Category: Judiciary

Cline on the Constitution

Cline on the Constitution

Cline on the Constitution – the Census Question and the Politization of the Court

Summer vacation is over, and the Supreme Court’s traditional opening for the new term the first week of October draws nigh.  With a brutal campaign for President unfolding the stage is set for what could be a turning point for the Supreme Court. Will it continue on its current path or return to its role of a fair and unbiased interpreter of the Law?  And will its path be selected on legal principle or out of fear of the consequences of its decisions?

We will attempt to answer this question over the next few months as decisions come down.  For now, I’m going to spend longer than usual on my opening piece setting up a peek through the window into the politicization of the Federal Court System.    

Two strains of popular wisdom concerning the role of the Judiciary exist. 

The first is that the Court is above politics, decides cases only on the law and eschews the political power contests entrusted by the Framers to the Congressional and Executive branches.  Judges and Justices are fond of propounding this idealized version of their role in society.  

The second is that the Court is just as apt to have their finger in the air testing the political winds as a small-town southern Sheriff. Increasing numbers in both the population at large and (though they prudently would never say it out loud), the legal profession ascribes to this view.  

The first view, that the Court is an unbiased arbiter of the law is a canard.  It has never been completely true. However, the Court for most of the Republic’s history tried to keep federal courts from being overtly political.  Their efforts were aided by adherence to self-imposed rules of restraint in which they insisted Federal courts defer to the political branches, the Congress and Presidency, when they were tempted to step into areas in which unelected Judges have little expertise, and absolutely no competence.  

Last term it became clear there is no curtain to hide behind anymore.  The decisions of a great many Federal District and Appellate Courts were consistently political and biased.  And the Supreme Court is gradually being sucked down into the same quicksand.  In my opinion, it’s no one’s fault but their own.  

Chief Justice John Roberts, someone I have long admired, has proved surprisingly susceptible to being compromised.  To use his own term his decisions on high stakes political cases are merely a “pretext” to avoid having himself or his Court labeled too Conservative.  And like most conservative thinkers who make sincere attempts to compromise it is never good enough for those who want their very soul. It is inevitably a Faustian bargain.

One incident last term highlighted the hypocrisy.  Chief Roberts called out the President for implying federal court decisions could be predicted based upon which President appoints the federal judge.  

This was only shocking to the unthinking and willfully uniformed.  Even the News media reports who appointed the federal judge when a decision is published. 

What made it controversial is the Chief jumping into the fray and maintaining the opposite. He said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.  That independent judiciary is something we should all be thankful for.” 

Only were it true. 

Before the ink dried federal courts provided persuasive evidence to the contrary.  In response to yet another challenge to the President’s fruitless attempts to address illegal immigration, on one side of the country, a federal judge refused an application for a nationwide injunction on newly propounded asylum rules.  On the other side of the country a federal judge was only too eager to do the opposite and grant the injunction. 

Guess which one was appointed by Obama and which one was appointed by Trump.  If you know the answer without asking, then maybe the President had a point.

And then there are the Members of the United States Senate who not only have adopted character assassination into its Advice and Consent role, as it did with the Kavanaugh and Thomas hearings, but now overtly threatens the Supreme Court with consequences if it decides a case in a manner the Senators disagree with. These same members of the Senate actually filed court briefs and issued a public warning to the Supreme Court not to decide a pending case by upholding the Second Amendment to the Constitution. They expressly threatened to restructure the Supreme Court if the Court decided the case contrary to the Senator’s wishes.  

If one has lived an honorable distinguished life in the law only to be placed under the most scurrilous attacks by false accusations, do you not think the individuals would take such threats seriously? Is there a chance they may modify their decisions out of fear? Would it surprise anyone?  Is not instilling fear the ultimate goal of confirmation by destruction?

Our Chief Justice, whom I have long admired for his intellect and legal mind may in fact be the latest example of what the threats will do to otherwise reliable conservative voices on the Court.  

His latest opinion on the issue of a census question invites the conclusion that the Court will engage in the most political of decisions and damn settled law along the way. And in the process open the Court to even more fervent political manipulations in the future.

In Department of Commerce vs. New York the easy compromise of legal precedent and principle in service to political expediency is on stark display. 

The issue involved in the case was whether a question would be propounded in the next census about the citizenship of persons being surveyed.   

First the basics.

The Constitution requires an “Enumeration” of the population every 10 years to be made “in such Manner” as Congress “shall by Law direct.”  Congress, in turn delegated the task of conducting the decennial census to the Secretary of Commerce “in such form and content as he may determine.” 

The Supreme Court has repeatedly recognized that the census has been used to gather information on race, sex, age, health, education, occupation, housing and military service as well as other subjects as varied as radio ownership, age at first marriage and native tongue. The Census Act obliges the Secretary to keep individual answers confidential, including from other governmental agencies.

In the 22 decennial censuses from 1790 to 2000 a question about citizenship or place of birth had been asked.  

In 2010, the question was not asked.

In March of 2018 the Secretary of Commerce, Wilbur Ross, announced the question would be reinstated in the 2020 census.

While, there was much gnashing of teeth, the most strident argument was over whether the question would depress response rates from non-citizens.  Given the fact that untold millions of illegal aliens reside within the United States and untold billions of dollars as well as dozens of Congressional seats would be allocated by the demographic information collected in the census, there was an understandably intense interest in banning the question from being asked if there was a chance it would change the bottom lines.

Secretary Ross in writing maintained that he “carefully considered” the possibility that reinstating the question would depress response rates, but that after evaluating the “limited empirical evidence”, he concluded it was not possible to “determine definitively” whether inquiring about citizenship in the census would materially affect response rates. He went on to note the long history of the citizenship question on the census as well as the fact that all major democracies such as Australia, Canada, France, Indonesia, Ireland, Germany, Mexico, Spain and the United Kingdom inquire about citizenship in their censuses.

One may not agree.  But it was his call to make and he made it. So far so good. 

Then the legal challenges began.  And the Federal Courts were only too pleased to intervene.  “Hold on” they in effect said.  “You can’t govern, you can’t make decisions without getting our august approval first.” 

