Friday, May 6, 2022

In Abortion Case, Trashing Stevens' Legacy

            All nine of the current Supreme Court justices gathered in the Great Hall on Monday (May 2) to join in a memorial service for the late justice John Paul Stevens, who graced the Supreme Court bench for thirty-five years with unfailing courtesy and judicious moderation until his retirement in 2010.

            The hour-long succession of tributes included one from Stevens’ lawyer grand-daughter, Hannah Mullen, who fondly recalled Stevens as a devoted grandfather and a judicial moderate who was neither liberal nor conservative but simply impartial.

            Unbeknownst to those who viewed the live-streamed ceremony, five of the justices in attendance had voted three months earlier to overrule the landmark abortion rights decision, Roe v. Wade (1973) in a case argued in December, Dobbs v. Jackson Women’s Health Organization. The state of Mississippi brought the case to the Court with the specific goal of scrapping the 49-year-old precedent and eliminating for American women the repeatedly reaffirmed right to terminate an unwanted pregnancy.

            Stevens was one of the fourteen justices who had served since 1973 to have voted to reaffirm Roe v. Wade in the face of concerted political and legal campaigns waged by so-called “pro-life” groups to overturn the decision. As the memorial service proceeded, the Court’s overhead camera showed recognizable images of the current justices seated in the front rows, including Justice Samuel A. Alito Jr., author of the 67-page draft opinion in Dobbs circulated from his chambers in early February with apparent support from four of the other current justices.

            From all appearances, Alito seemed to listen attentively and respectfully as several of Stevens’ former law clerks sang his praises as a careful, case-by-case jurist. Also spotted during the memorial was the former justice, Anthony M. Kennedy, who provided a critical vote to reaffirm Roe v. Wade in the later case Planned Parenthood v. Casey (1992). Kennedy retired in 2018 to allow President Donald J. Trump to appoint a Republican judge in his place to solidify the Court’s conservative majority.

            By nightfall on Monday, the Court was rocked by an extraordinary breach of the Court’s all-but-inviolate secrecy of deliberations. An unidentified person “familiar with the Court’s proceedings” – possibly a law clerk-- leaked to the daily newspaper, Politico, the complete text of Alito’s, 67-page draft opinion. The newspaper published the text in the edition posted on-line that night. The scoop made page-one headlines in major newspapers the next morning: the Washington Post headlined the lead story, “Supreme Court Ready to Reverse Roe v. Wade.”

            Politico’s reporters Josh Gerstein and  Alexander Ward aptly described Alito’s draft opinion in their story as “a full-throated, unflinching repudiation of the 1973 decision” and quoted Alito’s description of the decision as “egregiously wrong from the start.” They reported that Alito had tentative votes for his opinion from four of his fellow Republican-appointed conservatives: Thomas and Trump’s three justices, Gorsuch, Kavanaugh, and Barrett. Major newspapers followed the next day in reporting the same line-up, with Chief Justice Roberts conspicuously not on board.

Trump, it needs to be recalled, promised during his 2016 campaign and his one-term presidency to appoint justices who would vote to overrule Roe v. Wade. In their confirmation hearings, however, Gorsuch, Kavanaugh, and Barrett all described Roe v. Wade as settled precedent and disclaimed any interest in reversing the decision. Hardly anyone was fooled. Republican senators all voted in lockstep to confirm all three by narrow, party-line votes; outnumbered Democrats voted against all three.

Alito’s tone in the draft opinion was immoderate to the max, with no trace of Stevens’ admired moderation and judicial modesty. Alito made much of the oft-repeated canard that the Constitution has “no express reference to the right to an abortion” (slip op. at 9), even though the Court in Roe v. Wade held that reproductive rights are part of the “liberty interest” protected by the Due Process Clause and the Ninth Amendment. One legal jokester responded on Twitter by noting that the Constitution similarly says nothing about “aircraft carriers.”

On Twitter, I noted that the Constitution similarly says nothing about marriage, contraception, child-rearing, or sexual intimacy, even though the Court’s twentieth-century precedents have established constitutional protections in all those areas. Two law school professors, Melissa Murray and Leah Litman, warned in an op-ed in the Washington Post that Alito’s logic in overruling Roe could jeopardize some of those decisions.

Within the draft opinion itself, Alito batted away that concern.  “To ensure that our decision is not misunderstood or mischaracterized,” Alito wrote, “we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Legal scholars with stronger academic credentials than mine have already critiqued Alito’s opinion at length, in the blogosphere and on cable talk programs. There is no need to repeat those criticisms in this space, a full week later. Apart from the substance of the opinion, however, Court watchers were in full hand-wringing mode about the effect of the leak on the Court’s institutional integrity. Three days later, Adam Liptak’s lead story in the New York Times carried this headline: “Leak Intensifies View That Court Is Too Political.”

Stevens' appointment by a Republican president, Gerald Ford, came on the recommendation of Stevens' home-state Republican senator, the moderate Charles Percy. Ford avoided overt partisanship in his post-Watergate effort to assure Americans that the rule of law was on solid ground. By contrast, Trump showed little regard for the rule of law and exalted politics over law in virtually all of his judicial appointments, including the three right-wingers he named to the Supreme Court.


