Gun Lobby Lacks Broad Support in New York Case

             The New York gun rights advocates who are asking the Supreme Court to establish a presumptive constitutional right to carry firearms in public outside the home lack broad support for their claim among the dozens of friend-of-the-court briefs filed by groups on both sides of the issue.

            The Republican-packed Court will hear oral arguments in the case, New York State Rifle & Pistol Association v. Bruen, on Wednesday, Nov. 3. The Biden administration will share time with the state’s lawyer to defend the state law that requires applicants for a gun permit to show “proper cause” for needing to be armed in public.

            Most of the forty-seven amicus briefs supporting the New York gun group in the case were filed by elements of the gun lobby itself: gun owner groups in other states, libertarian advocacy groups aligned with the gun lobby, or law professors with careers built on Second Amendment scholarship.

            The groups that filed thirty-seven amicus briefs on New York’s side represent much broader segments of American society, including the professional associations representing the nation’s doctors and the nation’s lawyers. In its brief, the American Medical Association (AMA) argues that “unrestricted concealed carry permits” would “open the floodgates to more injury and death” from what the doctors call “the epidemic of firearm violence.”

            Other groups supporting New York’s position include such long established civil liberties and civil rights organizations as the American Civil Liberties Union (ACLU), the NAACP Legal Defense and Educational Fund (LDF), and the League of Women Voters. Like the AMA, these groups warn that making it easier for people to go armed on the streets would add to the risks of gun violence – including intimidation and harassment against, among others, free-speech demonstrators,  minority groups, and would-be voters waiting in line at polling places.

In its brief, the ACLU argues that broad bans on public carry, enacted and enforced when the Second Amendment was ratified, were historically important in “promoting safety and reducing the chances that the disagreements inevitable in a robust democracy do not lead to lethal violence.”

The ACLU also notes that the two states that recently experienced armed insurrections at their state capitals, Michigan and Oregon, both have lax open carry laws. The brief also argues that the District of Columbia’s relatively strict public carry law helped limit potential violence during the January 6 insurrection by encouraging insurrectionists to leave weapons at home or in their cars.

The ACLU’s brief continues by listing half a dozen instances when gun-carrying individuals with permits threatened or fired their weapons at innocent bystanders—among others, “Black Lives Matter” protesters. The other victims included, for example, a Walmart customer who asked a gun-toting fellow customer to put on a mask and a black family threatened by a gun-carrying white driver in a parking-lot dispute.

            In its brief, the League of Women Voters notes that threats and force “have long been used to intimidate voters.” The League warns further that “handgun proliferation reasonably creates fear that voting-related conflict and unrest will turn violent.”

            Red states and blue states lined up, as often happens, in amicus briefs filed according to their political orientations on opposite sides of the case. Most of the twenty-six states that support the New York gun group already have enacted so-called “shall issue” laws in response to lobbying from the National Rifle Association (NRA); the red states argue that “objective permit regimes” reduce some types of violent crimes and have no statistically significant effect on violent crime overall. In an opposing brief, seven former big-city police chiefs, including New York City’s former police commissioner William Bratton, contend to the contrary that New York’s licensing regime “makes the state’s citizens safer without infringing on protected constitutional rights.”
            Eighteen blue states and the District of Columbia joined in an amicus brief filed by California in support of the New York law. Besides California, the list includes three other states – Illinois, Michigan, and Pennsylvania -- among the ten most populous in the country. The red states’ brief includes two of the mega-states, Texas and Florida, along with four of the states among the country’s least populous: Alaska, the Dakotas, and Wyoming.

            The government’s brief notes that Congress has enacted an array of federal laws limiting, for example, the carrying of firearms aboard airplanes, in school zones, and in government buildings. Those laws, the government argues, comport with the Second Amendment and so also do local and state laws regulating open or concealed carry. In effect, the government warns, a ruling against the New York law would risk upending public-safety laws enacted at all levels of government in the interest of a radical revision of constitutional law urged by a narrow slice of the American public and the legal profession.

George Floyd Didn't Have to Die

         Five months after George Floyd’s death in Minneapolis, the federal appeals court in California issued a ruling in a less serious use-of-force case that could have saved Floyd’s life if the Ninth Circuit’s rule had been adopted earlier by the Minneapolis police department. The appeals court’s ruling in Cortesluna v. Leon cited a twenty-year-old decision as establishing a simple, easy-to-follow rule for police to follow: any use of force against a suspect, lying on the ground and not resisting, is excessive and against the law.

