Justices Unswayed by My Body, My Choice

         Thousands of soldiers, sailors, marines, and airmen are defying orders from their commander in chief to get vaccinated against the Covid-19 virus, evidence that the anti-vaxxers’ slogan of “my body, my choice” has insinuated itself into the ranks of the U.S. military. The resistance to vaccination threatens two qualities essential in the military: discipline and unit cohesion.

My body, my choice appeared to have only weak support, however, at the Supreme Court last week [Dec. 1] in the showdown arguments on abortion rights for America’s women. Conservative justices appeared to be open to overturning one important element of the 48-year-old landmark abortion rights decision in Roe v. Wade (1973), provisions protecting a woman’s right to terminate an unwanted pregnancy until late in her pregnancy.

The state of Mississippi posed the issue for the justices in 2018 by enacting a law that prohibits abortions after the fifteenth week of pregnancy in direct contradiction of the rule in the post-Roe decision, Planned Parenthood v. Casey (1992), that a state cannot ban abortions before the fetus can survive outside the womb, roughly after twenty-two or twenty-four weeks.

The law, struck down by two lower federal courts, amounted to a direct attack on the Supreme Court’s legal authority. Once the justices agreed to hear the state’s effort to reinstate the law, the state directly asked the Court to overrule Roe v. Wade, not merely to revise it. With Justice Ruth Bader Ginsburg’s death and the appointment of an anti-abortion judge in her place, anti-abortion forces sensed victory within their grasp.

Justice Amy Coney Barrett’s confirmation completed a trifecta for President Donald J. Trump’s promise to appoint justices who would vote to overturn Roe. All three of Trump’s justices – Neil Gorsuch, Brett Kavanaugh, and Barrett – won confirmation in a Republican-controlled Senate by historically narrow margins only after the Republican leader, Kentucky’s Mitch McConnell, engineered a rules change to allow Supreme Court nominations to be brought to the floor with fewer than sixty votes.

The oral arguments in Dobbs v. Jackson Woimen’s Health Organization left little doubt that the fortified conservative majority would uphold Mississippi’s law even at the cost of damaging a well-established precedent that two generations of women have relied on in planning their personal and professional lives. The outnumbered liberal justices – Breyer, Sotomayor, and Kagan – appealed in vain to the time-honored legal doctrine of respecting precedent, known in Latin as stare decisis (“let the decision stand”).

Kavanaugh answered by listing some of the Court’s now-honored decisions that overturned prior discredited decisions: Brown v. Board of Education, for example, with its overruling of Plessy’s blessing for racial segregation. Like Brown, all of the other overrulings that Kavanaugh listed enhanced liberty and equality under the law: one person, one vote; Gideon’s right to counsel for indigent defendants; marriage equality for same-sex couples; and others.

By contrast, overruling Roe v. Wade will amount to a major setback for women’s liberty and equality under the law. As one commenter put it on Twitter, Roe is Brown, not Plessy. And it is worth noting here that Roe was a 7-2 decision, joined by five Republican-appointed justices: three of Nixon’s justices, Burger, Blackmun, and Powell; and two of Eisenhower’s, Stewart and Brennan, the Court’s only Catholic justice at the time. The others in the majority included Douglas and Thurgood Marshall.

In his telling, Kavanaugh suggested that our liberty-loving Constitution is “neutral” on abortion: neither pro-life nor pro-choice. Instead, it allows the government to force a woman to carry an unwanted pregnancy to term despite the medical issues that any pregnancy entails and the risk of serious complications and even death in childbirth.

From the other end of the bench, Barrett was similarly cavalier about forcing a woman to carry a pregnancy to term. In her telling, the woman forced to give birth to an unwanted child can simply give it up for adoption, as easily as returning unwanted merchandise to a department store.

In the center seat, Chief Justice John G. Roberts Jr. was also somewhat cavalier in suggesting that fifteen weeks is ample time for a woman to come to a decision and arrange, schedule, and pay for the procedure. In fact, most of the abortions in Mississippi are performed by the fifteenth week of pregnancy. Roberts appeared to be looking for a compromise that would hold Mississippi’s law to survive a benefit-burden balancing test without flatly overruling Roe.

For now, Roe v. Wade survives only on borrowed time, the time it takes for the justices to draft, circulate, and sign off on opinions between now and the end of June. In the meantime, state legislatures have a green light to pass new abortion restrictions without worrying about Roe.

Still pending at the Court is the review of Texas’s more stringent law, known as S.B. 8, that prohibits abortions after a heartbeat is detected, roughly the sixth week of pregnancy. Texas designed the law to allow enforcement by private citizens rather than by state officials so as to avoid judicial review. The Court heard arguments in two parallel cases on Nov. 1 and has left the Texas law in place while drafting opinions to deal with the complex procedural issue presented.

             As they deliberate, the justices ought to seriously consider Sotomayor’s plaintive warning during oral arguments that the Court might not survive “the stench created by the public perception that reading the Constitution is just a political act.”

Vigilante Justice: Leave Policing to Police

         Three people, largely innocent, were killed at the hands of armed vigilantes: two trials, with different verdicts. The gunslinging teenager Kyle Rittenhouse was acquitted in Kenosha, Wisconsin, for killing two people and seriously injuring a third, by claiming self-defense against assailants who supposedly intended to do him harm. By contrast, the McMichel father and son were convicted in Brunswick, Georgia, of multiple counts of murder for killing the young Black jogger, Ahmaud Arbery, on Feb. 23, 2020. The death amounted to a present-day lynching, even if the lynch mob consisted only of three neighbors concerned with home break-ins and equipped with a shotgun instead of a rope.

            Despite the different outcomes, together the two episodes powerfully refute the myth that a good guy with a gun is part of the answer to crime and disorder in the streets. Policing is a demanding profession, best left to trained professionals who follow use-of-force rules laid down by publicly accountable administrators. With his military-style rifle, Rittenhouse possibly helped protect the used car lot from damage during the disorder in Kenosha, but the truth is that Rittenhouse was responsible for the only deaths during the disorder on the evening of August 25, 2020, more than a year before his eventual trial.

The two trials differed in multiple aspects. In Brunswick, Georgia, the experienced prosecutor Linda Dukinoski was sure-footed in presenting evidence and cross-examining young Travis McMichel in contrast to the occasional trial errors by assistant district attorney Thomas Binger in the Kenosha trial. Rittenhouse had the benefit of a two-million-dollar legal defense financed by a go-fund-me campaign by conservatives and gun rights partisans that allowed practice trials to rehearse Rittenhouse’s eventual testimony.

The McMichels and their neighbor, William “Roddie” Bryan, had no donors to help finance their somewhat meager defense. To the contrary, once the video of Arbery’s killing surfaced and the twice-delayed prosecution began, public opinion recognized the killing for what it was: a lynching that cried out for justice and accountability rather than celebration and legal impunity for the perpetrators.

The judges in the two cases differed as well. In Kenosha, Rittenhouse had the benefit of a judge, the 75-year-old Bruce Schroeder, who was clearly partial toward the defense and perturbed by the prosecution. In Georgia, Judge Timothy Walmsley, called in from nearby Savannah after the local judges in Glynn County all recused themselves, presided over the thirteen-day trial evenhandedly with calm and patience.

The death of Ahmaud Arbery began with racial profiling in its starkest terms. In his phone call to the local police, Travis McMichel reported “a black man running down the street,” their street so to speak in this white neighborhood. The father, Gregory McMichel, had weak grounds at best to initiate a citizen’s arrest of the Black jogger. At a distance, he could not have identified Arbery as the supposed intruder at the nearby construction site and could not have known what if anything the intruder had stolen.

 With Rittenhouse’s acquittal fresh in mind, convictions in Georgia seemed by no means certain despite Travis McMichel’s acknowledgment on cross-examination that he faced no threat from the unarmed jogger. Their defense relied weakly in the end on the premise that Arbery’s attempted flight from two armed white men amounted to proof of his guilt. With all three men convicted of multiple murder counts, court watchers credited Dukinoski with carefully downplaying the racial elements of the case for a jury that included only one Black juror in a county where African Americans comprise about one-fourth of the population. The McMichels’ defense lawyers had used peremptory challenges to excuse all of the Black potential jurors even as Dukinoski objected.

