Lady Hale’s Valedictory Remarks.
California Law Preventing President Trump from Appearing on 2020 Ballot Struck Down (California Supreme Court)
On 21 November 2019, the California Supreme Court ruled unanimously, in the case of Patternson v Padilla, S257302 (2019), that the California law requiring all presidential candidates to publish their tax returns as a precondition to appearing on the presidential ballot in the State of California violated the State Constitution. The law was generally believed to specifically target President Trump to force him to release his tax returns before the 2020 presidential elections. The case was adjudicated under the Californian Constitution only and did not discuss issues related to federal law or the federal Constitution.
In July 2019, California passed the Presidential Tax Transparency and Accountability Act (Elec. Code, § 6880 et seq.) which barred any candidate from appearing on a presidential ballot in this State unless they disclosed their tax returns of the last five years. The motivation behind the Presidential Tax Transparency and Accountability Act was explained as follows:
“In 1973, the Providence Journal-Bulletin obtained and published data showing that President Richard Nixon had paid an astonishingly low amount in taxes in 1969 given his income for that year. After initially resisting calls for him to do so, Nixon eventually released his taxes and underwent an IRS audit. It turned out he had improperly claimed an exemption of $500,000 for papers he donated to the National Archives. Ever since this incident, it has been customary — though never required by law — for U.S. Presidential candidates to release their tax returns. Prior to 2016, only one candidate, President Gerald Ford in 1976, did not do so. Ford released a summary of his return instead. During the 2016 campaign for U.S. President, Donald Trump broke with this longstanding tradition and refused to release his tax returns. Though prompted by Trump’s break with the customary practice, this bill is not retroactive and would only apply to future presidential candidates.” (pp8-9)
Immediately after the Presidential Tax Transparency and Accountability Act had been passed, Jessica Patterson, individual California voter and the current Chairperson of the Petitioner California Republican Party sued claiming that it prevented an open primary as guaranteed by Article II, section 5(c) of the Californian Constitution which provides:
“The Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.”
The language concerning the inclusion of “recognized” candidates was added to the Californian Constitution by Proposition 4 as a June 1972 ballot measure (p6). “Before this measure came into effect, candidates for president had to take affirmative steps to enter the California primary. Advocates for ballot reform perceived that this system frustrated voters’ ability to choose among a comprehensive array of candidates at presidential primary elections and diminished the state’s influence in the national presidential nomination process. Proposition 4 responded to these concerns by requiring that all nationally or California-recognized candidates be included on the ballot, unless a person deemed to be such a candidate submits an affidavit of noncandidacy” (p23).
On 21 November 2019, the California Supreme Court held unanimously “that whatever authority the Legislature may have in defining how presidential primaries are to occur in this state, the challenged sections of the [Presidential Tax Transparency and Accountability] Act exceed such authority and are unenforceable” (p18). The Court found that:
“…Article II, section 5(c) is most naturally read as conveying a rule of inclusivity for presidential primary elections that the Legislature cannot contravene. This reading is strongly supported by the history of the constitutional text that now appears in article II, section 5(c). This history establishes beyond fair dispute that this language was adopted to ensure that the ballots for parties participating in the presidential primary election would include all persons within said parties deemed to be “recognized candidates throughout the nation or throughout California for the office of President of the United States,” except for those candidates who filed affidavits of noncandidacy, so that voters in the primary election would have a direct opportunity to vote for or against these candidates.” (p18)
The case of Patternson v Padilla, S257302 (2019) is important in light of the 2020 presidential elections with President Trump consistently refusing to release his tax returns. If the Presidential Tax Transparency and Accountability Act remained on the books, President Trump would be unable to appear on the ballot in the State of California in 2020. At the same time, the outcome of the case is rather surprising given that the majority of the Justices of the California Supreme Court were appointed by Democratic Governors. The State of California leads the legal battle against President Trump and his polices. In fact, following the ruling from the Court, Jesse Melgar, a spokesman for Governor Newsom California, announced that California would “continue to fight against the self-dealing, conflicts of interest and blatant corruption that have pervaded the Trump presidency” (Los Angeles Times).
On 12 November 2019, the US Supreme Court denied a permission to appeal (cert.) in the case of Remington Arms Co. LLC v. Soto, No. 19-168 concerning a lawsuit against a firearms manufacturer, therefore allowing it to proceed. The lawsuit is widely regarded as potentially opening a floodgate of litigation against firearms manufacturers whose products have been used in unlawful shootings.
The case dates back to the 2012 Sandy Hook massacre where 20 first-graders and six adults were killed at the elementary school in Newtown, Connecticut. Following the massacre, in 2014, the families of the victims brought a lawsuit under the Connecticut Unfair Trade Practices Act (Connecticut General Statutes §42-110a) against Remington Arms Co. LLC, whose AR-15 rifle had been used in the shooting. The lawsuit claimed that the manufacturer was liable for the deaths because it had engaged in advertising encouraging dangerous or violent conduct by touting the AR-15 rifle’s usefulness for killing human beings and claiming that it would allow a single individual to outnumber their opponents in any fire exchange.
When the case proceeded to a trial in a State Court, Remington Arms Co. LLC moved to dismiss the lawsuit under the Protection of Lawful Commerce in Arms Act 2005, a federal statute designed to grant immunity to firearms manufacturers from lawsuits brought by the victims of crimes committed with the use of weapons manufactured by them. However, the plaintiffs argued that the lawsuit was not barred by the Protection of Lawful Commerce in Arms Act 2005 because it fell within one of the envisaged exceptions allowing legal claims against manufactures which knowingly violated any State or federal law regulating how products were sold or marketed – the ‘predicate exception’.
The trial judge agreed with Remington Arms Co. LLC and dismissed the lawsuit but the plaintiffs appealed. In March 2019, the Connecticut Supreme Court’s 2019 ruled 4-3, in the case of Soto v. Bushmaster Firearms, LLC, 331 Conn. 53, 202 A.3d 262 (2019), that a wrongful advertising claim under the Connecticut Unfair Trade Practices Act fell within the ‘predicate exception’ because the Connecticut statute applied to all trade or commerce, not only the sale and marketing of firearms, and, therefore, a claim under the Connecticut Unfair Trade Practices Act was not precluded by the Protection of Lawful Commerce in Arms Act 2005.
In response, Remington Arms Co. LLC applied for a permission to appeal to the US Supreme Court on the premise that the lawsuit involved a question of federal law and, therefore, was subject to review by the federal Courts. The Supreme Court denied the permission, without any comment, which means that the lawsuit will now return to a Connecticut State Court for a full trial (Pullman & Comley).
If the plaintiffs are successful before the State Court, the case might open a floodgate of lawsuits against firearms manufacturers brought by victims (or their families) of unlawful gun violence. This is the exact scenario which Congress wanted to prevent by passing the Protection of Lawful Commerce in Arms Act 2005. In fact, the plaintiffs addressed this concern by arguing that “the Court confined its ruling to the claims before it, which ‘allege only that one specific family of firearms sellers advertised one particular line of assault weapons in a uniquely unscrupulous manner.” On the other hand, Remington Arms Co. LLC, along with the National Rifle Association, the Gun Owners of America, the National Shooting Sports Foundation and the States of Georgia, Texas and Oklahoma, which intervened on behalf of Remington Arms Co. LLC, argued that the Connecticut lawsuit “raise[d] the specter of nationwide liability” because a number of States had statues similar to the Connecticut Unfair Trade Practices Act. If a claim under the Connecticut Unfair Trade Practices Act was allowed to proceed in Connecticut, there was nothing stopping parallel claims from being brought in other States, which would render the immunity under the Protection of Lawful Commerce in Arms Act 2005 effectively meaningless (Reuters).
The lawsuit against Remington Arms Co. LLC will undoubtedly be closely watched and, even if successful, it will likely be appealed and might still return to the US Supreme Court at some point in the future. It is also very likely to attract attention of both the Democrats and the Republicans as part of a wider 2nd Amendment debate.
On 13 November 2019, the UK Supreme Court ruled 4-1, in the case of R v TRA  UKSC 51, that members of non-State groups may be prosecuted in the UK for crimes of torture under international law. The case makes it easier for countries to punish persons responsible for torture.
TRA was involved in the first Liberian civil war where the National Patriotic Front of Liberia (NPFL), an armed group led by Charles Taylor, attempted to takeover Liberia by deposing the then President, Samuel Doe. TRA was arrested in the UK in June 2017 and charged with one count of conspiracy to commit torture and seven counts of torture contrary to section 134 of the Criminal Justice Act 1988 (CJA 1988), which states:
“A public official or person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.” (p2)
Before the matter proceeded to a full trial at the Central Criminal Court, TRA made an application to dismiss the charges under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 asking for the clarification as to the correct legal test of ‘official capacity’ under CJA 1988, s134. The prosecution argued that at the relevant time and place, the NPFL was the de facto government authority with an effective control of the area where the alleged offences took place and that Charles Taylor and his subordinates were acting in an official capacity for the NPFL (p3).
