Breyer to Retire as Court Is Set for Dramatic Changes

             The Supreme Court ended its 2006 term with a bitterly divided, 5-4 decision that limited school districts’ ability to design pupil assignment systems in a way to break down de facto racial segregation and engineer some measure of racial diversity in individual schools. Justice Stephen Breyer led the four liberal justices in dissenting from the decision in Parents Involved in Community Schools v. Seattle School District No. 1 (June 28, 2007).

            The majority in the case consisted of five Republican-appointed justices, including the two most recent appointees: Chief Justice John G. Roberts Jr., who wrote the main opinion, and Samuel A. Alito Jr., serving together for their first full term. The ruling effectively gutted a line of Supreme Court precedents that recognized the ill effects of racial imbalance in public schools and allowed or required steps to ensure racial balance in pupil assignments.

            From the bench, Breyer described his 72-page opinion as the longest dissent he had written in what was then his twenty-third term on the Court. He also added from the bench a trenchant line not included in the formal opinion. “It is not often that so few have so quickly changed so much,” Breyer remarked with ominous regret.

            Breyer finally yielded last week to the practical realities of retiring with a politically compatible president in the White House to nominate his successor and favorable political terrain in the Senate. He leaves with the Court’s muscular conservative majority set to change so much, even more quickly than the Roberts Court did in its first several terms.

            With six Republican-appointed conservatives, including President Trump’s three appointees, the Court appears ready to end the 2021 term with precedent-shattering decisions to limit abortion rights, to limit the ability of state and local governments to control permits to carry firearms in public, and to limit the ability of state governments to deny public subsidies to parochial schools.

            Breyer is likely to lead dissenting opinions in those cases on behalf of the reduced liberal bloc of three justices: himself, Sonia Sotomayor, and Elena Kagan. Breyer has publicly acknowledged that he has been grateful for the opportunity since Justice Ginsburg’s death to be the senior justice in the liberal bloc. He will retire at the end of the term in June at age eighty-three, the eighth oldest justice in history, and with twenty-seven years on the Court, the twenty-third longest tenure in history.

            The decisions likely to make headlines as the term ends will, unfittingly, amount to a repudiation of sorts to Breyer’s jurisprudence. He believes that the law evolves slowly, step-by-step, not by sudden leaps or reversals. In contrast to the conservative bloc, Breyer is a committed pragmatist, who has no brook for the blind-to-consequences originalism and textualism that the conservatives espouse.

            The three biggest decisions will solidify the Court’s role over the past decade as an instrument of Republican Party policies: limiting abortion rights, expanding Second Amendment rights, and increasing legal and taxpayer support for religious schools.

            In the abortion case, Dobbs v. Jackson Women’s Health Organization, the Court appears likely to uphold a Mississippi law that bans abortions after the fifteenth week of pregnancy, in direct contradiction of the Court’s Roe v. Wade line of decisions that guarantee a woman’s right to terminate a pregnancy until later in the pregnancy when the fetus is capable of surviving outside the womb. As Ginsburg’s unfitting successor, Justice Amy Coney Barrett, an outspoken critic of abortion rights decisions, has given anti-abortion forces confidence that this is the year when Roe v. Wade is formally overruled.

            There is no practical need to revisit Roe v. Wade, issued in 1973 as a compromise of sorts that legalized abortion nationwide but also allowed states to limit abortions in the late stages of pregnancy to protect the government’s interest in preservation of potential life. The Roe v. Wade viability line is relatively easy to apply, whether in medical facilities or in courtrooms.

            The gun rights case stems from a challenge to a New York law that requires applicants for a concealed carry permit to show “proper cause” for needing go carry a firearm outside the home. This case, New York State Rifle and Pistol Ass’n v. Bruen, stems like the abortion case from persistent political lobbying and results-oriented legal scholarship to throw out settled law and settled practice in regulating firearms.

            The parochial schools case, Carson v. Malkin, stems from a challenge to a Maine law that provides tuition subsidies to students attending private schools in areas with no public schools but denies those subsidies to students attending private, church-affiliated schools that provide religious instruction as part of the curriculum. In arguments in that case, Breyer warned, as he has done in other Establishment Clause-related cases, that government subsidies to religious organizations inevitably lead to sectarian strife of the sort that the First Amendment’s religion clauses were designed to prevent.

            In the abortion case, Breyer’s used his final colloquy to emphasize that the Court had seriously considered overruling Roe v. Wade back in the 1990s and in that case had reaffirmed Roe’s essential holding. Overruling Roe, Breyer warned, “would come at tremendous cost to the reliance that women have placed on this right and on societal reliance and what this right has meant for further ensuring equality.”

.           Even as he prepared to retire, Breyer reaffirmed his belief that his colleagues decide cases not on the basis of politics but solely on the law. In that regard, Breyer has been guilty of what the historian Jeff Sheshol called “willful naivete” in a guest essay published in The New York Times [Jan. 27]. Breyer is likely to be disabused of his rose-colored naivete as the conservatives run the table in June. .