            Reacting to the Nov. 24 verdicts on the PBS NewsHour, Paul Butler, a Black law professor at Georgetown Law School and a former federal prosecutor, recalled McMichel’s initial report of “Black man running down the street” as evoking the “American history of racial violence and white supremacy and unequal justice under the law.” “You might say,” Butler continued, “that today these jurors disrupted that history.”

            “Criminal trials are not designed to be instruments of social change,” Butler added. “But sometimes verdicts reveal something about social progress. Today we learned that in Glynn County, Georgia, in a trial in which three white men hunted down and killed a Black man, those men were convicted by a virtually all-white jury. In this country that counts as progress.”

            The partisan celebration of Rittenhouse’s acquittal, on the other hand, sends a mixed message about vigilante justice. The Nov. 19 verdict is subject to reasonable doubt even if the jurors deliberated carefully over four days in weighing the evidence and applying Wisconsin’s law of self-defense. As the Washington Post rightly observed, Rittenhouse is “not a hero, but a hapless young man who armed himself with a gun he shouldn’t have had, foolishly put himself in a volatile situation where he had no business being, and ended up doing grievous and irreparable harm.”

            More legal proceedings are still pending. The McMichels and Bryan face the possibility of life prison sentences for their state court convictions and await likely trial on federal hate crime charges. Kyle Rittenhouse’s friend, Dominick Black, faces possible trial in Illinois on charges of intentionally giving a dangerous weapon to someone under age eighteen, resulting in death.

Justices Balk at Inmate's Religious Liberty Case

            The Roberts Court has shown extraordinary solicitude toward religious freedom claims brought in such varied contexts as challenging public health restrictions on attendance at religious services, challenging in gay marriage cases the application of laws prohibiting anti-LGBT discrimination, and challenging restrictions on use of public funds for students to attend parochial schools.

            Conservative justices were far less receptive last week, however, to a Texas inmate’s plea to have his spiritual adviser present with him during his execution by lethal injection. John Ramirez asked that his pastor, Dana Moore, be allowed to pray audibly during the execution and to lay hands on him as he passes into unconsciousness.

            For many years, Texas authorities had allowed audible prayer and touch by prison chaplains hired to attend executions. In Ramirez’s case, however, Texas authorities notified his lawyer shortly before the scheduled execution that his pastor would not be allowed audible prayer or touch during the procedure.

            In imposing the new restriction, the authorities expressed concern about decorum and security despite utterly no evidence from years of practice that chaplains’ prayer and touch during executions had disrupted the procedure or interfered with the administration of the lethal drugs.

            Representing Ramirez during oral arguments at the Court last week (November 9), Seth Kretzer repeatedly stressed that point as he fielded challenging questions from conservative justices, including Thomas, Alito, and Kavanaugh, who had all voted in support of free exercise claims in other contexts.

Thomas began by questioning Ramirez’s sincerity: was he filing repeated free exercise claims to game the system, Thomas asked. Kretzer answered with indignation. “I do not play games,” he countered. “There’s been no dilatory tactics in this case.”

Roberts followed by clarifying that Ramirez was specifically asking that his pastor, Moore, be allowed to touch his foot as the execution proceeded. Alito then joined to imagine a succession of pleas from inmates.

“What's going to happen when the next prisoner says that I have a religious belief that he should touch my knee? He should hold my hand? He should put his hand over my heart? He should be able to put his hand on my head?” Alito asked. “We're going to have to go through the whole human anatomy with a series of cases.”

Kretzer’s reply left Alito unsatisfied. “I take it what you said is, well, each one of these is different, factually different; prisoners have different religious beliefs; each one has to be analyzed separately,” the justice said. Kretzer said he knew of no religion that specified “a touch on this particular piece of the body.”

.“What we're talking about here is a laying-on-of-hands doctrine that the minister does with all of his congregants as they're nearing the point in time that they die,” Kretzer added. Appearing before a Court with six practicing Catholics, Kretzer might have noted an analogy to the Catholic sacrament of Extreme Unction. – the last rites that a priest performs to a Catholic believer.

Kavanaugh joined to reject Kretzer’s assurances that nothing would go wrong by allowing audible prayer and touch during the execution. Not good enough, Kavanaugh objected. “I'm still having problems with they're saying we should keep the risk to zero,” he said, “and you're saying, no, you should tolerate a little more risk because Alabama does it.”

The justices’ varied objections were in contrast to their responses to free exercise claims in a succession of gay marriage cases from the anti-gay baker in Colorado, the florist in Washington, and the printer in Kentucky – who all claimed religious objections to providing services for same-sex couples. None of the justices in those cases questioned the religious bona fides of the plaintiffs’ objections to same-sex weddings. Nor did any of the justices fret in the first of the cases that hearing one such case would invite a succession of cases, each one with a different fact pattern presenting the Court with different issues each time.

Kavanaugh’s favorable view of Texas’s compelling interest in a zero-risk execution differed from the Court’s blithe dismissal in the gay marriage cases of each state’s interest in enforcing its anti-LGBT discrimination laws. In the execution case, Ramirez’s free-exercise claim comes with a congressional mandate that the state can override his religious liberty only under a demanding standard. The Religious Land Use and Institutionalized Persons Act (RLIUPA), enacted in 2000, specifies that a state government can impose a substantial burden on a prisoner’s free exercise only to further a compelling interest and only if the restriction is narrowly tailored.

            Under that standard, Ketzer argued that Ramirez’ plea should certainly be granted. Supporting Ramirez’ stance, the Biden administration also argued that Texas had not met its burden under the federal law. “[O]ur recent experiences suggest that a categorical ban, like Texas appears to have, isn't the least restrictive means for doing so,’’ deputy solicitor general Eric Feigin told the justices. “To justify such a ban, Texas would have to offer -- its experts would have to offer state-specific reasons why it's necessary.”

            In the then-recent spate of thirteen federal executions, Feigin told the justices, the government “has allowed vocalization essentially throughout” the procedure. In addition, Feigin said, “[W]e've allowed physical contact one time briefly before the execution -- before the administration of the drugs began.”

            Feigin also contrasted the government’s attitude with Texas’s stance. For the most part, Feigin said, the government accommodated inmates’ requests regarding spiritual advisers. “Everyone was clearly satisfied enough that we avoided last-minute litigation,” the government lawyer said. 

Abortion Rights Still in Limbo in Texas

             Supreme Court justices met in conference on Friday (Nov. 5) and issued late in the day a routine orders list granting review in three more cases for the current term. They adjourned, however, without acting on more urgent business: what to do to restore the Court’s own authority over the state of Texas’s attempt to nullify the Court’s abortion rights precedents in the country’s second most populous state.

            The justices had divided 5-4 two months earlier in a shadow docket decision [Sept. 1] that allowed Texas’s ban on abortions after the sixth week of pregnancy to go into effect despite opinions from four of the justices pronouncing the law unconstitutional. In the meantime, women in Texas seeking abortions had to cross state lines into Oklahoma or Louisiana to vindicate the constitutional rights guaranteed to them under Supreme Court precedents.

            The justices expanded their review of the Texas law by agreeing to hear arguments in separate suits challenging the law: one brought by abortion providers, Whole Woman’s Health v. Jackson, and the other brought by the United States under the name United States v. Texas.

            Both suits had to contend with Texas’s unprecedented stratagem to avoid federal court review of the law. Texas’s never-before-tried ploy turned on denying the state any role in enforcing the ban on pre-viability abortions and turning enforcement over to private citizens through punitive civil suits against anyone aiding in an abortion illegal under the new law.