In July 2018, the Judge concluded that CJA 1988, s 134 “applies, not only to acting for entities either tolerated by, or acting under the authority of the government of a state, but also, in situations of armed conflict, to individuals who act in a non-private capacity and as part of an authority-wielding entity”. He also dismissed a subsequent application for ‘no case to answer’ on the grounds that “while the questions whether the appellant was acting in a non-official capacity on behalf of the NPFL and whether the NPFL was an authority-wielding entity would ultimately be for the jury, the dismissal application turned on whether the evidence, taken at its highest, was sufficient for a jury properly to so conclude” (p4).
TRA appealed the ruling and the Court of Appeal dismissed the appeal in December 2018. TRA expressed his intention to appeal to the UK Supreme Court and the Court of Appeal certified the following question of law of public importance:
“What is the correct interpretation of the term ‘person acting in an official capacity’ in section 134(1) of the Criminal Justice Act 1988; in particular does it include someone who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population in the territory which it controls and in which the relevant conduct occurs?” (p2)
On appeal before the UK Supreme Court, the Court held that CJA 1988, s134 must be examined in light of the UN Convention against Torture 1984 (CAT 1984) which it implemented and also that a distinction must be made between torture under CAT 1984, which required the involvement of at least one person in an official capacity, and torture under international humanitarian law and international criminal law, where there was no such requirement (Prosecutor v Kunarac, IT-96-23 & 23/1) (pp18-20).
Article 1 of CAT 1984 provides that:
“1. For the purposes of this Convention, ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
The UK Supreme Court directed itself to interpret CJA 1988, s134 through interpreting Article 1 of CAT 1984 in accordance with the rules of interpretation of international treaties prescribed by Article 31 of the Vienna Convention on the Law of Treaties 1969:
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” (p9)
Accordingly, the UK Supreme Court considered the meaning of Article 1 of CAT 1984 under three different approaches. In regards to the ordinary meaning of the words of Article 1 of CAT 1984, the Court found that:
“Those words are apt to describe a person performing official administrative or governmental functions but provide no suggestion that those functions must be performed on behalf of the government of the State concerned. The dichotomy drawn by the provisions is between official conduct and purely private conduct, not between State and nonState activity. While in most normal circumstances, such as those prevailing in the United Kingdom to which the appellant refers, official conduct will usually be performed on behalf of a State, it is necessary to consider the applicability of the Convention in less stable situations, including those where more than one body may be performing administrative or governmental functions within the territory of the State. Unhappily, examples of such situations arise not infrequently. In my view the words used do not support a limitation of the kind proposed. On the contrary, the words “person acting in an official capacity” are apt to include someone who holds an official position or acts in an official capacity in an entity exercising governmental control over a civilian population in a territory over which it holds de facto control” (p11)
Then the UK Supreme Court moved to consider the meaning of Article 1 of CAT 1984 in light of the object and purpose of CAT 1984. The Court found that the object of CAT 1984 :
“has been to make torture as defined in article 1 a criminal offence of universal jurisdiction enforceable by domestic courts and, by virtue of very extensive State participation in the Convention, to establish a machinery capable of reducing the likelihood of perpetrators of “official torture” escaping justice before national courts” (p13)
At that point, the UK Supreme Court engaged in a deep analysis of travaux preparatoires, finding, however, that they were inconclusive as to the intended meaning of Article 1 of CAT 1984 in terms of its application to members of non-State groups (pp13-19).
Next, the UK Supreme Court considered how the scope of Article 1 of CAT 1984 was understood in practice, among others, in a series of decisions of the Committee against Torture, which oversees the implementation of the convention. In the decisions in SV v. Canada, CAT/C/26/D/49/1996, GRB v Sweden, CAT/C/20/D/083/1997 and MPS v. Australia, CAT/C/28/D/138/1999, the Committee against Torture ruled that CAT 1984 did not apply to torture perpetrated by persons without any association with the State governments. On the other hand, in Sadiq Shek Elmi v Australia, CAT/C/22/D/120/1998 (concerning Somalia), the Committee against Torture came to the opposite conclusion (p24).
Nevertheless, in HMHI v. Australia, CAT/C/28/D/177/2001 (also concerning Somalia), Sadiq Shek Elmi v Australia, CAT/C/22/D/120/1998 was distinguished on the grounds that “in the exceptional circumstance of State authority that was wholly lacking, acts by groups exercising quasi-governmental authority could fall within the definition of article 1” while “…with three years elapsing since the Elmi decision, Somalia currently possesses a State authority in the form of the Transitional National Government, which has relations with the international community in its capacity as central government, though some doubts may exist as to the reach of its territorial authority and its permanence.” A couple of years later, in SS v. The Netherlands, CAT/C/30/D/191/2001, the Committee against Torture recognised the applicability of Article 1 of CAT 1984 to actions of non-State groups in Sri Lanka where “the non-governmental entity occupies and exercises quasi-governmental authority over the territory” (p25).
Ultimately, the UK Supreme Court held that “despite its manifest inconsistencies, therefore, this line of authority does provide some support for the view that the conduct of non-State actors exercising de facto authority over territory which they occupy can fall within” Article 1 of CAT 1984 (p26),
At this point, the UK Supreme Court turned to domestic case law. It considered the judgment in R v Zardad, Case No T2203 7676 (2004) concerning Afghanistan between 1992 and 1996 when the Hezb-I-Islami faction was in control of Laghman Province. In this case, Zardad, who had been a chief commander of Hezb-IIslami and the military controller of the area of Sarobi at the material time, was charged with conspiracy to commit torture contrary to CJA 1988, s134. As part of his defence, he maintained that he had not been a public official as his group was not a part of a government but the Judge rejected this argument (pp30-31).
Ultimately, the UK Supreme Court ruled that:
“the words of those provisions in their ordinary meaning support this reading. They are sufficiently wide to include conduct by a person acting in an official capacity on behalf of an entity exercising governmental control over a civilian population in a territory over which it exercises de facto control. In particular, I can see no justification for imposing the limitation on those words for which the appellant contends, which would require the conduct to be on behalf of the government of the State concerned. On the contrary, the words in their ordinary meaning are apt to include conduct on behalf of a de facto authority which seeks to overthrow the government of the State. This reading also conforms with the object and purpose of the provisions. Here I attach particular significance to the purpose of the Convention in seeking to establish a regime for the international regulation of “official” torture as opposed to private acts of individuals. Torture perpetrated on behalf of a de facto governmental authority is clearly a matter of proper concern to the international community and within the rationale of the scheme. In addition, some support for this conclusion can be found in the decisions of the CAT under article 22(7), UNCAT and it is favoured by the preponderant weight of academic comment” (p38)
Lord Reed dissented. He argued that the ordinary meaning of the words used in Article 1 of CAT 1984 excluded “a member of an insurgent group engaged in armed insurrection against the government of the country.” Furthermore, he claimed that the context of Article 1 of CAT 1984 dictated that it was “concerned with conduct for which the state bears responsibility.” Lord Reed invoked Article 2 of CAT 1984 arguing that:
“If torture carried out by insurgents in territory under their de facto control falls within the scope of UNCAT, it follows that article 2(1) imposes an obligation on states with which they cannot comply: they cannot take “effective” measures in relation to territory which they do not control. UNCAT cannot sensibly be interpreted in a way which would have the effect of imposing an obligation on states with which they cannot comply: lex non cogit ad impossibilia. That strongly suggests that article 2(1) cannot have been intended to apply in those circumstances, which in turn implies that the definition of torture in article 1 cannot have been intended to apply to torture committed by insurgent forces, without the consent or acquiescence of the state in question” (pp41-42)
Lord Reed also referred to academic opinions, other jurisdictions as well as the case law of the Committee Against Torture, arguing that, despite what the Majority claimed, it supported the argument that CAT 1984 was never meant to apply to members of non-State groups (pp42-49).
The ruling of the UK Supreme Court in R v TRA  UKSC 51 was only the third case brought under CJA 1988, s134. The judgment, however, is important because it makes it clear that members of a non-State group could be prosecuted for the crime of torture under Article 1 of CAT 1984 (as applicable in the UK by virtue of CJA 1988, s134) wherever they act in an ‘official capacity’. This, undoubtedly, makes it easier for countries to punish torturers. However, ultimately, whether a person is to be considered to have acted in an ‘official capacity’ is for the jury to decide in each case based on available evidence.
On 1 October 2019, the US Court of Appeals for DC Circuit ruled, in the case of Mozilla Corporation v Federal Communications Commission, No. 18-1051 (2019), that the Trump Administration’s repeal of the so called Net Neutrality policy was lawful. However, the Court allowed States to set their own policies, therefore limiting the impact of the new regulations.
The case of Mozilla Corporation v Federal Communications Commission, No. 18-1051 (2019) comes down to the classification of Internet services. The Telecommunications Act 1996 created two potential classifications for Internet: ‘telecommunications services’ under Title II or ‘information services’ under Title I. This distinction entails two completely different regulatory frameworks. Title II (‘telecommunications services’) entails common carrier status and triggers statutory restrictions and requirements, including making unlawful “any […] charge, practice,classification or regulation that is unjust or unreasonable” (§201(b)). On the other hand, Title I (‘information services’) does not require a common carriage status leaving the sector mostly unregulated (pp10-11).
