Saturday, September 14, 2019

Roberts Court Indulges Trump on Asylum Rules

      The Supreme Court played the role of President Trump's lap dog once again last week [Sept. 11] by allowing the administration to put into effect new asylum rules that effectively nullify the federal law guaranteeing asylum applicants the chance to make their case in U.S. immigration courts.
       Trump trumpeted the Court's action, with two liberal justices dissenting, as a "big win" for the administration. The Court's brief, unsigned order in Barr v. East Bay Sanctuary Covenant greenlighted new rules that a federal judge in San Francisco had found to be inconsistent with U.S. asylum law and that a federal appeals court had blocked pending the government's appeal.
      Apart from the merits of the issue, the episode is significant as the administration's most recent instance of asking the Court for "extraordinary" relief in high-profile legal disputes after losing in lower courts. Under ordinary procedures, the losing party in a lawsuit is not entitled to stay the effect of a lower court decision while pressing its appeal.
      The Trump administration, however, has resorted with what one expert calls "unprecedented frequency" to asking the Supreme Court to stay adverse decisions in lower courts  with the outcome on appeal uncertain. Steven Vladeck, a law professor at the University of Texas in Austin, shows in a new law journal article that the Trump administration has sought extraordinary relief from the Supreme Court more than 30 times in the past three years, more than twice the number of such instances by the previous two administrations over the previous 16 years.
      The Court's decision to allow the new asylum rules marks the second time in less than three months that the justices let this most lawless of presidents put into effect a policy on a highly charged political issue that a lower court had blocked. The justices divided 5-4 in an unsigned order issued on July 28 that allowed the administration to transfer Defense Department funds to Trump's southern border wall after Congress refused to appropriate funds for that purpose.
      In that instance, the Court gave a reason of sorts for its action. The unsigned, one-paragraph order noted "strong doubts" that the environmental groups challenging the reprogramming of military funds had legal standing to vindicate Congress's authority over federal spending. Vladeck criticizes both the administration's tactics and what he calls the Court's "acquiescence" in the unusual practice as short-circuiting ordinary appellate procedures to the disadvantage of private parties challenging the government.
      Ostensibly, the Court's rules requires an applicant seeking a stay of a lower court decision pending appeal to show it will suffer irreparable injury without a stay. Vladeck notes that Roberts has written that the government suffers an irreparable injury when blocked from putting its policies into effect during a legal challenge. Private plaintiffs unsuccessfully challenging a government policy do not get that kind of solicitude if they complain of irreparable injury while they suffer the effects of the challenged policy.