 The Court heard arguments in the two cases on Monday [Nov. 1]. The justices’ questions in the first of the cases indicated likely approval of the providers’ legal effort to nullify the law, formally titled the Heartbeat Act and commonly referred to by its bill number S.B. 8. The Justice Department filed its own suit in the United States’ name after the Fifth Circuit stayed the injunction that the abortion providers had won in their suit at the district court level.

The United States also won an injunction in its suit—specifically, enjoining court clerks from docketing private suits filed under S.B. 8 and enjoining private citizens who actually attempt to file such suits. The Fifth Circuit stayed that injunction as well, thus leaving the law in effect despite two lower court rulings finding it unconstitutional.

Representing the United States in the second argument on Monday, the newly confirmed solicitor general Elizabeth Prelogar boldly and unapologetically defended the procedurally unprecedented suit against the Texas law. The law, Prelogar declared, was a “brazen attack” on the Court itself and on Congress. “It's an attack on the authority of this Court to say what the law is and to have that judgment respected across the 50 states,” Prelogar  explained. “And it's an attack on Congress's determination that there should be access to pre-enforcement review in federal court to vindicate federal rights. The United States may sue to protect the supremacy of federal law against this attack.”

To justify the suit, Prelogar had to get around a century-old Supreme Court precedent known as Ex parte Young (1908) that protects states from being sued directly to overturn unconstitutional laws and instead requires such suits to name as defendant the state officials charged with enforcing the allegedly unconstitutional law.

One passage in that decision posed a particular obstacle to the remedy that the government sought in its suit. “[T]he federal court may enjoin an individual or a state officer from enforcing a state statute on account of its unconstitutionality,” the Court declared, “but it may not restrain the state court from acting in any case brought before it . . . .” An injunction to that effect, the Court added, “would violate the whole scheme of this Government.”

Prelogar drew challenging questions quickly from the trio of hard-line conservatives – Thomas, Alito, and Gorsuch – who all found various reasons for doubting the procedural posture of the United States’ suit. Thomas repeatedly demanded that Prelogar cite some precedent for the United States’ suit. Prelogar acknowledged she had no precedent to cite because there was no precedent for the scheme that Texas devised to prevent judicial review. “[B]ecause a state has never before crafted an enforcement scheme like this, there has not been the kind of situation that would prompt the United States to intervene in this manner,” she added.

In later reply to a supportive question from one of the Court’s liberal justices, Kagan, Prelogar defended the injunction that the district court had entered in the United States’ suit. “[T]he district court recognized that in these very unusual circumstances it was also appropriate to bind the clerks and the judges, who are being used as part of the machinery of this apparatus to impose the substantial chilling effect through the S.B. 8 enforcement actions,” she replied.

With her rebuttal, Prelogar closed by pleading the urgency of the case. She asked the Court to “affirm the preliminary injunction entered by the district court and immediately [emphasis added] vacate the stay that the Fifth Circuit entered in this case so that Texas cannot continue to deny women in its borders a right protected by this Court’s precedents one day longer.” Any immediate action seemed unlikely, however, after the Court decided to hear the two cases under normal procedures. So now, women in Texas must wait in legal limbo as the justices draft opinions and come to some decisions, probably weeks from now.

 

Gun Lobby Lacks Broad Support in New York Case

             The New York gun rights advocates who are asking the Supreme Court to establish a presumptive constitutional right to carry firearms in public outside the home lack broad support for their claim among the dozens of friend-of-the-court briefs filed by groups on both sides of the issue.

            The Republican-packed Court will hear oral arguments in the case, New York State Rifle & Pistol Association v. Bruen, on Wednesday, Nov. 3. The Biden administration will share time with the state’s lawyer to defend the state law that requires applicants for a gun permit to show “proper cause” for needing to be armed in public.

            Most of the forty-seven amicus briefs supporting the New York gun group in the case were filed by elements of the gun lobby itself: gun owner groups in other states, libertarian advocacy groups aligned with the gun lobby, or law professors with careers built on Second Amendment scholarship.

            The groups that filed thirty-seven amicus briefs on New York’s side represent much broader segments of American society, including the professional associations representing the nation’s doctors and the nation’s lawyers. In its brief, the American Medical Association (AMA) argues that “unrestricted concealed carry permits” would “open the floodgates to more injury and death” from what the doctors call “the epidemic of firearm violence.”

            Other groups supporting New York’s position include such long established civil liberties and civil rights organizations as the American Civil Liberties Union (ACLU), the NAACP Legal Defense and Educational Fund (LDF), and the League of Women Voters. Like the AMA, these groups warn that making it easier for people to go armed on the streets would add to the risks of gun violence – including intimidation and harassment against, among others, free-speech demonstrators,  minority groups, and would-be voters waiting in line at polling places.

In its brief, the ACLU argues that broad bans on public carry, enacted and enforced when the Second Amendment was ratified, were historically important in “promoting safety and reducing the chances that the disagreements inevitable in a robust democracy do not lead to lethal violence.”

The ACLU also notes that the two states that recently experienced armed insurrections at their state capitals, Michigan and Oregon, both have lax open carry laws. The brief also argues that the District of Columbia’s relatively strict public carry law helped limit potential violence during the January 6 insurrection by encouraging insurrectionists to leave weapons at home or in their cars.

The ACLU’s brief continues by listing half a dozen instances when gun-carrying individuals with permits threatened or fired their weapons at innocent bystanders—among others, “Black Lives Matter” protesters. The other victims included, for example, a Walmart customer who asked a gun-toting fellow customer to put on a mask and a black family threatened by a gun-carrying white driver in a parking-lot dispute.

            In its brief, the League of Women Voters notes that threats and force “have long been used to intimidate voters.” The League warns further that “handgun proliferation reasonably creates fear that voting-related conflict and unrest will turn violent.”

            Red states and blue states lined up, as often happens, in amicus briefs filed according to their political orientations on opposite sides of the case. Most of the twenty-six states that support the New York gun group already have enacted so-called “shall issue” laws in response to lobbying from the National Rifle Association (NRA); the red states argue that “objective permit regimes” reduce some types of violent crimes and have no statistically significant effect on violent crime overall. In an opposing brief, seven former big-city police chiefs, including New York City’s former police commissioner William Bratton, contend to the contrary that New York’s licensing regime “makes the state’s citizens safer without infringing on protected constitutional rights.”
            Eighteen blue states and the District of Columbia joined in an amicus brief filed by California in support of the New York law. Besides California, the list includes three other states – Illinois, Michigan, and Pennsylvania -- among the ten most populous in the country. The red states’ brief includes two of the mega-states, Texas and Florida, along with four of the states among the country’s least populous: Alaska, the Dakotas, and Wyoming.

            The government’s brief notes that Congress has enacted an array of federal laws limiting, for example, the carrying of firearms aboard airplanes, in school zones, and in government buildings. Those laws, the government argues, comport with the Second Amendment and so also do local and state laws regulating open or concealed carry. In effect, the government warns, a ruling against the New York law would risk upending public-safety laws enacted at all levels of government in the interest of a radical revision of constitutional law urged by a narrow slice of the American public and the legal profession.

George Floyd Didn't Have to Die

         Five months after George Floyd’s death in Minneapolis, the federal appeals court in California issued a ruling in a less serious use-of-force case that could have saved Floyd’s life if the Ninth Circuit’s rule had been adopted earlier by the Minneapolis police department. The appeals court’s ruling in Cortesluna v. Leon cited a twenty-year-old decision as establishing a simple, easy-to-follow rule for police to follow: any use of force against a suspect, lying on the ground and not resisting, is excessive and against the law.

            The Ninth Circuit’s panel treated that rule as clearly established and applied it to allow the suspect in a domestic disturbance case, Ramon Cortesluna, to sue the officer, Daniel Rivas-Villegas, who kneeled on his back while he lay on the ground helpless and compliant. With one judge dissenting, the panel majority determined that controlling precedent at the time put officers on notice that kneeling on a prone and non-resisting person’s back so hard as to cause injury was excessive.