The Federal Communications Commission is empowered under the Telecommunications Act 1996 to classifying various services into the appropriate categories. Initially, in 1998, Internet delivered over phone lines was classified as a ‘telecommunications service’, but in 2002 it was reclassified under the Bush Administration as a ‘information service’ (along with a newly available wireless mode of delivery) which was upheld by the Supreme Court in National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005). In 2015, under the Obama Administration, Internet services were once again classified as a ‘telecommunication service’ which was upheld under the Chevron deference doctrine (Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)) by the US Court of Appeals for DC Circuit in United States Telecom Association v. Federal Communications Commission, DC Cir., No. 15-1063 (pp11-12).
In 2018, under the Trump Administration, the Federal Communications Commission issued an Order again reclassifying Internet access as an ‘information service’ under Title I of the Telecommunications Act of 1996. In the Order, the Commission undertook a cost-benefit analysis concluding that the benefits of a market-based approach under Title I outweighed benefits of heavy regulations under Title II (p12). The opponents of the Order sued in a federal District Court.
On appeal, in a highly technical judgment, the US Court of Appeals for DC Circuit upheld most of the Order as a reasonable interpretation of the Telecommunications Act 1996 under the Chevron deference doctrine (Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)). The Court found that the Federal Communications Commission had conducted a proper analysis of the impact of the order on investments (pp74-85), potential harm to consumers (pp85-93) as well as an honest overall cost-benefit analysis of the proposed reclassification (pp113-119) and had taken into account the reliance interest created since 2015 (pp100-104).
However, the Court found that the Federal Communications Commission had not considered all relevant factors:
“…Aspects of the Commission’s decision are still arbitrary and capricious under the Administrative Procedure Act because of the Commission’s failure to address an important and statutorily mandated consideration—the impact of the 2018 Order on public safety—and the Commission’s inadequate consideration of the 2018 Order’s impact on pole-attachment regulation and the Lifeline Program” (pp73-74).
Furthermore, the US Court of Appeals for DC Circuit struck down the preemptive effect of the Order. The Order provided that “regulation of broadband Internet access service should be governed principally by a uniform set of federal regulations,” and not “by a patchwork that includes separate state and local requirements” (s194). To this effect, the Order “preempt[s] any state or local measures that would effectively impose rules or requirements that we have repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service that we address in this order” (s195). Consequently, the Order sought to invalidate State and local laws interfering with its objectives (pp121-122).
The US Court of Appeals for DC Circuit held that the Federal Communications Commission lacked any express or ancillary power to preempt State or local laws. The Court found that no Act of Congress conferred on the Commission such power. Furthermore, the Court rejected a list of alternatives sources of authority, including the doctrines of ‘impossibility exception’ (pp126-129), ‘federal policy of non-regulation’ (pp130-133) and ‘conflict preemption’ (pp135-144).
Overall, with the preemption part of the order struck down, the US Court of Appeals for DC Circuit upheld the core of the Order despite finding that the Federal Communications Commission had not properly considered the impact of the Order on public safety, pole-attachment regulation and the Lifeline Program. Consequently, the Order was partly remanded back to the Commission ‘without vacatur’ which means that the Commission will conduct a further analysis of the impugned parts of the Order while the Order itself remains in force.
The judgment of the US Court of Appeals for DC Circuit in Mozilla Corporation v Federal Communications Commission, No. 18-1051 (2019) was fully supported by Judges Millett and Wilkins (both Obama-appointees) and partly supported by Senior Judge Williams (a Reagan-appointee). However, all three judges submitted separate opinions. Judges Millett and Wilkins submitted concurring opinions while Senior Judge Williams submitted a partly concurring and partly dissenting opinion. In this opinion, Senior Judge Williams argued that the order should be allowed to preempt State and local laws under the doctrine of ‘impossibility exception’ claiming that “the consequences of the Commission’s choice of Title I depend on its having authority to preempt” (pp1-5).
The ruling in Mozilla Corporation v Federal Communications Commission, No. 18-1051 (2019) comes after a huge media storm preceding the repeal of the so called Net Neutrality policy by the Trump Administration. The pre-existing policy of Net Neutrality issued by the Obama Administration barred internet providers from slowing down, blocking or charging Internet companies to favor some websites over others. But the Trump Administration claimed that the policy created a disincentive for Internet services to invest in their networks (CBSNews). The repeal of Net Neutrality was part of the Trump Administration’s deregulation agenda. Ultimately, regardless of policy implications, the ruling of the US Court of Appeals for DC Circuit mostly vindicates the Trump Administration. However, at the same time, it leaves room for States to implement their own policies, somehow, inadvertently reinforcing the principle of federalism.
On 11 October 2019, the US Court of Appeals for DC Circuit ruled 2-1, in the case of Trump v. Mazars USA, LLP, No. 19-5142 (D.C. Cir. 2019), that President Trump’s accounting firm, Mazars USA, LLP, must turn over his financial records to the House of Representatives in accordance with a subpoena. The case runs in parallel to Trump v Vance Jr, 19‐3204 (2019) concerning a similar subpoena by a New York State prosecutor, discussed here.
In April 2019, the House Committee on Oversight and Reform subpoenaed President Trump’s financial records relating to years 2011 – 2018 from his accounting firm, Mazars USA, LLP. The subpoena was justified on the grounds that the Committee was investigating whether President Trump had committed any wrongdoing and also considering whether Congress should amend ethics in-government regulations. However, President Trump sued in a federal District Court seeking to block the subpoena arguing that it was part of a campaign of harassment conducted by the legislature against the executive and, therefore, served no legitimate legislative purpose. The District Court upheld the subpoena and President Trump appealed (p2).
The US Court of Appeals for DC Circuit first summarised the case law on the issue of enforceability of Congressional subpoenas, starting with the first case considered by the US Supreme Court, Kilbourn v. Thompson, 103 U.S. 168 (1881), where the Court invalidated a subpoena issued outside of a valid Congressional investigation (pp12-18).
Then, the US Court of Appeals for DC Circuit set the starting point – Congressional oversight powers were very broad. Nevertheless, they were also subject to important limitations. Firstly, “the power of Congress . . . to investigate” must be deemed “co-extensive with [its] power to legislate” (per Quinn v. United States, 349 U.S. 155 (1955) at 160). Consequently, “Congress may in exercising its investigative power neither usurp the other branches’ constitutionally designated functions nor violate individuals’ constitutionally protected rights.” Secondly, “Congress may investigate only those topics on which it could legislate” (per Quinn v. United States, 349 U.S. 155 (1955) at 161). Thirdly, “Congressional committees may subpoena only information ‘calculated to’ ‘materially aid’ their investigations” (per McGrain v. Daugherty, 273 U.S. 135 (1927) at 177) (p19).
At that point, the US Court of Appeals for DC Circuit emphasised that the case concerned a subpoena issued to President Trump’s accountant, not to the office of President of the United States directly, and, therefore, the case did not have involve the question of subpoenaing a sitting President. Consequently, the main question was “whether the Oversight Committee is pursuing a legislative, as opposed to a law-enforcement, objective.” (pp20-21).
In this respect, the US Court of Appeals for DC Circuit pointed out that “the fact that an investigation might expose criminal conduct does not transform a legislative inquiry into a law-enforcement endeavor” (per Sinclair v. United States, 279 U.S. 263 (1929) at 295). Furthermore, addressing President Trump’s claim that Congress was conducting a campaign of harassment against him, the Court explained that “in determining the legitimacy of a congressional act” Courts were not allowed to “look to the motives alleged to have prompted it” (per Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975) at 508) (p22).
In order to determine whether the subpoena was issued pursuant to a legitimate legislative purpose, the US Court of Appeals for DC Circuit considered Chairman Cummings’s memorandum from 12 April 2019 where he set out the reasons behind the subpoena. The memorandum identified four questions that the subpoena would help answer:
- “whether the President may have engaged in illegal conduct before and during his tenure in office”
- “whether [the President] has undisclosed conflicts of interest that may impair his ability to make impartial policy decisions”
- “whether [the President] is complying with the Emoluments Clauses of the Constitution”
- “whether [the President] has accurately reported his finances to the Office of Government Ethics and other federal entities”
Furthermore, the subpoena was issued because “[t]he Committee’s interest in these matters informs [the Committee’s] review of multiple laws and legislative proposals under [its] jurisdiction.” In fact, at the time of the subpoena, the House of Representatives was working on a number of Bills that could benefit from the information supplied by President Trump’s accountants:
- Bill H.R. 1 would require Presidents to include in their financial disclosures the liabilities and assets of any “corporation, company, firm, partnership, or other business enterprise in which” they or their immediate family members have “a significant financial interest”
- Bill H.R. 706 would require sitting Presidents and presidential candidates to “submit to the Federal Election Commission a copy of the individual’s income tax returns” for the preceding nine or ten years
- Bill H.R. 745 “would amend the Ethics in Government Act to make the Director of the Office of Government Ethics removable only for cause” (pp25-27).
The US Court of Appeals for DC Circuit then held that the issues which were the subject matter of the legislation Congress was working on, were in fact subject to Congressional regulation. The Court, for instance, pointed to the the United States Code which contained a whole range of rules regulating Presidents’ finances and records. It also rejected President Trump’s claim that such regulation would unconstitutionally add further requirements for candidates seeking the office of the President of the United States, contrary to the judgments of the US Supreme Court in Powell v. McCormack, 395 U.S. 486 (1969), and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). Consequently, the Court found a valid legislative purpose related to matters which fell under the Congressional purview (pp36-45).