      The Trump administration has had what Vladeck calls a "middling" success rate on these extraordinary requests. Along with the latest wins on asylum rules and the border wall funding, the administration was also allowed to put into effect its limits on transgender military service members despite four lower court rulings to block it.
      The justices also favored the administration by blocking the federal judge in the census case from deposing Commerce Secretary Wilbur Ross under oath about his reasons for adding a citizenship question to the 2020 census. On the other hand, the Court refused to let the administration rescind the Obama policy known as DACA — deferred action for childhood arrivals —  pending a final decision in the cases challenging the administration's action.
      In the most recent instance, Justice Sonia Sotomayor cited Vladeck's study in criticizing the Court's receptivity to the administration's pleas. "[G]ranting a stay pending appeal should be an 'extraordinary' act," she wrote, quoting a prior decision. "Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively."
      Vladeck implicitly argues that the full Court should be objecting to the administration's tactics. The Court, he notes, has made "no suggestion . . . that the Solicitor General is abusing his unique position, is taking advantage of his special relationship, or is otherwise acting in a manner unbecoming the office he holds."
      The administration and its supporters defend the practice by complaining that federal district court judges have been freer than in the past in issuing nationwide injunctions to block administration policies pending appeals. Attorney General William Barr noted in an op-ed in the The Wall Street Journal that federal judges have issued 40 nationwide injunctions during the Trump years, but issued only 20 such rulings during the eight years of the Obama administration.
      Jonathan Turley, a frequent legal affairs commentator and law professor at George Washington University Law School, similarly sees the administration's tactics as a response to nationwide injunctions, which he says create "a dysfunctional element in the court system and a more direct avenue to the Supreme Court for the government." Some of the justices, he adds, appear to be "losing patience with national injunctions by trials . . . ."
      The Roberts Court has been less than evenhanded in the area. The Court took no action to allow the Obama administration to put its so-called DAPA policy — deferred action for parents of Americans — into effect after a federal judge in Texas issued a nationwide injunction to block the policy. The Court's solicitude toward Trump's policies is further evidence, alas, that the five Republican-appointed justices did not leave their party registration cards behind them after donning their judicial robes.