            The Ninth Circuit’s panel treated that rule as clearly established and applied it to allow the suspect in a domestic disturbance case, Ramon Cortesluna, to sue the officer, Daniel Rivas-Villegas, who kneeled on his back while he lay on the ground helpless and compliant. With one judge dissenting, the panel majority determined that controlling precedent at the time put officers on notice that kneeling on a prone and non-resisting person’s back so hard as to cause injury was excessive.

            With a rule like that in Minneapolis, Officer Derek Chauvin might have known that he was violating the law from the very first moment that he pressed his knee against Floyd’s neck—not for eight seconds but for nine minutes. The other, younger officers at the scene might have felt more comfortable in urging Chauvin to stop before the pressure on Floyd’s windpipe killed him.

            The Supreme Court reversed the Ninth Circuit’s decision in a ruling issued last week (October 18) that effectively ended Cortesluna’s suit against the two officers involved in his arrest and resultant injury. Ruling in the case without full briefing or oral arguments, the justices held that the earlier case that the Ninth Circuit relied on was “materially distinguishable” from Cortesluna’s case and determined that Rivas-Villegas’ use of force – kneeling on Cortesluna’s back for eight seconds -- was not clearly excessive and on that basis that he was entitled to qualified immunity.

            More than a year after George Floyd’s death in May 2020, the efforts to reform police practices on use of force have produced little by way of changes in policy. The Ninth Circuit’s rule, on the other hand, could have significant impact if adopted not only in western states but in other federal circuits. The Supreme Court’s peremptory rejection of the Ninth Circuit’s decision, on the other hand, kills any prospect for extending the rule.

            The Supreme Court’s ruling in the California case was one of two summary decisions issued last week that granted qualified immunity to police officers sued for excessive force. Together, the two decisions dashed hopes that the justices might respond to the growing criticism of the judicially created doctrine of qualified immunity, which effectively allows police officers to escape liability by claiming ignorance of the law. How were we to know, the officers in the California case might have asked, that it is wrong to use force against a suspect after the suspect is compliant and under control.

            Joanna Schwartz, a professor at UCLA Law School who teaches about police accountability, summarized the arguments against qualified immunity in an article published recently in the University of Chicago Law Review. “There is a growing consensus among courts, scholars, and advocates across the ideological spectrum that qualified immunity doctrine is legally unsound, unnecessary to shield government officials from the costs and burdens of litigation, and destructive to police accountability efforts,” Schwartz wrote.

            Critics emphasize that qualified immunity effectively leaves police officers and oversight agencies with no clear guidance on use of force. The Supreme Court’s ruling in the California case, for example, unsettles the Ninth Circuit’s bright-line rule and instead holds that eight seconds of unnecessary use of force is not necessarily excessive – but how about sixty seconds? Or nine minutes?

Even apart from the issues left unresolved in decisions based on qualified immunity, Schwartz reports in her article that police officers “are not notified of the facts and holdings of cases that clearly establish the law for qualified immunity purposes.” And, in any event, “there is no reason to believe that officers would analogize or distinguish situations rapidly unfolding before them to the court decisions they once studied.”

            Two terms ago, critics of qualified immunity filed several petitions urging the Supreme Court to take a serious look at the doctrine and consider either eliminating it or narrowing it significantly. The justices turned aside all those petitions, despite the widespread buzz among the defense bar and civil liberties communities. With last week’s decisions, the Court appears to be doubling down on qualified immunity rather than re-examining the doctrine.

            The Court’s reticence bodes ill for any significant reform in police practices in the near future. Recall that police practices on interrogating suspects and defendants were reformed only after the Warren Court laid down bright-line rules for police to follow: specifically, no custodial interrogation without first advising suspects of their right to an attorney during questioning. The Miranda guidelines were intensely controversial when adopted in the 1960s, but by 2000 Chief Justice William H. Rehnquist spoke for a 7-2 Court in declaring that the Miranda warnings “have become part of our national culture.”
            The current Court ought to consider what it can do to establish reasonable limits on police use of force instead of using qualified immunity to avoid the issues. Miranda, it is now clear, has been good for law enforcement by giving a clear roadmap for admitting confessions from suspects. Police today need the same kind of clear rule about when and how use of force can be justified.

Too Many Cooks on Supreme Court Reform?