And that is the real rub to the case. The import of the decision was not whether the Secretary made the right call.   Rather it is what roll the framers envisioned for the Courts in such situations? 

By a 5 to 4 vote, with Chief Justice Roberts penning the majority decision the case was returned to the lower court for further proceedings to clarify the decision-making process of the Secretary.  Everyone, including the justices on the Court, knew that ordering such an action killed the question because there was too little time to fight the legal battle and meet the statutory deadlines for conducting the census. 

Contrasting the Roberts opinion with the opinion of the dissenting justices leaves little doubt that the decision was a political one. 

Leading off, the Court declined to involve itself in the question regarding the depression of response rates. “We may not substitute our judgement for that of the Secretary, but instead must confine ourselves to ensuring that he remained within the bounds of reasoned decision making.”  So, yep, the Secretary can make the decision like the law empowers him to do, but the reasoning better be up to the Court’s standards.

The Court felt it had to address two questions. 

The first was whether his course of action was supported by the evidence before him. The Court found it was.  Remember that.  At this point the Court has said the Secretary’s action was legal and constitutional and had an evidentiary basis to take the action he did.   The court said, “The choice between reasonable policy alternatives in the face of uncertainty was the Secretary’s to make. He considered relevant factors, weighted risks and benefits, and articulated a satisfactory explanation for his decision.”  What, pray tell, could be the problem?  

It’s in the second question which is the strange one.  Whether the Secretary’s rationale was “pretexual”?

Chief Justice Roberts noted that the lower court had found the evidence established the Secretary had made up his mind to reinstate a citizenship question well before he took office. And he the Chief agreed that there is nothing objectionable or even surprising in this.  At least, as Roberts says, “up to a point.” 

The Court said, “It is hardly improper for an agency head to come into office with policy preferences and ideas, discuss them with affected parties, sound out other agencies for support, and work with staff attorneys to substantiate the legal basis for a preferred policy.  The record here reflects the sometimes-involved nature of Executive Branch decision making, but no particular step in the process stands out as inappropriate or defective.”

Yep.  This is how the art of governing works.  So, what’s the problem?

Evidently, something didn’t sound quite right to the Chief Justice. After reviewing thousands of emails and over 12000 pages of other documents, he said, “We are presented with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision-making process.”

He felt that the Court “must demand something better than the explanation offered for the action taken in this case.”

Huh?  Talk about overreach!

The dissent led by Justice Thomas, Gorsuch and Kavanaugh was brutally direct in their criticism of majority decision.

The dissenting opinion states, “The Court . . . for the first time ever . . . invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.” 

And they went on say the decision echoes “the din of suspicion and distrust that seems to typify modern discourse.” In other words, the Court has now got down in the mud with everyone else. 

The Justice continued, “The Court’s holding reflects an unprecedented departure from our deferential review of discretionary agency decisions.”  And a warning is issued about future cases and the impact that they will have on the Court.  “It is not too difficult for political opponents of executive actions to generate controversy with accusations of pretext, deceit, and illicit motives. Significant policy decisions are regularly criticized as products of partisan influence, interest-group pressure, corruption, and animus.  Crediting these accusations on evidence as thin as the evidence here could lead judicial review of . . . to devolve into an endless morass of discovery and policy disputes.”

And here is the key problem with Roberts decision.  The dissenting Justices say, “Unable to identify any legal problem with the Secretary’s reasoning, the Court imputes one by concluding the at he must not be telling the truth.”  He goes on to say, “The Court engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion.”

There is one last acknowledgement of how governing actually works in real life.  “None of this comes close to showing bad faith or improper behavior. Indeed, there is nothing even unusual about a new cabinet secretary coming to office inclined to favor a different policy direction, soliciting support from other agencies to bolster his views, disagreeing with staff, or cutting through red tape.”

Well, yes.  That’s why we elect people in the political branches! And why unelected federal judges should confine themselves to the law.

Otherwise the prophesy left us by the dissenting justices will surely come true.  

They said, “With today’s decision, the Court has opened a Pandora’s box of pretext-based challenges in administrative law. . .  Having taken that step, one thing is certain: This will not be the last time it is asked to do so.  Virtually every significant agency action is vulnerable to the kinds of allegations the Court credits today.”

And he continues, 

“Now that that the Court has opened up this avenue of attack, opponents of executive actions have strong incentives to craft narratives that would derail them.  Moreover, even if the effort to invalidate the action is ultimately unsuccessful, the Court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay and distraction.  The Court’s decision could even implicate separation-of-powers concerns insofar as it enables judicial interference with the enforcement of the laws.”

Fear.

He ends with a forlorn hope. About this decision he says since it is such a departure from traditional principles of administrative law, “Hopefully it comes to be understood as an aberration — a ticket good for this day and this train only.”

I’m afraid not.

For more writings by Phil Cline visit my secure website at philcline.com

Double Jeopardy

Double Jeopardy

The Supreme Court recently, and for the first time in a hundred years, issued a definitive opinion on Double Jeopardy.  A close reading, however, leaves an impression that the opinion was about more.  As privacy issues (such as the “right” to an abortion) make their way back to the Court, this case may provide a road map as to how the Court may reach different conclusions than in the past.

But first the basics about Double Jeopardy.   

In 1991 four LAPD officers were filmed using force to subdue Rodney King.  The video convinced a large portion of the public that the force used was excessive and that Mr. King was beaten unnecessarily.  Criminal Charges were filed against the officers in State court and, after a trial, they were acquitted.  The acquittal led to wide spread rioting resulting in significant property damage as well as loss of life.  The Federal Government then brought charges against the officers in Federal court based upon the same conduct.  The officers were again tried for beating Rodney King, but this time under federal civil rights statues.  While two of the officers were acquitted, two were convicted. 

The Fifth Amendment states no person “shall be twice for the same offence to be twice put in jeopardy of life or limb.”

Which in law means they cannot be twice tried for the same offense.  

As an aside I have always been struck by the inclusion of the phrase “or limb”. Did that mean the framers contemplated that a criminal’s limb, i.e. his hand, foot or arm, could be cut off as punishment for a criminal offense?  Hmmm?

