Category: Judiciary

Cline on the Constitution-Danger of One Person Rule

Cline on the Constitution-Danger of One Person Rule

This Week’s segment of Cline on the Constitution.

 

The Danger of One Person Rule

 

Justice Brett Kavanaugh’s nomination is currently being navigated through the shark infested waters of the United States Senate populated with man eaters hungry to attack, chew up and dismember someone who, by all accounts, is a good and honorable family man with impeccable legal credentials.

 

As usual the “Chicken Little” corps on the left predict the end of civilization as we know it should he be confirmed. That isn’t true.  However, can we expect an impact an on direction of the court?  Sure.  And it is prudent to consider how it may affect the direction of the Court, but without all the folderol.

 

As I contemplate potential changes in the jurisprudence of the Supreme Court, I begin with of the warnings deceased Justice Antonin Scalia gave about how modernly the Supreme Court and the entire federal judiciary is moving the country away from democratic rule. Although it can be seen in rulings and orders of Federal Judges across the country, the Supreme Court’s just competed term provides the most visible example.

 

It is plain from reviewing the cases that the Supreme Court is severely split along ideological lines. It’s may be the worse it been since the Great Depression.  This isn’t the fault of either Justice Kavanaugh nor President Trump.  It has existed for some time. And though historians might disagree, most lawyers with any sense of political realities know why.  It is the result of the Federal Judiciary throwing off the bonds of traditional judicial restraint.

 

I will in future blogs analyze each of the major cases decided in the last term, but I first wanted to take an Eagle’s eye view especially in light of the unbridled rage and hate speech directed at the latest nominee to the Supreme Court.

 

In the just completed term there were 19 split decisions by the United States Supreme Court.  In each case the vote was divided 5 to 4.  These cases involved momentous blockbuster issues. Cases on Immigration, National Security, Voting Rights, Gay Rights, Religious Freedom, Compelled Speech, Abortion, Union Shops, Cell Phone Privacy, and Taxation of Internet Companies like Amazon were all decided 5 to 4. Pause here a moment and consider if the vote is 5 to 4, then the vote of one person decided each of these issues for the rest of us, all 350 million, give or take.  Not a representative Congress, not a nationally elected President. Rather, one person. And an unelected one at that.

 

Of those 19 cases, Justice Kennedy whom Justice Kavanaugh will be replacing was a deciding vote or in the majority in all 19.

 

To be fair, some of the majorities in the 5-4 decisions had surprising alliances.  Justice Gorsuch, the newest justice and one who is identified with the conservative wing of the Court joined his more liberal colleagues to strike down a deportation order because the law written by Congress was unconstitutionally overbroad.  Similarly, Chief Justice Roberts joined the liberal wing while liberal Justice Ginsberg voted with the conservative wing in rewriting the state taxation powers over internet companies like Imperial Amazon.  But those few exceptions aside, by in large, the conservative/liberal split was maintained throughout the term.

 

The number of 5-4 decisions on the important issues of the time, is an indicator that there may something wrong with our democracy.  If the vote of the most learned of our men and women of the law is so evenly split, then the law is not crystal clear.  However, because the Court has set itself up as Regal arbiter, the great issues are decided by one person’s vote.

 

The legal media like to call it a “swing vote.” And that one vote by one person decides who wins and who loses on issues which once were debated in the Congress and the state legislatures.  Instead, we wait on court decisions like an athletic event that has gone down to the wire. And upon announcement cheers or moans go across the land depending on whether your team won or lost.

 

The problem is that democracies are not supposed to be run like this.  One-person rule is anathema to democracy.  It matters little that the swing person may rotate among the same nine persons rather like the presidency of the local rotary club. It’s the wrong institution to attend.

 

Established Constitutional principles of Judicial Restraint compel the Supreme Court to defer certain issues to the political branches, the democratically elected Congress and President. We may soon see the results of the Court’s moving away from this basic principle.

 

First Congress is damaged. We no longer ever have reason to cheer the success of Congress, our elected representatives facing difficult issues, taking testimony from expert witnesses, respecting and considering the regional implications of a law, debating vigorously and then formulating a policy to be applied in all future instances and having processes in place to modify the policy even as its being implemented. And the Congress is damaged in other ways.  It is a basic political axiom that if you can maneuver a hot political issue over to someone else to take the heat, you do so.  And knowing the Supreme Court is all too willing to intervene, Congress has gotten use to abdicating their responsibility.  It is exceedingly easy to attack persons, even good people like Justice Kavanaugh.  It is hard work to actually propose, work with the other party, and pass legislation to address policy issues.

