Sunday, July 5, 2020

Conservative Anger With Roberts Misreads His Record

      Republican politicians and conservative Supreme Court watchers are angry, angry, angry with Chief Justice Roberts because of his votes in four of the term’s fifty-three decisions so far. Those four votes in divided cases left conservatives with egg on their faces for their political agenda on such culture war issues as abortion, gay rights, gun laws, and immigration. 
      A more complete examination of Roberts’ votes, however, shows that he has been a reliable conservative vote in decisions that divide along the usual conservative-liberal lines. He has toed the conservative line in criminal law and civil litigation issues and in two decisions that rejected efforts by Democrats and progressive groups to ease absentee ballot voting in Wisconsin and Alabama during the current coronavirus pandemic.
      Among twelve 5-4 decisions this term, Roberts has been in the majority in every one. He  gave the liberal bloc a critical fifth vote in only two: the decision to strike down a Louisiana abortion law and the decision to block the Trump administration from rescinding the DACA program protecting undocumented immigrants brought to the United States as children.
      Roberts provided the sixth vote in the decision that extended the federal civil rights law known as Title VII to prohibit discrimination in the workplace on the basis of sexual orientation or gender identity. Roberts was also part of a six-justice majority in the New York City gun rights case that ended with a nothing-burger after the city repealed the challenged handgun transportation ordinance.
      The armchair psychologists on the right think they know why Roberts strays from conservative dogma. Most commonly, Roberts is viewed as concerned with protecting the Court’s institutional integrity in this hyperpartisan political era. Harvard law professor Richard Lazarus, a friend of Roberts from law school days, views Roberts as trying to send a message to the political branches. “You cannot expect us to behave like partisan legislators,” Lazarus surmises as Roberts’ message, as quoted by the New York Times’ Supreme Court correspondent, Adam Liptak.
      Arkansas’ firebrand Republican senator, Tom Cotton, was among the GOP politicians who denounced Roberts for playing politics with his vote in the Louisiana abortion case. “The chief justice may believe that he’s protecting the institutional integrity of the court,” Cotton remarked to Liptak, “but in reality his politicized decision-making only undermines it.”
      Liptak also describes unnamed conservatives as believing that Roberts’ votes against the administration are motivated by a personal distaste for Trump. These arm-chair psychologists apparently have forgotten that Roberts cast a decisive vote in Trump’s first year in office to uphold Trump’s “Muslim travel ban” despite the distasteful religious and ethnic bias in Trump’s campaign and post-election explanations for the policy. Other critics view Roberts as playing to predominantly liberal editorial pages and the generally liberal slant in legal academia.
      In the current term, Roberts did an enormous favor for Trump in his unilateral order on May 8 to stay the D.C. Circuit’s order granting the House Judiciary Committee access to redacted portions of the Mueller report. Now, surely with Roberts’ support, the Court is letting Trump run out the clock even further by deciding to review the D.C. Circuit’s decision sometime next term, with no decision possible before the November election.
      The conservative grievances with Roberts are so strong that Matt Schlapp of the American Conservative Union is even invoking the “I” word. “If it were up to me, I’d start impeachment proceedings,” Schlapp remarked on Fox News as quoted in a Washington Post account. “If he’s not going to be impeached, he ought to resign and run for Congress.”
      Curt Levey, president of the conservative Committee for Justice, worries just as darkly in an op-ed in the Post [July 2] that Roberts is “following in the disappointingly centrist footsteps of previous swing justice Anthony M. Kennedy.” Levey concedes that a conservative jurisprudence may not always yield conservative results, but he goes on to accuse Roberts of being “guided by ideological or political objectives.”
      In fact, Roberts’ votes in the four cases that upset conservatives this term reflect conservative principles straight out of the judicial restraint textbook. In the abortion case, June Medical Services v. Russo, Roberts followed precedent in providing the fifth vote needed to strike down a Louisiana law virtually identical to a Texas law struck down four years earlier. In the immigration case, Roberts led the 5-4 majority in Regents v. Department of Homeland Security in holding, in effect, that the president cannot abolish a government program based solely on disagreement with the policy or his unsupported view of its supposed illegality.
      Roberts followed “plain meaning” principles of statutory construction in the Title VII case, Bostock v. Clayton County, by concluding that a law prohibiting discrimination on the basis of sex necessarily encompasses discrimination based on sexual orientation or gender identity as well. As for the New York City gun law case, the dispute was clearly moot after the city repealed the ordinance. Roberts’ vote reflected his aversion to judicial activism as seen in his frequent phrasing: “If it’s not necessary to decide a question, it is necessary not to decide it.”
      Roberts need have no fears of impeachment. With lifetime tenure, he can survive the slings and arrows of outrageous fortune from the political right. But the conservative critics who accuse him of playing politics betray themselves by viewing the Court’s decisions solely through their narrow political lenses.