But back to the meaning of the Fifth Amendment.  Rodney King’s police assailants could be tried twice for the same offense because one trial was conducted in State Court for offenses against the state penal code, and the other in Federal Court for offenses against the federal penal code. Same acts.  Same conduct.  Why shouldn’t the officers have prevailed in arguing the Federal government’s prosecution was twice placing them in jeopardy?  A plain reading of the amendment would seem to indicate the government doesn’t get two bites of the apple.  But then that is the key to understanding Double Jeopardy.  The cases were prosecuted by two different governments. State and Federal.

It’s one of those places in the Constitution where the principles of Federalism (specific powers delegated to State and Federal government- the horizontal Separation of Powers) live on.  Each of the government entities, State and Federal Government, is considered a separate sovereign.

The Supreme Court calls this the “dual sovereignty” doctrine. Under the doctrine, a State may prosecute an individual under state law even if the federal government has prosecuted him for the same conduct under a federal statue.  And, of course, vice versa.  The key to understanding is to focus on the use of the term “offence” in the Fifth Amendment.  

The amendment does not refer to an act or conduct. Instead, it uses the term “offense” which by definition must be proscribed by a government, (a sovereign).  Therefore, the Federal government and the State government, two separate sovereigns under our Federalist system, can outlaw the same conduct as different “offenses” under two separate system of laws, Federal and State. 

This principle was re-visited (for the first time in over a hundred years) in the case of Gamble vs. the United States.  Gamble was convicted in Alabama state court of being a felon in possession of a firearm. Then the Federal Government brought charges under the Federal “felon in possession of a gun” statue.  Gamble moved to set aside the Federal indictment on Federal gun charges for the same conduct which led to his conviction in Alabama’s State court.  Gamble’s appeal argued that the Dual Sovereignty doctrine should be overruled as being contrary to the intent of the framers.

In an opinion by Justice Samuel Alito, the Dual Sovereignty Doctrine was re-affirmed.  

Does the doctrine have application in a modern context?  As I like to point out, our Constitution is constantly in play both on a local scene like when a criminal violates a gun law, but also in situations of national significance.  

Consider for a moment the plight of Paul Manafort, who for a brief time served as the President’s Campaign Manager.  From public comments, one can extrapolate that the President believes Mr. Manafort has been unfairly persecuted by government agents. In his view the authorities are using every tool at their disposal in order to break Manafort down and force him to provide damaging testimony against the President.  In similar situations in the past, Presidents, including Bush, Clinton, Obama and others have pardoned the offender.  But in this case, because of the Dual Sovereignty doctrine, Manafort cannot be saved from State authorities by a Presidential Pardon which only applies to Federal crimes. Double Jeopardy would not apply.

Okay.  But these principles are well-established.  There is nothing of landmark significance in the Gamble holding.  Why did the Court take it for review at all?  

I’ll use a phrase that has been repeatedly used by nominees to the Supreme Court when facing questioning by Senators on issues like abortion and the future viability of cases like Roe v. Wade and its progeny.  “It is settled law.” 

So why?  

The legal team in Gamble case got their case heard, in my opinion, due to their efforts to trace back hundreds of years through dusty musty past to old English common law cases to argue that the framers never intended to preserve the Dual Sovereignty doctrine to defeat the Double Jeopardy rule.  

In swatting down the arguments as “feeble” and “dubious” Justice Samuel Alito penned an extensive decision on the value of Stare Decisis and Precedent.  He wrote a detailed and lengthy analysis of the arguments made by the Gamble legal team only to come to the conclusion that the cases they had dug up where of no value as Precedent. That is, Stare Decisis which is the legal principle by which a Court is compelled to follow the decisions of a prior Court which has already ruled on the same issue.

When batting aside Gamble’s stare decisis arguments based on ancient law, he wrote, “this objection obviously assumes that precedent was erroneous form the start, so it is only as strong as the historical arguments found wanting.” If the proposition is stated from the other way, however, if the underpinning of precedent is found wanting, then the principle may not stand. In more concrete terms if the underpinnings of a case like Roe v Wade is found to be incorrect, its value as precedent is at an end.

The Gamble case at its heart is more about the proper role of the Judiciary and legal precedent than it is about Double Jeopardy.  

Justice Clarence Thomas, in a concurring opinion, wrote a remarkable paragraph which calls out the Federal Judiciary for its activism.  He urges federal judges to return to their proper role.  He said, “I write to address the proper role of the doctrine of stare decisis.”  

He states, “It is always tempting for judges to confuse our own preferences with the requirements of the law . . . and the Court’s stare decisis doctrine exacerbates that temptation by giving the venire of respectability to our continued application of demonstrably incorrect precedents.”  

Thomas signals that if past cases went beyond the proper role of the Courts and were decided wrongly, they must be overruled.   Even if “settled law.”

“By applying demonstrably erroneous precedent instead of the relevant law’s text–as the Court is particularly prone to do when expanding federal power or crafting new individual rights–the Court exercises “force” and “will”, two attributes the People did not give it.”  In support Thomas cites passages from the Federalist papers.  By “force” the framers meant the power to execute the law and by “will” they meant the power to legislate.  Those powers are vested in the President and the Congress. Not the Courts! 

He goes on to say, “We should restore our stare decisis jurisprudence to ensure we exercise ‘mere judgement’ which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying.  In my view, anything less invites arbitrariness into judging.”

One only has to follow the arrogant and daily intervention of federal judges into every attempt to govern the country (and its borders) by the Executive and Congressional branches.

After describing how our judiciary acts differently under our system than the judges under common law, he makes no bones about how precedent if based on faulty reasoning or wrong facts must be overruled no matter how “settled.”  

“A demonstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disregards the Supremacy of the Constitution and perpetuates a usurpation of the legislative power.”

He concludes by stating, “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”  Following it, he says, is an unconstitutional usurpation of the powers vested in the other branches of government.  “This view of stare decisis follows directly from the Constitutions’ supremacy over other sources of law—including our own precedents.”

As we look back over a panoply of new “rights”, including abortion, recognized by the Court since the 1960s, if the precedent those cases established are found at some future point to have been based on incorrect premises, then those cases may be found unconstitutional.  