 

And the Presidency is undermined.  We have little time to judge and improve the Executive Branch’s actions.  Even though the expertise might be with the Administration and the framers of the Constitution intended a President to be able to take swift action, modernly every move, every change, a President makes is immediately challenged in federal courts and a lone arrogant federal judge somewhere will most likely issue injunctions and orders on how the policy is to be implemented or prevent it from being implemented at all. And again, the ultimate arbiter the body we seem to have granted the power of pre-approval, is that “One Supreme Court” of nine persons, all educated the same way at the same Eastern schools who can’t even agree among themselves.

 

The process has been further corrupted by calls for lightening quick decisions. The unwise and historically novel approach of the Court requiring pre-approval of all acts of the other two co-equal branches of government has perverted the system of appeals. Briefing schedules are expedited. We do not insist on the time to develop and explore the legal rules, precedents and implications of decisions. There is no time to review numerous amicus briefs from interested groups nor to hear well prepared, skilled oral advocacy.  Now we demand our legal decisions, like everything else happen in the blink of a news cycle. It’s not a good way to apply Constitutional Law and it’s not a good way to run a large powerful country.

 

Have we devolved to one-person rule?  Is that why there is so much animosity against someone of Justice Kavanaugh’s character and credentials?  Is it because we know we are now ruled as Justice Scalia says by a majority of nine persons?  And is it because that person, whether a Supreme Court justice or a federal judge on the lowest rung of the judicial ladder, is an unelected, unaccountable individual with little or no expertise in the subject area and who is poorly equipped to address the complexity of most issues?

 

There is a real danger here. And it is more than a gradual weakening of our democratic institutions.

 

A dangerous consequence may occur in the not too distant future.  The other branches may say No and defy the orders of the Judiciary. Then what?    The Court has no police force, no military, no control of the purse strings. The judiciary under the Constitution has only the power of persuasion. And that was done by the framers intentionally.

 

If the Court continues to fail to adhere to principles of Judicial Restraint which earlier Supreme Courts wisely and prudently followed; if they continue to undermine and supersede the other democratically elected branches of government, the Congress and the President, they may find themselves in a confrontation.  And if on that particular issue they don’t have overwhelming support from the entire public they will surely lose.

 

And if they lose just one Constitutional confrontation of that sort, we all lose for all time.

 

For other postings of Cline on the Constitution visit philcline.com

Cline on the Constitution – Universal Injunctions

Cline on the Constitution – Universal Injunctions

Just back from a few days at the coast, but in time for a new segment of Cline on the Constitution. In reading though some of the Supreme Court’s recent decisions, I came across an interesting issue which I’m sometimes asked about.

 

Universal Injunctions.

 

The situation is this. Congress passes a law or the President attempts to implement a new policy. An advocacy group such as the ACLU finds a client, picks a friendly federal district court and files suit.  The Judge then issues an injunction stopping the implementation of the law, not just as to the person before the court, but applies it to everybody nationwide.  And of late, it happens over and over virtually paralyzing the political branches of government.

 

Does the Constitution provide district courts with that kind of power?

 

Justice Clarence Thomas has seldom received the same accolades as his brothers and sisters on the bench.   But then he doesn’t seek the level of attention as some of them seem to crave and cultivate.  However, he has offered many intelligent, insightful and courageous opinions, often as concurring or dissenting opinions.

 

In a recent opinion he took up a very important issue the federal judiciary is reluctant to address because it goes to their own power and conduct.  Justice Thomas posited the question of whether local District Court Judges, who occupy the lowest rung on the Federal Judicial ladder, can constitutionally issue orders on cases before them and then apply those orders to the entire nation affecting millions of citizens and non-citizens who are not before them.   And can they restrain the entire federal government from acting everywhere.

 

The legal procedures used to exercise such great power are called “Universal Injunctions.”

 

A Universal Injunction was used by a district court in Hawaii to prevent the President from implementing orders banning certain non-citizens from traveling to the United States from foreign lands.  The Supreme Court overturned the actions of the Hawaii court and dissolved the injunction.

 

Justice Thomas in his concurring opinion in that case confronted the issue of Universal Injunctions and their constitutionality.

 

It is important to understand how the judicial power is being used when universal injunctions like the one found improper by the Supreme Court are used.

 

This is not a situation where an appellate court reviews the results of a trial in a lower court, i.e. a District Court, and rules something was done wrong in the lower court and issues an opinion.  This is not a situation where a case of national import is ruled on by the Supreme Court.

