Sunday, April 26, 2020

Kavanaugh Charting Vote to Overrule Roe v. Wade?

      Evangelisto Ramos, convicted of murder and sentenced to life in prison in Louisiana four years ago, won a new trial from the U.S. Supreme Court last week [April 20] in a decision that civil liberties advocates would ordinarily be cheering. But instead the legal left is viewing the decision warily because of a concurring opinion by Justice Brett Kavanaugh that looks like his road map for voting to overrule the Roe v. Wade abortion rights decision when he gets the chance.
      Ramos was convicted in the stabbing death of a female acquaintance after a two-day trial on evidence so shaky that two of the twelve jurors voted not guilty. At the Supreme Court, Justice Neil Gorsuch noted that the 10-2 jury vote would have resulted in a mistrial in all but two of the fifty states, all except Louisiana and Oregon. Gorsuch led an ideologically diverse five-justice majority in overruling the Court’s prior decision allowing non-unanimous jury verdicts in criminal cases in state courts though not in federal courts.
      In reversing the earlier decision, Apodaca v. Oregon (1972), Gorsuch cited the dissenting opinions in that case joined by such liberal lions as William Douglas, William Brennan, and Thurgood Marshall. The new decision came as no surprise and, in some sense, Gorsuch — the only justice to describe himself publicly as a “committed” originalist — was the one to write it.
      Gorsuch channeled not the Warren Court sensibilities of protecting criminal defendants, but James Madison’s views in writing trial by jury into the Bill of Rights. Madison and the states that ratified the Sixth Amendment, Gorsuch reasoned, all understood the right to trial by jury to adopt the practice of jury unanimity inherited from English common law.
      The Supreme Court had the same understanding about jury unanimity in criminal cases, Gorsuch explained, until the “strange turn” that it took in the 1972 decisions. The Court divided 4-1-4 in letting Louisiana and Oregon use 10-2 verdicts in criminal cases after they adopted those “unconventional schemes,” respectively, in 1898 and 1934. The pivotal vote came from Justice Lewis F. Powell, the only justice who thought the Sixth Amendment could have a different meaning in state than in federal courts.
      Gorsuch and Kavanaugh, President Trump’s two appointees on the Court, both won confirmation after professing due regard for the doctrine of stare decisis, with its deference to past decisions. Three decades earlier, Clarence Thomas made the same obeisance to precedent to win confirmation, but began within his first few months on the bench his now common practice of voting or calling for reversing prior decisions based solely on his superior understanding of constitutional law.
      To show his bona fides, Gorsuch performed a sleight of hand: the prior decisions “lacked precedential effect,” he explained, because of the odd lineup. Kavanaugh joined but felt impelled to lay out his reasons for voting to overturn 48-year-old precedents despite stare decisis. A prior decision, he explained, must be “not just wrong but grievously or egregiously wrong.” In addition, the prior decision must have produced “significant negative jurisprudential or real-world consequences.” And, as a third consideration, the question must be asked whether overruling the precedent would “unduly upset reliance interests.”
      In several Supreme Court skirmishes on abortion rights so far, Kavanaugh has shown himself to be no fan of women’s right to choose. Thus, he voted to uphold the Trump administration’s efforts to prevent a pregnant Central American teenager from getting an abortion while in custody after crossing the border illegally. When he votes to overrule Roe v. Wade, no one but Maine’s Republican senator Susan Collins will be the least bit surprised. It will be no reach at all for Kavanaugh to check his three boxes before casting aside the 1973 precedent that the Rehnquist Court voted to reaffirm in 1992 after full-dress reconsideration.
      Kavanaugh is successor to Anthony  Kennedy, one of the three Republican-appointed justices who cast the pivotal votes to save Roe in that decision, Casey v. Planned Parenthood. In their joint opinion, Kennedy, Sandra Day O’Connor, and David Souter explained that generations of American women had come to rely on the right to choose in ordering their professional and personal lives. That is precedent, but perhaps in Kavanaugh’s mind mere dictum.
      Gorsuch showed himself in his first term to have no qualms about overruling prior decisions by joining in the 5-4 decision in Janus v. AFSCME (2018) to overturn an important 40-year-old precedent for public employee unions. For Kavanaugh, his vote in Ramos represents his first to reverse a prior decision and perhaps the precedent he needs to justify his next.  
       The question remains whether Chief Justice John G. Roberts Jr. wants to be remembered for presiding over a 5-4 decision to leave women’s reproductive rights to the mercies of Republican legislators in red states eager to reduce those rights to practical insignificance. The Court is already considering in a pending case, Russo v. June Medical Services, a Louisiana law that effectively reduced the state to a single abortion clinic.
      In oral arguments, Roberts and Kavanaugh both seemed to be reaching for a rationale to uphold the Louisiana law even though identical to a Texas law that the Court struck down two years earlier. Thus, the showdown on abortion rights may still be yet to come, but Kavanaugh has given cause for concern to those who expect him to vote no as soon as he can.

