Sunday, July 25, 2021

High Court Skips Equal Justice This Term

            The Supreme Court’s marble palace proudly promises “Equal Justice Under Law” in the pediment over the now unused front entrance. The motto itself appears to have been invoked only rarely during the past years. With the 2020 term now ended, a review of the Court’s decisions shows that the justices dispensed very little equal justice even when some appeals presented easy opportunities for equal-justice rulings that would have fit comfortably within precedents and applicable laws.

            Consider as two examples the Court’s two 6-3 decisions, divided along conservative-liberal lines, that denied any retroactive benefits for defendants convicted or sentenced under procedures now deemed to be unconstitutional. The ruling in Edwards v. Vannoy rejected retrials for hundreds of defendants in Louisiana and Oregon convicted years ago by non-unanimous juries in verdicts that today are unconstitutional, under the Court’s ruling in the 2019 term that requires unanimous jury verdicts in criminal trials nationwide.

            Thedrick Edwards, the Black defendant convicted of rape by an 11-1 jury in Louisiana years ago, presented the Court with a circumstantial case of racial injustice that cried out for a dose of equal justice. The lone black juror on the panel voted to acquit. Edwards; he would have been found guilty in only one other state at the time, Oregon. Those two states both adopted non-unanimous jury verdicts in part to minimize the possibility that holdout Black jurors could protect Black defendants from dubious convictions.

            The Court’s applicable precedent, Teague v. Lane (1989), could easily have allowed Edwards a new trial on the ground that the Court’s new rule on unanimous jury verdicts was a “watershed” decision to be applied retroactively in federal habeas corpus cases seeking new trials or new sentences. Kavanaugh led six conservatives, however, in denying Edwards any relief. He went even further by concluding that Teague’s ostensible exception for “watershed” decisions was a fiction and that wrongly convicted defendants ought not count on it in the future.

            Brett Jones, a Black Mississippi inmate given a life-without-parole (LWOP) sentence years ago as a teenager for killing his grandfather after a domestic argument, similarly asked the justices for the benefit of new Supreme Court rulings that generally prohibit LWOP sentences for juvenile offenders. Jones sought a new sentence in state courts from the same judge who had imposed the original LWOP sentence. Kavanaugh again led the six conservatives in Jones v. Mississippi in spurning Jones’ plea for a measure of equal justice. Kavanaugh could easily have concluded that the Court’s new decisions allowed the judge to impose a LWOP sentence only after first finding Jones “permanently incorrigible.”

            The Court was plenty generous, however, in dispensing justice to religious organizations during the term. In a series of decisions, the Court in effect bestowed “most favored nation” status on religious organizations and individuals seeking exemptions from laws that apply to the rest of us.

In the most important of the decisions, Fulton v. Philadelphia, the Court found that the city of Philadelphia had violated a Catholic social service agency’s rights by canceling the agency’s foster child placement contract after the agency openly announced that it would violate the city’s antidiscrimination ordinance by refusing to place foster children with same-sex couples. The Court could easily have followed the applicable precedent, Employment Division v. Smith (1990), in finding the city’s ordinance to be a “neutral and generally applicable law” that did not allow religious exemptions.

Churches and synagogues from several states also asked the Court during the past year to get out from under limits on attendance at worship services that the states’ governors had imposed in an effort to limit community spread of covid-19. The Court’s summary decisions in Roman Catholic Archdiocese of Brooklyn v. Cuomo and Tandon v. Newsom elevated religious liberty over public health even in the face of testimony that worship services, with congregants singing and speaking in close proximity for extended periods, present a particular risk of community spread.

            Agricultural worksites in California also got a healthy dose of “more equal” justice with the Court’s decision in Cedar Point Nursery v. Hassid to strike down a California law guaranteeing union organizers access to worksites for up to three hours a day and up to 120 days in a given calendar year. The California law was a monument and a gift to Cesar Chavez’s United Farmworkers movement—the movement that challenged the grievous economic exploitation of migrant farmworkers by California’s prosperous agricultural sector. The Court could readily have upheld the law on the basis of an applicable precedent, NLRB v. Babcock & Wilcox (1956), by finding that union organizers could reach farmworkers only through occasional access to their worksites.