            With a rule like that in Minneapolis, Officer Derek Chauvin might have known that he was violating the law from the very first moment that he pressed his knee against Floyd’s neck—not for eight seconds but for nine minutes. The other, younger officers at the scene might have felt more comfortable in urging Chauvin to stop before the pressure on Floyd’s windpipe killed him.

            The Supreme Court reversed the Ninth Circuit’s decision in a ruling issued last week (October 18) that effectively ended Cortesluna’s suit against the two officers involved in his arrest and resultant injury. Ruling in the case without full briefing or oral arguments, the justices held that the earlier case that the Ninth Circuit relied on was “materially distinguishable” from Cortesluna’s case and determined that Rivas-Villegas’ use of force – kneeling on Cortesluna’s back for eight seconds -- was not clearly excessive and on that basis that he was entitled to qualified immunity.

            More than a year after George Floyd’s death in May 2020, the efforts to reform police practices on use of force have produced little by way of changes in policy. The Ninth Circuit’s rule, on the other hand, could have significant impact if adopted not only in western states but in other federal circuits. The Supreme Court’s peremptory rejection of the Ninth Circuit’s decision, on the other hand, kills any prospect for extending the rule.

            The Supreme Court’s ruling in the California case was one of two summary decisions issued last week that granted qualified immunity to police officers sued for excessive force. Together, the two decisions dashed hopes that the justices might respond to the growing criticism of the judicially created doctrine of qualified immunity, which effectively allows police officers to escape liability by claiming ignorance of the law. How were we to know, the officers in the California case might have asked, that it is wrong to use force against a suspect after the suspect is compliant and under control.

            Joanna Schwartz, a professor at UCLA Law School who teaches about police accountability, summarized the arguments against qualified immunity in an article published recently in the University of Chicago Law Review. “There is a growing consensus among courts, scholars, and advocates across the ideological spectrum that qualified immunity doctrine is legally unsound, unnecessary to shield government officials from the costs and burdens of litigation, and destructive to police accountability efforts,” Schwartz wrote.

            Critics emphasize that qualified immunity effectively leaves police officers and oversight agencies with no clear guidance on use of force. The Supreme Court’s ruling in the California case, for example, unsettles the Ninth Circuit’s bright-line rule and instead holds that eight seconds of unnecessary use of force is not necessarily excessive – but how about sixty seconds? Or nine minutes?

Even apart from the issues left unresolved in decisions based on qualified immunity, Schwartz reports in her article that police officers “are not notified of the facts and holdings of cases that clearly establish the law for qualified immunity purposes.” And, in any event, “there is no reason to believe that officers would analogize or distinguish situations rapidly unfolding before them to the court decisions they once studied.”

            Two terms ago, critics of qualified immunity filed several petitions urging the Supreme Court to take a serious look at the doctrine and consider either eliminating it or narrowing it significantly. The justices turned aside all those petitions, despite the widespread buzz among the defense bar and civil liberties communities. With last week’s decisions, the Court appears to be doubling down on qualified immunity rather than re-examining the doctrine.

            The Court’s reticence bodes ill for any significant reform in police practices in the near future. Recall that police practices on interrogating suspects and defendants were reformed only after the Warren Court laid down bright-line rules for police to follow: specifically, no custodial interrogation without first advising suspects of their right to an attorney during questioning. The Miranda guidelines were intensely controversial when adopted in the 1960s, but by 2000 Chief Justice William H. Rehnquist spoke for a 7-2 Court in declaring that the Miranda warnings “have become part of our national culture.”
            The current Court ought to consider what it can do to establish reasonable limits on police use of force instead of using qualified immunity to avoid the issues. Miranda, it is now clear, has been good for law enforcement by giving a clear roadmap for admitting confessions from suspects. Police today need the same kind of clear rule about when and how use of force can be justified.

Too Many Cooks on Supreme Court Reform?

            The need for Supreme Court reform is urgent precisely because the nomination and confirmation process has become in the hands of Republican presidents and Republican senators a partisan spoils system. The resulting partisanship may well doom any or all of the various reform proposals now being debated by, among others, the 36-member commission appointed by President Biden

             No one expected that Supreme Court reform would be anything other than deucedly difficult, and the work of the Presidential Commission on Supreme Court Reform has not yet made the task easier or more auspicious. In creating the commission by Executive Order 14023, President Biden limited the membership commission to no more than thirty-six, but that number itself poses daunting obstacles to producing a consensus report that can overcome the partisan resistance to any of the reform proposals.

             The commission met for a six-hour talk fest on Friday (Oct. 15) the day after the commission released draft discussion materials prepared by working groups on such proposals as expanding the size of the Court and establishing term limits for Supreme Court justices. The draft materials were dismissively summarized on Twitter by Eric Segall, a law professor at Georgia State, in these words: “A little of this and a little of that and a lot of nothing. And so it goes.”

             In Friday’s meeting, several of the commissioners, including the Harvard Law School professor Laurence Tribe, objected in particular to the ostensibly even-handed approach that the working group used in the 45-page report describing proposals to increase the size of the Court. As drafted, Tribe complained, the report “stops the discussion as related to expansion.”

             Here’s the rub: adding one or more new justices with a Democrat in the White House would be the most straightforward remedy for the Republicans’ packing of the Court that began with the Senate’s refusal in 2016 to consider President Obama’s nomination of Merrick Garland for the vacancy created by Justice Antonin Scalia’s death. The GOP-majority Senate packed the Court further by changing Senate rules to fast-track confirmations of President Trump’s three nominees: Neil Gorsuch, Brett Kavanaugh, and Amy Comey Barrett. The last of those party-line confirmations came on October 25, 2020, as the American people were already voting to deny Trump re-election. 

Tribe also noted that among the various proposals under discussion, changing the size of the Court is the most clearly within Congress’s power to enact. He warned that he “would have trouble signing” the commission’s eventual report if it threw cold water “on the one legitimate exercise of congressional power to counteract a dangerous judicial trend.”

Even without constitutional doubts, expanding the size of the Court would be difficult at best to get through the Senate if Republicans use the filibuster to thwart the will of the narrow Democrats’ 52-48 majority. In contrast to the draft discussion on expanding the size of the Court, the draft materials on term limits acknowledge the “widespread and bipartisan support” for limiting tenure for justices. The thirty-page report adds that term limits “can enhance the Court’s legitimacy in the eyes of the public.” Despite those favorable assessments, the report nevertheless warns that term limits “are not a panacea for polarization.” The report then adds that mandatory retirements “would ensure some degree of responsiveness to elections over time, while preserving judicial independence.”

Presidential commissions can help form conventional wisdom on contentious political issues even without producing tangible results. In that regard, recall the strongly worded Kerner Commission report in 1968 that linked urban riots to the persistence of poverty and institutional racism. Sadly, most of the commission’s recommendations to address those issues went unacted on. The present commission on Supreme Court reform can help counteract the hyper politicization of the Court only if the members coalesce behind a strongly worded report that places the blame for the current polarization where it belongs and avoids the use of false equivalencies to spread the blame around.

The draft materials on expanding the size of the Court echo the warnings from, among others, Breyer that adding one or more justices would invite a tit-for-tat response by the opposite party at some later date. In Friday’s meeting, one of the commissioners, the conservative George Mason University law professor Adam White, appeared to adopt the view submitted by Georgetown law professor Randy Barnett that Congress has no power to change the size of the Court only for partisan balance.

Tribe, with far stronger academic credentials than Barnett, rejected Barnett’s view, contending that Congress’s motivations for changing the size of the Court would be irrelevant. In fact, the draft materials note that Congress has changed the size of the Court more than half a dozen times through history, for a mixture of institutional and partisan reasons.

The well known maxim may apply here: too many cooks can spoil the soup. The commission will serve a useful purpose only if the commissioners – most of them, respected law professors from prestigious law schools – can set aside any partisan differences to produce a strongly worded report that sets out a viable path for reducing the acknowledged increase in partisan conflict in recent years.

"Home Cooking" for Texas in Abortion Case?