Sunday, September 8, 2019

In Carolina, GOP Nixes Racial Justice on Death Row

      North Carolina's legislative and gubernatorial elections in 2012 turned out to be matters of life or death for six of the 143 inmates currently awaiting execution on the state's death row.
      The elections that allowed the Republican Party to gain the governorship along with control of the state's legislature resulted less than a year later in the repeal of the state's widely hailed Racial Justice Act. That law, enacted in 2009 and signed by the Democratic governor Beverly Perdue, gave death row inmates a new path to overturn their death sentences by proving racial discrimination in the verdicts or sentences that condemned them to execution.
      Four inmates succeeded in reducing their death sentences to life imprisonment under the law before the Republicans repealed the law.  Perdue had vetoed a GOP-backed repeal in 2012, but the new Republican governor, Pat McCrory, signed a repeal after the Republicans voted again in 2013 to kill the law.
      The repeal included a provision eliminating any relief for inmates not yet final when the repeal took effect. Now, the North Carolina Supreme Court is considering whether the legislature violated constitutional rules in sending those four inmates back to death row and in blocking hearings for two other death row inmates pending at the time of repeal.
      The state high court, with a 6-1 majority of Democratic appointees, heard nearly four hours of arguments in the six cases over two days late last month (Aug. 26 and 27). The arguments from the inmates' attorneys made clear that the racial bias in the four reversed cases might have been strong enough to warrant relief under strict federal constitutional rules even without the easier path under the repealed state law, which required proof only that race was "a significant factor" in verdict or sentence.
      The four reversed cases all came from Cumberland County, which includes the state's sixth largest city Fayetteville. The county's overall population is around 55 percent white and 35 percent black. But the juries in all four cases were all white, thanks to tactics that state prosecutors are instructed to use to justify excluding black jurors.
      In Marcus Robinson's trial, for example, prosecutors rejected half of the qualified black jurors, but only 14 percent of the others. One black juror was disqualified after acknowledging that he had not graduated from high school and that he had difficulty reading — questions not asked of white jurors.
      In Christina Walters' trial, prosecutors excluded 10 of the 14 qualified black jurors, but only four of the 27 qualified white jurors. Tellingly, Walters' two white attorneys failed to preserve objections under the Supreme Court precedent, Batson v. Kentucky (1986), that bars the use of race in exercising peremptory challenges to exclude potential jurors.
      The trials of the two other inmates who won temporary reprieves from their death sentences, Quintel Augustine and Tillman Golphin, followed that pattern. In the arguments last month, one of the North Carolina justices openly acknowledged that the state has done very little to put Batson into effect. The non-profit Center for Death Penalty Litigation has reported that more than half of the state's death row inmates were sentenced by juries with no or little minority representation.
      For Andrew Ramseur and Rayford Burke, the repeal of the Racial Justice Act came as their cases were pending and not yet ruled on. Ramseur's trial in 2010 came against the backdrop of racial sentiment akin to the kind of public hysteria associated with the lynching era. One commenter on the local newspaper's website remarked, "He should be hanging from the nearest traffic light as a warning to the others." At trial, four rows for courtroom spectators were cordoned off by crime scene tape, ostensibly to protect Ramseur.
      In the oral arguments last month, attorneys for the inmates fashioned several arguments to challenge the legislature's authority to strip the inmates of the relief they had won before the Racial Justice Act was repealed or to deny hearings for the other two. The exact issue was unprecedented, as Cassandra Stubbs, the director of the American Civil Liberties Union's death penalty project, wrote in her brief for Robinson. “Never before has any legislature enacted a statute designed to remedy suspected systemic racial bias in capital sentencing,” Stubbs wrote, “only to repeal such a statute when the racial bias was found.”
      The closest precedent in North Carolina law is a 19th century decision that blocked the legislature from superseding a post-Civil War amnesty granted to former Confederate soldiers for crimes committed under orders during the war. Lt. Col. James Keith was accused of massacring 13 civilian prisoners, but the state supreme court ruled that he was entitled to the benefit of the legislative amnesty even though later repealed.
      The inmates' other arguments centered on traditional constitutional principles against ex post facto laws or double jeopardy. They also argued that the provision specifically nullifying any relief that the inmates had already won amounted to an unconstitutional bill of attainder — the term for legislative imposition of punishment.
      The state's lawyers responded, somewhat weakly, that the inmates still had avenues to seek new trials or new sentences even without the repealed state law. In four hours of arguments, the justices seemed to be inquisitive more than argumentative, but the political tinct to the cases suggests that the state is arguing uphill before the Democratic-majority court.