 

This is a situation where over six hundred local lower court judges have asserted the power to take a local case and rule nationally.

 

First of all, there is nothing more noble or intelligent about federal judicial officers than any other occupation or profession.  They have the same foibles and biases as the rest of us. Some have less.  Some have more.  They are largely political appointees, and too few leave their political views behind.

 

Yet, these six hundred individuals, when they issue Universal Injunctions, are in effect acting as an unelected, unaccountable super legislature.

 

Not exactly what our founders envisioned.

 

It is well to remember that all federal courts with the exception of the Supreme Court are creations of Congress and under the Constitution their jurisdiction is subject to restrictions and exceptions placed upon them by Congress.  The constitution provides only for One Supreme Court and “such other courts as Congress may from time to time ordain and establish.”  The lower federal courts were mostly established by the Judiciary Act of 1789.

 

Issuing a Universal Injunction is not a power expressly given to federal district court judges by the Constitution or act of Congress.  It is an extraordinary power the courts must carve out of the general judicial power based upon historically recognized principles.

 

In his opinion, Justice Thomas examined the history of a court’s power to use extraordinary remedies such as injunctions.

 

He traced its history to the ancient equity courts in England.  There the power was vested in the Exchequer of the Chancery to fashion remedies where the strictures of the common law could not find a way to deliver justice in unusual cases. However, the power was always severely limited, and it actually originated as an aspect of the “divine” power of the Kings.  Interestedly, it could not be used to restrain the Crown because that was the source of the power.

 

Justice Thomas went on and reviewed the debates over extraordinary equity powers at the time of our nations’ founding.  And he emphasized that In the federalist and anti-federalist papers the accepted wisdom was that there was a need for judicial restraint less the whole idea of functioning democracy be undermined.

 

Sounds familiar.

 

And finally, he noted that the use of “universal” injunctions did not debut in America until the 1960s. It first appeared in a case dealing with worker’s wages.  The constitutional basis for the power was never really considered in any depth.  Mainly because it was used rarely used.  At least until recently.

 

And it does seem that the unprecedented increase in their use was concurrent with the politicization of the federal judiciary. A politicization facilitated by the judiciary’s willingness even at their lowest level to intervene in affairs traditionally the responsibility of the other co-equal branches of government and to exercise power or millions of citizens who are not parties to the cases before them.

 

As Justice Thomas opined:

 

“American court’s tradition of providing equitable relief only to parties was consistent with their view of the nature of judicial power.  For most of our history, courts understood judicial power as “fundamentally the power to render judgements in individual cases.” Historically, Court’s only provided equitable relief to the parties to the suit.  They never ventured outside the case they were call upon to decide which is exactly what is done when a universal injunction is issued.

 

It is a fundamental rule of Standing that the Constitution limits the Courts as to who can sue to vindicate certain rights.  A person cannot bring suit to vindicate “public rights”, that is rights held by the community at large without showing of some specific injury to himself.  And a plaintiff cannot sue to vindicate the private rights of someone else, a third party.  Such claims have historically been considered beyond the authority of the courts. Otherwise the courts end up setting policy which they are not supposed to do.  The framers reserved public policy question to the legislative process.

 

The argument in the favor of the use of universal injunctions is that they give the judiciary a powerful tool to check the Executive Branch.  But the argument does not explain where the power comes from. As Justice Thomas explains,

 

“But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power.  They at best “boil down to a policy judgement” about how powers ought to be allocated among our three branches of government, but the people already made that choice when they ratified the constitution.”

 

Justice Thomas concludes by stating “in sum, universal injunctions are legally and historically dubious.  If federal courts continue to issue them, this Court is duty-bound to adjudicate their authority to do so.”

 

Indeed.

 

For other writings by Phil Cline on the Constitution, visit philcline.com

 

 

Slouching Toward Oligarchy

Slouching Toward Oligarchy

Slouching Toward Oligarchy

 

Shortly after the current Supreme court term opened in October, Chief Justice John Roberts used the term “Sociological Gobbledygook” during oral argument on a Gerrymandering case.  Under the “political question doctrine,” drawing district lines for seats in Congress has traditionally been reserved to state legislatures. However, rather than fight the gerrymandering at the polls or in the halls of the legislature, interest groups sought the intervention of the federal courts. Why? Because it is easier than going to through the democratic process.   Especially, if you prefer government by federal judges, who with each passing day evolve more and more into a class of unelected, unaccountable oligarchs.