             The state of Texas seems likely to get a generous serving of “home cooking” when a panel of three federal appellate judges hear the state’s effort on Tuesday [October 12] to salvage the state’s patently unconstitutional ban on abortions after the sixth week of pregnancy. The panel, with two Republican appointees and one Democratic appointee, already gave the state a boost on Friday (October 9) by temporarily lifting the injunction that a federal district court judge issued earlier in the week to block enforcement of the law.

Two of the three judges on the panel have deep roots in the state’s conservative Republican politics: Catharina Haynes, a former state court judge appointed to the Fifth Circuit in 2008 on the recommendation of the state’s two Republican senators, and James Ho, a former Texas solicitor general appointed to the appeals court by President Trump in 2018. Ho may have the decisive vote in the appeal if, as seems likely, Haynes and the Democratic appointee on the panel, Carl Stewart, a former state appellate judge in Louisiana, disagree.

            In issuing the injunction against the law on Wednesday (Oct. 6), U.S. District Court Judge Robert Pitman emphatically rejected the state’s effort to avoid judicial review by vesting enforcement not with state officials but with private citizens he called “anti-abortion vigilantes.” Any private citizens suing to enforce the law, Pitman concluded, would be “state actors” subject to a federal court injunction.

Specifically, the so-called Texas Heartbeat Act incentivizes private citizens to enforce the law by allowing a private citizen to be awarded $10,000 for successfully suing anyone who performs or induces an abortion or aids and abets an abortion after “cardiac activity” in an embryo can be detected, usually around the sixth week of pregnancy.

The lawyer who designed the act’s unprecedented enforcement scheme was Jonathan Mitchell, a former state solicitor general and ex-law clerk to Supreme Court Justice Clarence Thomas. As it happens, Ho appears to be on ideologically compatible terms with Mitchell; Ho served as moderator with Mitchell as a panelist on a Federalist Society program at the University of Chicago Law School in February 2019.

Ho is also no stranger to abortion-related cases engineered by the Texas state legislature. Within months of taking his seat on the Fifth Circuit, Ho voted in July 2018 to uphold a Texas law requiring burial or cremation of fetal remains after an abortion. He added in his opinion that the Catholic bishops defending the law had the right “to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains.”  

Pitman, appointed to the federal bench in Austin by President Obama in 2014, wrote a comprehensive 113-page opinion that thoroughly answered all of the state’s defenses of the law and all of the state’s objections to the United States’ suit seeking to invalidate the law. Pitman began by stating what was surely obvious to the Texas legislators in enacting SB8. “A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”

Pitman’s decisive action was in sharp contrast with the Supreme Court’s earlier decision on Sept. 1 to allow SB8 to take effect. The five Republican-appointed conservatives in the majority authored an unsigned, one-paragraph opinion that acknowledged “serious questions” about the constitutionality of the law, but they threw up at their hands because of the “procedural questions” created by the state’s private enforcement scheme. The abortion clinics who brought the case to the Supreme Court, Whole Woman’s Health v. Jackson, Judge, named as defendants the class of state court judges in Texas empowered to entertain the private enforcement suits authorized by the law.

Pitman circumvented the procedural question by directing the state to publish on “all of the public-facing court websites . . .  a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.” Pitman further instructed the state to distribute copies of his preliminary injunction to all of the state’s judges and all of the state’s court clerks. Pitman acknowledged that the court might not be in the best position to dictate the particulars and, instead, ordered the state to submit its plan for disseminating the information to him for “review and approval.”

If reviewed by a non-stacked panel, Pitman’s meticulous opinion would warrant an affirmance with an acknowledgment of its scholarly thoroughness In issuing the injunction against the law, Pitman sent the state’s lawyers packing by refusing to consider the state’s application for a stay pending the inevitable appeal.

The state, Pitman wrote at the end of his opinion, “has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” Other courts may rule differently, Pitman acknowledged, but he was unshaken in his decision. “This Court will not sanction one more day of this offensive deprivation of such an important right,” Pitman wrote in conclusion.

The Fifth Circuit panel took only five hours on Friday before issuing the temporary administrative stay to allow the law to go back into effect pending next week’s appeal. The panel wrote nothing by way of explanation for putting Pitman’s decision on hold; Haynes and Ho have their work cut out for them to come up with legal rationales to uphold the law, as they surely hope to do.

Justices Unhappy With Unfavorable News Coverage

           Supreme Court justices have taken up a new pastime, media criticism, even though they have been working around the clock recently to issue momentous decisions late at night from the Court’s shadow docket. The so-called “shadow docket,” once an issue only for obsessive Court watchers, has emerged over the past few months into a concern for congressional committees and for newspaper editorialists and legal commentators generally.

            The concern peaked after the justices voted 5-4 in a shadow docket decision on September 1 to allow the state of Texas to put into effect a law banning abortions after the sixth week of pregnancy in direct contradiction to the landmark abortion rights decision in Roe v. Wade (1973). That ruling, reaffirmed as recently as 1992, allows a woman to terminate a pregnancy up to the 24^th week of presidency.

            Five of the justices – most recently, Samuel A. Alito Jr. in a speech on Thursday [Sept. 30] at Notre Dame Law School – have reacted defensively to the general tone of recent news coverage suggesting that the justices are voting along partisan lines rather than according to law. The justices have taken to the lecture circuit to air their views just as their poll numbers are under water at an all-time low and as a growing number of Americans – 37 percent in the most recent survey -- consider the Court to be “too conservative.”

            Alito, speaking for nearly an hour to a seemingly friendly audience at Notre Dame Law School, objected to the six-year-old coinage “shadow docket” to refer to what he called instead the Court’s “emergency docket.” Regarding the ruling in the Texas case, Whole Woman’s Health v. Jackson, Alito contended that news coverage had wrongly conveyed what he called “the false and inflammatory claim that we nullified Roe v. Wade.”

            Instead, he noted that the unsigned one-paragraph opinion for the majority acknowledged the “serious questions regarding the constitutionality of the Texas law  . . . .” and expressly allowed legal challenges to the law in Texas courts. Speaking at a campus dominated by anti-abortion faculty, Alito seemed to gloss over the undeniable fact that the law, if enforced as intended, will prohibit virtually all abortions in the state.

            Alito contended that the Court had followed well-established procedures in dealing with the Texas law and, separately, in blocking the Biden administration from instituting a pandemic-related moratorium on evictions. The Centers for Disease Control (CDC) had issued the moratorium to try to protect financially strapped renters from the risk of community spread after being thrown out into the streets or into crowded shelters. The vote in that decision, Alabama Association of Realtors v. Department of Health and Human Services, issued on Aug. 26, was 6-3 with the three liberal justices in dissent: Breyer, Sotomayor, and Kagan.

            The liberal justices had also dissented in the Texas case, joined in that instance by Chief Justice John G. Roberts Jr. Dissenting in that case, Kagan specifically complained about what she called “too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.”

            In the Notre Dame speech, Alito countered that what he called “the catchy and sinister term ‘shadow docket’ has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.” “This portrayal,” he added, according to Adam Liptak’s account in The New York Times, “feeds unprecedented efforts to intimidate the Court and to damage it as an independent institution.”

            Earlier this month, Justice Amy Comey Barrett had somewhat similarly complained about news media coverage of the Court’s recent decisions in a Sept. 12 speech at the University of Louisville’s McConnell Center, according to the account by the Courier-Journal’s Mary Ramsey. “The media, along with hot takes on Twitter, report the results and decisions,” Barrett remarked, without citing any specific news account. “That makes the decision seem results-oriented. It leaves the reader to judge whether the Court was right or wrong, based on whether she liked the results of the decision.”        Justice Clarence Thomas aired a similar complaint a few days later in remarks at Notre Dame Law School on Sept. 16.

            Barrett opened her remarks at the ostensibly bipartisan McConnell Center – with the Senate’s Republican leader Mitch McConnell sitting on stage – by insisting that the justices are not “partisan hacks.” Even so, the shadow docket decisions with Donald Trump in the White House favored the Republican administration by granting more than a dozen applications to set aside lower court rulings unfavorable to Trump’s policies.