Monday, August 26, 2019

Courts Taking a Bite Out of Establishment Clause

      The Supreme Court took a bite out of the constitutional prohibition against establishment of religion in June by allowing a Maryland state agency to display and maintain a 40-foot Christian cross on public land as a World War I memorial. Writing for the majority in American Legion v. American Humanist Association, Justice Samuel A. Alito Jr. based the decision on the premise that the so-called Peace Cross in Bladensburg, Maryland, had historic significance as a memorial to fallen wartime service members apart from its symbolic affirmation of Christian doctrine.
      Alito's opinion tracked the central argument that Neal Katyal, the former acting U.S. solicitor general, made in defending the Peace Cross on behalf of the Maryland-National Capital Park and Planning Commission. Katyal emphasized that the cross had acquired an "objective meaning" as a memorial to the millions of service members from all sides killed in World War I, including the 49 men from Prince Georges County killed while wearing U.S. uniforms.
      Civil libertarian supporters of church-state separation had expected the Court, with its conservative Republican majority, to allow the cross to continue standing where it has stood for 90 years, but hoped for a narrow ruling that would maintain limits on how far the government can go in favoring or endorsing one specific religion. The American Civil Liberties Union issued a statement on the day of the ruling, June 20, describing it as a "narrow" decision.
      The Court sent a signal a week later, however, that the decision portends a relaxed view for future Establishment Clause challenges beyond the specific facts of the Peace Cross case. In a brief order issued on June 28, the justices told the Eleventh U.S. Circuit Court of Appeals to reconsider its decision to bar the city of Pensacola, Florida, from maintaining a stand-alone, 34-foot Christian cross in a public park in the city. 
      The wooden cross at issue in Kondrat'yev v. City of Pensacola was erected in 1941 by the National Youth Administration to serve as the focal point of what was to become an annual Easter sunrise program — in short, the setting for an annual religious service in a government facility. The appeals court found the cross to run afoul of the Establishment Clause in a decision issued in September 2018, but the Supreme Court gave the city a partial victory in its appeal by ordering the appeals court to reconsider its decision in the light of the justices' ruling in American Legion.
      By the way, the city of Pensacola's official seal includes a Christian cross as its central image. A cross is also the central image in the official seal that Lehigh County, Pennsylvania, adopted in December 1944. The Lehigh County seal is the focal point of an Establishment Clause suit filed by the Freedom From Religion Foundation but rejected on Aug. 8 by a panel of the Third U.S. Circuit Court of Appeals.
      In his opinion for the appeals court, Judge Thomas Hardiman, a two-time runner-up for a Supreme Court seat, applied American Legion in finding no constitutional violation. Hardiman conceded that the plaintiffs suffered legal injury as a result of "direct and unwelcome contacts" with the official seal, but he read the Court's new decision to give a presumption of constitutionality to "longstanding symbols" that incorporate religious imagery
      At the Supreme Court, attorney Michael Carvin, representing the American Legion, conceded that some governmental displays of a Christian cross would likely violate the constitutional prohibition against establishment of religion. In answering a question from Justice Brett Kavanaugh, Carvin adopted Justice Anthony M. Kennedy's suggestion in a decision in the 1980s that a Christian cross atop city hall would be unconstitutional, because, as Carvin explained, "it constitutes proselytizing."
      Carvin went on to reject some of the hypotheticals suggested by the other side in the Peace Cross case. "If they're putting up crosses at every courtroom, every DMV window, and all the parade of hypotheticals we've gotten on the other side, I can certainly understand why somebody would believe that they're trying to convert you to Christianity." he told the justices.
      Pensacola and Lehigh County both seem to have gone too far, under Carvin's reasoning and under the Court's fact-specific decision in the Peace Cross case. The Bayview Park cross in Pensacola serves as the stage for a religious service. The Framers of the First Amendment surely would have deemed it improper for the government to use public funds to build a church or an outdoor facility for the specific purpose of holding religious services.
      The city seals in these two municipalities also offend church-state separation by incorporating the preeminent symbol of Christian doctrine, just as much as a Christian cross atop city hall would give official imprimatur to one religion over all others. The non-believing Lehigh County plaintiffs complained of seeing the seal with its Christian cross, for example, when paying real estate tax bills or reporting for jury service, analogous to Carvin's hypothesis of a cross on every DMV window.
      The self-styled religious freedom advocates who defend these governmental displays of Christian symbols are no friends of the religious freedom embodied in the First Amendment. The Framers wanted nothing to do with government-established religion, but the self-styled originalists on the Supreme Court have lost sight of that original understanding of the Establishment Clause and may be leading lower courts to go farther afield from that original understanding as well.