At the same time, the US Court of Appeals for DC Circuit rejected President Trump’s claim that the supposed legislative purpose was merely pretextual and the Committee was in fact engaged in a law-enforcement investigation. The Court held that Congress could investigate whether any criminal activity had taken place to inform itself what type of legislation it should pass to address such an activity (pp27-31).
Finally, the US Court of Appeals for DC Circuit found that the information sought by the subpoena in question was material to its legislative purpose. Even with information concerning financial records going back to 2011 (i.e. long before Mr Trump became the President of the United States), the Court held that the Committee had a legitimate interest in those records because, in theory, it could use them when deciding whether the Ethics in Government Act should require financial disclosure going back more than one year, as it was currently required (pp50-54).
Accordingly, the subpoena was upheld by the majority of the bench. However, Judge Roa dissented arguing that “when Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress’s legislative power“. She argued that the subpoena could not be upheld because the Committee was investigating a sitting President (alongside exercising a legislative function), which could only be done through the impeachment process (pp1-3). Judge Roa pointed to the early practice as the best source of information as to what was permitted under the Constitution. “Founding Era practice confirms the Constitution’s original meaning—investigations of unlawful actions by an impeachable official cannot proceed through the legislative power” (p20). She agreed that “the cases cited by the majority demonstrate that during an investigation of private activity, the incidental revelation of criminal activity is tolerated when Congress has a legitimate legislative purpose,” however, the subpoena cited the investigation into a potential wrongdoing by President Trump as one of the main reasons behind it (p46). Consequently, she would have invalidated the subpoena as issued outside a valid legislative purpose.
The case of Trump v. Mazars USA, LLP, No. 19-5142 (D.C. Cir. 2019) was decided on partisan lines with Judges Tatel (appointed by President Clinton) and Millett (appointed by President Obama) voting against President Trump and Judge Roa (appointed by President Trump himself) voting in his favour. However, even beyond that, it is clearly visible from the majority and dissenting opinions that while the former put emphasis on the accountability of the executive branch as the overarching objective, the latter focused on the separation of powers as understood through the lenses of originalism.
The case of Trump v. Mazars USA, LLP, No. 19-5142 (D.C. Cir. 2019), like the case of Trump v Vance Jr, 19‐3204 (2019) decided by the US Court of Appeals for 2nd Circuit (discussed here), is part of a long dispute over President Trump’s financial records. With President Trump consistently refusing to release his tax returns, his political opponents have been attempting to obtain them by various legal routes, including subpoenas from the House of Representatives and a New York State Grand Jury. Both subpoenas have now been upheld by the US Courts of Appeals. However, the judgment in Trump v. Mazars USA, LLP, No. 19-5142 (D.C. Cir. 2019) will be appealed by requesting another hearing before an en benc panel of the US Court of Appeals for DC Circuit. Both cases could also be eventually appealed to the US Supreme Court.
On 4 November 2019, the US Court of Appeals for the 2nd Circuit ruled unanimously, in the case of Trump v Vance Jr, 19‐3204 (2019), that Mazars USA LLP, a firm which handles President Trump’s taxes, must turn over his tax records to Mr Vance Jr, who is the District Attorney of New York County, as part of an ongoing Grand Jury investigation. The case runs in parallel to the proceedings before the US Court of Appeals for the District of Columbia Circuit in Trump v. Mazars USA, LLP, No. 19-5142 (D.C. Cir. 2019) concerning a similar subpoena issued by the House of Representatives.
The District Attorney of the County of New York is currently pursuing investigation which “targets New York conduct and has yet to conclude as to specific charges or defendants” and, as part of that investigation, in August 2019, he served subpoenas on behalf of the Grand Jury on the Trump Organization and Mazars USA LLP. The subpoenas sought records, including tax records, relating to suspected ‘hush money’ payments made to two women between June 2015 and September 2018 (pp4-7).
In September 2019, President Trump sued in the District Court for the Southern District of New York seeking injunction against the subpoena on the basis of a presidential immunity from State criminal process. President Trump argued that his accountants must be barred from producing any records without his consent until the he is no longer in office. In October 2019, the District Court ruled that it had no jurisdiction to hear the case under the doctrine of federal abstention per Younger v. Harris, 401 U.S. 37 (1971) and the case was dismissed (pp7-8). President Trump appealed to the US Court of Appeals for the 2nd Circuit.
The US Court of Appeals for the 2nd Circuit first dealt with the federal abstention doctrine. The doctrine kicks in when a claim is brought before a federal Court while there are ongoing proceedings before a State Court concerning the same subject matter. In those circumstances, the case of Younger v. Harris, 401 U.S. 37 (1971), “preclude[s] federal intrusion into ongoing state criminal prosecutions. Second, certain civil enforcement proceedings warrant abstention. Finally, federal courts [must] refrain from interfering with pending civil proceedings involving certain orders uniquely in furtherance of the state courts’ ability to perform their judicial functions” (per Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013)). However, the US Court of Appeals for the 2nd Circuit pointed to an exception to federal abstention where a federal actor is involved in the proceedings claiming that “allowing federal actors to access federal courts is ‘preferable in the context of healthy federal‐state relations’” (per Leiter Minerals, Inc. v. United States, 352 U.S. 220, 226 (1957)) (pp9-13).
Having established the it had jurisdiction, the Court moved to consider whether “presidential immunity does [or does] not bar the enforcement of a state grand jury subpoena directing a third party to produce non‐privileged material, even when the subject matter under investigation pertains to the President.” The Court examined historical precedents concerning subpoenas served on Presidents, including a subpoena issued to President Jefferson by Chief Justice Marshall, sitting as the trial judge, in the prosecution of Aaron Burr in 1807 (United States v. Burr, 25 F. Cas. 30, 34–35 (C.C.D. Va. 1807) (No. 14,692D)), and a subpoena for samples served on President Clinton in the Lewinski inquiry (Clinton v. Jones, 520 U.S. 681, 703 (1997)). However, the Court focused primarily on the case of United States v. Nixon, 418 U.S. 683 (1974) where President Nixon was subpoenaed to “produce certain tape recordings and documents relating to his conversations with aides and advisers” to be used a criminal trial of his advisers. In this case, the US Supreme Court held unanimously that such communications were not privileged materials and that the separation of powers did not “insulate a President from a judicial subpoena in an ongoing criminal prosecution” (pp17-22).
The US Court of Appeals for the 2nd Circuit also distinguished between producing written materials and more direct forms of participating in judicial proceedings. It held that “historical practice suggests that a court may not compel the President to personally attend trial or give live testimony in open court” (per Clinton v. Jones, 520 U.S. 681, 703 (1997)) and is not “liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office” (per Harlow v. Fitzgerald, 457 U.S. 800 (1982)). However, neither of those examples applied in the case of President Trump (pp22-23).
Furthermore, the Court rejected President Trump’s argument that his “case is distinguishable from Nixon and related cases because this subpoena comes from a state rather than a federal court.” It held that the subpoena did not involve “direct control by a state court over the President”, it did not interfere with his duty
to faithfully execute the laws under Article II of the Constitution, nor did it subordinate federal law in favor of a state process (p24). Finally, the Court also rejected President Trump’s argument that his “case is unlike Nixon because he is a ‘target’ of the investigation, which carries a ‘distinctive and serious stigma’ that is not present when the President is merely a witness in another person’s trial.” The Court held that the subpoena was part of nothing more than a Grand Jury investigation which had not, so far, resulted in any criminal charges and was not directed at President Trump specifically. Nevertheless, the Court ruled that “even assuming, without deciding, that a formal criminal charge against the President carries a stigma too great for the Constitution to tolerate, we cannot conclude that mere investigation is so debilitating” (p25). Consequently, the Grand Jury subpoena for President Trump’s tax record was upheld.
The overall scope of the judgement in Trump v Vance Jr, 19‐3204 (2019) is rather narrow as it only concerns 3rd party evidence subpoenaed by a Grand Jury. In fact, in its judgment, the US Court of Appeals for the 2nd Circuit does not address some wider principles concerning Presidential immunity. In the end, the Court held that “the President may be correct that state courts lack the authority to issue him orders—a question we have no need to address today—that provides no basis to enjoin the enforcement of a subpoena issued to a third party simply because the President is implicated in the subject matter of the investigation” (p25). Nor did the Court address the question whether a sitting President could be subject to a criminal trial. However, it ruled that “there is no obvious reason why a state could not begin to investigate a President during his term and, with the information secured during that search, ultimately determine to prosecute him after he leaves office” (p28).
The case of Trump v Vance Jr, 19‐3204 (2019) is yet another case concerning the issue of President Trump’s tax records. With President Trump consistently refusing to release his tax returns, his political opponents have been attempting to obtain them by various legal routes, one of which is a Grand Jury investigation in the State of New York. Another route was taken by the House of Representatives which issued its own subpoenas, upheld in October 2019 by the US Court of Appeals for the District of Columbia Circuit in Trump v. Mazars USA, LLP, No. 19-5142 (D.C. Cir. 2019). Both cases could now be appealed to the Supreme Court or reheard by en benc benches.