 

The Chief Justice said to the attorney arguing the case, “…the whole point is you’re taking these issues away from democracy and you’re throwing them to the courts pursuant to . . . I can only describe as sociological gobbledygook.”  A short time later, Justice Stephen Breyer used the same term urging the advocate to press his argument “without going into what I agree is pretty good gobbledygook.”

 

Justice Robert’s comment generated a number of scathing reactions from across the Social Science industry.

 

Some of the responses were thoughtful defenses of using social science in legal cases while others were over the top denunciations of anyone who would dare question the underpinnings of so-called social science.

 

The exchange shined a light on a larger question.  Just how much should the courts rely on social theory or social studies in fashioning their decisions?

 

The Starting point is usually Brown vs. Board of Education.  For most of us in the legal profession the opinion is the lodestar, the standard for great and momentous decisions.  The case led to the dismantling of institutionalized racism in Education by overruling Plessy v Ferguson, the infamous 1896 decision upholding the “separate but equal” doctrine.  And the court in Brown justified its conclusion that segregation of the races in the classroom had long term detrimental effects on minority students by relying on social studies that had reached that conclusion.

 

In the subsequent years and modernly at an accelerating pace, many case decisions of the Supreme Court, some of them momentous, relied on social studies.  I tend to think that the term “social studies” is more accurate than “social science.”  Though there are plenty who will argue the opposite, the fact of the matter is there is little that is empirical or universally true in the subjects covered. The fact of the matter is there are no eternal verities in social studies.  Even the venerable Brown v Board of Education decision is being hollowed out by gender and ethnic based studies on college campuses, which exclude and denigrate other races and genders.   It seems segregated housing is all the rage,  evenexcluding people of a certain race from the campus itself for special days ostensibly to add to the comfort level for minorities.  In fact, a college in the Ivy League no less, just agreed to build housing where students can be separated based on sexual orientation.  The fact that this re-segregation is promoted by liberal professors and students doesn’t change its nature.

 

Other social studies fields can be just as problematical, especially modernly.  History studies are more driven by trendy thought, political correctness, and rank speculation then actual provable fact.  Psychology, while it undoubtedly can and does help individuals with mental or emotional problems, when applied to broader society can be a joke. As a trial lawyer who specialized in trying homicide cases for 7 years,  I found there was great fun in cross-examining defense psychologists. They literally started squirming in their seats when they found I intended to test their conclusions using their own diagnostic texts, especially in demonstrating how often what is and is not a symptom of a dysfunction is arrived at by a majority vote of committees.

 

And in some fields, studies and reports are so blatantly driven by political agendas as to be laughable were they not used in such serious ways. As a prosecutor I can’t tell you the number of times that some misleadingly named justice foundation issued a study on the justice system that was inaccurate, poorly researched and sometimes intentionally misleading.

 

And what’s more, the press was often complicit in the perpetuation of the fraudulent theories.   They regularly allowed the “institute”, or the “foundation” to “embargo” the report until the “go “was given for publication.  The Press knew that the embargos were imposed to get the maximum coverage with a minimum of critical examination.  By the time the study could be analyzed, and even obvious errors pointed out the media had lost interest.  They uniformly failed to publicize corrections.  Not exactly the peer-review you would expect of real science.

 

The question is not necessarily whether social studies should be relied on, but what weight should be given them.  To say that a teenager’s brain is not fully formed, and their judgement is not fully developed is one thing, but to say then they are not fully responsible for the premediated torture murder of a child is something beyond the realm of social science.  Yet we see more and more decisions based on such nebulous values as “societies evolving sense of decency.”  They lead to federal courts imposing their own values regarding the death penalty for certain classes of individuals, changing the institution of marriage, and making their evaluations of what is necessary for national security when they are singularly unqualified to make such judgements.  Those are the matters that the Constitution contemplates being decided by the Congress and the Presidency who, in a democracy, are accountable to the voters.

 

A recent column by the venerable Dan Walters makes the point about misplaced reliance on social studies very clearly.  He relates that how in 1986, a powerful California state legislator had a pet theory that one answer to rampant crime, educational failure and many other social ills was a lack of self-esteem.  John Vasconcellos, the legislator, was successful at directing tax-payer funds to the University of California for a study.  Two years later the study was released. Its conclusions were dutifully and breathlessly reported by the press.  The report concluded that indeed promoting self-esteem would have positive effect on correcting these societal ills.  Of course, then colleges, high schools, and grammar schools, based on the UC study changed curriculums. They hustled to adopt self-esteem programs.  Other government and private entities did the same.  But there was a problem.