Sunday, August 11, 2019

Trump's Responsibility for El Paso Massacre

      President Trump's perfunctory denunciation of "racism, bigotry, and white supremacy" after a young white supremacist's massacre of Mexicans in El Paso would have been too little, too late even if it had been believably sincere. But Trump's frozen features as he read prepared remarks from a teleprompter [August 5] made clear to everyone, white supremacists included, that he was merely going through the motions.
      Trump has been guilty of racist conduct from his earliest days in the family business, as seen in the settled fair housing discrimination case in the early 1970s. Moreover, he has used racist rhetoric from his first days as presidential candidate and, after his election, as president to hold and rally his political base--as, for example, in calling for three black, natural-born U.S. citizen members of Congress to go back to where they came from.
      With his re-election campaign under way, Trump now can ill afford to alienate any part of his political base, including those who make no secret of the racist views that motivate their anti-immigrant outbursts. Trump regularly promotes these views at his political rallies, as documented in a compilation by USA Today. The newspaper found that in 64 rallies since 2017, Trump had referred to Central American and Mexican migrants at least 500 times in "incendiary terms," such as "invasion," "animal," and "killer."
      Admittedly, Trump's reckless encouragement of anti-immigrant sentiment would not qualify as legal incitement for Patrick Crusius's deadly shooting spree in predominantly Hispanic El Paso [August 3]. But the president bears a degree of moral responsibility for propagating and normalizing the kind of anti-immigrant views that turned the young community college student into a vigilante taking up arms against what the white supremacist fringe calls "white replacement."
      In fact, Crusius aped Trump's terminology in what is believed to be his online posting before the shooting that he was trying to stop "the Hispanic invasion of Texas." That description of present-day immigration from south of the border can come from no other source than Trump: in three decades of sharp debates about immigration policy in the United States, anti-immigration politicians and advocacy groups had never before couched the issues in terms such as those Trump has used.
      Trump sought to absolve himself of any responsibility, legal or moral, by blaming Crusius' crime on mental illness, the favored explanation from the gun lobby and their supporters for mass shootings. With no psychological training nor any evident ability in self-analysis, Trump is peculiarly unqualified to diagnose Crusius at a distance. Indeed, mental health experts quoted in news coverage appeared to agree that Crusius showed no symptoms of diagnosable mental illness.
      As for policies to address mass shootings, Trump used his prepared remarks to bat away the natural thought that perhaps guns are to blame. "Mental illness and hatred pull the trigger. Not the gun," he recited. Statistics cited by the CNBC journalist John Harwood on Twitter suggest otherwise. Of the 40 deadliest mass shootings in the United States since 1949, 26 have occurred in the 15 years since the Republican-controlled Congress allowed the assault weapons ban enacted in 1994 to expire in 2004: only two during the decade when the assault weapons ban was on the books.
      With public opinion coalescing around some kind of legislative response, Trump appeared at week's end to be accepting some form of stronger background checks for gun purchasers. Even if enacted, stronger background checks might do very little to prevent the next mass shooting. Apart from a higher minimum-age requirement, Crusius seemingly had nothing that he would have needed to list on an application that would have disqualified him from purchasing an otherwise legal weapon.
      Trump went so as to claim credit for the yet-unenacted proposals to keep guns away from or take guns away from people who pose dangers to themselves or others. "“I think we’re going to come up with something, something really good, beyond what’s done so far," he remarked, referring to background checks or so-called red flag laws.
      As for an assault weapons ban, however, Trump saw no prospects. " “I can tell you is there is no political appetite for that at this moment," he told the White House press pool in unscripted remarks on Wednesday [August 7].
      The week ended with Trump reportedly resentful of the less-than-glowing reviews he received for his visit to El Paso, highlighted by the stinging criticism of his mugging for the cameras as Melania held an infant orphaned by the killing of his two parents in the massacre. As a reminder, President Obama showed more presidential leadership seven years ago after the mass shooting at the Sandy Hook School in Connecticut. He was somber and respectful at a vigil two days later and, four years later, was shown in photographs to be tearing up as he talked about the episode.
      Racism and violence have been inherent in Trumpism from the start of his preposterous claim to make America great again. Note that the crime Trump claimed during his campaign he could commit with legal and political impunity was itself a gun crime: shooting someone on Fifth Avenue in New York City. One step to try to prevent the next mass shooting would be at the least a change in presidential rhetoric or, better, a change in the presidency itself. For that, it appears a country in grief must wait yet another year.

Sunday, August 4, 2019

Time to Make the Supreme Court Great Again?