            The Court could also have promoted equal justice by opening U.S. courts to suits by victims of human rights violations abroad. Instead, the Court held in Nestle USA v. Doe that West African cocoa farm workers could not sue Nestle and Cargill for aiding and abetting forced child labor through their financial and managerial support for Ivory Coast cocoa farms guilty of the practice. The Court would not have had to reach far to find that the companies’ conduct in the United States provided sufficient legal basis for the suits.

            In like vein, the Court could have allowed former German nationals and former Hungarian nationals to seek compensation from the present-day governments in those countries for artworks looted from their ancestors during the Nazi era. The decisions in Germany v. Phillip and Hungary v. Simon rejected the plaintiffs’ arguments that the Foreign Sovereign Immunities Act allowed their suits under an exception for “violations of international law.” Surely, the victims of the genocidal expropriations from the Nazi era deserved a measure of equal justice from the Court.




Sunday, July 18, 2021

Breyer's Dishonorable Decision on Retirement

          With forty years of honorable public service in Congress and the federal judiciary, Justice Stephen Breyer deserves to be celebrated and thanked when he takes his well-earned retirement. For now, however, Breyer is indulging his ego by declining at a politically critical moment to retire so as best to serve the Court he loves.

Breyer is not wrong to worry about the possible effect of acceding to calls from Democrats and the legal left to retire now with a Democratic president and Democrats in fragile control of the Senate. But it appears, from his interview last week [July15] with CNN’s Joan Biskupic that he is resisting in part because he enjoys his new role as the leader of the Court’s liberal bloc and because he thinks he can make an invaluable contribution by staying on the Court instead of yielding to a new and younger justice.

For Breyer, a politically strategic retirement conflicts with his idealized image of the Court as a body above and removed from petty partisanship. Sadly, that ship sailed sixty years ago when Republicans, led by among others Richard Nixon, realized in the 1960s that they could make political hay by turning the Supreme Court into a political battleground instead of a temple of justice.

Worried about what Nixon might do to the Court if elected president, Chief Justice Earl Warren started the now well established practice of politically strategic retirements by announcing his intention to retire in 1968 in time for President Lyndon Johnson to appoint a successor who would honor Warren’s legacy in outlawing racial segregation and instituting the criminal procedure revolution.

Republicans thwarted Warren’s plan by exploiting Johnson’s ill-conceived decision to appoint a longtime friend, Abe Fortas, as chief justice. Apart from the appearance of presidential cronyism, Fortas had ethics issues that Senate Republicans used to prevent a floor vote on the nomination. This episode should serve as a warning today for Breyer of the political risks in mishandling Supreme Court succession with partisan polarization at a peak.

Since Warren’s retirement, every justice who has retired in good health has looked to the then-current political conditions in making the decision. The list includes Republican and Democratic appointed justices alike, who wanted their successors to be nominated by a president of their party. One Republican justice, Antonin Scalia, went so far as to explain publicly that, of course, he would not retire with a Democrat in the White House who might appoint a successor who would undo Scalia’s legacy on the Court.

Scott Lemiieux, a lecturer in political science at the University of Washington, made this point two years ago in an op-ed in The Washington Post. The headline writer aptly summarized Lemieux’s argument. “When do Supreme Court justices retire? When the politics are right.” Lemeiux went further by contending that the Court’s senior Democratic-appointed justices, Breyer and Ruth Bader Ginsburg, should have retired several years earlier with Barack Obama in the White House and Democrats in the majority in the Senate.

Reviewing the history, the first of the successful modern-era strategic retirements appears to have been Potter Stewart’s decision in 1981 to step down as soon as his fellow Republican Ronald Reagan settled into the White House. Two more justices, with deep roots in Republican politics, also chose to retire during Reagan’s presidency to give him the opportunity to pack the Court with likeminded Republicans. Chief Justice Warren E. Burger decided to step down in 1986 in order to lead the observance the next year of the bicentennial of the U.S. Constitution. The pro-business Republican Lewis Powell also chose to retire in 1987, but Reagan overplayed his hand by daring the Democratic-majority Senate to reject his nominee, the archconservtive Robert Bork.