So, yes, Roe v Wade, and its progeny, is “settled law.” Does that mean it couldn’t be changed if the argument could be made the cases were wrongly decided in the first place; if the scientific basis for the decision is proved wrong?  As “settled law” is Roe v Wade inviolate?  

I wouldn’t bet on it. 

Cline on the Constitution

Cline on the Constitution

While I was on vacation the Supreme Court began to wind down their current term and issue opinions on a few highly anticipated cases.  

As usual there were a few smart opinions and a few stupid ones.  And following the trend over the past decade, a lot of 5-4 votes.  Though there has been some discussion that the split wasn’t always between liberal and conservative, in truth, when it wasn’t split along ideological lines, the Court was invariably punting on the issue by rejecting a case for review or returning it to a lower court for further proceedings.  

Overall there were no major surprises or radical departures from established precedent.  Most of the interesting action was in dissenting opinions both from the Court’s liberal as well as conservative wings. Strong dissenting opinions are often harbingers of the Court’s future direction.  I’ll touch on a few of the more important ones over the next few segments of Cline on the Constitution.

The first case I will review is a Freedom of Speech case. 

Iancu v Brunetti is a prime example of how even Supreme Court Hustices can get twisted up in the bedsheets of their own arcane legalize and leave our society a little less livable. 

The Court ruled that a federal rule barring trademark registration for a line of clothing emblazoned with vulgar words because the words were deemed “immoral or scandalous” resulted in “viewpoint discrimination.” 

One doesn’t have to be a prude to lament how cheap, vulgar, profane and disrespectful major aspects of our society have become.   In college we were all taught to admire the courage of Lenny Bruce and his exploration of the profane.  His legacy? Just take your five-year-old with you to the mall or a ballgame, or just turn on the television any time of the day and be confronted with the most tawdry, shameless, embarrassing language and images. 

The Iancu decision, while not earth-shattering, lays one more stepping stone on the path to the coarsening of America. It’s an example we often see of Justices ignoring the needs of the People they are to serve and of them becoming more Pharisee than wise and prudent arbiters of Law.   

In the Iancu case, a man founded a “clothing line” in which he wanted to print in large letters the word F U C T. 

And, yes, it was meant to be read, as the Supreme Court noted, “as the equivalent of the past participle form of a well-known word of profanity.”   

He was denied a trademark for the use of the term on his products under federal rules passed by Congress which allowed the rejection of trademark registration for terms that were “immoral or scandalous.”  

Justice Sotomayor, like the other justices was aware that their decision would have a negative impact. “The Court’s decision today will beget unfortunate results, with the (rule) struck down as unconstitutional viewpoint discrimination.  The Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.” 

Justice Breyer says, “While some consumers may be attracted to products labeled with highly vulgar or obscene words, others may believe that such words should not be displayed in public spaces where goods are sold and where children are likely to be present. They may believe that trademark registration of such words could make it more likely that children will be exposed to public displays involving such words.  To that end, the Government may have an interest in protecting the sensibilities of children by barring the registration such words.”

In the majority opinion, however, penned by Justice Elena Kagan, the court focused not on the harm to society, but on a completely hypothetical possibility that to reject F U C T was not about the government drawing the line at trademarking “lewd, sexually explicit or profane,” material which the Court admits it is, but that the term “immoral or scandalous” adopted by Congress may include other, unknown, remote, but possible protected speech. 

While some justices argued for a narrow reading of the word “Scandalous,” the majority, in the most politically correct fashion, could not ignore the use of the word “moral.”

The word “Moral” to them “connoted a preference for rectitude and morality over the opposite.” 

The Court fears if they uphold a rule because it opts for the moral over the immoral, the immoral viewpoint is discriminated against. That, they maintain, is unconstitutional.  

We must, they say, again in the manner of the Pharisees, give the immoral their due. Justice Kagan does the mental gymnastics necessary to argue that “immorality” somehow means all conduct that offends the majority. That is not what it means, and I suspect she knows it. Like the most common of lawyers, she just wishes to win the technical argument.  And, neither she nor the other justices will admit of any responsibility for what their rulings leave the rest of us to face.  

Finding the statue “overbroad” The Court, after detailing a number of hypothetical scenarios not before the Court.  Justice Kagan states,  “There are a great many immoral or scandalous ideas in the world and the (Act) covers them all.  It therefore violates the First Amendment.” 

Okay.  

But does that mean we and our children have to see them on tee shirts protected by the trademark laws of the United States?  

As the guys said on ESPN said, (when it used to be all about sports), upon seeing an unbelievable play on the football or baseball field, “Come on, Man!”   

Cline on the Constitution – Interpretation

Cline on the Constitution – Interpretation

In November, President Trump referred to a federal District Court Judge as an “Obama judge.”  Uncharacteristically, Chief Justice of the Supreme Court, John Roberts, rebutted the President in a public statement.  He said, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges, . . . (an) independent judiciary is something we should all be thankful for.”  

Characteristically, the President would insist on having the last word.  He said, “Sorry Chief Justice Roberts, but you do indeed have “Obama judges,” and they have a very different view than the people who are charged with the safety of our country.  It would be great if the Ninth circuit was indeed an ‘independent judiciary’, but if it is why,” he asked, are so many of the cases opposing the administration’s border and safety policies “filed there and a vast number are overturned?” 

Well, whose right? And, while we are at it, why on earth do certain judges and justices decide cases the way they do?

We have a lot of interesting decisions coming out of the Supreme Court, but I thought this might be a good time for an interlude to talk about legal interpretation.  

I recently read a column by renown appellate lawyer, Myron Moskowitz.  He began his discussion by drawing a distinction in his approach to arguing appeals as between being a “legal formalist,” and a “legal realist.” Ah . . . now there’s stuff to feed every lawyer’s appetite for legal legerdemain! 

But Uggg!  Do we, you may be asking, have to go into such arcane legal terminology? 

Just wait and hang in there for a few minutes. What he was really talking about was winning.  How to win your case; how to get a judge or justice to rule in your favor. There’s something we all understand.  At its core the actual practice of law is more about winning and losing than the legal niceties contained in high-minded phrases like “due process” and “justice for all.”   

And I admit, that wasn’t the first time I’ve heard those terms in the context of winning and losing an appeal.   