      President Trump and the Senate's Republican leader Mitch McConnell have both listed Trump's record-setting appointments of more than 140 federal judges as one of Trump's most important accomplishments in office. Many of those judges, like Trump's two Supreme Court justices, were confirmed by party-line votes in the face of strong opposition from Democrats and liberal advocacy groups, but the issue of judicial appointments went all but completely unmentioned in six hours of Democratic presidential debates last week [July 29, 30].
      The American Constitution Society (ACS), the liberal counterpart to the conservative Federalist Society, led a coalition of groups in urging CNN moderators beforehand to ask the assembled Democratic hopefuls about Supreme Court and judicial appointments, but to no avail. Media commentators noted critically afterward that the CNN moderators appeared to be selecting issues with an aim to highlighting disagreements among the Democrats instead of their shared disagreements with Trump and his policies.
      With the debates over and judicial appointments unmentioned, a truncated debate broke out on Twitter over the political value or risk for Democrats in making the Supreme Court and judicial appointments an issue in the 2020 campaign. Historically, a half-century of presidential campaigns shows that Republicans from Richard Nixon to Donald Trump have made the high court their winning issue time and again; Democrats have tried only weakly to use the issue to mobilize Democratic and independent voters.
      Democrats can and must do better in 2020, according to leading groups on the legal left. They want the eventual Democratic nominee to go beyond bland promises to appoint justices in the style of Brennan and Marshall and to go all in by backing structural reform, such as increasing the size of the Court, to neutralize the Republican justices' current majority.
      Aaron Belkin and Sean McElwee, director and polling director respectively of Take Back the Court, argued in an article written for Salon that Democrats must "recognize and reckon with the fact that the high court is a political institution that has been hijacked by the GOP to advance a partisan agenda on behalf of corporations and billionaires." Belkin and McElwee go on to say that it is "an imperative that  Democrats make the case to voters that democracy cannot be restored unless the court is reformed."
      Belkin and McElwee do not cite particulars, but the Court's end-of-term decision to close federal courts to legal challenges to the unpopular practice of partisan gerrymandering may leave it peculiarly vulnerable to attack for being uninterested in protecting voters' rights. Belkin and McElwee in fact promise a forthcoming report that will show Chief Justice John G. Roberts Jr. to vote just as conservatively as his conservative colleagues and his reputation for centrism "wholly at odds with his record."
      Among the two dozen Democrats currently in the running for the presidential nomination, 11 say they are open to expanding the size of the Court. One of those, Pete Buttigieg, has gone further by expressing interest in the proposal by two academics to expand the number of justices to 15. The balanced bench proposal by the two professors calls for five justices from each of the two major political parties and the other five chosen from sitting federal appellate judges by the other 10 by either unanimous or supermajority vote.
      Any discussion of changing the size of the Court will lead opponents to draw parallels to President Franklin D. Roosevelt's ill-fated "Court packing" proposal at the beginning of his third term in the White House. Present-day advocates of structural reform will be hard pressed to counteract the lesson drawn from that episode, but the distinction can be drawn by noting, for example, McConnell's role in blocking President Obama's nomination of the widely respected moderate appellate judge Merrick Garland in 2016.
      McConnell's role in keeping the vacancy open through the November election allowed Trump to use the issue to great effect, according to post-election exit polls. The Supreme Court was the most important issue for 21 percent of voters, according to the CNN poll, and more than half of those voters went for Trump.
      Democrats in 2020 need to make the Supreme Court their issue. They can do that by emphasizing the role that the Roberts Court has already played in weakening protections for workers and consumers and the role that an unreformed Court could play in undoing policies to address health care, climate change, and gun safety. Democrats should also promise to take judicial appointments out of the hands of the Koch Brothers-financed Federalist Society and promise to appoint fair-minded judges with no ideological agenda other than protecting liberty and justice for all.
      Senators from both parties are certain to accuse the other party of politicizing judicial appointments. History shows that Republicans have done that for 50 years, but Democrats not so much. Four of the Republican-appointed justices on the current Court were confirmed in party-line votes by historically narrow margins, with fewer than 60 votes each. All four of the Democratic-appointed justices came to the Court with reputations as judicial moderates and won confirmation by wide margins: Sotomayor and Kagan with more than 60 votes each and Ginsburg and Breyer with 96 and 87 votes respectively.
      It is time to make the Supreme Court great again. That could be and should be a winning message for Democrats in 2020, with or without a cap.