As Burger’s successor, Reagan chose to elevate the conservative associate justice William H. Rehnquist, who also had deep roots in Republican politics in his adopted home state of Arizona and the Nixon administration. Rehnquist’s elevation created a vacancy that Reagan filled by nominating Antonin Scalia, who had established himself at the ideological edge of conservative legal thought as a professor and a Reagan-appointed judge on the D.C. Circuit. An untimely death in 2016 intervened to thwart Scalia’s plan to retire with a Republican in the White House, but the Senate’s Republican leader Mitch McConnell stepped in to make things right by refusing to allow a hearing for Merrick Garland, the well-regarded appellate judge that President Obama chose as Scalia’s successor.

Like the Fortas episode, the Garland episode should put Breyer on notice today that he risks his legacy by leaving the appointment of his successor to the political fates. The 50-50 Senate, with Vice President Kamala Harris as the tie-breaking vote, could flip to Republican control if any member of the Democratic caucus were to die or to resign. That would give McConnell the power once again to prevent a Democratic president, Joe Biden, from filling the seat.

Four other justices since the Reagan presidency timed their retirements  with an eye on the White House: Byron White retired in 1993 as soon as Bill Clinton settled into the White House; two Republican-appointed justices who voted with the Court’s liberal bloc, David Souter and John Paul Stevens, chose to retire in 2009 and 2010 respectively in relative good health to allow Obama to name their successors. And. most recently, Anthony M. Kennedy retired in 2019 after confiding to Trump administration aides that he wanted to retire with a Republican in the White House.

Ginsburg resisted calls to step down, fearing that no nominee with likeminded views could win confirmation. With her death, any chance to protect her legacy vanished with Donald Trump in the White House and Republicans in control in the Senate. This episode also should serve as a warning for Breyer as he avoids making plans for his retirement.

Breyer may think that he is doing the honorable thing by staying on the Court, but he is dishonorably inviting the likelihood that the Court will be damaged further unless he now makes the honorable decision to step aside.

Saturday, July 10, 2021

Court's Role in Ouster of Social Security Chief

            President Biden flexed his Article II executive powers last week [July 9] when he decided to fire the holdover Trump appointee Andrew Saul from his position as Social Security commissioner. Saul, a Republican campaign donor, was Trump’s choice in 2019 to head the sprawling government agency that is of vital importance to the millions of Americans who depend on Social Security for their retirements or for disability or survivor benefits.

            Saul, a Wharton-trained businessman who had prior government experience in the Bush administration as head of the Federal Thrift Retirement Investment Board, won Senate confirmation to the Social Security post on a bipartisan 77-17 vote in the Republican majority Senate. But he drew widespread criticism during his two-year tenure from Democratic officeholders, including the Democratic chairman of the  House committee that oversees the Social Security Administration; from the union representing Social Security employees; and from advocacy groups representing senior citizens and disability beneficiaries.  

                 A White House official cited some of those criticisms to CNN in advance of the president’s decision to fire Saul after Saul had refused Biden’s request to resign. Saul reported to work on Friday despite the firing by citing a provision of the Social Security Act that gives the commissioner a fixed six-year term subject to removal only for cause.  Congress included that provision in revising the Social Security Administration’s charter in the 1990s by removing it from the Health and Human Services Department and restoring it as an independent federal agency. With 60,000 employees, SSA is one of the government’s biggest agencies: that number includes the hundreds of administrative law judges (ALJs) who rule on disability claims and other disputes on benefits.

Saul had antagonized the agency’s ALJs early in his tenure by shifting adjudication of those cases from ALJs to agency attorneys[, according to the Washington Post’s account of the firing. Saul also antagonized the union representing most of the agency’s employees by imposing contracts with provisions that were not fully negotiated through collective bargaining.

Republicans on Capitol Hill were quick to criticize Biden’s decision as the news spread even before the official announcement. The Senate’s Republican leader, Kentucky’s Mitch McConnell, took to Twitter to denounce the reported removal as “a dangerous and unprecedented politicization of the Social Security Administration.”