On 28 June 2019, the US Court of Appeals for the 7th Circuit ruled unanimously, in the case of Doe v. Purdue University, No. 17-3565 (7th Cir. 2019), that the procedure used by Purdue University to adjudicate a claim of sexual misconduct violated the student’s rights under the Due Process Clause of the 14th Amendment and that the people involved had displayed signs of discrimination on the basis of sex contrary to Title IX of the Education Amendments of 1972. The judgment of the Court was written by Judge Amy Coney Barrett who is believed to be President Trump’s next nominee for the US Supreme Court in case there is another vacancy on the bench.
In Doe v. Purdue University, No. 17-3565 (7th Cir. 2019), the US Court of Appeals for the 7th Circuit reviewed the magistrate Judge’s decision to dismiss a lawsuit for failing to state a claim. In this mode of review, the Court was obliged to recount the facts as the claimant had described them, drawing every inference in his favor. The Court was not concerned with the question whether the allegations were true but only whether the claimant was entitled to relief if they were in fact true (p2). Consequently, the claimant’s rights under the Due Process Clause and Title IX were violated only if everything he had said were true.
The claimant brought lawsuit against Purdue University after the University had suspended him and imposed conditions on his readmission. This decision was prompted by an accusation of sexual misconduct by a fellow student which was adjudicated by Purdue University according to its internal procedure. Due to the suspension, the claimant was expelled from the Navy ROTC program, preventing him from pursuing a career in the Navy (p1).
Under its internal procedure, Purdue University appointed two investigators to examine the complaint against the claimant. The investigators prepared a report based on the complaint, a written statement submitted by the claimant and an interview with him. When the report was complete, a three-member panel was appointed which was supposed to recommend further actions based on the report and hearing from the parties. The claimant was called to appear before the panel but had not been provided with the report for review. Only moments before the hearing, he was given a redacted version of the report which falsely claimed that he had admitted the wrongdoing. The report also contained other deficiencies. The accuser neither showed up for the hearing, nor submitted any statement (pp4-5).
During the hearing:
“Two members of the panel candidly stated that they had not read the investigative report. The one who apparently had read it asked John accusatory questions that assumed his guilt. Because John had not seen the evidence, he could not address it. He reiterated his innocence and told the panel about some of the friendly texts that Jane had sent him after the alleged assaults. The panel refused John permission to present witnesses, including character witnesses and a roommate who would state that he was present in the room at the time of the alleged assault and that Jane’s rendition of events was false” (p5).
Following the hearing, the claimant was informed that he had been found guilty of sexual misconduct and suspended for one academic year. He appealed to Purdue’s Vice President for Ethics and Compliance but to no avail. In response, he sued seeking injunctive relief under Ex Parte Young, 209 U.S. 123 (1908) to remedy the 14th Amendment violation and for discriminating on the basis of sex contrary to Title IX. The magistrate judge dismissed the constitutional claim, holding that the Due Process Clause did not apply because the disciplinary proceedings had not deprived the claimant of either liberty or property, and the discriminatory claim, holding that the claimant had not alleged facts sufficient to show discrimination on the basis of sex (pp7-8).
The US Court of Appeals for the 7th Circuit first stated that:
“The Due Process Clause is not a general fairness guarantee; its protection kicks in only when a state actor deprives someone of “life, liberty, or property.” U.S. CONST. amend. XIV, § 1. The threshold question, then, is whether John lost a liberty or property interest when he was found guilty of sexual violence and punished” (p8).
The Court saw no ‘property interest’ in this case. However, it found that:
“John’s failure to establish a property interest does not doom his claim, however, because he also maintains that Purdue deprived him of a protected liberty interest: his freedom to pursue naval service, his occupation of choice. To succeed on this theory, John must satisfy the “stigma plus” test, which requires him to show that the state inflicted reputational damage accompanied by an alteration in legal status that deprived him of a right he previously held” (p11).
The ‘stigma plus’ test was satisfied in this case based on the argument that:
“Purdue inflicted reputational harm by wrongfully branding [the claimant] as a sex offender; that Purdue changed his legal status by suspending him, subjecting him to readmission requirements, and causing the loss of his Navy ROTC scholarship; and that these actions impaired his right to occupational liberty by making it virtually impossible for him to seek employment in his field of choice, the Navy” (p12).
Having recognised that Purdue University deprived the claimant of a liberty interest, the Court turned to the question of procedural fairness of the process that resulted in the claimant’s suspension:
“John’s circumstances entitled him to relatively formal procedures: he was suspended by a university rather than a high school, for sexual violence rather than academic failure, and for an academic year rather than a few days. Yet Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension. “[D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story.” Goss, 419 U.S. at 581. John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair” (pp16-17).
“Sermersheim and the Advisory Committee’s failure to make any attempt to examine Jane’s credibility is all the more troubling because John identified specific impeachment evidence. […] Sermersheim and the Advisory Committee may have concluded in the end that John’s impeachment evidence did not undercut Jane’s credibility. But their failure to even question Jane or John’s roommate to probe whether this evidence was reason to disbelieve Jane was fundamentally unfair to John” (p18)
At this point, the Court moved to examine the claim for discrimination under Title IX which provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial
assistance” (20 U.S.C. § 1681(a)). The Court immediately accepted that Title IX was applicable because Purdue University received federal funding and the claimant had been excluded from participation in an education program through suspension. The issue was whether there had been discrimination on the basis of sex (p24).
Based on the contents of the complaint, the Court found the following examples of bias against the claimant:
- “Sermersheim chose to credit Jane’s account without hearing directly from her”;
- “[Sermersheim’s] basis for believing Jane is perplexing, given that she never talked to Jane”;
- “the majority of the panel members appeared to credit Jane based on her accusation alone, given that they took no other evidence into account”;
- “[the majority of the panel members] made up their minds without reading the investigative report and before even talking to John”;
- “[the majority of the panel members] refused to hear from John’s witnesses, including his male roommate who maintained that he was in the room at the time of he alleged assault and that Jane’s rendition of events was false” (pp28-29).
Consequently, according to the Court:
“It is plausible that Sermersheim and her advisors chose to believe Jane because she is a woman and to disbelieve John because he is a man. The plausibility of that inference is strengthened by a post that CARE put up on its Facebook page during the same month that John was disciplined: an article from The Washington Post titled “Alcohol isn’t the cause of campus sexual assault. Men are”.” (p28).
As a result, the Court found that “taken together, John’s allegations raise a plausible inference that he was denied an educational benefit on the basis of his sex.” Given the nature of review, the case was remanded back to the District Court for a full trial (p30).
The case of Doe v. Purdue University, No. 17-3565 (7th Cir. 2019) is significant for at least two reasons. First, it makes clear that Universities cannot use flawed process to punish students accused of sexual misconduct. Given the grave nature of such accusations and possible consequences if the accused is found guilty, Universities must adopt a fair model of proceedings. This ruling comes amid a wider discussion on what such proceedings should look like. In 2017, the Education Secretary Betsy DeVos withdrew old Obama Administration guidance on Title IX, which had been criticised as favouring alleged victims over accuser’s procedural rights, and proposed new rules requiring a fair process for both sides (Inside Higher Ed). Secondly, the case offers an insight into the type of Supreme Court Justice Amy Coney Barrett would be. The ruling in Doe v. Purdue University, No. 17-3565 (7th Cir. 2019) confirms that she is likely to have a traditionally conservative view on many issues, including the frictions between the rights of the accused and of the accuser.
On 20 August 2019, the US Court of Appeals for the 10th Circuit ruled 2-1, in the case of Baca v. Colorado Department of State (No. 1:2017-cv-01937) 2019, that the State of Colorado could not punish or disregard a faithless elector during a presidential election. If upheld by the US Supreme Court, the case might have far-reaching consequences for the 2020 presidential election.
Under Colorado law, the State’s presidential electors are required to cast their votes for the winner of the popular vote in the State. Baca was appointed a Colorado presidential elector for the 2016 election. The election determined that Hillary Clinton won the popular vote in the State and therefore Baca was required to cast his vote accordingly. Nevertheless, he decided to vote for John Kasich and, in response, Colorado’s Secretary of State removed him as an elector and discarded his vote. He was replaced with another elector who cast her vote for Hillary Clinton. After the vote, Baca, along with two other presidential electors who wanted to cast their votes otherwise than in accordance with the popular vote, sued Colorado State Department alleging that removing him as a elector and nullifying his vote violated Article II of the Constitution and the Twelve Amendment. His case was dismissed by a federal District Court on the grounds that Baca lacked standing but he appealed to the US Court of Appeals for the 10th Circuit (pp1-2).
First, the Court dealt with procedural hurdles. It decided that Baca had standing “based on his removal from his role of elector and the cancellation of his vote” (p44). Also, the case was not declared moot becuase Baca “would be entitled to relief in the form of nominal damages” (p56). The Court then framed the crux of the matter in the following terms:
“In determining whether Mr. Baca has stated a plausible claim for relief based on his removal from his role of elector and the nullification of his vote, we must decide whether the Constitution allows states to take such action against presidential electors exercising their federal function” (p76).
This is because presidential electors “exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States” (per Burroughs v. United States, 290 U.S. 534 (1934)) and therefore, unless the Constitution allowed States to remove faithless electors and to disregard their votes, the Colorado State Department “unconstitutionally interfered with [Baca’s] performance of a federal function in his role as presidential elector” under the preemption doctrine of the Supremacy Clause (Article VI, Clause 2) (pp73-75).