Justices' Two-Faced Standard on Workplace Safety

            The Supreme Court has instituted an escalating series of restrictions and changes in operations since the start of the COVID-19 pandemic in the United States early in 2020 in order to protect the justices’ workplace from the pandemic Those changes, all but unprecedented, include barring the general public from courtroom sessions and conducting oral arguments remotely by telephone instead of in person in the courtroom.

            In fact, the Supreme Court building has been closed to the general public for two full terms and still today (January 2022) “out of concern for the health and safety of the public and Supreme Court employees,” according to the posted announcement on the Court’s web site. In a divided decisiond ast week, however, the Court on Jan. 13 held that the federal Occupational Safety and Health Administration (OSHA) does not enjoy the same discretion to promulgate an unprecedented regulation to protect workplaces in the face of the deadly pandemic that has claimed 800,000 lives and resulted in millions of hospitalizations that have strained health systems all across the country.

            The federal workplace safety agency adopted the regulation – a so-called “emergency temporary standard” or ETS – on November 5, 2021, late in the second year of the pandemic, in response to a directive two months earlier from President Joe Biden aimed at increasing vaccinations against the coronavirus. The agency acted on the authority of a statutory provision that requires it to act if it finds “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger [emphasis added].”

            In staying enforcement of the rule, the Supreme Court emphasized that OSHA, established in the1970s, had never issued a comparable rule to deal with a widespread public health issue. The lack of any precedent for such a rule is hardly surprising: the federal government had no workplace safety role during the previous 20^th century epidemics: the yellow fever and Spanish flu epidemics early in the 20^th century and the polio epidemic in the 1950s. The country has experienced no similar epidemic in OSHA’s history. In fact, the COVID-19 pandemic is uniquely pervasive and uniquely dangerous in comparison to the previous outbreaks.

In issuing the rule, OSHA elaborated point by point in a 79-page preamble published in the Federal Register (86 Fed. Reg. 61402-61480). Given the grim statistics, OSHA readily concluded that occupational exposure to the covid-19 virus was a “new hazard” that presented “a grave danger” to workers. “OSHA has determined that occupational exposure to SARS–CoV–2, including the Delta variant (B.1.617.2 and AY lineages), presents a grave danger to unvaccinated workers in the U.S. . . . ,” the agency wrote. “This finding of grave danger is based on the science of how the virus spreads, the transmissibility of the disease in workplaces, and the serious adverse health effects, including death, that can be suffered by the unvaccinated.”

The Supreme Court acknowledged that OSHA “is tasked with ensuring occupational safety— that is, ‘safe and healthful working conditions.’” But the six conservative justices in the majority concluded that the act “empowers the Secretary to set workplace safety standards, not broad public health measures.”

OSHA answered that point in its published rationale for the rule: “The fact that COVID–19 is not a uniquely work-related hazard does not change the determination that it is a grave danger to which employees are exposed, nor does it excuse employers from their duty to protect employees from the occupational transmission of SARS–CoV–2.”

            The agency elaborated on the particular risks posed in workplaces: “SARS–CoV–2 is readily transmissible in workplaces because they are areas where multiple people come into contact with one another, often for extended periods of time. When employees report to their workplace, they may regularly come into contact with co-workers, the public, delivery people, patients, and any other people who enter the workplace. Workplace factors that exacerbate the risk of transmission of SARS–CoV–2 include working in indoor settings, working in poorly-ventilated areas, and spending hours in close proximity with others.”

            Once the Court resumed oral arguments in the courtroom midway through OT2021, the justices imposed a series of restrictions on, among others, the Supreme Court press corps. Reporters seeking to attend oral arguments in person were required to submit a negative covid test,  administered within a few days of the court sessions, and had to be masked upon entering the building and masked in the courtroom. Reporters also had to be seated in the courtroom socially distanced from each other, instead of elbow-to-elbow in the press gallery.

            The justices themselves were masked on the bench, but with one exception: the ultra-libertarian justice, Neil Gorsuch, who conspicuously refused to wear a mask without providing any explanation for declining to adopt the sensible precaution for his colleagues’ well-being. Apart from Gorsuch’s refusal on the mask issue, none of the justices has publicly questioned any of the restrictions that the Court has instituted for their safety and the Court employees. Why then, one might ask, should the rest of the nation’s workplaces be similarly protected?

            Writing for the three liberal justices in dissent, Breyer tore the majority’s rationales to shreds by emphasizing the particularized risk in workplaces. The disease, Breyer explained, “spreads by person-to-person contact in confined indoor spaces, so causes harm in nearly all workplace environments. And in those environments, more than any others, individuals have little control, and therefore little capacity to mitigate risk. COVID–19, in short, is a menace in work settings. The proof is all around us: Since the disease’s onset, most Americans have seen their workplaces transformed.” He might have mentioned the changes at the Court itself as well.