A few years back, I was fortunate enough to be invited to participate in a week’s long course on appellate advocacy at the National Advocacy Center on the University of South Carolina campus. I, and prosecutors from across the nation, spent days practicing orally arguing cases to multiple panels of justices.  Some of the panelists were from state supreme courts, others from intermediate federal appeals courts.  As lawyers we were there to learn not only the formalities of how to present oral arguments, but how to be effective. In other words, how to win our case.

The most useful sessions, from an advocate’s perspective, were the debriefings after we argued our cases and the rulings were made.  In those sessions, the justices offered criticisms and suggestions on how to be more effective in the presentation of cases.  It was the first time I heard terms like Formalism and Realism applied to the nitty gritty in the actual practice of law.  

When applied to an appellate justice, the terms get to the essence of what approach on a particular case will most likely persuade a justice to rule in your favor.  Will the men or women draped in their severe black robes along with healthy dollops of self-righteousness and self-importance rule in accordance with the dictates of the law or will he or she find a way to rule so that a result the judge favors even if the logic of the law would seem to require a different answer.  

Moskovitz quoted a judge as defining “legal formalism” as treating the law “as a compendium of texts, like the Bible, and the task of the judge . . . is to discern and apply the internal logic of the compendium.  He is an interpreter, indifferent . . . to the consequences of his interpretations in the real world.  He is not responsible for those consequences; if they are untoward, the responsibility for altering them though a change in law falls to the “political branches.”” The “political branches” are supposed to be the Legislative and Executive branches of government. 

This is how law is traditionally taught in law schools.  And it is what most lay persons, unschooled in the law, think justices are doing and should be doing when they decide a case.  A judge’s job, most people think, is to apply the law and, yes, on occasion, the law can be a hard task master. But if the law needs changing it’s not a judge’s job to change it.  Changing the law is the responsibility of the duly elected representatives in the legislative and executive branches of government.  

But the reality is many, too many, justices see the law through a different prism.  

That prism is “Legal Realism”, the other term Moskovitz uses which places emphasis on “the consequences of judicial rulings.”  The justice who is inclined in this direction, pays little deference to precedent, none to the traditions of judicial restraint. What matters to them is “doing the right thing,” reaching a result that is “fair.” As Moskovitz says, “Pragmatism usually trumps over formalism.”  But to do so, a justice often must be clever. He or she ends up looking for a way to bend the words of a statute or “reinterpret” an established case precedent to get to a result they prefer. And if an advocate knows that is the inclination of the judge or justice, they fashion their arguments to circumvent the law and reach a preferred result which translates into a win.

As Moskovitz says, if you want to win in front of these justices, then dump the formalism and adopt the realism arguments. Play to what the judges want to happen, not what the law requires.

It is here I will move beyond the strategic thinking by Moskovitz to the impact of his ineluctable theory on law, justice and the politization of the judiciary.  

Beyond knowing what arguments to press in pursuit of a win, there is another problem. It leads inevitably to that result justices themselves give so much lip service to wanting to prevent, that is the politicization of the judiciary.  And the loss of that precious commodity “Judicial Independence.”  

President Trump’s statement implied the outcome of important cases could be predicted based upon which President appointed the judge or justices deciding them.  Chief Justice Roberts disputed the notion.  He contention is that federal judges are “neither Democrat nor Republican.”  

Although it pained him to admit it, Moskovitz, certainly no fan of the President, concluded “Trump is right.”  As much as I admire Chief Justice Roberts, I must agree.  The Chief’s statement, given the tendencies of the federal judiciary over the last few decades was just plain silly. 

But there is another perspective, and which adumbrated the reason the Judicial branch has become as politicized as the Executive and Legislative branches.

Just who are these Judges and Justices to decide what is fair?  What gives them such Solomonic judgement that they can ignore the law?  

In reality judges and justices are fallible human beings, just as venal, just as biased in their thinking and instincts as the rest of us and, even more dangerously, imbued with a false sense of wisdom from their robes, their rituals, their honorifics, and the deference in which they are treated in their courtrooms. The inclination of the “realism” approach is always going to be toward siding with the individual and his or her personal “rights”.  And the loss is usually to the needs for order in a society.   

And, furthermore, when the accumulation of such decisions finally undermines the confidence of the public that a judge or justice is only an impartial interpreter of the law, is it any wonder that the confirmation process for the ultimate judicial body, the United States Supreme Court has become so hard and bitterly fought?  

If it is acceptable to superimpose one’s personal views on what is fair or right on the rest of society, in spite of the law, of course the members of the political branches will fight tooth and nail to place on the court one of their own, ones they expect to rule in accordance with their political agendas. Soon, very soon, despite Chief Justice Roberts protestations, we have courts made up of easily identifiable Obama justices, Bush justices, and, yes, Trump Justices. 

There is no better proof of this than at current confirmation hearings for Justices appointed by the President.  Questions are not designed to focus on the legal and analytical skills of the candidate, but rather to glean from past writings, past clients, past positions taken in lawsuits whether they can be fair to this constituency of the party of the Senator posing the question.  

Two justices were just confirmed the Ninth Circuit Court of Appeals over the objections of the two California senators from the Democrat party.  Their objections?  One justice had written op eds back in college (not law school), decades ago, our senators viewed as “controversial.”  And as attorneys these two, whose legal qualifications to serve no one questioned, had represented clients on the sides of the cases disfavored by our Senators. They weren’t always representing the downtrodden or the current flavor of self-declared victims of society. 

One may say, that despite their protestations, the judges and justices largely brought this on themselves.  Because they arrogantly believe they know better than everyone else how to correct societies wrongs as they see them, in spite the law. 

Whence, Judicial Independence? 

It’s gone in the rise of “Legal Realism” and the death of “Legal Formalism.”

Packing the Supreme Court

Packing the Supreme Court

Packing the Supreme Court or “The Switch in Time That Saved Nine”

A number of the announced candidates for the democrat nomination for President, have proposed changes to the current structure of our government.  Some are foolish, some wild, some weird, some have been tried before. Such as Packing the Supreme Court by adding more justices.    