Sunday, June 28, 2020

In Asylum Case, Justices Close Courthouse Doors

      Tens of thousands of Sri Lanka’s minority population Tamils have died in three decades of ethnic and religious conflict in the south Asian island nation formerly known as Ceylon. Despite a ten-year truce in fighting, the Hindu Tamil minority still today faces the threat of what human rights groups regard as genocide at the hands of the Sri Lankan military as directed by the Buddhist Sinhalese majority government.
       Vijayakumar Thuraissigiam, an ethnic Tamil, fears that he could be another victim if returned to his country after a thus-far unsuccessful attempt to obtain asylum in the United States. Thuraissigiam fled Sri Lanka in 2016 after having been abducted and beaten by unidentified assailants. He then found his way to Mexico, crossed into southern California on January 17, 2017, and has been detained in an immigration facility ever since his arrest by a Border Patrol agent just twenty-five yards north of the border.
      Thuraissigiam applied for asylum but, unable to identify his assailants or their motivation, he failed to satisfy two executive branch officials that he had “a credible fear of persecution” if he were returned to his native country. In a courthouse-closing decision last week [June 25], the Supreme Court prevented Thuraissigiam from making his case to an independent federal judge despite two recent precedents allowing noncitizens to use federal habeas corpus to try to gain their freedom.
      The Supreme Court’s decision in Department of Homeland Security v. Thuraissigiam [June 25] upheld provisions in a 1996 immigration law that limit most asylum applicants in their ability to use habeas corpus to obtain judicial review of their asylum claims. Thuraissigiam, represented by attorneys from the American Civil Liberties Union, argued that those restrictions amounted to an unconstitutional suspension of habeas corpus and a due process violation.
      Writing for the Court’s conservative majority, Justice Samuel Alito adopted a dewy-eyed view of the procedural protections for asylum applicants after citing the current backlog of more than 1 million pending cases. Over the past five years, fewer than one-fourth of the applicants have been screened out at the initial interview, according to statistics found by the Government Accountability Office (GAO). Many applicants later drop their claims, and the vast majority of those that survive an initial screening are found to be “meritless,” according to Alito.
      Alito notes that the asylum applicant has two more levels of review after the asylum officer’s initial interview before a supervisor and an immigration judge. Significantly, the immigration judge is actually an executive branch official despite the title. Alito is no fan of government bureaucrats in other contexts, but he expresses confidence that this three-level system of review is sufficient for the purpose without allowing the asylum applicant their day in an actual court of law.
      In a brief filed with the Supreme Court supporting Thuraissigiam’s plea, several asylum law professors instead view Thuraissigiam’s case as “a paradigmatic example” of the need for review by an Article III court. “Bona fide asylum seekers are routinely removed despite having strong claims to protection,” Washington, D.C., attorney Roy Englert wrote in the brief filed on behalf of the professors: Harvard’s Deborah Anker and Sabrineh Andalar, the University of Texas’s Denise Gelman, and the University of California-Hastings’ Karen Musalo.
      Quite simply, according to the professors, asylum officers “fail to provide asylum seekers with sufficient opportunity to show credible fear.” The would-be refugee, unfamiliar with U.S. law and unrepresented by attorney, has multiple disadvantages, according to the professors, in trying to make their case to overworked asylum officers at the border.
      Among several factors, the professors cite reticence, trauma, and language barriers. The would-be refugee may be less than forthcoming because of an internalized habit of secrecy and distrust of authorities from their experiences in their home country. They may also be “reluctant to share the details of their traumatic circumstances,” according to the professors. Language barriers add to the applicant’s difficulty in making their case even if a translator is provided, as required by regulation. The translator may also render the applicant’s story imprecisely based on poor understanding of colloquialisms and idioms in the applicant’s home country.
      These difficulties require the asylum officer, according to the professors, to go beyond the rote recitation of questions in an interview form and to probe deeply into the applicant’s account. “[T]he asylum officer must probe and ask follow-up questions that are informed not only by the asylum seeker’s statements but also by information relating to the country from which the asylum seeker has fled,” Englert writes in summarizing the professors’ views.
      In a densely historical opinion, Alito dismisses as irrelevant Supreme Court decisions from the 19th century on that allowed noncitizens to get their cases into courts of law, including the quite recent decision in Boumediene v. Bush (2008) permitting Guantanamo detainees to use habeas corpus to challenge their imprisonment.
      Sotomayor is persuasive in depicting the new decision as inconsistent with precedent and the historic purpose of habeas corpus as a safeguard of individual liberty. “The majority,” she writes in a critical summary, “declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas corpus, no matter whether the denial is arbitrary or irrational or contrary to governing law.” So much for the huddled masses yearning to breathe free.