Sunday, May 1, 2022

Time for Equal Rights for Puerto Rico?

            Jose Vaello-Madero, who was born and grew up in Puerto Rico, lived in New York City from 1985 to 2013 and during that time benefited from one of the federal government’s “safety net” programs: the Social Security Administration’s Supplemental Security Income (SSI) benefits, available to low-income individuals with disabilities. Vaello-Madero moved back to Puerto Rico in 2013 to care for his ailing wife.

            In a ham-handed decision issued last week [April 28], the Supreme Court held on an 8-1 vote that Vaello-Madero and other residents of Puerto Rico are ineligible for SSI benefits, under a quirk in Social Security law that specifically excludes residents of Puerto Rico from SSI benefits. The dissenting judge, unsurprisingly, was Sonia Sotomayor, whose Puerto Rican parents moved to New York City before the future justice was born. The decision in United States v. Vaello-Madero included, however, one surprise: Justice Neil Gorsuch used the case to call for overruling the early twentieth-century decisions known as the Insular Cases that relegate Puerto Rico to second-class legal status within the United States.

            More than a century after the United States acquired Puerto Rico by conquest in the Spanish-American war, the time has come to end the semi-colonial status and admit Puerto Rico to statehood. Note that Puerto Rico’s current population of almost 3.2 million is greater than the population of seventeen states: Alaska, Arkansas, the Dakotas, Delaware, Hawaii, Idaho,  Kansas, Maine, Mississippi, Montana, Nebraska, New Hampshire, Rhode Island, Vermont, West Virginia, and Wyoming.

            After moving to Puerto Rico, Vaello-Madero lost his eligibility to SSI benefits. If he had moved anywhere else in the United States, he would have still been eligible for the benefits. Vaello-Madero was unaware of a quirk in the Social Security law that specifically excludes residents of Puerto Rico from SSI benefits. The provision at issue, 42 U.S.C. §1382(f), limits SSI benefits to people who “reside in the United States”—defined in the statute as the fifty states and the District of Columbia. That provision also excluded residents of Guam and the Virgin Islands, but Congress amended the law in 1976 to extend benefits to residents of the Northern Mariana Islands.

            Unaware that he was no longer eligible for SSI benefits, Vaello-Madero never notified Social Security of his move. Social Security continued to send his monthly benefits to his New York address until it finally learned he was living in Puerto Rico. Adding insult to injury, Social Security sued Vaello-Madero for $28,000 in restitution for the benefits unknowingly sent to his former address. Vaello-Madero responded to the suit by filing his own suit in federal district court in Puerto Rico to challenge the exclusion of Puerto Rican residents as a violation of the Constitution’s Equal Protection Clause, which extends to all American citizens.

            In upholding the exclusion, the Court, in an opinion by Justice Brett Kavanaugh, noted that Puerto Rico has exempted residents of Puerto Rico from most federal taxes “for various historical and policy reasons.” He noted further that Congress “likewise [has] not extended certain federal benefits programs to residents of Puerto Rico. He noted as well that the Constitution’s Territory Clause (Art. IV, §3, cl. 2) authorizes Congress “to make all needful Rules and Regulations respecting the Territory . . . belonging to the United States.”

To Kavanaugh, the Constitution’s text, the colonial-type historical precedents, and the Court’s discreditable precedents gave Congress the authority to ignore the Equal Protection Clause in denying safety-net benefits to the millions of U.S. citizens resident in Puerto Rico.

Seven justices, all but Sotomayor, joined Kavanaugh’s opinion in full. Thomas, in another example of his idiosyncratic jurisprudence, used the case as the occasion to deny that the federal government is subject to the Equal Protection Clause at all; the Court, ever since the 1950s, has recognized that the Fifth Amendment’s Due Process Clause, applicable to the federal government, includes an “equal protection component” that requires the federal government as much as the states to guarantee equal protection of the laws to all U.S. citizens.

In a separate concurring opinion, Gorsuch bluntly called for overruling the Insular Cases, which he rightly explained rested on “racial stereotypes.” He acknowledged as an unsatisfactory “workaround” the Court’s decisions recognizing certain constitutional guarantees as sufficiently “fundamental” to extend to the territories anyway. “The time has come,” Gorsuch added in conclusion, “to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them.”

In her opinion, Sotomayor made a hash of the supposed logic in Kavanaugh’s opinion. The SSI program, she noted, “establishes a direct relationship between the recipient and the Federal Government” based upon “uniform eligibility criteria that disburses directly and uniformly to recipients without regard to where they reside.” “Under the current system,” she added, “the jurisdiction in which an SSI recipient resides has no bearing at all on the purposes or requirements of the SSI program.”

Sotomayor acknowledged that residents of Puerto Rico typically are exempt from paying some federal taxes, bur argued that “that distinction does not create a rational basis to distinguish between them and other SSI recipients” because “[b]y definition, SSI recipients pay few if any taxes at all.” To “deny[] benefits to hundreds of thousands of eligible Puerto Rico residents because they do not pay enough in taxes is utterly irrational,” Sotomayor added, “antithetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution.”