 

For 2022, Resolving to Hold Trump to Account

         With the new year now well underway, it is time or past time for the Supreme Court, the Justice Department, and prosecutors in Georgia to resolve that the former president, Donald J. Trump, will be held to account for the crimes that he appears to have committed in his unsuccessful effort to overturn the results of the 2020 presidential election.

The Supreme Court has the simplest role to play in vindicating the rule of law in investigating Trump’s role in the violent attack on the U.S. Capitol by a mob of Trump supporters one year ago, on January 6, 2021. The justices can and should dispose of Trump’s baseless plea to prevent the special House committee investigating the attack from gaining access to White House records regarding Trump’s role in summoning protesters to Washington, in urging them to march to the Capitol, and in sitting by while the destructive violence unfolded before his eyes on television coverage of the events.

Trump’s emergency application to stay the federal court rulings upholding the House committee’s subpoena has been pending with the Court since December 23. Trump, a defeated former president, is claiming executive privilege in his effort to block the release of the documents. Two lower federal courts, including the D.C. Circuit, rejected the argument. And the current president, Joe Biden, the only person entitled to invoke executive privilege today, is not claiming executive privilege in the case.

Trump’s possible criminal liability for the Jan. 6 insurrection was laid out in a pre-Christmas op-ed essay in the New York Times coauthored by the Harvard Law School professor Laurence Tribe with two former federal prosecutors, Donald Ayer and Dennis Aftergut, who served under Republican presidents. Tribe and his coauthors voiced concern that at that point there were “no signs” that the Justice Department was building a case against the administration officials responsible for encouraging the foot soldiers in the attack  

“The legal path to investigate the leaders of the coup attempt is clear,” Tribe and his co-authors wrote. “The criminal code prohibits inciting an insurrection or “giving aid or comfort” to those who do, as well as conspiracy to forcibly ‘prevent, hinder or delay the execution of any law of the United States.’ The code also makes it a crime to corruptly impede any official proceeding or deprive citizens of their constitutional right to vote.”

In a forceful message to Attorney General Merrick Garland, Tribe and his co-authors warned that Garland must “hold[ ] the leaders of the insurrection fully accountable for their attempt to overthrow the government.” In their words, that goal requires “a robust criminal investigation of those at the top, from the people who planned, assisted or funded the attempt to overturn the Electoral College vote to those who organized or encouraged the mob attack on the Capitol.” They listed as possible persons of interest in such an investigation, Trump himself, Trump’s chief of staff Mark Meadows, Trump’s lawyer Rudy Giuliani, White House adviser Steve Bannon, and law professor John Eastman, who laid out a detailed plan for derailing Biden’s Electoral College victory.

In their essay, Tribe and his co-authors acknowledged that the Justice Department “has filed charges against more than 700 people who participated in the violence” but warned that “limiting the investigation to these foot soldiers would be a grave mistake.” Other commentators in the legal blogosphere were also warning that Garland was not pursuing the investigation up to the top.

Garland responded to the criticism last week on the anniversary of the Jan. 6 attack with an hour-long address detailing the status of the investigation, which he called “the largest and most complex, most resource-intensive investigation” in the department’s history. He explained that the initial focus on low-level offenders was in line with “well-established prosecutorial practices.” complete with

            Garland vowed to get to the top, not just to the bottom. “The Justice Department remains committed to holding all Jan 6 perpetrators, at any level, accountable under law, whether they were present that day or were otherwise criminally responsible for the assault on our democracy,” he said. “We will follow the facts wherever they lead.”

Words, words, words—nothing but words, as the liberal political activist Don Winslow noted in a critical tweet that day: “[T]he truth is that 1 year has passed and not one single Trump official, Trump family member, Republican member of Congress or key high-level Jan. 6 plotter has been charged or arrested.”

            The trial of a former president, of course, would raise a host of legal and practical issues and would be a precedent-setting departure from the American political tradition, more akin to the kind of political retaliation seen in banana republics with unsettled democratic practices.

Whatever the status of the Justice Department investigation may be, Trump has been identified as the target of an investigation by the Fulton County district attorney’s office for attempting to interfere in the vote counting in the presidential election in Georgia. The evidence consists of Trump’s phone call to the state’s highest election official, secretary of state Brad Raffensperger, urging him to find the 11,000-plus votes needed for Trump to overcome Biden’s victory in a state that he had expected to carry.

            Convicting Trump in either of the cases would be a formidable challenge for prosecutors and for the judicial system, whether in federal court or in a Georgia state court. Any conviction would be certain to be appealed to the Supreme Court, a court packed with Republican-appointed justices and three appointed by Trump himself. But the rule of law demands that Trump be held to account for his role in what amounted to an unprecedented attack on our very democracy.