At this point, the Court turned to the Tenth Amendment examining if it guaranteed States’ power to regulate the functioning of presidential electors. However, it was stated that the Tenth Amendment “could only ‘reserve’ that which existed before” (per U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)). Because the issue of presidential electors is linked directly with the establishment of the federal government, there were no preexisting States’ rights in this respect and, therefore, the Tenth Amendment did not apply (pp76-77).
Then, the Court analysed whether Article II, as modified by the Twelfth Amendment, authorised States to remove faithless electors and to disregard their votes. However, it held that:
“The plain language of the Constitution provides that, once a vote is cast, it must be included in the certified list sent to the President of the Senate. Nowhere in the Twelfth Amendment is there a grant of power to the state to remove an elector who votes in a manner unacceptable to the state or to strike that vote. Indeed, the express requirement that all votes be listed is inconsistent with such power. And because Article II, Section 1, Clause 2 sets the precise number of electors, the state may not appoint additional electors to cast new votes in favor of the candidate preferred by the state” (p86).
Finally, the Court also considered the argument that the language of the Constitution (terms such as ‘elector,’ ‘vote,’ and ‘ballot’) established that presidential electors were guaranteed the constitutional right to exercise discretion when it came to casting votes for the President and Vice President. In this respect, the Court held that:
“The freedom of choice we ascribe to congressional electors comports with the contemporaneous dictionary definitions of elector discussed above. And because we treat usage of a term consistently throughout the Constitution, Verdugo-Urquidez, 494 U.S. at 265, the use of elector to describe both congressional and presidential electors lends significant support to our conclusion that the text of the Twelfth Amendment does not allow states to remove an elector and strike his vote for failing to honor a pledge to vote for the winner of the popular election. Instead, the Twelfth Amendment provides presidential electors the constitutional right to vote for the candidates of their choice for President and Vice President” (p93).
Consequently, the Court ruled that States could not force presidential electors to vote in any specific manner. On 16 October 2019, the ruling in Baca v. Colorado Department of State (No. 1:2017-cv-01937) 2019 was appealed to the US Supreme Court. If the holding of the US Court of Appeals for the 10th Circuit is maintained, the case will have far-reaching consequences for the 2020 presidential election and beyond as it will essentially prevent the National Popular Vote Interstate Compact from becoming operational.
The National Popular Vote Interstate Compact is an agreement between (so far) 15 States and the District of Columbia to direct their presidential electors to vote for the winner of a nationwide popular vote (as opposed to the winner of the popular vote in each of those States as under Colorado law). Those States are currently worth 196 electoral votes while the Compact requires at least 270 to enter into force (Wiki). The National Popular Vote Interstate Compact is designed to move the United States towards elections based on a popular vote instead of the electoral college system without going through the constitutional amendment process. The Compact became especially popular after the 2016 electoral election when Donald Trump won the presidency under the electoral college system while losing a nationwide popular vote. However, if States are forbidden by the Constitution from interfering with presidential electors’ voting choices, the National Popular Vote Interstate Compact is inevitably unlawful.
On 12 July 2019, the US Court of Appeals for the 9th Circuit ruled 2-1, in the case of City of Los Angeles v Barr, D.C. No. 2:17-cv-07215-R-JC, that the Trump Administration could put sanctuary cities at disadvantage when they apply for federal funding related to law enforcement due to a failure to cooperate on illegal immigration. Although the judgment is limited in its scope, it is the first time a federal appellate Court rules that limiting federal funding because of sanctuary policies is lawful.
Under the Violent Crime Control and Law Enforcement Act 1994 (VCCLEA 1994), State and local jurisdictions can apply for federal funding for law enforcement administered by the Department of Justice (DOJ) on a competitive basis. When considering what entity should be given federal funding, VCCLEA 1994 permits the DOJ to give ‘preferential considerations’ and in 2015 it was amended to allow the DOJ to give preferential treatment to a State which enacts certain laws directed at human trafficking (pp5-6). In line with the statutory requirements, the DOJ has developed a combined guidelines and application form for applicants interested in applying. It contains a series of questions and instructions, including in the illegal immigration focus area (such as “Please specify your focus on partnering with the federal law enforcement to address illegal immigration for information sharing, partnerships, task forces and honoring detainers.”). As grants are administered on a competitive basis, the DOJ scores and ranks all applications and then awards grant funds to the highest scoring applicants (pp8-9).
In the 2017 application cycle, the DOJ was awarding points, among others, for activities related to the control of illegal immigration, including additional points for submitting a ‘Certification of Illegal Immigration Cooperation’ confirming that the applicant will implement regulations ensuring that the Department of Homeland Security (DHS) has access to the applicant’s detention facilities in order to meet with an alien as well as regulations ensuring that such detention facilities provide notice “as early as practicable (at least 48 hours, where possible) to DHS regarding the scheduled release” of an alien in custody (pp10-11). In that application cycle, the DOJ received grant requests totaling $410 million while the funds allocated for that purpose by Congress stood at roughly $98.5 million. The City of Los Angeles applied but its application was unsuccessful. In response, Los Angeles sued in a federal District Court alleging that awarding points in connection to the control of illegal immigration violated constitutional principles of separation of powers, exceeded DOJ’s lawful authority, violated the Spending Clause and were also arbitrary and capricious under the Administrative Procedure Act (p11). The lawsuit was successful but Attorney General Barr appealed to the Court of Appeals for the 9th Circuit.
In its judgment, the Court of Appeals for the 9th Circuit first made clear that the question was “whether DOJ’s scoring practice of giving these additional points is unconstitutional or exceeds DOJ’s authority in administering the grant program“; therefore distinguishing between awarding additional points for cooperation on illegal immigration and entirely disqualifying applicants for sanctuary policies (p15).
Then, the Court considered the Spending Clause. It explained that Congress had the power “to grant federal funds to the States, and may condition such a grant upon the States’ ‘taking certain actions that Congress could not require them to take.’” (per National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)). However, this power was not unlimited becuase “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion” (per South Dakota v. Dole, 483 U.S. 203) (pp16-17). In this respect, the Majority held that awarding additional points for cooperation in the area of illegal immigration, when considering grants awarded on a competitive basis, was not the same as withholding available federal funding or disqualifying for federal funding otherwise available. The Court considered it to be far less coercive than the the requirement for States to introduce a minimum drinking age of twenty-one years or otherwise suffer a 5% cut in the federal highway funding (upheld by the US Supreme Court in South Dakota v. Dole, 483 U.S. 203) or the requirement to implement an expansion of Medicaid coverage under the ObamaCare or otherwise lose the entire Medicaid funding (struck down by the US Supreme Court in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012)) (pp18-19).
Furthermore, under the Spending Clause, there must be some link between the conditions imposed and the purpose for which funds are to be allocated. The Majority found that in this case the link existed between cooperation on illegal immigration and the purposes of VCCLEA 1994 such as to “address crime and disorder problems, and otherwise . . . enhance public safety” (p19).
At this point, the Court considered whether, by awarding points for cooperation on illegal immigration, the DOJ exceeded its statutory authority under VCCLEA 1994. The Majority held that, in passing VCCLEA 1994, Congress left the executive a considerable leeway in its implementation. This triggered the Chevron deference doctrine stipulating that rules set by the executive in the course of implementation of statutes must be declared lawful “unless they are arbitrary, capricious or manifestly contrary to the statute” (per Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (
Finally, the Court held that, by including factors concerned with cooperation in the field of illegal immigration, the DOJ did not act arbitrarily or capriciously under the Administrative Procedure Act. In fact, the DOJ explained its new policy in clear terms and linked it to the issue of public safety directly relevant under VCCLEA 1994. The fact that Los Angeles did not agree with the explanation did not render it invalid. The Majority stated that “Los Angeles may believe that addressing illegal immigration is not the most effective way to improve public safety, but the wisdom of DOJ’s policy is not an element of our arbitrary and capricious review” (p30-32).
The case of City of Los Angeles v Barr, D.C. No. 2:17-cv-07215-R-JC, is a first major case concerning sanctuary cities under the Trump Administration. Although its scope is limited only to using cooperation on illegal immigration as one of the factors in awarding federal funding on a competitive basis, it indicates that the federal Government might, at least in some circumstances, use its funding as a leverage against sanctuary jurisdictions. This, however, is by no means the end of litigation concerning sanctuary policies. The Courts are yet to decide whether disqualifying sanctuary cities altogether from obtaining federal funding is constitutional. In any event, the City of Los Angeles can also appeal the ruling to the en benc panel of the Court of Appeal for the 9th Circuit or try to appeal directly to the US Supreme Court.
On 20 June 2019, the US Supreme Court ruled 7-2, in the case of American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019), that a 40 feet (12m) Cross monument erected in 1925 as a World War I memorial did not violate the Establishment Clause of the First Amendment. In its reasoning, the Court took a step away from the Establishment Clause test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971).
The monument was erected by the residents of Prince George’s County, Maryland, with the help of a local American Legion, as a memorial for the county’s soldiers who fell in World War I. The cross had been built on private land which was later acquired in 1961 by the Maryland-National Capital Park and Planning Commission. However, at that point, the American Legion reserved the right to continue using the site for memorial-related ceremonies. Since the acquisition in 1961, public funds have been used to maintain the monument. In 2014, the American Humanist Association sued in a District Court alleging that the Cross violated the Establishment Clause of the First Amendment because it was located on public land and public funds had been used for its maintenance.