Sunday, July 28, 2019

In Border-Wall Dispute, Divided Court Bows to Trump

      The Supreme Court's newest justices, Neil Gorsuch and Brett Kavanaugh, both presented themselves to the Senate and to the American public as committed originalists and textualists, always true to the text and original meaning of the U.S. Constitution. But they showed those professed views to be mere pretense on Friday [July 26] in a behind-the-scenes separation of powers dispute between Congress and President Trump.
      Gorsuch and Kavanaugh voted along with their three Republican-appointed colleagues to allow the Trump administration to violate the text and spirit of the Constitution by diverting money Congress appropriated for the U.S. military to the building of President Trump's wall along the U.S.-Mexico border. The Court's 5-4 decision came on what the administration called an emergency request to lift an injunction issued and upheld by two lower federal courts and openly flouts Congress's constitutional control over federal spending.
      In their new book on the Kavanaugh confirmation, conservative journalist Mollie Hemingway and conservative activist Carrie Severino describe Kavanaugh's record on the D.C. Circuit appeals court as always faithful to "the text and original meaning of the Constitution." In fact, Kavanaugh's 300 opinions on the D.C. Circuit dealt mostly with the stuff of statutory interpretation and administrative rulemaking, not constitutional law.
      The dispute before the Court last week, however, was a pure question of constitutional law on provisions covered in the first week of Con Law I: Separation of Powers. Trump was claiming the authority to spend military appropriations on the non-military purpose of constructing the wall along the United States' southern border.
      The Constitution clearly gives Congress the power of the purse. "No money shall be drawn from the Treasury but in consequence of Appropriations made by law," according to Article I, section 9, clause 8. The president has no free-wheeling power to spend money unless Congress appropriates the money for the purpose at issue.
      This elementary separation-of-powers issue reached the Court in a case brought by the Sierra Club and a coalition of southern California communities. They sued Trump in federal district court in San Francisco, contending that the administration had no authority to redirect DOD funds to the border wall project.
      For legal standing, these plaintiffs claimed the border wall would harm the environment and interfere with their recreational interests. They argued that these claimed harms would satisfy the so-called "zone of interests" test often required to establish legal standing. But they also argued that a long line of precedents granted plaintiffs to challenge allegedly unauthorized governmental action without any need to satisfy that test.
      Those arguments satisfied Judge Haywood Gilliam, the Obama appointee designated to hear the Sierra Club case. He issued a permanent injunction prohibiting the transfer of funds on June 28; a few days later, a three-judge Ninth Circuit appellate panel rejected the government's request to stay Gilliam's injunction. The government headed straight to the Supreme Court, with its five-justice majority of Republican appointees, including the two named by Trump.
      The administration claimed authority to "reprogram" DOD funds to the border wall project under a section of the Defense Department appropriations act: specifically, section 8005 in the act. That section allows transfer of funds for "unforeseen" needs as long as the funds had not been "denied" by Congress. Solicitor General Noel Francisco argued implausibly in a written brief that the need for border wall funds was unforeseen and the funds for the wall had never been "denied" though vigorously debated in Congress and cut in half from the administration's request.
      Francisco went on to argue that the plaintiffs had no legal standing to enforce the limits on the president's discretion in reprogramming funds. But the administration had argued, in a separate case in federal district court in the District of Columbia, that the House of Representatives itself had no legal standing either. A Trump-appointed judge, Trevor McFadden, dismissed that suit in May on that ground.
      The Court's decision came in an unsigned, one-paragraph order issued late Friday afternoon granting the requested stay pending the government's appeal before the Ninth Circuit and later appeal to the Supreme Court itself. One of the "reasons" — no others were listed — was the government's "sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary's compliance with section 8005." A weak reed, indeed, on an arguably inapplicable technicality.
      The four liberal justices voted to deny the stay. In an opinion, Justice Stephen G. Breyer said the administration had failed to show "irreparable harm," as ordinarily required to stay a lower court decision and short-circuit the appellate process. As a compromise, Breyer would have allowed the government to let contracts but not to begin actual construction.
      Trump issued a gloating tweet within the hour: "Wow! Big VICTORY on the wall!" From the opposite end of Pennsylvania Avenue, House Speaker Nancy Pelosi said the Court's ruling "undermines both the Constitution and the law." From all that appears, Gorsuch and Kavanaugh are working from a different version.
      So too, Trump himself, as seen in his explanation of presidential powers to a group of young conservatives last week [July 25]. "Then I have an Article 2," he told the young people wrongly, "where I can do whatever I want as president." The Supreme Court, sadly, missed a good opportunity to correct the president's misstatement, but apparently this Court will pretty much let this president do whatever he wants.