Sunday, April 24, 2022

On Mask Mandate, Activist Trump Judge Upends Policy

            When the Senate’s Republican leader Mitch McConnell announced his opposition to Supreme Court nominee Judge Ketanji Brown Jackson in a Senate floor statement, he denounced what he called “the outsized role that unelected judges play in our national life.” He attributed the problem to “direct consequences of liberal judicial activism” and “efforts to misuse federal courts as a progressive legislature that voters can’t kick out.”

            McConnell perhaps needs to be reacquainted with an activist federal judge that he helped get confirmed in the Senate by a party-line vote: Judge Kathryn Kimball Mizelle, confirmed to a lifetime post at the young age of thirty-three despite the American Bar Association’s rating of her as unqualified for the federal bench.

            Mizelle is one of the many doctrinaire conservatives that President Donald J. Trump nominated for federal judgeships and that McConnell shepherded to confirmation through the Republican-controlled Senate at a record pace from Trump’s earliest days in the White House and even after he had been defeated for re-election.

The Senate in fact confirmed Mizelle for the federal bench in Tampa, Florida, on November 18, 2020, two weeks after 81 million voters had cast ballots to deny Trump a second four-year term in the White House. Mizelle won confirmation by a strictly party-line 49-41 vote, with ten senators not voting (four Republicans and six Democrats).

            Mizelle’s post-election confirmation went all but unnoticed at the time, but she has now become exhibit number one for conservative judicial activism by striking down the federal transportation mask mandate instituted by the Centers for Disease Control (CDC) in February 2021 to try to reduce community spread of the covid-19 coronavirus.

            Mizelle issued her fifty-nine-page opinion on Monday [April 18] in a suit filed in her court on July 12, 2021, by the self-styled Health Freedom Defense Fund. The group, headquartered in Sandpoint, Idaho, filed suit on its own behalf and in behalf of two named Florida residents. The thirty-page complaint alleged that the CDC failed to comply with the Administrative Procedure Act’s notice-and-comment requirement before issuing the regulation and that the regulation went beyond the CDC’s statutory authority under the federal Public Health Statute.

            In filing the complaint, the group falsely claimed that “recent studies have shown that masks do more harm than good.” As the Washington Post noted in its coverage, claims like those have been “repeatedly debunked.” Mizelle’s decision reads much like an extended op-ed, padded with enough legal argle-bargle to sound like a carefully reasoned judicial decision rather than a result-oriented diatribe.

 Mizelle rested her decision on a narrow definition of the CDC’s authority to require “sanitation” to prevent spread of disease. Mask wearing, she reasoned, did nothing to help sanitize surfaces or environments—in apparent disregard of hospital practice that surgeons routinely wear masks in operating rooms. Even so, Mizelle acknowledged the CDC’s medical judgment at page 43 of her opinion. “The Court,” she wrote, “accepts the CDC’s policy determination that requiring masks will limit COVID-19 transmission and will thus decrease the serious illnesses and deaths that COVID occasions.”

Mizelle dismissed the CDC’s argument that the failure to include notice-and-comment before promulgating the regulation was harmless error because public comment would not have changed the agency’s decision. “The Court,” Mizelle wrote, “may not so lightly conclude that public input would have been inconsequential in a rule directly regulating individual conduct.”

In hindsight, one public health expert, Scott Gottlieb a former Food and Drug Administration commission, faulted the agency for short-circuiting procedures. Interviewed by Washington Post reporters, Gottlieb said, “[T]he outcome is partly CDC’s own fault because the agency has failed to develop a transparent record to support its actions and hasn’t engaged in rulemaking that might solidify its authorities.”

Mizelle details the agency’s shortcomings over several pages of her written opinion: pages 50-54. In sum, she writes, “irrespective of whether the CDC made a good or accurate decision, it needed to explain why it acted as it did.”

The lifting of the federal mask mandate prompted major airlines to announce easing of their own masking policies. On one flight, a pilot announced the news from the cabin while airborne; a video that went viral showed smiling passengers clapping and cheering the news as they removed their masks. Even so, some public transit passengers reported in social media posts that many passengers were still wearing masks.

The Biden administration, caught unaware by the ruling, criticized the decision somewhat obliquely while leaving it up to the CDC to decide whether to appeal the ruling. “Public health decisions shouldn’t be made by courts; they should be made by public health experts,” White House press secretary Jen Psaki told reporters aboard Air Force One on Tuesday [April 19].

Despite Mizelle’s critique, the CDC reaffirmed its position afterward on the need for the mask mandate and urged the Justice Department to appeal the decision. The appeal goes to the U.S. Court of Appeals for the Eleventh Circuit, a notoriously conservative tribunal where Mizelle herself clerked eight years ago. The court’s judges are drawn from three ruby-red states: Alabama, Florida, and Georgia, hardly favorable terrain for the administration’s appeal.