            The need for Supreme Court reform is urgent precisely because the nomination and confirmation process has become in the hands of Republican presidents and Republican senators a partisan spoils system. The resulting partisanship may well doom any or all of the various reform proposals now being debated by, among others, the 36-member commission appointed by President Biden

             No one expected that Supreme Court reform would be anything other than deucedly difficult, and the work of the Presidential Commission on Supreme Court Reform has not yet made the task easier or more auspicious. In creating the commission by Executive Order 14023, President Biden limited the membership commission to no more than thirty-six, but that number itself poses daunting obstacles to producing a consensus report that can overcome the partisan resistance to any of the reform proposals.

             The commission met for a six-hour talk fest on Friday (Oct. 15) the day after the commission released draft discussion materials prepared by working groups on such proposals as expanding the size of the Court and establishing term limits for Supreme Court justices. The draft materials were dismissively summarized on Twitter by Eric Segall, a law professor at Georgia State, in these words: “A little of this and a little of that and a lot of nothing. And so it goes.”

             In Friday’s meeting, several of the commissioners, including the Harvard Law School professor Laurence Tribe, objected in particular to the ostensibly even-handed approach that the working group used in the 45-page report describing proposals to increase the size of the Court. As drafted, Tribe complained, the report “stops the discussion as related to expansion.”

             Here’s the rub: adding one or more new justices with a Democrat in the White House would be the most straightforward remedy for the Republicans’ packing of the Court that began with the Senate’s refusal in 2016 to consider President Obama’s nomination of Merrick Garland for the vacancy created by Justice Antonin Scalia’s death. The GOP-majority Senate packed the Court further by changing Senate rules to fast-track confirmations of President Trump’s three nominees: Neil Gorsuch, Brett Kavanaugh, and Amy Comey Barrett. The last of those party-line confirmations came on October 25, 2020, as the American people were already voting to deny Trump re-election. 

Tribe also noted that among the various proposals under discussion, changing the size of the Court is the most clearly within Congress’s power to enact. He warned that he “would have trouble signing” the commission’s eventual report if it threw cold water “on the one legitimate exercise of congressional power to counteract a dangerous judicial trend.”

Even without constitutional doubts, expanding the size of the Court would be difficult at best to get through the Senate if Republicans use the filibuster to thwart the will of the narrow Democrats’ 52-48 majority. In contrast to the draft discussion on expanding the size of the Court, the draft materials on term limits acknowledge the “widespread and bipartisan support” for limiting tenure for justices. The thirty-page report adds that term limits “can enhance the Court’s legitimacy in the eyes of the public.” Despite those favorable assessments, the report nevertheless warns that term limits “are not a panacea for polarization.” The report then adds that mandatory retirements “would ensure some degree of responsiveness to elections over time, while preserving judicial independence.”

Presidential commissions can help form conventional wisdom on contentious political issues even without producing tangible results. In that regard, recall the strongly worded Kerner Commission report in 1968 that linked urban riots to the persistence of poverty and institutional racism. Sadly, most of the commission’s recommendations to address those issues went unacted on. The present commission on Supreme Court reform can help counteract the hyper politicization of the Court only if the members coalesce behind a strongly worded report that places the blame for the current polarization where it belongs and avoids the use of false equivalencies to spread the blame around.

The draft materials on expanding the size of the Court echo the warnings from, among others, Breyer that adding one or more justices would invite a tit-for-tat response by the opposite party at some later date. In Friday’s meeting, one of the commissioners, the conservative George Mason University law professor Adam White, appeared to adopt the view submitted by Georgetown law professor Randy Barnett that Congress has no power to change the size of the Court only for partisan balance.

Tribe, with far stronger academic credentials than Barnett, rejected Barnett’s view, contending that Congress’s motivations for changing the size of the Court would be irrelevant. In fact, the draft materials note that Congress has changed the size of the Court more than half a dozen times through history, for a mixture of institutional and partisan reasons.

The well known maxim may apply here: too many cooks can spoil the soup. The commission will serve a useful purpose only if the commissioners – most of them, respected law professors from prestigious law schools – can set aside any partisan differences to produce a strongly worded report that sets out a viable path for reducing the acknowledged increase in partisan conflict in recent years.

"Home Cooking" for Texas in Abortion Case?