Sunday, April 19, 2020

Under Trump, USA Not So Free, Not So Brave

      Someday soon perhaps, Americans will gather in ballparks around the country and sing, once again, in celebration of “the land of the free and the home of the brave.” But three years into Donald Trump’s presidency, America is not so free and not so brave, according to the latest downbeat report on freedom in the world from the respected democracy watchdog, Freedom House.
      The United States scores somewhat lower on freedom in 2020 than it did when Donald Trump took office in 2017 with his promise to make America great again, according to Freedom House. Trump has undermined “democratic norms and standards within the United States,” the report states, and in the process also “undermine[d] the country’s ability to persuade other governments to defend core human rights and freedoms . . . .”
      Freedom House scores 195 countries and 15 territories around the world on political and civil liberties with a maximum score of 100. Under Trump, the United States has slipped from 90, a low A grade, to 86, a mid-range B. The report provides an uncomfortable refutation of American exceptionalism by listing 50 countries with higher grades, including virtually all of Western Europe and even some former Soviet bloc countries: the Czech Republic, Estonia, and Lithuania.
      The report cites as domestic setbacks for U.S. democracy such Trumpian practices as “pressure on electoral integrity, judicial independence, and safeguards against corruption,” along with “fierce rhetorical attacks on the press, the rule of law, and other pillars of democracy.” The impact of Trump’s attacks on the media was also highlighted this week [April 16] in a report by the Committee for Protection of Journalists that underscored the resulting loss of public confidence in the media as a particular danger “in the midst of a public health emergency.”
      Overall, the Freedom House report paints a grim picture of declines in freedom and democracy for the fourteenth consecutive year. The number of countries with declining grades has exceeded the number of countries with gains ever since 2006: most recently, 64 countries with declines in 2019 and 37 with gains. The report, titled “Leaderless Struggle for Democracy,” blames that trend in part on the United States’ retreat under Trump from its traditional role of leading the free world by inspiring and supporting democracy worldwide.
      The Trump administration “has failed to exhibit consistent commitment to a foreign policy based on the principles of democracy and human rights,” the report states bluntly. Trump has been “outspoken in denouncing authoritarian abuses by U.S. adversaries,” such as Venezuela and Iran, the report acknowledges. But he has “excused” violations by “traditional security partners, such as Turkey and Egypt,” and “has also given a pass to tyrannical leaders whom he hopes to woo diplomatically,” including Russia’s Vladimir Putin and North Korea’s Kim Jong-un.
      Trump’s cozy relationship with autocrats was on display again last week [April 14] as he assured two of the world’s major oil suppliers, Russia and Saudi Arabia, that the United States would limit oil production in tandem with the two petrostates to help maintain oil prices. In effect, as critics noted, U.S. consumers will be paying higher prices for gasoline to help support two autocracies as well as the Republican-oriented domestic oil and gas industry.
      Pluralism and democracy are “under assault,” Freedom House reports, not only from dictators but also from popularly elected leaders, including the Hindu nationalist prime minister of the world’s largest democracy, India’s Narendra Modi. The report links Trump and Modi together as elected leaders “increasingly willing to break down institutional safeguards and disregard the rights of critics and minorities as they pursue their populist agendas.”
      Overall, Freedom House counts 83 countries as free along with 49 classified as partly free and 63 countries described as not free. With those classifications, Freedom House calculates that 39 percent of the world’s 7.7 billion people live in freedom and another 25 percent in partial freedom, with more than one-third of the world’s population in “not free” countries or territories.
      The decline before Trump’s famous escalator ride to start his path to the White House, but his authoritarian tendencies have made the decade-long anti-democratic pandemic that much worse. To reverse the decline, the report lists several recommendations for “established democracies.” Without singling out the United States, the recommendations seem especially global democracy began long before Trump rode down the Trump Tower applicable to Trump, even if he has less than a year to try to counteract the ill effects of his administration’s policies so far.
      The report calls for respecting human ri and democracy at home after making explicit the intuitive assumption that attacks on democratic institutions, including the press, the judiciary, and anticorruption agencies, “undermine faith in democracy around the world.” Trump’s rhetorical attacks on the press and the judiciary have stung with only limited impact, but his  dismissals of several inspectors general over the past few weeks pose a real and present danger to the watchdog roles that Congress envisioned in creating those offices.
      The report also calls for increased support for and attention to civic education about democratic principles. Far from helping in that regard, Trump is himself a source of gross misinformation, as in his claim for “total authority” over the states during the public health emergency and his earlier claim of presidential power to do “whatever I want to do as president.” Even some Trump apologists have spoken out against these constitutional misstatements, but his political base may be misled nevertheless.

