of the state's eight seats in the U.S. House.

      The legal challenge brought by the good-government groups Common Cause and League of Women Voters along with named North Carolina voters was aided by Republicans' candor in explaining their motivation in drawing new congressional district lines. Thomas Hofeller, the redistricting consultant hired by the North Carolina Republicans, candidly testified that he drew the lines "to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.”

      Of the two decisions last week, Judge James Wynn's 191-page opinion in the North Carolina case is the more carefully reasoned and more carefully documented. North Carolina Republicans predictably denounced Wynn as an activist Democrat, but Wynn was appointed to his position on the Fourth U.S. Circuit Court of Appeals by President Obama with bipartisan support from the state's two senators, Democrat Kay Hagen and Republican Richard Burr. He had previously served 26 years as a Navy lawyer and 10 years on North Carolina appellate courts.

      Wynn deftly answered Justice Anthony M. Kennedy's pivotal opinion in an earlier decision, Vieth v. Jubelirer (2004), where four conservative justices voted to bar political gerrymandering challenges altogether. Kennedy joined in the 5-4 decision to reject the challenge to Pennsylvania's congressional redistricting, but left the door open to future cases while all but begging for "clear, manageable and politically neutral standards" to apply to partisan gerrymandering.

      In Wynn's analysis, no "constitutionally cognizable interest" is served by district lines that are drawn for partisan reasons and durably produce the intended partisan effect. On that basis, he concluded, "a judicially manageable framework for evaluating partisan gerrymandering claims need not distinguish an 'acceptable' level of partisan gerrymandering from 'excessive' partisan gerrymandering."

      Wynn's opinion was unanimous for the most part, joined by two district court judges from North Carolina: William Britt, appointed by President Jimmy Carter, and William Osteen, appointed by President George W. Bush. Wynn concluded that North Carolina's redistricting violated voters' equal protection rights and political rights under the First Amendment and also went beyond the state legislature's authority under the clause in the U.S. Constitution giving states authority to "regulate" congressional elections. In a partial dissent, Osteen disagreed only on the First Amendment claim, which he said would bar any consideration of political affiliation in redistricting.

      The ruling in the Pennsylvania case was written by Judge D. Brooks Smith, who was appointed to the federal district court in Pittsburgh by President Ronald Reagan and  elevated to the Third U.S. Circuit Court of Appeals by the second president Bush. In his 73-page opinion, Smith insisted on the need for the still absent manageable standard for judging gerrymandering cases and instead relegated any complaints about the practice to Congress or state legislatures.

      Smith's opinion might have held water 60 years ago, but not since the Supreme Court opened the door to reapportionment cases with its initial decision in Baker v. Carr (1962). The court came up with a manageable standard for those cases: "one person, one vote," with only minimal population variations between districts. In the same way, the Court over the past 25 years has settled on a less precise rule for use of race in drawing district lines: some but not too much.

      Neither of the other two judges joined Smith's opinion. Judge Patty Shwartz, an Obama appointee to the Third Circuit, concurred in rejecting the challenge only on the ground that the voters lacked standing to challenge the overall statewide map. Judge Michael Baylson, a Republican-appointed district court judge from Philadelphia, wrote a 148-page dissent that would have rejected the Pennsylvania map as an unconstitutional gerrymander based on evidence and legal grounds parallel to those given in Wynn's opinion in the North Carolina case.

      Baylson opened his dissent with a plaintive cry. Gerrymandering, he wrote, "is a wrong in search of a remedy." Political reform is not impossible: several states have moved toward independent commissions to draw legislative and congressional districts. But the United States inherited from the English common law the fundamental principle that for every wrong, there must be a remedy. The Supreme Court can provide a remedy and, because it can, it must. Gerrymandering: your time is up.