             The state of Texas seems likely to get a generous serving of “home cooking” when a panel of three federal appellate judges hear the state’s effort on Tuesday [October 12] to salvage the state’s patently unconstitutional ban on abortions after the sixth week of pregnancy. The panel, with two Republican appointees and one Democratic appointee, already gave the state a boost on Friday (October 9) by temporarily lifting the injunction that a federal district court judge issued earlier in the week to block enforcement of the law.

Two of the three judges on the panel have deep roots in the state’s conservative Republican politics: Catharina Haynes, a former state court judge appointed to the Fifth Circuit in 2008 on the recommendation of the state’s two Republican senators, and James Ho, a former Texas solicitor general appointed to the appeals court by President Trump in 2018. Ho may have the decisive vote in the appeal if, as seems likely, Haynes and the Democratic appointee on the panel, Carl Stewart, a former state appellate judge in Louisiana, disagree.

            In issuing the injunction against the law on Wednesday (Oct. 6), U.S. District Court Judge Robert Pitman emphatically rejected the state’s effort to avoid judicial review by vesting enforcement not with state officials but with private citizens he called “anti-abortion vigilantes.” Any private citizens suing to enforce the law, Pitman concluded, would be “state actors” subject to a federal court injunction.

Specifically, the so-called Texas Heartbeat Act incentivizes private citizens to enforce the law by allowing a private citizen to be awarded $10,000 for successfully suing anyone who performs or induces an abortion or aids and abets an abortion after “cardiac activity” in an embryo can be detected, usually around the sixth week of pregnancy.

The lawyer who designed the act’s unprecedented enforcement scheme was Jonathan Mitchell, a former state solicitor general and ex-law clerk to Supreme Court Justice Clarence Thomas. As it happens, Ho appears to be on ideologically compatible terms with Mitchell; Ho served as moderator with Mitchell as a panelist on a Federalist Society program at the University of Chicago Law School in February 2019.

Ho is also no stranger to abortion-related cases engineered by the Texas state legislature. Within months of taking his seat on the Fifth Circuit, Ho voted in July 2018 to uphold a Texas law requiring burial or cremation of fetal remains after an abortion. He added in his opinion that the Catholic bishops defending the law had the right “to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains.”  

Pitman, appointed to the federal bench in Austin by President Obama in 2014, wrote a comprehensive 113-page opinion that thoroughly answered all of the state’s defenses of the law and all of the state’s objections to the United States’ suit seeking to invalidate the law. Pitman began by stating what was surely obvious to the Texas legislators in enacting SB8. “A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”

Pitman’s decisive action was in sharp contrast with the Supreme Court’s earlier decision on Sept. 1 to allow SB8 to take effect. The five Republican-appointed conservatives in the majority authored an unsigned, one-paragraph opinion that acknowledged “serious questions” about the constitutionality of the law, but they threw up at their hands because of the “procedural questions” created by the state’s private enforcement scheme. The abortion clinics who brought the case to the Supreme Court, Whole Woman’s Health v. Jackson, Judge, named as defendants the class of state court judges in Texas empowered to entertain the private enforcement suits authorized by the law.

Pitman circumvented the procedural question by directing the state to publish on “all of the public-facing court websites . . .  a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.” Pitman further instructed the state to distribute copies of his preliminary injunction to all of the state’s judges and all of the state’s court clerks. Pitman acknowledged that the court might not be in the best position to dictate the particulars and, instead, ordered the state to submit its plan for disseminating the information to him for “review and approval.”

If reviewed by a non-stacked panel, Pitman’s meticulous opinion would warrant an affirmance with an acknowledgment of its scholarly thoroughness In issuing the injunction against the law, Pitman sent the state’s lawyers packing by refusing to consider the state’s application for a stay pending the inevitable appeal.

The state, Pitman wrote at the end of his opinion, “has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” Other courts may rule differently, Pitman acknowledged, but he was unshaken in his decision. “This Court will not sanction one more day of this offensive deprivation of such an important right,” Pitman wrote in conclusion.

The Fifth Circuit panel took only five hours on Friday before issuing the temporary administrative stay to allow the law to go back into effect pending next week’s appeal. The panel wrote nothing by way of explanation for putting Pitman’s decision on hold; Haynes and Ho have their work cut out for them to come up with legal rationales to uphold the law, as they surely hope to do.

Justices Unhappy With Unfavorable News Coverage

           Supreme Court justices have taken up a new pastime, media criticism, even though they have been working around the clock recently to issue momentous decisions late at night from the Court’s shadow docket. The so-called “shadow docket,” once an issue only for obsessive Court watchers, has emerged over the past few months into a concern for congressional committees and for newspaper editorialists and legal commentators generally.