By contrast, the Court has dealt the Biden administration setback after setback, with three Trump appointees providing the votes needed to block policies sought by the Democratic administration. As one example, the Court on Aug. 24 effectively ordered the Biden administration to reinstitute the Trump-era policy that required asylum applicants to remain in Mexico rather than wait in the United States even after Biden’s Department of Homeland Security had rescinded the policy based on what the Court’s majority found to be inadequate process.

            The justices’ complaints about news coverage come straight out of the standard “shooting the messenger” playbook for politicians and are eerily reminiscent of the “fake news” mantra that Trump used to gain and maintain power even in the face of witheringly unfavorable news coverage. If the justices want to prove that they are not political hacks with black robes, they would do well to stop voting along partisan lines and to stop behaving like thin-skinned politicians.

 

 

 

 

 

 

Court's Standing Sags as Politics Overtakes Law

             The Supreme Court is set to open a new term with two politically charged cases at the top of its agenda just as its standing with the American public is sagging, according to two recent public opinion polls. The justices ought not pay too much attention to their standing in the polls, of course, but three justices appear from their recent lecture circuit talks to have concluded that many Americans are viewing the Court today as a partisan branch of government instead of as a temple of equal justice under the law.

            None of the three – Breyer, Thomas, or Barrett – specifically referred to the higher-than-normal disapproval for the Court, as measured by the most recent Gallup Organization poll. But Justice Amy Comey Barrett seems to have had the Court’s image in mind when she spoke at the University of Louisville’s McConnell Center with McConnell himself on stage, less than one year after the Senate’s Republican leader fast-tracked her nomination through to a party-line confirmation vote.

            “My goal today,” Barrett told the audience, “is to convince you that this court is not comprised [sic] of a bunch of partisan hacks,” according to the account by Courier-Journal reporter Mary Ramsey. “Judicial philosophies are not the same as political parties.”

            Today, however, the justices of the 21^st century Supreme Court are divided on judicial philosophies for the first time in history in exact correspondence to the political party of the president who appointed them: six Republican-appointed conservatives and three Democratic-appointed liberals.  

            The Court’s lopsided conservative majority results from the most partisan of tactics deployed by McConnell as Senate leader – first by blocking President Obama’s nomination of Merrick Garland in 2016 and then by changing Senate rules with Donald Trump in the White House to allow floor votes on Supreme Court nominees with fewer than sixty votes. Under the previous rules, none of Trump’s nominees – Barrett, Neil Gorsuch, or Brett Kavanaugh – would be sitting on the Supreme Court today.

            Now, the Court is about to hear arguments one month apart in two cases that each pose simple legal issues raised in the context of politically contentious issues: reproductive rights and Second Amendment gun rights. Conservative interest groups have engineered and mobilized behind the two cases: Mississippi’s effort to overrule a critical part of the Roe v. Wade abortion rights decision and an effort by New York gun rights groups to guarantee a personal Second Amendment right to carry firearms outside the home.

            Mississippi’s health director is the petitioner in Dobbs v. Jackson Women’s Health Organization, set to be argued on Dec. 1. Mississippi enacted a law that prohibits abortions after the fifteenth week of pregnancy, in flat contradiction – as found by two lower federal courts – of the Roe v. Wade line that guarantees a qualified right to abortion up to the point of fetal viability, roughly the twenty-fourth week of pregnancy.

            Apart from President Trump’s vow to name justices who would vote to overrule Roe v. Wade, Mississippi’s appeal would have called for a summary affirmance of the lower court decisions without full briefing and oral arguments. The Court has reaffirmed Roe v. Wade time and time again since a Republican-majority Court issued the 7-2 decision in 1973. Two decades later, another Republican-majority Court in Casey v. Planned Parenthood (1992) rejected by a 5-4 vote a plea by anti-abortion groups to overrule Roe v. Wade.

            The law has not changed since 1992, but the Court’s politics has changed in deference to the Republican Party’s lockstep alliance with so-called pro-life groups. The anti-abortion groups that have massed behind Mississippi’s effort to salvage its anti-Roe v. Wade law are arguing, wrongly, that the trimester framework the Court crafted in the 1973 decision has proved to be unworkable. Respect for precedent is one fundamental principle of Supreme Court jurisprudence; an equally important corollary teaches that the Court ought not overrule a prior decision merely because of changes in the composition of the Court.

            In the other of the two hottest-button cases, the Court will consider an effort by New York gun rights groups to invalidate a state law that requires an applicant for a gun permit to show “proper cause” for needing to carry a firearm on the streets, outside the home. The Court in its landmark Second Amendment decision in Heller v. District of Columbia (2010) took care to limit the personal right to “keep and bear arms” to the home. In writing the majority opinion, Justice Antonin Scalia said that the decision did not cast doubt on laws that prohibited possession of firearms by felons and the mentally ill or laws that prohibited carrying weapons in sensitive places such as schools and government buildings.

            The various briefs supporting New York’s position in New York State Rifle and Pistol Association v. Bruen highlight the long tradition of municipal laws – dating from colonial days – regulating the authority to carry firearms in public. New York’s law fits comfortably within the tradition and history of local regulation that dates from the adoption of the Second Amendment. In today’s urban environment, those regulations are all the more important to protect innocent citizens from gun violence perpetrated by concealed-carry permit holders.

            The law in these two cases is clear, apart from the Republican Party politics that has transformed the Court and taken over the federal judiciary. The justices who worry about the Court’s image can best serve that goal by setting aside their politics just as they claim that black-robed justices do as a matter of course. As the Court opens a momentous term, however, many signs point toward to the likelihood of political decisions in both of the high-profile cases.

In Torture Case, No Secrets Left to Protect?

            Abu Zubaydah, wrongly suspected of being an Islamic terrorist, was tortured cruelly and secretly two decades ago at a Central Intelligence Agency (CIA) black site in Poland. The details of his torture – waterboarding and half a dozen other “enhanced interrogation techniques” – have been laid out in a Senate Intelligence Committee report, a federal court opinion, and extensive news media coverage.

            Despite all that publicity, the government is now invoking the “state secrets privilege” before the Supreme Court in an effort to prevent Zubaydah’s lawyers from gathering sworn testimony from the two CIA contractors who designed the interrogation techniques used for a period of time in the CIA’s now discredited detention and interrogation program.

            The justices will hear oral arguments in the case, United States v. Zubaydah, on Wednesday, Oct. 6, two days after the opening of the 2021 term. A government lawyer will argue, implausibly, that it is immaterial that the “secrets” have been reported officially and unofficially in the United States and worldwide for more than a decade.   

            Pakistani authorities cooperating with the CIA captured Zubaydah in Pakistan in March 2002 based on the mistaken assumption that he was a high-ranking member of al Qaeda. He was taken to the CIA’s black site in Poland, held there for nine months, and was subjected to waterboarding more than eighty times and to other torture-like techniques developed by two psychologists, James Mitchell and Bruce Jessen, who were paid $80 million for their work in developing and implementing the techniques.

Mitchell and Jessen, who were doing business as Mitchell Jessen Associates in Spokane, Washington, based the so-called “enhanced interrogation techniques” on their work in training Air Force pilots and other U.S. service members on resistance to the enemy if captured.

            Zubaydah was transferred in September 2003 to the prison camp that the Bush administration established for “enemy combatants” at the Guantanamo Bay Naval Base in Cuba. He is still being held at Guantanamo today even though the Senate Intelligence Committee’s 2014 report on the CIA program concluded that his designation as a high-ranking enemy terrorist was “erroneous.”

            While Zubaydah was held in Guantanamo, his lawyer, Cornell law professor Joseph Margulies, sued Poland before the European Court on Human Rights seeking damages for the Polish government’s role in Zubaydah’s detention and interrogation. That court ordered Poland in 2014 to pay Zubaydah and a second detainee 100,000 Euros each for having exposed them to the risk of torture through its complicity in the CIA’s interrogation program.