The unidentified White House official who briefed CNN on the dismissal accused Saul instead of politicizing the agency. “"Since taking office,” the official was quoted as saying, “Commissioner Saul has undermined and politicized Social Security disability benefits, terminated the agency's telework policy that was utilized by up to 25 percent of the agency's workforce, not repaired SSA's relationships with relevant Federal employee unions including in the context of COVID-19 workplace safety planning, reduced due process protections for benefits appeals hearings, and taken other actions that run contrary to the mission of the agency and the President's policy agenda."

Ironically perhaps, Biden’s path to the ouster depends on two Supreme Court decision written by Republican-appointed justices that elevate presidential power over congressional efforts to grant tenure protections to the directors of politically sensitive agencies. The Trump administration helped win the first of the two decisions by urging the Court in its previous term to strike down a provision that the president could fire the head of the newly created Consumer Financial Protection Bureau  (CFPB) not at will but only for cause.

The Court’s decision in that case, Seila Law v. Consumer Financial Protection Bureau (2020), came on a 5-4 vote that pitted what were then the Court’s five Republican-appointed justices against the four Democratic appointees. In creating the CFPB, the then Democratic-majority Congress had stressed the need to give the director of the new agency protection from political interference by the White House. In its decision, the Supreme Court instead held that the arrangement violated separation-of-powers by limiting the president’s power to supervise the agency.

The Court cited that decision just last month [June 21] in a decision, Collins v. Yellen that struck down for the same reason a similar for-cause removal provision protecting the director of the Federal Home Finance Agency (FHFA). Writing for what are now the six Republican-appointees, Justice Samuel A. Alito Jr. struck down the tenure protection for the FHFA director based on what he called “a straightforward application” of the earlier decision. Justice Elena Kagan, who had led the four dissenters in the CFPB case, wrote for the three still-serving Democratic appointees in disagreeing with Alito’s conclusion.

The OLC memo, dated July 8, cited the Court’s two decisions as authority for concluding that the tenure protection for the Social Security chief is now unenforceable.  The nine-page memo noted that OLC had raised questions about the constitutionality of the provision when it was enacted in 1994.

The Court’s newest decision, the Justice Department lawyers concluded, eliminated any legal basis for tenure protection for the Social Security chief. “Collins narrows the arguments available to meaningfully distinguish the SSA Commissioner’s statutory removal protection from the provision found unconstitutional in Seila Law,” the lawyers wrote.

“We believe that the best reading of those decisions compels the conclusion that the statutory restriction on removing the Commissioner is unconstitutional.,” the lawyer wrote. “Therefore, the President may remove the Commissioner at will.” For his part, Saul was still vowing at week’s end to try to protect what he regards as his rights.





Saturday, July 3, 2021

And May God Bless This Republican Court!

                 With the Supreme Court’s term almost over, Republicans and legal conservatives were less than happy with the 6-3 conservative majority created thanks to the Court packing as practiced by President Trump and the Senate’s Republican leader, Kentucky’s Mitch McConnell.

                The Court, with two of Trump’s appointees in the 7-2 majority, had rejected the Republicans’ last-gasp effort to strike down Obamacare by judicial fiat rather than in Congress. And the justices had stalled the conservatives’ latest efforts to overturn Roe v. Wade or expand Second Amendment gun rights by postponing those cases until the new term begins in October.

                Against those disappointments, however, the Robert Court’s six Republicans gave Republicans and free-spending conservative groups two generous parting gifts on the final decision day of the term by gutting the Voting Rights Act and by laying the groundwork for possibly striking down or limiting campaign finance disclosure rules. Both decisions came on 6-3 votes that pitted the six Republicans against the three Democratic appointees.

In the first of those decisions, Brnovich v. Democratic National Committee [July 1], the Court upheld laws passed by Arizona Republicans to cut the legs off Democratic Party tactics used to get out the vote in minority communities. Alito’s opinion manufactured new, restrictive criteria for striking down election laws with disparate impact on racial minorities. The three Democratic-appointed justices argued In dissent that the so-called textualists were rewriting the law Congress had passed, knowingly and deliberately, to prohibit voting practices with disparate racial impact even if proof of racial motivation was lacking.