 

It was recently uncovered that the real conclusions of the study were actually just the opposite.  It was concluded that “the association between self-esteem and it’s expected consequences are mixed, insignificant or absent.”  It turns out The University of California suppressed the real findings and changed the conclusions to satisfy the desires of the powerful Mr. Vasconcellos, whom they feared would make moves to reduce their annual budget.

 

I don’t doubt that the Supreme Court will still find social studies useful both in the case on gerrymandering and other issues.  But it behooves them in deciding an over-arching question of law and society that they treat the studies with a healthy skepticism.  Some social studies may be valid.  Others may be just so much pre-determined and paid for Gobbledygook.

 

 

 

Religious Tests Under the Constitution

Religious Tests Under the Constitution

Religious Tests Under the Constitution

 

California Senator, Dianne Feinstein, abetted by Senate Colleagues recently demeaned the Catholic faith of a nominee to the Seventh Circuit Court of Appeal.

 

The nominee, Amy Barrett, is a professor of law from Norte Dame. She has impeccable legal, intellectual and educational credentials and once clerked for Supreme Court Justice Antonin Scalia. At her confirmation hearing, she was subjected to an aggressive line of questioning concerning her religious beliefs as a practicing Catholic. In one particularly offensive exchange, Senator Feinstein scolded her and said, “When you read your speeches the conclusion one draws is that the dogma lives loudly within you.”

 

U.S. Bishops condemned the comments as “anti-Catholic bigotry” that reveal “a thinly veiled anti-Christian bias.” The President of Norte Dame, John Jenkins, said it was “chilling” to hear from a United States Senator that one’s religion might disqualify them from service as a federal judge.

 

Senator Feinstein’s motivation in examining a nominee’s religious views is no secret. She wants to know if the nominee agrees with the religious teachings of her church regarding the morality of abortion or homosexual activity. She wants to know if the candidate would uphold or overturn Roe v Wade (abortion) or Lawrence v. Texas (gay sexual activity) because of her religious beliefs. And if the nominee does not answer by expressly rejecting such religious teaching she risks having her nomination voted down and being denied the public office she seeks.

 

This is not the first instance in our modern history that the faith of individuals wishing to serve in public office has been attacked by Senators.

 

At one time not so long ago the questioning of judicial nominees by Chuck Schumer, Dick Durbin and others, became so egregious that a public information campaign was launched under the title “Catholics need not apply!” In reaction a coterie of Catholic Senators, led by Pat Leahy, proposed a Senate rule prohibiting inquiry into a person’s religious beliefs. The rule failed to come to a vote. Even, John Roberts, our current Chief Justice, at his confirmation hearing, was aggressively examined under oath about his Catholic faith. And only recently, Socialist Senator Bernie Sanders attacked Russell Vought, a nominee to the post of budget deputy director over his Christian faith.

 

Does such questioning of a nominee’s religious beliefs violate the Constitution?

 

Article VI, Clause 3 states, inter-alia, “. . . . all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to Support this Constitution, but no religious Test shall be required as a Qualification to any Office, or public Trust under the United States.”

 

While Senators may question any nominee on any subject outside the committee room, it is different when the person is placed under oath before being questioned. Placing them under oath moves the examination of their religious beliefs into the realm of a religious test which the Constitution forbids.

 

The founders were very familiar with religious oaths and tests. Oaths confirming or rejecting selected religious views were required of anyone seeking public office in merry old England as well as in many of the states at the time the Constitution was written. Those tests were used to protect state favored churches. For example in England an act of Parliament passed in 1672 required all persons who wished to hold public office to take an oath concerning the sacrament that effectively precluded Catholics from serving. Many of the States in pre-revolutionary America had similar provisions. For example the state of New York required an oath disavowing allegiance to a foreign prince, to wit, the Pope.

 

And Oaths meant something to the founders. To be bound by an oath was a solemn undertaking. The promise to keep one’s word had real meaning. To break a covenant either with God or the State was a serious breach of morality.

 

The inclusion of the “no religious test” phrase in the same sentence in Article VI as the requirement of an oath or affirmation to support or defend the constitution is significant. Because the phrases are separated by the conjunction “but” means that the “no religious test” clause is an exception to the oath to defend and support the constitution. It means government may not require an oath concerning religious beliefs as a condition of taking a public office or judgeship. And placing someone under oath and attempting to force them into making a choice of rejecting the teachings of their church or forfeiting the opportunity to take a public office or judgeship is a religious test and violates Article VI of the U.S. Constitution.