            The current Supreme Court case stems from a legal move in 2018 by Margulies asking a federal judge in Yakima, Washington, to issue a subpoena for Mitchell and Jessen for testimony to be used in a second proceeding against Poland pending before the European tribunal. U.S. District Court Judge Justin Quackenbush initially granted Margulies’ request, but he quashed the subpoena after the Trump administration raised a “state secrets privilege” objection.

            On appeal, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held on September 18, 2019, that Quackenbush should not have quashed the subpoena. The appeals court instead remanded the case with instructions for Quackenbush to redact any testimony specifically found to expose national security secrets.

            The lame-duck Trump administration asked the Supreme Court to review that decision in a petition for certiorari filed on December 17, 2020. The administration argued that discovery would risk exposing  “classified information” and contended that previous unofficial disclosure of the information did not supersede the state secrets privilege.

            Margulies countered the government’s petition by stressing that the existence of the covert CIA facility, now closed, was “already a matter of public record” and Poland’s cooperation was “no secret at all.” 

            The Biden administration reaffirmed the government’s earlier position in a reply brief filed on March 4, 2021, by the acting solicitor general, Elizabeth Prelogar. The Court granted certiorari seven weeks later, on April 26. More than a dozen civil liberties and human rights organizations filed amicus briefs over the summer urging the justices to allow the limited discovery that the Ninth Circuit panel had ordered.

            In one of those briefs, David Schulz, a lawyer with the Media Freedom and Information Access Clinic at Yale Law School, argued aptly that the Court “should not expand the state secrets privilege to shield discussion of publicly established facts.” Courts, Schulz added, “should not defer to the executive in deciding whether a fact is secret.”

            In another of the amicus briefs, Physicians for Human Rights and several other professional associations argue that Mitchell and Jessen violated ethical standards and that transparency about their roles is “paramount for the mental health profession and society at large.”

            The complete history of this shameful episode has yet to be written. The government may have no interest in a full history, but the Supreme Court owes it to future generations now to allow one of the torture victims to put the architects of his abusive treatment under oath to get a more complete record of their foul deeds.

            It is worth noting that seventy-seven years ago, the Court wrongly deferred to the government’s ill-founded claims about national security in upholding the internment of Japanese Americans during World War II. The decision in Korematsu v. United States (1944) is a stain on the Court’s record, but to its credit the Court five years ago pronounced the decision “gravely wrong” and “overruled by history.” With 20/20 hindsight, the Court ought not make a similar mistake again.

 

 

 

 

Justices' Misplaced Priorities in Reviewing Capital Cases

             John Henry Ramirez committed a senseless and savage murder in Corpus Christi, Texas, in 2004 when he was twenty years old. He killed a convenience store clerk by stabbing him more than two dozen times and then robbing him of the paltry sum of $1.25.

            Nothing about Ramirez’s offense or the trial and death sentence four years later cries out for special consideration in the courts. Even so, the Supreme Court granted Ramirez a reprieve on Wednesday [Sept. 8] based solely on a religious freedom claim that he is entitled to be ministered to by his spiritual adviser as he is being put to death.

            The justices granted Ramirez a stay of execution on Wednesday night, three hours after the scheduled start of the lethal injection protocol. Along with the stay of execution, the Court also agreed to hear Ramirez’s substantive appeal in Ramirez v. Collier that the state must allow his spiritual adviser to lay hands on him and pray aloud inside the execution chamber once the execution begins.

            As an opponent of capital punishment, this writer cannot begrudge Ramirez the reprieve that the Court granted last week. But the justices’ solicitude for Ramirez’s plea is in stark contrast with the justices’ usual indifference toward pleas from death row inmates based on claimed legal errors in their convictions or sentences.

            As one example, the Court refused on April 19 to hear Frederick Whatley’s effort to challenge the death sentence he received in Georgia for killing a liquor store clerk during an armed robbery. Whatley asked the justices to review his sentence because he had been shackled with leg irons while testifying in his capital sentencing hearing. Dissenting from the Court’s refusal to hear the case in Whatley v. Warden, Justice Sonia Sotomayor argued that the shackling was “unnecessary” and “plainly prejudicial” based on the Court’s precedents and evident grounds for finding the death sentence unconstitutional.

            Sotomayor had dissented three months earlier from the Court’s order in United States v. Higgs (January 15) that brushed aside questions about the lethal injection protocols that the federal government was using as it resumed federal executions after a seventeen-year hiatus.

            Referring to a succession of cases, Sotomayor minced no words in complaining. “This Court has consistently rejected inmates’ credible claims for relief," she wrote. "The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing.”

            Earlier, Sotomayor and Kagan had joined in dissent when the Court refused to hear Alfred Bourgeois’ effort to avoid execution for the killing of his infant daughter based on an intellectual disability defense. The majority in Bourgeois v. Watson (December 12, 2020) refused to hear the case on the ground that Bourgeois could not raise the issue a second time after a lower federal court had rejected the defense.

            “Bourgeois presents a serious question that is likely to recur,” Sotomayor wrote in dissenting from the denial of certiorari. “Waiting to grant certiorari may mean permitting the illegal execution of people with intellectual disabilities.”

            Sotomayor dissented again, along with Breyer and Kagan, when the Court refused in Johnson v. Precythe (May 24) to consider an Eighth Amendment challenge brought by a Missouri inmate, Ernest Johnson, who claimed that because of a brain tumor, he would suffer “excruciating seizures” if put to death by lethal injection of the drug pentobarbital. Sotomayor argued that the federal appeals court that rejected Johnson’s plea had abused discretion by refusing permission for him amend his appeal. “We should not countenance the infliction of cruel and unusual punishment simply for the sake of expediency,” she wrote.

            The stay of execution for Ramirez marked the second time this year that the Court had granted a reprieve for a death row prisoner based on a religious freedom claim. The Court’s ruling in Dunn v. Smith (February 6) effectively upheld a ruling by the Eleventh Circuit that Alabama could not execute inmate Willie Smith without granting his last wish to have his pastor with him during the execution.

            Four justices – Kagan, Breyer, Sotomayor, and Barrett – joined in an opinion decrying Alabama’s policy of leaving inmates to die without spiritual attendance. “Alabama’s policy,” Kagan wrote, “substantially burdens Smith’s exercise of religion.”

            With that opinion in the books, it would have been inconsistent at the least for the Court last week to have denied Ramirez the solace of his spiritual adviser during the planned execution. By granting certiorari in Ramirez’s case, the Court is now preparing to lay down guidelines for states to follow when a condemned prisoner asks for a chaplain at his side.  

            In Ramirez’s case, Texas argued that his request for his spiritual adviser’s presence would jeopardize security and detract from the decorum of the execution. In the Alabama case, Kagan rejected that concern. “[P]ast practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber,” she wrote.

            After considering Ramirez’s religious freedom claim, the justices would do well to give just as much attention to their responsibility to guard against legal errors in capital trials and sentencings rather than brush those issues aside.

Supreme Court Yields to Domestic Enemies in Texas

             Five Supreme Court justices labored up to the midnight hour on Tuesday night to produce a tortured legal opinion allowing the state of Texas to nullify reproductive rights for the state’s 14 million women.

            Anyone reading the unsigned opinion in Whole Woman’s Health v. Jackson will look in vain for the reason why the five justices concluded that they cannot enforce the U.S. Constitution and the Court’s own decisions in the country’s second most populous state.

            Instead, the five justices – Thomas, Alito, Gorsuch, Kavanaugh, and Barrett – simply threw up their hands when facing “complex and novel antecedent procedural questions” about the decision by Texas legislators to deputize private citizens to enforce a blatantly unconstitutional law prohibiting abortions as early as the sixth week of pregnancy.

            These self-styled conservative justices did not flinch when confronted with the truly Orwellian plan that Texas’s nullificationist legislators devised to secede from the United States’ constitutional republic.