Saturday, April 11, 2020

At Supreme Court, Suppressing the Vote in a Pandemic

      Every vote counts: that’s the mantra repeated time and again as Election Day approaches.  For Democrats and progressives, it is a call to action: get to the polling place. For Republicans and conservatives, it is a call to action as well, not to encourage voters but to ramp up and fortify roadblocks for would-be voters.
      Republicans from President Trump down are now saying aloud what was once only an accusation: they want to make it harder for people to vote because they view low turnouts as good for Republicans and higher turnouts as better for Democrats. Trump acknowledged the strategy for all to see when he sneered at Democrats’ election reform proposals that they wanted to add to the coronavirus stimulus bill.
      “The things they had in there were crazy,” Trump said in an appearance on Fox and Friends on March 30. “They had things, levels of voting that if you’d ever agreed to it, you’d never have a Republican elected in this country again.”
      To its lasting discredit, the Roberts Court lent its support to this strategy with a politically divided 5-4 decision last week [April 6]  that defied social distancing guidelines by making it harder and in fact dangerous for people in Wisconsin to cast ballots in Tuesday’s statewide and local elections . The Court, sitting a few miles away from Trump’s White House, threw out a decision by the on-the-scene federal judge in Wisconsin to extend by a few days the deadline for mailing absentee ballots to be counted.
      Republicans and Democrats have been at odds in traditionally Democratic Wisconsin for years over voting rights. With Republicans controlling the legislature and the governor’s office, the state adopted a somewhat strict voter ID law in 2011 that appears from statistical studies to have dampened turnout in solidly Democratic Milwaukee in the November 2016 election just enough to allow Trump a narrow victory for the state’s ten electoral votes.
      The partisan confrontation over voting rules peaked this year as the state’s Democratic governor, Tony Evers, sought to delay the April 7 election till June to allow more time for voters to cast ballots by mail to avoid the risk of coronavirus infections in Election Day voting lines. The Republican-controlled legislature refused to go along, but U.S. District Court Judge William Conley crafted a remedy for the problem with his ruling  five days before the election [April 2] in a suit brought by the Democratic National Committee along with election reform groups and individual Wisconsin voters.
      Acknowledging the delays in mailing absentee ballots to voters, Conley ordered that county clerks count absentee ballots if received by April 13 even if mailed after Election Day itself, April 7. The Republican National Committee asked the Seventh Circuit Court of Appeals to stay Conley’s ruling, but the appeals court refused. With that, the RNC raced to the Supreme Court, hoping for a better result from the five Republican-appointed justices.
      The Court’s decision to stay Conley’s ruling, set out in an unsigned, four-page opinion, is formalistic to the max. The Court reasoned that Conley went too far by fashioning a remedy that the plaintiffs had not specifically requested and reasoned further that Conley had violated a court-made rule against changing voting procedures too close to an election.
      Compounding the difficulties, local election officials in Wisconsin could not find enough poll workers to open the usual number of polling places — for example, only five polling places in Milwaukee instead of the usual number, 180. The result: long lines of voters, wearing masks and trying to social distance, many of them in line for two hours or longer to cast their votes.
      Writing for the four liberals in dissent, Justice Ruth Bader Ginsburg gave the conservative majority perhaps more credit than they deserved by specifically disclaiming any intention to question their “good faith.” But she made clear the impact of the decision in the opening paragraph of a strongly worded, six-page dissent. The Court, she stated, “intervenes to prevent voters who have timely requested absentee ballots from casting their votes.”
      Ginsburg underscored the illogic of the Court’s decision, given the “unprecedented” number of requests for absentee ballots — 1 million more than in 2016 — and the resulting backlog of unmailed ballots.,. Absentee voters, she explained, would be required to postmark their absentee ballots by Election Day, April 7, “even if they did not receive their absentee ballots by then.” If that is the law, Charles Dickens would add, “the law is an ass, an idiot.”
      Distressingly, Wisconsin may be only the first of many states to face voter access issues in an election year with difficulties compounded by the coronavirus pandemic. From the White House, Trump has made totally unsubstantiated allegations that the indicated remedy — all-mail balloting — will lead to voter fraud. He has no more evidence for that claim than he had for his debunked claim that he lost the popular vote in 2016 because of voter fraud.
      With the election still seven months away, Trump appears likely to lose the popular vote again, but he could eke out an Electoral College majority if he gets enough help in enough Republican-controlled states to skew their votes in his favor even as voters nationwide vote to turn him out. The stakes for free and fair elections in our American democracy could hardly be higher.