Sunday, July 21, 2019

In Final Months, Justice Stevens Had Regrets

      Supreme Court justice John Paul Stevens was fondly remembered after his death last week [July 16] as a judge's judge, a generous boss and mentor, and the very embodiment of courtly manners. The outpouring of tributes is an unpleasant reminder, however, of the Court's transformation in the final years of Stevens' long life from a safeguard for liberty and justice into an instrument of the Republican Party's legal and political agenda.
      Stevens aired his own regrets about that development in candid comments when NPR's Nina Totenberg asked him in May whether he thought the current Supreme Court had taken a radical turn to the right. "Yes," Stevens replied. "I really do. I think some of the decisions really are quite wrong and are quite contrary to the public interest."
      Stevens was President Gerald Ford's nominee for the Court based on the recommendation of Edward Levi, the former president of the University of Chicago who served as U.S. attorney general in Ford's accidental presidency. Ford had asked Levi to recommend a candidate who could win confirmation easily based on academic and legal credentials.
      Stevens' credentials were impeccable and, in contrast to most of the Republican nominees in the years since, completely apolitical. The Democratic-controlled Senate confirmed Stevens in a 98-0 vote, within weeks after Ford nominated him. Today, Stevens would have been vetted by the Federalist Society and his name never put forward.
      Stevens arrived at the Court after five years on the federal appeals court in Chicago, his record well regarded and his judicial demeanor and temperament unquestioned. He was a registered Republican and Midwestern conservative with not the slightest hint of an ideological agenda as the successor to the outspoken liberal justice, William O. Douglas.
      In his recently published memoir The Making of a Justice, Stevens stresses the importance as a judge to "learn on the job." And he did. In his first term on the Court, he joined two other centrist justices, Byron White and Potter Stewart, in casting the pivotal votes to allow the resumption of capital punishment four years after the Court had outlawed the death penalty as arbitrary and discriminatory. The ruling in companion cases prohibited mandatory death penalty laws but allowed capital sentencing schemes that gave juries sufficient guidance to guard against arbitrariness.
      Thirty years later, Stevens confessed that the legal experiment he helped launch had failed. Dissenting in an early method-of-execution case, Baze v. Rees (2008), Stevens voted to find the death penalty unconstitutional based on what he described as "my own experience." Stevens said he had concluded that the death penalty amounted to cruel and unusual punishment under the Eighth Amendment because it represented "the pointless and needless execution of life with only marginal contributions to any discernible social or public purpose."
      Stevens also changed his stance on another major issue during his tenure: affirmative action. He voted early in his tenure in Bakke v. Regents (1978) to bar a quota-like admissions system at the University of California-Davis medical school. A quarter-century later, however, Stevens cast a pivotal vote in the 5-4 decision in Grutter v. Bollinger (2003) to uphold a more narrowly tailored use of race in admissions at the University of Michigan law school.
      On and off the bench, Stevens was unfailingly polite, but he was sharply critical in any number of dissenting opinions. He famously complained in Bush v. Gore that the 5-4 decision to cut off the Florida recount prevented the country from ever being sure about who won the 2000 presidential election. A few years later, he dissented from Chief Justice John Roberts' decision in Parents Involved v. Seattle School District (2007) to limit school districts' ability to adopt pupil assignment policies to promote racial balance. In his dissent, he opined that none of the justices on the Court at the time of his appointment would have joined Roberts' opinion.
      Stevens retired from the Court in 2010 at age 90, one of nine justices to serve past that age; he marked his 99th birthday in April during the round of interviews for his memoir, nearly four years after he had become the longest lived justice ever. As noted in this space before, among several other long-serving justices Stevens stands out as having retired of his own accord when he sensed his stamina failing. Douglas was literally forced off the Court by his colleagues in 1975: so too with Stephen Field in 1897 and Oliver Wendell Holmes Jr. in 1931.
      Despite his age, Totenberg found Stevens mentally sharp and physically fit. But he was openly discouraged about the Court's current course. The Court, he remarked, "seems to be more ideological than it has been since the 1930s." The mantra that the justices are judges, not politicians, is "harder and harder to believe," he lamented.
      With the term's most important decisions of the term yet to come, Stevens observed somewhat hopefully that Roberts "occasionally takes a different position from the other Republicans." Asked if there was one takeaway from his book, his third,  Stevens obliged. "The world is changing much faster than I anticipated," he answered. For better or worse, Totenberg asked. "For the worse, I think."