One particularly looney proposal is to have a 10+5 make up.  Ten appointed by the President and five by the Supreme court themselves. There is one minor problem.  The Constitution provides that the President appoints Supreme Court Justices.  They don’t appoint themselves.  But those type of moronic ideas aside, could the number of Justices by increased from the traditional nine?

The answer is yes.  

In 1935, Franklin Roosevelt had just been re-elected President by the largest landslide in history. The country was looking to him and his programs to lift them out of the Great Depression.  They gave him an unquestioned mandate to do what needed to be done.  And they gave him a Congress to help him.  After the election, his party dominated both houses of Congress, by large margins. 

But he was worried. He had the mandate and the agenda, and two branches of government under his effective control.  However, a reactionary Supreme Court was threatening to lay waste to the programs he had steered through Congress to lift the nation out of the Great Depression. 

He was right.  

Over the next few months the Court found over a half dozen of Roosevelt’s programs unconstitutional. In private he accused the Supreme Court of adopting a “horse-and-buggy definition of interstate commerce.”And it appeared his new Social Security and National Labor Relations Acts would suffer the same fate.

Roosevelt reacted. He came up with a plan.  A Court Packing Plan.  Within two months of the inauguration, he struck.  In a surprise move he asked Congress to authorize him to appoint a new justice to the Federal Courts for every justice over the age of seventy.  The average age of the Justices was seventy-one.  His plan would give him six new Supreme Court appointments and over forty new lower court Justices.  

His proposal was and is Constitutional.  Nothing in the Constitution requires that the number of Justices be limited to nine.  It has, at different times in our history, been more and been less than nine.  Nor does the Constitution specify any standards regarding qualifications to serve as a Supreme Court Justice.  Only that the “judicial power of the United States be vested in One Supreme Court and such inferior courts as the Congress may from time to time ordain and establish.”  

Over the next six months there was a very public battle.  Almost every editorial writer in the country opposed Roosevelt’s court packing plan and of course the legal community rushed to protect the “independence” of the judiciary.

Nevertheless, it appeared, given his political power, Roosevelt’s plan would pass.  Then, unexpectedly two important New Deal programs were narrowly upheld by the Court.  One concerned the minimum wage and the other the National Labor Relations Board.The Supreme Court and one justice in particular had switched how they were ruling on cases involving Roosevelt’s New Deal programs. And after the rulings, the President doffed his trademark smile, backed off and let Congress drop the Court packing plan.

Revisionist historians, many from the legal profession, as is their métier, argue the change in rulings was not a result of Roosevelt’s court packing plan.  Their explanations are facile. The results were clear.  From that point forward, no other New Deal program was overturned by the Supreme Court.  Roosevelt, was all too willing to lose the battle, but win the war.  My favorite biography of FDR is aptly titled “The Lion and the Fox.”  The great man was both.

The results of the Court Packing Scheme and what commentators called the “Switch in Time that saved Nine” are noteworthy from a constitutional perspective as well as the impact the proposal had on the decisions of the Supreme Court.

Regardless of later revisionist history, it was clear that the Supreme Court and at least some justices switched how they were ruling out of political expediency.   They sensed that they had gotten severely out of step with the Public and a President sent to the Washington to get things done.  And in this confrontation with the Executive Branch, they saw they were going to ultimately lose.  They switched their rulings to save their institution from change. 

The current proposals to stack the Supreme Court are also political, but of a different order.  Unlike Roosevelt who was intent on pulling the nation out of economic quicksand, and had the mandate to do so, the current crop of candidates propose tampering with our Supreme court to satisfy a few narrow social justice interest groups who wish to impose their goofy ideas on the rest of us. They see packing our Supreme Court as a sure-fire way of accomplishing their goals. And if they understand history, they know just making the threat has a chance of changing critical votes on a Court where many important decisions are coming down 5-4.

And make no mistake about it, the Supreme Court is watching. After FDR’s attempt to pack the Court, not only did all of his New Deal Programs pass constitutional muster from that point forward, but for the next sixty years the Supreme Court never reversed one, not one, case involving an expansion of federal powers under the Commerce Clause. 

The result was the creation of vast administrative agencies and millions of pages of regulations that intrude on virtually every aspect of our daily lives.  

Whether the proposals ever come to fruition, the election of someone who, as President would attempt to pack the Supreme court can have extremely long-term consequences for every one of us.  

Whether their plan gets through or not. 

Emergency Orders

Emergency Orders

In this week’s segment of Cline on the Constitution, I decided to pause in my review of voting rights cases to consider the President’s recent actions concerning our Southern Border.

The President’s declaration of an emergency and his orders to transfer funds to construct barriers on the Southern Border has generated extensive commentary on the legality of his actions as well as whether they are constitutionally permitted.  

How will the President’s orders fair in the Courts?  

As has become routine anytime this President seeks to exercise his Executive Powers there has been a rush to the microphones and threats launch a battery of new lawsuits. California’s own Attorney General couldn’t wait.  Instead of addressing the significant uptick of crime in our state, he consistently spends most of his time and huge sums of taxpayer dollars suing the federal government on behalf of non-citizens.  

The usual shoving and pushing to get in front of T.V. cameras, aside there are two questions from a Constitutional perspective about emergency orders.  First, does the President have authority to issue such an order.? The declaration is not the big thing, the orders made pursuant to the declaration are the issue. Second, and I think ultimately this is the most important, do federal district court judges have the authority to prohibit the actions before they are taken?

Article II provides that “The Executive Power shall be vested in a President of the United States of America.”  It was placed there to correct a weakness in the original Articles of Confederation.  The constitution also specifies that the President “Shall take care that the laws be Faithfully Executed.”  Taken together that is a very broad delegation of power.

The Supreme Court has recognized that in order to carry out the duties of his office the President has certain inherent powers.  Executive orders are deemednecessary tools to execute the functions of the office.  

In fact, they have the force of law if placed in the Federal Register.  

There are limits. Executive orders may not impinge on the functions of the other branches of government, on the constitutional rights of citizens nor on the powers reserved to the States. 

The most potential for conflict arises in the context of a National Emergency; those times when a President concludes an Executive Action is necessary to defend the country from an “existential” threat.  One of the most famous (or infamous if you will) was President Roosevelt’s executive order requiring the internment of citizens of Japanese decent in internment camps during World War II.  