Justice Alito, writing for the Majority, held that keeping existing religious monuments must be distinguished from erecting new ones He gave four reasons for that. Firstly, it is often difficult to identify the exact purpose of monuments erected decades earlier (per Salazar v. Buono, 559 U. S. 700). Secondly, long-standing monuments might take on non-religious purposes such as historical significance or cultural heritage (per Van Orden and McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844). Thirdly, the message of an old monument might evolve over time (as per Pleasant Grove City v. Summum, 555 U. S. 460, 477). Fourthly, removing long-standing religious monuments which take on historical significance or cultural heritage is no longer being ‘neutral’ in relation to religion. Therefore, according to the Majority, the passage of time creates a strong presumption of constitutionality (pp16–21). Furthermore, Justice Alito pointed to the relationship between the cross and World War I. For example, the US adopted cross as part of its military honors, such as Distinguished Service Cross in 1918 and the Navy Cross in 1919. On top of that, the fallen soldiers’ final resting places abroad were marked by white crosses (or Stars of David) (pp21-24). Based on those criteria, the Majority held that the Cross in this case did not violate the Establishment Clause of the First Amendment. The Cross was almost 100 years old, giving it historical significance and it had a secular meaning (in addition to a religious one) as a war memorial (pp28-31).
The case of American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019) is especially important in the context of the Establishment Clause test which is to be applied in cases of publicly displayed religious symbols or publicly held religious ceremonies. Under the Lemon test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971), such a symbol or ceremony must satisfy a threefold test in order to be deemed constitutional under the Establishment Clause of the First Amendment:
- the statute must have a secular legislative purpose
- the principal or primary effect of the statute must neither advance nor inhibit religion
- the statute must not result in an “excessive government entanglement” with religion, considering:
– character and purpose of institution benefited
– nature of aid the state provides
– resulting relationship between government and religious authority
For almost 50 years, federal Courts have been applying the Lemon test, yet no consistency in jurisprudence has been achieved. This leads many to argue that the Lemon test is a failure and the Supreme Court should move towards some other way of adjudicating the constitutionality of publicly displayed religious symbols and publicly held religious ceremonies. In American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019), the Court appears to be doing just that.
The Majority held that “Lemon ambitiously attempted to distill from the Court’s existing case law a test that would bring order and predictability to Establishment Clause decisionmaking“; however, “if the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it” (e.g. Zobrest v. Catalina Foothills Sch. Dist., 509 U. S. 1). In fact, “the [Lemon] test has been harshly criticized by Members of this Court, lamented by lower court judges, and questioned by a diverse roster of
scholars.” Consequently, the Court is moving from “evaluate […] cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices” (pp12-16).
In terms of concurrence, Justice Breyer, joined by Justice Kegan, agreed that “there is no single formula for resolving Establishment Clause challenges. The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its ‘separate spher[e]’” He also agreed that “ordering its removal or alteration at this late date would signal ‘a hostility toward religion that has no place in our Establishment Clause traditions’.” And, “the case would be different […] if the Cross had been erected only recently, rather than in the aftermath of World War I” (p1-3). On the other hand, Justice Kegan, in her separate Concurring opinion, attempted to save at least parts of the Lemon test arguing that although “rigid application of the Lemon test does not solve every
Establishment Clause problem, […] that test’s focus on purposes and effects is crucial in evaluating government action in this sphere” (p1).
Interestingly, Justice Thomas, in his separate Concurring opinion, argued that, based on its text and history, the Establishment Clause did not apply to States at all. He had been holding this opinion at least since the 2002 case of Zelman v. Simmons-Harris, 536 U. S. 639, 677–680. He argued that the 1947 case of Everson v. Board of Ed. of Ewing, 330 U. S. 1, which incorporated the Establishment Clause against States on the grounds that the Free Exercise Clause had already been incorporated, was wrongly decided. According to Justice Thomas and his originalist approach, the Establishment Clause was supposed to protect the States’ right to establish a State-wide religion. Furthermore, based on a literal approach, the Establishment Clause applied only to ‘laws’, not monuments or ceremonies (pp1-3). Nevertheless, Justice Thomas argued that even if the Establishment Clause were to be applied against States, the 40 feet Cross monument would not offend it because of the lack of any coercion on the part of the State (pp3-4). Finally, Justice Thomas also agreed that the Lemon test was not adequate for its purpose and even called it ‘long-discredited’ saying that he would “take the logical next step and overrule the Lemon test in all contexts” as the “test has no basis in the original meaning of the Constitution” and “has ‘been manipulated to fit whatever result the Court aimed to achieve‘” (per McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 900 (2005) (Scalia, J., dissenting)) (p5).
Justices Ginsburg and Sotomayor dissented. They argued that the cross was an inherently Christian symbol and using it “as a war memorial does not transform it into a secular symbol” (p2). However, not all crosses violated the Establishment Clause. “When a religious symbol appears in a public cemetery—on a headstone, or as the headstone itself, or perhaps integrated into a larger memorial—the setting counters the inference that the government seeks “either to adopt the religious message or to urge its acceptance by others” (per Van Orden v. Perry, 545 U.S. 677 (2005), at 737 (Souter, J., dissenting)) (p16).
The case of American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019) is yet another example of litigation concerning publicly-displayed religious symbols. However, unlike its predecessors, it seems to establish crystal-clear criteria, at least in relation to long-standing monuments. In doing so, it confirms that the Supreme Court is moving away from the test laid down in Lemon v. Kurtzman, 403 U.S. 602 (1971). This is no surprise given how much criticism the Lemon test has attracted over the years. But it also illustrates the Court’s willingness to do away with long-established precedents, something that has been more and more prevailing lately.
On 27 June 2019, the US Supreme Court ruled, 5-4, in the case of Rucho v. Common Cause, No. 18-422, 588 U.S. (2019), that partisan gerrymandering was not regulated by the US Constitution. The Court ruled that federal Courts had no jurisdiction to hear challenges to unfairly drawn electoral districts, leaving State Courts as the only possible adjudicator. The case illustrates two opposing visions for the nature of the judicial power – one limited (the conservative Majority) and one expansive (the liberal Minority).
The case involved two separate allegations of partisan gerrymandering. The first concerned North Carolina’s congressional districts, which favoured the Republican Party, while the second concerned Maryland’s congressional districts, which favoured the Democratic Party. In both cases, there was undisputed evidence that districts had been in fact drawn to favour one political party at the expense of the other. Challengers in both cases argued that using partisan considerations to draw electoral districts violated the Equal Protection Clause of the Fourteenth Amendment, the First Amendment as well as Article I of the US Constitution.
Writing for the Majority, Chief Justice Roberts, joined by the remaining four conservatives, held that the issue of partisan gerrymandering was non-justiciable, i.e., not suitable for judicial review. In doing so, the Majority started with tracing the origins of partisan gerrymandering back to the foundation era when Patrick Henry was accused of creating unfair Congressional districts in Virginia to prevent the election of James Madison to the very first Congress (p8). Based on this historical approach, Chief Justice Roberts concluded that when the Constitution was being drafted, “at no point was there a suggestion that the federal courts had a role to play [in respect of partisan gerrymandering]. Nor was there any indication that the Framers had ever heard of courts doing such a thing” (p11).
Then, the Majority analysed existing precedents concerning the shape and contents of electoral districts. It was held that the issue of partisan gerrymandering must be distinguished from the malapportionment of districts, which had been declared contrary to Article I of the US Constitution under the ‘one person, one vote’ doctrine (Wesberry v. Sanders, 376 U.S. 1 (1964)) and from racial gerrymandering which had been declared contrary to the Fifteenth Amendment (Gomillion v. Lightfoot, 364 U.S. 339 (1960)) (pp11-12). It was claimed that “the one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims...” (p20). Furthermore, “unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence… It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship” (p21). The Majority argued that unlike in relation to the malapportionment or racial gerrymandering, there was no constitutional basis for challenges based on a partisan bias. In fact, it was said that “to hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.” (p12).
At that point, the Majority turned to the question of standard of review applicable in potential partisan gerrymandering cases. The central question considered was “how to ‘provid[e] a standard for deciding how much partisan dominance is too much’?” (per League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) at 420) (p15). Chief Justice Roberts claimed that “partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence” and, therefore, they “invariably sound in a desire for proportional representation” (p16). However, the Chief Justice rejected such a premise as absent from the US Constitution as well as from the early political life of the Republic where “many States elected their congressional representatives through at-large or ‘general ticket’ elections” (p16). In the absence of the requirement of proportional representation, partisan gerrymandering cases would require federal Courts to rule on the basis of nothing more than fairness. However, “federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.” (p17)
At the end, the Majority pointed to State Courts as the only possible adjudicators of partisan gerrymandering claims. This solution requires, however, that States’ Constitutions provide some form of basis for such a judicial intervention. This could be illustrated by the case of League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015) where the Supreme Court of Florida struck down a State’s congressional districting plan on the grounds that it violated the Fair Districts Amendment to the Florida Constitution (p31). In the absence of relevant provisions in States’ Constitutions, citizens must seek redress with State legislatures.