Trump Plays Fast and Loose With 1st Amendment

      The staff assistant assigned to brief presidential candidate Donald Trump on the U.S. Constitution is reported to have gotten only as far as the Fourth Amendment before Trump's attention flagged, according to the account in the tell-all book Fire and Fury by journalist Michael Wolff. "I got as far as the Fourth Amendment," Sam Nunberg is quoted as saying, "before his finger is pulling down on his lip and his eyes are rolling back in his head."
      Apparently, Trump's attention was wandering even earlier. His actions as candidate and as president demonstrate that he lacks any understanding of the First Amendment —  at least, the prohibition against abridging the freedom of the press.
      The most recent evidence of Trump's ignorance of, or indifference toward, freedom of the press comes from his lawyer's letter [Jan. 3] threatening a lawsuit to try to ban Wollf's book. Charles Harder, the Beverly Hills lawyer in the lawsuit that put the gossip site Gawker out of business, warned the Henry Holt publishing house on Trump's behalf of a possible suit to prevent publication of the book because of allegedly libelous material about Trump.
      Harder had sent a similar cease-and-desist letter to ex-Trump aide Stephen Bannon the day before, threatening the fired White House adviser with legal action for allegedly violating a nondisclosure agreement signed before signing up with the Trump campaign. Bannon is quoted extensively in Wolff's book with sharp criticisms of the man he helped install in the Oval Office.
      Both letters, written presumably with Trump's knowledge and approval, play fast and loose with the First Amendment's protections for freedom of speech and freedom of the press. The enforceability of nondisclosure agreements is a recurrent and somewhat murky issue in employment and trade secret law. The judicial precedents against prior restraints, on the other hand, are well established and well known and leave no room for courts to ban a book or a newspaper story except in the most extraordinary circumstances.
      Legal journalist Colin Kalmbacher summarized the major decisions in commentary published on Dan Abrams' legal news site Law and Crime. Recapping from Media Law 101, Kalmbacher recalled that the Supreme Court first extended the First Amendment to state governments in a decision, Near v. Minnesota (1931), that struck down a local ordinance prohibiting the publication of a "malicious, scandalous, or defamatory newspaper."
      Trump's displeasure with Wolff's book parallels the history in Near. The case originated with an effort by Minneapolis officials in 1927 to invoke what was called the "Minnesota Gag Law" to shut down The Saturday Press, a muckraking rag published by the openly anti-Semitic J.M. Near. The local judge issued an order ordering the newspaper to suspend publication, an order that the Minnesota Supreme Court upheld.
      As a First Amendment hero, Near falls far short of the ideal, but the U.S. Supreme Court's decision in his favor is a landmark in First Amendment law and a shield for all who claim its protections against government censorship. Writing for the 5-4 majority, Chief Justice Charles Evans Hughes said that the First Amendment allows a court-imposed prior restraint only if the publication would reveal critical military information, amount to obscenity, or directly incite violence.
      Kalmbacher noted a second precedent: the 9-0 decision in Nebraska Press Ass'n v. Stuart (1976) that threw out a judge's order prohibiting coverage of a high-profile murder trial. Oddly, Kalmbacher skipped over the more applicable precedent five years earlier in the Pentagon Papers case. The 6-3 decision in New York Times v. United States (1971) rejected the Nixon administration's effort to prevent the Times and the Washington Post from publishing excerpts of the classified study of Vietnam War policymaking.
      Those precedents leave no room whatsoever for Trump or his lawyer to block publication of Wolff's book even if the still unspecified defamatory statements meet the stringent "actual malice" standard of the earlier precedent, New York Times v. Sullivan (1964). In any event, the publishing house responded not by cowering in fear, but by moving the book's publication date up to Friday [Jan. 5].
      Charles Tobin, a Washington, D.C., lawyer who represents media interests, similarly doubted Trump's ability to silence Bannon under the supposed nondisclosure agreement. The case law establishes that a prior restraint is allowed only if "a government interest of the highest order" is at stake, Tobin explained. "The interest of a thin-skinned president" would not meet that standard, he reasoned.
      The legal basis for Harder's letters was so weak as to raise questions why he wrote them at all. The letters, Tobin suggested, "were more about public image and political grandstanding than legal merit." By week's end, Trump had sued neither Bannon nor Henry Holt. Several news stories noted Trump's penchant for threatening to file legal actions without ever actually filing them.
      Legal bluster may be part of the game for real estate developers or TV celebrities, but Trump is no longer private citizen. As president of the United States, he took an oath to "preserve, protect, and defend" the Constitution of the United States, including the First Amendment. Wolff's book summed up the views of many in Trump's circle that he was and remains unfit for the office. Day by day, tweet by tweet, Trump proves his critics to be right, whether they are inside or outside the White House.