During the Civil War, President Lincoln made wide use of Executive orders and regularly trampled individual liberties both in the South and the North. He justified his actions under what he maintained were broad presidential powers to put down an insurrection. Significantly, when his unconstitutional order to suspend habeas corpus was quashed by a court he adroitlyasked, “Is it possible to lose the nation and yet preserve the constitution?”   

Though sometimes the language, tactics and lawlessness used by the radical left in this country at times take on the characteristics of an insurrection, we are not there.  At least not yet. 

But the question Lincoln asked encapsulates the dilemma facing the leaders of our country in times of great peril.

The Supreme Court’s approach to such questions of is to employ a formula from the Youngstown Steel case decided in the 1950s. During the Korean War President Truman seized steel mills whose production had been crippled by a strike.  The Steel was necessary, he argued, to support the war effort in Korea.  Congress had passed a resolution opposing his expected seizure of the mills.  

In a concurring the opinion overturning the seizure, Justice Jackson (who had been a lead prosecutor during the Nuremberg Trials in Germany), wrote that the legality of a President’s actions is at the highest when he acts in accordance with powers granted him by the Congress or expressly by the Constitution.  On the other hand “his power is at its lowest ebb”; when he acts against the express or implied will of Congress. 

In 1976, the Congress granted the President the power to declare an emergency and the power has been used numerous times by President from both parties.  

Significantly the Congress left it up to the President to determine what the definition of an Emergency is in a particular case.  If, the President is acting in accordance with that legislation he would seem to be on solid ground.  His position may have been stronger had he acted before agreeing to allow Congress to negotiate, however.   Ironically,  his waiting may have undermined his argument that an emergency required him to act.  

The second question concerns how the matter will be handled by the Federal Courts. 

As the President himself has stated, everyone expects some federal district court judge somewhere will grant a universal injunction stopping the Executive action unless and until it can be brought before the Supreme court.

There is a rather obvious problem.  We have over 600 federal district court judges in the country.  Is it now necessary to get pre-approval for any executive action by all 600?  Not exactly how the framers envisioned the judicial role.  

In Trump vs. Hawaii decided last year and which upheld the President’s “Travel Ban” Justice Thomas, in a brilliant concurring opinion, called on his fellow justices to put an end to the practice of lower federal court’s issuing universal injunctions. 

“These injunctions”, he wrote, “are beginning to take a toll on the federal court system preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the executive branch.”

He went on to review the history of a court’s power to issue extraordinary writs that came down to us from the old equity courts of England. The matters were debated in the Federalists and Anti-Federalists’ papers ending with the conclusion of Hamilton that the “constraints” of their duty to only decide the cases that came before them obviated the danger the courts would grab too much power. 

Justice Thomas pointed out that universal injunctions not only do not comply with the principles set out by the framers, but only emerged for the first time in the 1960s.  (where have we seen that before?!) and “dramatically increasing in popularity only recently.”  

In those years, he said, “some jurists began to conceive of the judicial role in terms of resolving general questions of legality, instead of addressing those questions only insofar as they are necessary to resolve individual cases and controversies.”  Which is, by the way, jurisdictional.  Under the Constitution the courts are only allowed to decide cases and controversies before them, not general questions of policy. Universal injunctions, the Justice opined, “appear to conflict with the original understanding of the judicial role.” 

After considering the various arguments made in their support, he concluded there is no constitutional authority for the use of universal injunctions. “But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power.  That 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.”  

He concluded “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.”

In the final analysis, whether the caravans of illegals being organized and directed toward our Southern Border constitute an “emergency” may not be the most important question for the court to decide.  Instead it may be constraining the unconstitutional expansion of power by the federal courts. That may be the most important emergency of all. 

For more writings by Phil Cline, visit philcline.com

Voting, Part Two

Voting, Part Two

In Abbott v. Perez, The Supreme Court slapped a federal district court with a much-needed douse of cold water in an attempt to wake them up, force them to embrace reality for once and have them return to their lane in the governance scheme set out in the Constitution.  Abbott is the second case on voting decided by the Supreme Court last term I wanted to bring to your attention.  It is one of a series of cases which seem destined to set up a blockbuster decision on Gerrymandering most scholars anticipate will be decided this term. 

This case involved a redistricting plan. Under the Constitution re-drawing district lines for congressional offices is a power left to the States and not delegated to the Federal Government.  However, the Equal Protection Clause of the Fourteenth Amendment passed after the Civil War, forbids “Racial Gerrymandering.”   And under the express power to legislate enforcement of the Fourteenth Amendment the Congress passed the Voting Rights Act.

After the 2010 census, the Texas State Legislature set out to redraw district lines.  

A plan was passed in 2011 but was tied up in court and never used.  In 2013, after the Shelby decision (discussed in a previous post) invalidating part of the Voting Rights Act, the state legislature attempted to resolve the issue by approving a redistricting plan modeled on one the district court itself had approved.  But, of course, that plan was also attacked. As the Supreme court said, “The Legislature had reason to know that any new plans it devised were likely to be attacked by one group of plaintiffs or another.”  Sadly, that is a modern truism about any attempts to govern by a legislative body. Somebody is going to sue, and some federal district court somewhere is going to figure they know better how to govern than those elected to do the governing. 

In yet another example of overreaching arrogance by a lower federal district court where no action of a government ever seems to be satisfactory, this new plan was struck down because the federal court decided the State had not satisfied the court of their good intentions.  

In an opinion crafted by Justice Alito, the Supreme Court did two things which to one unschooled in the law may seem minor, but which any lawyer will recognize as important.

First, it reversed the lower court’s assignment of the burden of proof.  Instead of placing it on the government, it placed it back where it belongs with the plaintiff, the person or entity bringing the law suit. The lower federal court without any authority to do so had decided the government had to show that they had somehow “purged” and “cured” the taint of the 2011 plan, a plan that had been “alleged” to be discriminatory and a plan that wasn’t even used.  The lower court went further and in a brazen display of judicial interference in the legislative sphere, it required the legislature to conduct its deliberations in a way the court approved.  Reminds one of a court requiring a showing that the taint of a statement by a candidate in an election must somehow be cured before the court can even read, much less consider the actual legislation before it.  It’s like federal courts see themselves as high priests requiring a trip to the confessional by the other supposedly co-equal branches of government for an expiation of sinful thoughts.  