            The concern peaked after the justices voted 5-4 in a shadow docket decision on September 1 to allow the state of Texas to put into effect a law banning abortions after the sixth week of pregnancy in direct contradiction to the landmark abortion rights decision in Roe v. Wade (1973). That ruling, reaffirmed as recently as 1992, allows a woman to terminate a pregnancy up to the 24^th week of presidency.

            Five of the justices – most recently, Samuel A. Alito Jr. in a speech on Thursday [Sept. 30] at Notre Dame Law School – have reacted defensively to the general tone of recent news coverage suggesting that the justices are voting along partisan lines rather than according to law. The justices have taken to the lecture circuit to air their views just as their poll numbers are under water at an all-time low and as a growing number of Americans – 37 percent in the most recent survey -- consider the Court to be “too conservative.”

            Alito, speaking for nearly an hour to a seemingly friendly audience at Notre Dame Law School, objected to the six-year-old coinage “shadow docket” to refer to what he called instead the Court’s “emergency docket.” Regarding the ruling in the Texas case, Whole Woman’s Health v. Jackson, Alito contended that news coverage had wrongly conveyed what he called “the false and inflammatory claim that we nullified Roe v. Wade.”

            Instead, he noted that the unsigned one-paragraph opinion for the majority acknowledged the “serious questions regarding the constitutionality of the Texas law  . . . .” and expressly allowed legal challenges to the law in Texas courts. Speaking at a campus dominated by anti-abortion faculty, Alito seemed to gloss over the undeniable fact that the law, if enforced as intended, will prohibit virtually all abortions in the state.

            Alito contended that the Court had followed well-established procedures in dealing with the Texas law and, separately, in blocking the Biden administration from instituting a pandemic-related moratorium on evictions. The Centers for Disease Control (CDC) had issued the moratorium to try to protect financially strapped renters from the risk of community spread after being thrown out into the streets or into crowded shelters. The vote in that decision, Alabama Association of Realtors v. Department of Health and Human Services, issued on Aug. 26, was 6-3 with the three liberal justices in dissent: Breyer, Sotomayor, and Kagan.

            The liberal justices had also dissented in the Texas case, joined in that instance by Chief Justice John G. Roberts Jr. Dissenting in that case, Kagan specifically complained about what she called “too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.”

            In the Notre Dame speech, Alito countered that what he called “the catchy and sinister term ‘shadow docket’ has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.” “This portrayal,” he added, according to Adam Liptak’s account in The New York Times, “feeds unprecedented efforts to intimidate the Court and to damage it as an independent institution.”

            Earlier this month, Justice Amy Comey Barrett had somewhat similarly complained about news media coverage of the Court’s recent decisions in a Sept. 12 speech at the University of Louisville’s McConnell Center, according to the account by the Courier-Journal’s Mary Ramsey. “The media, along with hot takes on Twitter, report the results and decisions,” Barrett remarked, without citing any specific news account. “That makes the decision seem results-oriented. It leaves the reader to judge whether the Court was right or wrong, based on whether she liked the results of the decision.”        Justice Clarence Thomas aired a similar complaint a few days later in remarks at Notre Dame Law School on Sept. 16.

            Barrett opened her remarks at the ostensibly bipartisan McConnell Center – with the Senate’s Republican leader Mitch McConnell sitting on stage – by insisting that the justices are not “partisan hacks.” Even so, the shadow docket decisions with Donald Trump in the White House favored the Republican administration by granting more than a dozen applications to set aside lower court rulings unfavorable to Trump’s policies.

By contrast, the Court has dealt the Biden administration setback after setback, with three Trump appointees providing the votes needed to block policies sought by the Democratic administration. As one example, the Court on Aug. 24 effectively ordered the Biden administration to reinstitute the Trump-era policy that required asylum applicants to remain in Mexico rather than wait in the United States even after Biden’s Department of Homeland Security had rescinded the policy based on what the Court’s majority found to be inadequate process.

            The justices’ complaints about news coverage come straight out of the standard “shooting the messenger” playbook for politicians and are eerily reminiscent of the “fake news” mantra that Trump used to gain and maintain power even in the face of witheringly unfavorable news coverage. If the justices want to prove that they are not political hacks with black robes, they would do well to stop voting along partisan lines and to stop behaving like thin-skinned politicians.