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.




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