Second, the Supreme Court confirmed the principle that should always apply to official actions by those democratically elected to govern.  That is that their acts are presumed to have been done in good faith. The federal court erred in ignoring the evidence that in fact the Texas state government had acted in good faith.

In applying the law to the case, the Court reiterated the general rules regarding redistricting challenges.  It must be shown by the person or entity attempting to block the redistricting, 1) is  a geographically compact minority population, that is a majority in the district.  2) There is political cohesion among members of the group and 3) bloc voting by the majority is taking place to defeat the minorities preferred candidate.  And after all that, then the plaintiff must prove under the totality of circumstances the district lines dilute the votes of the minority group.

In the Abbott case, the tests were not met.  And it was plaintiff’s burden to make the showing. In other words, to prove what they alleged.

In elections across the land, attempts to draw district lines face multiple challenges no matter what efforts the local government expends to do the redistricting in a fair way. Statistical models are used and provocative language about voter suppression and racism are inevitably pressed at every opportunity.  That is all find and dandy.  So be it.  

But in Abbott the Court reaffirmed a basic principle.  It is one we should be applying in our general public actions and statements. If you allege it, then, by God, prove it!  

Don’t accuse a person of something and then adopt the presumption that it must be true.  Don’t require a person prove they didn’t do the wrong or, worse, think the wrong thoughts at the wrong time.  No.  It’s your allegation.  Prove it. It’s the legal equivalent of saying, “Put up or shut up.” 

Cline on the Constitution

Cline on the Constitution

Justice Kavanaugh and Letting Sleeping Dogs Lie

 

Tuesday morning the Senate will open hearings on the confirmation of Justice Brett Kavanaugh’s nomination to the Supreme Court.   The candidate has lived an honorable life, is well liked, enjoys a reputation as a good and decent man, and is an experienced and imminently qualified jurist who has served a decade on the most important Court of Appeals in the land.

 

So, what can we expect of the hearing?

 

We can expect the hearing to be interrupted by vulgar screaming demonstrators in mass produced t-shirts, we can expect Justice Kavanaugh and his family to be subjected to sustained scurrilous attacks by self-serving, self-promoting, shameless Senators who have already made up their mind but see theatrical opportunity for personal advancement in permanently damaging the man’s good character.

 

Okay.  We live with that.

 

But hidden among the garbage, we can also expect a few nuggets of Constitutional law worthy of discussion.  Much of it will center on past case decisions of the Supreme Court.  In those discussions, we will probably hear phrases like “Case Precedent” and “Stare Decisis”.  Important concepts.  What do they actually mean? And why are they important?

 

One example relevant to the hearings:  Lines of questioning about Roe v Wade promise to be repetitive. Roe v Wade is the case which first held the Right to Privacy encompasses the right of a woman to terminate a pregnancy under certain circumstances.  The inquiries will concern the nominee’s commitment to Roe v Wade as “Case Precedent” and whether he may or may not vote to overrule the decision. This is where the rules of “Stare decisis” come into play.

 

The words are, obviously, Latin. They mean “standing by the decision.” The term is actually derived the from the Latin phrase, “stare decisis et non quieta movere,”or “stand by matters that have been decided and do not disturb what is tranquil.”

 

A lot of wisdom in that. As Geoffrey Chaucer said in 1380, “it is nought good a slepying hound to wake.” Or as us country boys would say “Let sleeping dogs lie.” But of course, we lawyers have to dress it up a tinge. We say, “It is a fundamental policy of our law that, except in unusual circumstances, a court’s determination on a point of law will be followed by courts of the same or lower rank in later cases presenting the same legal issue.”

 

Makes sense when you think about it.  To the extent possible we want our law to be predictable, stable and secure. We want it to be uniform, efficient and we want courts to act with a modicum of constraint in changing what has become accepted law.

 

One Supreme Court Justice put it thus, “(u)nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”

 

And as the famous Justice Benjamin Cardozo said, “(t)he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.”

 

All fine sentiments, but is the worry that changing the make-up of the Supreme Court could endanger established case precedent real?  After all, Chief Justice Charles Evans Hughes once said, “We are under a Constitution, but the Constitution is what the judges say it is, . . .”

 

In fact, the Court has reversed itself over two hundred times and three quarters of those were Constitutional decisions. The most famous example is the landmark decision of Brown v Board of Education which reversed previous court’s decision which had sanctioned “Separate but Equal” in the field of education.

 

I recently read an article in a legal journal about a book I knew about, but which I’ve never read and don’t intend to.  The book is an 800-page tome named “The Law of Judicial Precedent.” As Justice Neil Gorsuch stated during his confirmation hearings, “It makes an excellent doorstop.”

Interestingly enough, not only was Justice Gorsuch among many other legal scholars a contributing author, but so was Justice Kavanaugh.

 

The book (I choose to rely on the article’s summary in the legal journal than to read such a monstrosity), theorizes the doctrine of stare decisis applies less rigidly in constitutional cases than it does in statutory cases because the correction of an erroneous constitutional decision by the legislature is well-nigh impossible.  For example, the Congress can more easily pass a law correcting a Court decision about a Coal mine than one interpreting Free Speech.

 

On the other hand, the treatise states, “If at least five members of the Court are sufficiently convinced that the law has gone gravely wrong, then the Court will exercise its prerogative to overrule the earlier case and put things aright.”

 

But like legal matters, even Judges (although local ones especially have to be frequently reminded of this) are not free to willy-nilly rule one way or the other.  The values of reliable precedent must be upheld so the court uses factors in analyzing when a prior case should be overruled.  Because of space concerns I won’t go over all of the factors, but it is well to note that the Court used such an approach in its recent decision to overrule case precedents involving “union closed shops.” After weighing the value and reliability of these case precedents, they found it was unconstitutional to require all government employees to pay union dues whether they belonged to the Union or not.

 

The vote was 5-4.  Gorsuch (and Kennedy) was in the majority.

 

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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