In the second decision, Americans for Prosperity Foundation v. Bonta, the Court struck down, at the behest of a Republican outfit, a California regulation requiring non-profit organizations to disclose major donors, ostensibly to aid in preventing fraudulent fund-raising. In his opinion for the Court, Roberts rejected, by elevating freedom of association, the state’s rationale by noting the lack of any anti-fraud enforcements under the challenged regulation.

                From the opposite perspective, however, the conservatives who upheld Arizona’s election law failed to note that the Republican-majority legislature broadened the law against third-party “ballot harvesting” even though the state had no history of prosecutions for voter fraud under the previous, less restrictive law.

                These decisions illustrate the way that a series of five Republican presidents since the 1960s have used Supreme Court appointees to transform the Court into an instrument of Republican Party politic rather than a guardian of “equal justice under law.”

                At almost every opportunity, presidents from Nixon through Reagan, Bush father, Bush son, and Trump nominated conservative ideologues for the Court rather than lawyers or judges well respected for moderate and judicious views.  As a result, five of the Court’s Republican justices won confirmation on party-line votes with fewer than 60 votes in the 100-vote Senate, once the threshold for bringing a disputed nomination to a floor vote.

                With four exceptions, the Republican justices have marched in step with the GOP program to limit affirmative action and civil rights enforcement, limit campaign finance regulations, and limit civil litigation remedies for consumers and workers. Three of the exceptions – Stevens, O’Connor, and Kennedy – owed their appointments to moments of bipartisanship: Ford’s post-Watergate confidence-building selection of the respected Stevens; Reagan’s symbolic selection of O’Connor as the Court’s first female justice; and Reagan’s nomination of Kennedy after the Senate had rejected the Gipper’s first choice, the arch-conservative Robert Bork.

                The fourth exception, Souter, resulted not from bipartisanship but from miscalculation. Bush41 accepted the assurance from his adviser, Souter’s one-time sponsor John Sununu, that Souter would be a reliable conservative on the bench. Instead, as could have been predicted, the moderate New Hampshire Republican, educated at Harvard Law School before the birth of the Federalist Society, proved to be more in the mold of Earl Warren than Rehnquist or Scalia.

                It remains to be seen whether any of Trump’s three appointees – Gorsuch, Kavanaugh, and Barrett – prove to be miscalculations as well, despite somewhat erratic voting patterns so far early in tenures likely to extend for another two decades, long after Trump and Trumpism are both gone.

                Gorsuch and Barrett both owe their seats to the blatant hypocrisy that McConnell and Senate Republicans practiced in regard to late-in-term presidential appointments to the Court. McConnell prevented President Obama, elected twice with a majority of the popular vote and with nearly a year remaining in his term, from appointing Merrick Garland, a well respected judge of moderate reputation, to fill the seat left vacancy by Scalia’s death.

                Garland’s confirmation, if McConnell had permitted, would have given Democratic appointees a majority on the Court for the first time since 1960. McConnell did not allow that to happen, of course, because in his mind it is not “this honorable Court” that needs divine blessing but “this Republican Court.”

                Four years later, Trump’s nomination of Barrett, with only months remaining in his term and facing likely defeat at the polls, encountered no obstacles in McConnell’s Senate but was instead fast-tracked. The political hypocrisy was so blatant that it could be seen with the naked eye from the top of the Washington monument, but only one Republican—Alaska’s Lisa Murkowski—refused to go along.

                The occasional odd lineups during the 2020 term encouraged some Court watchers to see evidence of reduced partisanship at One First Street, but hard-headed Court watchers should not be misled. The most common lineup in divided decisions during the 2020 term pitted the six Republicans against the three Democrats. And end-of-term statistics showed the six Republicans more often in the majority than any of the three Democrats. In short, it is a Republican Court, not “this honorable Court,” that the marshal should pray for when the Court opens on First Monday, three months from now.