Sunday, April 5, 2020

Trump Judge Helps Ban Abortions in Texas

      Kyle Duncan became a star in conservative legal circles by litigating, as counsel to the Becket Fund for Religious Liberty, such culture war issues as abortion rights, same-sex marriage, and the Obamacare regulation requiring employers to provide contraception coverage in employee health plans. Duncan achieved his only outright win on those issues by helping steer the so-called Hobby Lobby case toward the Supreme Court's eventual decision in 2014 allowing religiously motivated employers an exemption from the contraception mandate. His efforts failed to stop same-sex marriage or make significant inroads on reproductive rights.
      Now as a federal appellate judge, however, Duncan cast the decisive vote last week [March 30] on a three-judge panel to ban abortions in Texas, at least for the time being. Duncan, nominated by President Trump and confirmed by the Senate two years ago on a party-line vote, joined with another Republican appointee to let Texas ban abortions under a phony argument that abortions divert needed medical supplies and personnel from combating the coronavirus pandemic.
      Texas's Republican governor, Greg Abbott, and Republican attorney general, Ken Paxton, are among the politicians in half a dozen red states who have signed up with anti-abortion groups to exploit the pandemic as the pretext for shuttering abortion clinics. A Republican-appointed federal judge in Texas blocked Abbott's order as violating the Supreme Court's decisions protecting abortion rights. "Regarding a woman's right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly," Judge Lee Yeakel wrote in his nine-page ruling. "There can be no outright ban on such a procedure."
      When the state asked the Fifth Circuit Court of Appeals to stay Yeakel's ruling, Duncan ended up on the three-judge panel to consider the request along with a second Republican appointee, Jennifer Elrod, and a Democratic-appointed judge, James Dennis. Duncan voted with Elrod over Dennis's dissent to stay Yeakel's ruling pending further appeals.
      Elrod and Duncan gave no reasons for granting the stay, but Dennis explained that Abbott's order would cause "irreparable harm" to women in Texas seeking an abortion. He went on to stress that as phrased Abbott's order was less than a complete ban.
      "I write separately," Dennis added, quoting Abbott's order, "to make clear that, per the Executive order, 'any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster’ is exempt.”
      Yeakel is one of three federal district court judges in three states to block these moves, including a second Republican appointee, Judge Michael Barrett in Ohio. Barrett concluded in his four-page ruling that the state had failed to show that banning abortions "would save enough masks and other gear for medical workers dealing with the pandemic to outweigh the 'irreparable harm' it would cause to individuals wanting to terminate their pregnancies." Barrett rejected the state's plea to stay his ruling, but the state is now asking the Sixth Circuit Court of Appeals for a stay.
      In Alabama, a Democratic-appointed judge, Myron Thompson, barred the Republican governor's move to ban abortions during the pandemic. Like Barrett, he found the state's claimed interests outweighed by abortion clinics' interests. "The State’s interest in immediate enforcement of the March 27 order — a broad mandate aimed primarily at preventing large social gatherings — against abortion providers does not, based on the current record, outweigh plaintiffs’ concerns," Thompson wrote in his ruling.
      In sum, four of the six federal judges to rule thus far on these pandemic-based abortion bans have rejected the rationales adopted by anti-choice politicians from the anti-abortion groups' playbook. Duncan is in a minority of two to have given interim approval. Three other states have promulgated similar bans: Iowa, Mississippi, and Oklahoma. Legal challenges are expected in those states too.
      Duncan gained his federal judgeship on the basis of a record bereft of significant qualifications other than his ideological warfare on behalf of the religious right. He is one of Trump's record number of lifetime appointments to federal courts of appeals that now comprise more than one-fourth of the seats on the thirteen federal circuits. Many others among the 51 are like him: young, on average five years younger than President Obama's circuit court nominees, and far more political and ideological, as The New York Times showed in an exhaustive analysis of Trump's judges.
      Duncan is one of 18 Trump circuit court judges to have litigated against abortion rights before taking the bench. All but eight of the Trump judges had ties to the conservative-libertarian Federalist Society, and many continue to attend the society's events. Two-thirds of them won Senate confirmation with fewer than 60 votes: the previous threshold for bringing judicial nominees to a floor vote before Republicans changed the rules to ease the way for Trump's two Supreme Court appointments.
      With the presidential election approaching, Senate Majority Leader Mitch McConnell is reported to be urging Republican-appointed judges to retire now to give the president more vacancies to fill. McConnell, it will be recalled, blocked President Obama's Supreme Court nominee Merrick Garland in 2016 because of the impending election. McConnell's hypocrisy is so blatant that even he ought to be embarrassed, however slightly.