            Texas’s plan is “Big Brother” on steroids. It offers nosy anti-abortion zealots a bounty of at least $10,000 for suing anyone who aids or abets a woman in getting an abortion legal in 49 states but not in Texas. The aiders and abettors could be the Uber driver or the friend who takes the woman to the nearby abortion clinic. There is nothing conservative about this scheme; it is instead radically totalitarian—un-American.

            In her dissenting opinion, Sotomayor is quite correct to say that “a majority of Justices have opted to bury their heads in the sand.” The ruling, she went on to say, “rewards tactics designed to avoid judicial review. . . .”

            In his dissenting opinion, Chief Justice Roberts made the same point. The law, he explained, seeks “to insulate the State from responsibility for implementing and enforcing the regulatory regime.”

            The law purportedly bars any state officials from enforcing the law, but any enforcement necessarily depends on judges in Texas’s courts. For that reason, the women’s clinics challenging the law named one state judge as the defendant—representative of the entirety of the state’s judiciary.

            For seventy years, ever since Shelly v. Kraemer (1948), state judges have been prohibited from enforcing racially restrictive covenants. There is no evident reason why the Supreme Court cannot similarly prohibit Texas’s judges from enforcing this blatantly unconstitutional law.

            In their majority opinion, the five conservatives indulged the fiction that it was “unclear” whether the law would be enforced. In his dissenting opinion, Justice Stephen Breyer answered by noting that the Court in previous rulings had allowed “pre-enforcement challenges” in cases in which the threatened harm was less serious and less clear.

            Breyer also noted the edict from a prior Supreme Court decision, Planned Parenthood v. Danforth (1976), that “a State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.”

            Admittedly, the majority specified that they were not passing on the constitutionality of the law and stated that legal challenges could proceed in state courts. It is a curious inversion of constitutional law, however, for the Supreme Court to pass the buck to state court judges to enforce “the supreme law of the land.”

            With four separate dissenting opinions, it is telling that none of the five justices in the majority took the opportunity to write a concurrence to elaborate or to answer the dissenters. Indeed, what could they have said: “This isn’t as bad as it looks.”

            On the ground in Texas, however, it appears to be as bad as it looks. Waiting rooms in abortion clinics emptied at the stroke of midnight on Wednesday, as the clinics’ staffs explained in frustration that they would be complying with the law.

In her opinion, Sotomayor noted the likely effects. “[T]he Act,” she noted, “immediately prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close.”

            In her dissenting opinion, Justice Elena Kagan made the added point that the ruling was “emblematic of too much of this Court’s shadow docket decisionmaking – which every day becomes more unreasoned, inconsistent, and impossible to defend.” And, indeed, none of the justices in the majority bothered to try.

            Perhaps those five have already decided to vote to overrule Roe v. Wade in the Mississippi case slated for oral arguments in December and decision by the end of the term. So, they may be asking themselves, why not let Texas have its way now?

            The entire episode brings to mind Justice Robert Jackson’s famous aphorism acknowledging the risk of error at One First Street. “We are not final because we are infallible,” Jackson wrote, “but we are infallible only because we are final.”

            For true constitutionalists, the hope remains that the Court’s tortured reasoning is not the final word for women’s rights in Texas. Indeed, in his opinion, Roberts envisioned that the Court will revisit the issues later after “full briefing and oral argument” and consider “whether interim relief is appropriate should enforcement of the law be allowed below.” 

            In other words, the buck stops down there, not here. Compare, however, the justices’ solemn oath to “support and defend the Constitution of the United States against all enemies foreign and domestic . .  .” (emphasis added).

 

Court Torpedoes Biden Policies on Border, Health

           The Supreme Court threw judicial restraint out the window last week [Aug. 24-26] with hastily considered decisions that torpedoed Biden administration policies on border security and public health. The rulings in two “shadow docket” cases, issued without full briefing or oral argument, forced the administration to reinstitute the so-called “remain in Mexico” policy for asylum applicants and scrapped the administration’s policy to protect financially strapped tenants from evictions during the COVID-19 pandemic.

            Elections have consequences, it is often said, but apparently not when the unelected Supreme Court takes charge of contentious policy issues. The Biden administration’s O-for-two batting average in its first shadow docket cases is in stark contrast to the Trump administration’s record of prevailing in two-thirds of the unprecedented number of emergency applications that Trump’s lawyers brought to the Court over a four-year period.

            Chief Justice Roberts may believe that the justices shed their partisan backgrounds after donning their black robes, but the record of the Republican-majority Court strongly suggests the opposite. As one telling example, the nine justices split precisely along partisan lines in Alabama Ass’n of Realtors v. Health and Human Services on a straightforward question of statutory interpretation in striking down the CDC’s moratorium on evictions in areas with high incidence of COVID transmission.

            In issuing the moratorium, the CDC relied on a broadly phrased grant of authority in a public health statute “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases . . .”

            The code section’s opening sentence is followed by a second sentence that lists fumigation, pest extermination, and destruction of infected animals or articles as some of the steps authorized. The six Republican-appointed justices who provided the votes for the unsigned decision construed that list to limit the permissible steps, while three Democratic-appointed justices in dissent applied a different maxim of statutory construction to reach the opposite conclusion that the list was illustrative, not exhaustive.

Writing for the three liberal justices, Breyer noted the historical precedent that New York City had imposed limits on evictions at the height of the Spanish flu epidemic. “If Congress

had meant to exclude these types of measures from its broad grant of authority,” Breyer reasoned, “it likely would have said so.”

            In short, a “plain text” approach to the statute in question could have supported either of the two possible outcomes in the case. The Court’s majority – presumably, the six Republican-appointed conservatives – resolved the question by finding that the “balance of equities” favored the landlords’ finances over the tenants’ health and the government’s interest in limiting community spread.

            To be clear, the choice between those two turned not on law, but on policy. In a tweet, Eric Segall, a law professor at Georgia State University, aptly suggested that the Court “should stay out of policy disputes and stay in its lane.”

Liberal justices were oddly silent two days earlier when the Court effectively forced the Biden administration to adopt a Trump-era policy – misleadingly labeled as “migrant protection protocols” -- to force asylum applicants to wait in Mexico while authorities in the United States consider their applications.

The issue in Biden v. Texas et al. was whether how far the Biden administration needed to go in elaborating the reasons for rescinding the Trump administration’s policy on asylum applicants. A Trump-appointed federal judge in Texas agreed with the red states challenging the administration that Biden’s Department of Homeland Security had been “arbitrary and capricious” in rescinding the policy.

In fact, DHS secretary Alejandro Mayorkas had written a seven-page memorandum detailing the reasons for his decision—specifically, that the program was unjustified by the resources required to implement it and incompatible with the  administration’s border strategy and foreign-policy objectives. Judge Matthew Kacsymaryk found Mayorkas’s reasons inadequate and ordered the administration to reinstitute the disfavored policy.

The administration asked Kacsymaryk to delay the injunction, but he refused. The federal appeals court in Texas similarly refused to stay the ruling to give the administration time to develop an orderly plan to restart a policy suspended seven months earlier and unenforced for Trump’s final months in office.

At the Supreme Court, the administration quoted an assistant DHS secretary as saying that it would be “near impossible” to re-establish the policy by the deadline that the judge had set. The administration also quoted a State Department official as warning that resumption of the policy would create “a humanitarian and diplomatic emergency.”

The Trump administration had come to the Court in eleven cases with similar pleas to get out from under adverse rulings in lower courts. And each time the Court obliged.     But the Court declined to give the same consideration to a Democratic president, elected with a popular vote majority.

Instead, the Court refused the administration’s plea with a single paragraph that found the administration was unlikely to show that it had not been “arbitrary and capricious” in rescinding the previous policy. Others have written at greater length than allowed here about the irony of the Court’s decision to take over immigration policy, an area traditionally left to the executive branch, not the courts. Here, as one example, is Ian Milhiser’s excellent analysis.