Justice Kegan, writing for the four liberal dissenters, focused on the harm caused by partisan gerrymandering and announced that the Court abdicated its obligation to guard the US Constitution. The Dissent argued that “partisan gerrymandering operates through vote dilution—the devaluation of one citizen’s vote as compared to others” and, consequently, “that practice implicates the Fourteenth Amendment’s Equal Protection Clause” (p11). Furthermore, it was claimed that “partisan gerrymandering implicates the First Amendment too…” because it “…subject[s] certain voters to “disfavored treatment”—again, counting their votes for less—
precisely because of ‘their voting history [and] their expression of political views‘” (per Vieth v. Jubelirer, 541 U.S. 267 (2004) at 314) (p12). Addressing the Majority’s concern over the lack of any workable standard of review, the Dissent put forward their own suggestions, most of which had already been employed by lower Courts. Finally, responding to the Majority’s suggestion that proper redress lies with State Courts and State legislatures, the Dissent argued that precisely because of partisan gerrymandering, members of State institutions would not be interested in rectifying a partisan skew which helped them get elected in the first place.
It is clear that both the conservative Majority and the liberal Minority in Rucho v. Common Cause, No. 18-422, 588 U.S. (2019) accepted evidence of existing partisan gerrymandering practices. They also both accepted that such practices caused a lot of harm to the US political system. They even both accepted that something should be done about it. Where the two groups differed was not the issue of partisan gerrymandering, but the question of the nature of the judicial power. The conservative Majority took a limited view of the judicial power. They looked for any constitutional provision which would expressly apply to partisan gerrymandering. Having been unable to find it, they concluded that the Court had no jurisdiction to outlaw such practices. They relied on legendary Chief Justice Marshall who laid foundations of what was understood by the judicial power: “it is emphatically the province and duty of the judicial department to say what the law is” (p34). Based on this, the Majority believed that it was also their place “to say ‘this is not law'”, even in the face of dire consequences brought by partisan gerrymandering.
On the other hand, the liberal Minority took a typically more expansive view of the judicial power. The judiciary was there to safeguard the Constitution and the Constitution set up a certain political system. If this political system was threatened, then the Constitution should be interpreted in a way that allowed a judicial intervention in its defence. While the Majority was looking for a basis for the intervention, the Minority was primarily concerned with the potential consequences of the failure to intervene. They believed that “of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections” (p33). It is this divergence of the Majority’s and Minority’s views on the nature of the judicial power that resulted in this case being decided 5-4, along the ideological lines.
On 27 June 2019, the US Supreme Court ruled in Department of Commerce v. New York, No. 18–966, 588 U.S. (2019) that the Trump Administration could not add a citizen question to the upcoming 2020 national census. In a convoluted decision, Chief Justice Roberts, together with the four liberals, held the Trump Administration’s rationale for adding the citizen question was merely pretextual and therefore in violation of the Administrative Procedures Act. In other words, Chief Justice Roberts sent a strong signal that he did not like being lied to.
Adding the citizenship question to the upcoming 2020 census became very controversial after some groups, such as the ACLU, had said that it would deter many illegal immigrants from participating in the census. This, in turn, would lower the official population numbers for States with a large portion of illegal immigrants, mainly California. This could have a considerable impact on the apportionment of federal funds and seats in the House of Representatives which directly depends on population numbers (US Constitution, Article 1, Clause 3). ACLU claimed that adding the citizenship question would stop about 6.5 million people from entering their details in the census which could lead to the State of California loosing billions of dollars in federal funding as well as between one and three seats in the House of Representatives (The Hill). On other hand, the Department of Justice of the Trump Administration argued that the citizenship question was necessary in order to comply with the Voting Rights Act and that this question had been asked during all but one census from 1820 to 2000. But in January 2019, a District Judge (an Obama appointee) disagreed, holding that the rationale was ‘pretextual’ and the decision had been made in violation of the Administrative Procedures Act because it failed to ‘consider all important aspects of a problem’ as required by the Administrative Procedures Act, implying also that the true intention behind the citizenship question was to deter participation (Bloomberg). The ruling was appealed directly to the US Supreme Court, bypassing the Court of Appeals.
At the Supreme Court, the Majority (Chief Justice Roberts joined by Justices Thomas, Alito, Gorsuch and Kavanaugh) held that the Enumeration Clause (Article 1, sections 1 & 2 of the Constitution) permitted a citizen question on a census. Therefore, in theory, there was nothing preventing a presidential administration from adding the question to the 2020 census (pp11-13).
Secondly, the Majority (joined by Justices Thomas, Ginsburg, Breyer, Sotomayor, Kagan and Kavanaugh) held that a decision to add the citizen question was reviewable under the Administrative Procedure Act. The Administrative Procedure Act empowers the Courts to invalidate decisions of executive agencies which are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (5 U. S. C. §706(2)(A)). Although the Administrative Procedures Act does not allow for a review in cases where a decision is “committed to agency discretion by law” (§701(a)(2)), this exception does not apply to a national census. In this case, the Census Act does not leave an unfettered discretion and, therefore, a decision to add any question to any national census remains subject to judicial review under Administrative Procedures Act (pp13-16).
Thirdly, the Majority (Chief Justice Roberts joined by Justices Thomas, Alito, Gorsuch and Kavanaugh) held that the Trump Administration’s decision to add the citizen question to the 2020 census was supported by evidence, made following a proper examination of the Census Bureau’s analysis of various methods of collecting data and overall reasonable. The decision was not ‘arbitrary’ or ‘capricious’ under the Administrative Procedures Act (pp16-20).
Nevertheless, ultimately, the Majority (Chief Justice Roberts joined by Justices Ginsburg, Breyer, Sotomayor and Kagan) ruled that the Trump Administration’s decision was unlawful because the rationale given was pretextual. The Majority believed that “the decision to reinstate a citizenship question cannot adequately be explained in terms of [the Department of Justice]’s request for improved citizenship data to better enforce the [Voting Rights Act].” This is because the Secretary of Commerce began preparations for adding the citizenship question a week into his tenure, at the point when no argument was being raised regarding the Voting Rights Act. In fact, there was evidence that the Director of Policy at the Commerce Department was eliciting requests for citizenship data from the Department of Justice and the Department of Homeland Security before invoking the Voting Rights Act. The Majority agreed that, normally, an agency could have both stated and unstated reasons for any decision but, in the case of the census question, the Trump Administration provided only one argument (the argument based on the Voting Rights Act) and this argument turned out to be false. Consequently, the decision to add the citizenship question to the 2020 census violated the Administrative Procedures Act because it breached the requirement to offer a genuine justification behind the agency’s action (pp23-28).
Justices Thomas, Gorsuch and Kavanaugh submitted a partly dissenting opinion criticising the ultimate decision of the Court to invalidate the decision to add the citizenship question on the grounds that the rationale offered by the Trump Administration was pretextual. The dissenters argue that “for the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale” (p1) and that “the Court engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion” (p5). They remind the Majority that the US Supreme “Court has never held an agency decision arbitrary and capricious on the ground that its supporting rationale was ‘pretextual’” (p6). They also claim that the Majority’s reasoning is contrary to the long-standing precedent on the ‘presumption of regularity’ dating back to United States v. Chemical Foundation, Inc., 272 U. S. 1, 14–15 (1926) (p7). Finally, the dissenters also warn that the Majority “has opened a Pandora’s box of pretext-based challenges in administrative law” (p13).
The case of Department of Commerce v. New York, No. 18–966, 588 U.S. (2019) is yet another example of Chief Justice Roberts trying to find a common ground between the liberals and conservatives on the Court. Beyond that, however, the Chief Justice appears also to be sending a message to the Trump Administration that he will not accept apparent lies. The Court is ready to give the Administration some degree of deference, but providing a rationale which could easily be disproven will not fly. With this highly politicised case, Chief Justice Roberts attempts to stay above politics and, in the process, is positioning himself as a new Swing Vote. More about Chief Justice Roberts and his position on the Court could be found here: The Jurist’s Corner.
On 21 June 2019, the US Supreme Court ruled 7-2, in the case of Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), that a persistent use of peremptory challenges to remove black jurors during a series of trials against Curtis Flowers violated his rights under the Equal Protection Clause of the 14th Amendment as explained in Batson v. Kentucky, 476 U.S. 79 (1986). The only African-American on the bench, Justice Thomas, dissented.
Curtis Flowers was accused of four murders in a furniture store in Winona, Mississippi in 1996. Altogether, he had six separate jury trials. The first three ended with convictions which were later overturned by the Mississippi Supreme Court on the grounds of prosecutorial misconduct. During these, no African-American sat on the jury despite the fact that the population distribution near Winona was approximately 50% African-American. Next two ended with a mistrial due to hung juries. The sixth trial was held in 2010. During the voir dire procedure proceeding the trial, the prosecution used peremptory challenges to dismiss five African-American jurors, leaving only one African-American on the jury. This trial ended with a conviction and the death sentence. Flowers appealed to the Mississippi Supreme Court arguing that the use of peremptory challenges to dismiss African-American jurors violated his rights under the Equal Protection Clause of the 14th Amendment as explained in Batson v. Kentucky, 476 U.S. 79 (1986). The conviction was upheld and Flowers petitioned the US Supreme Court to hear his case.
Peremptory challenges allow attorneys from both sides to dismiss potential jurors during the voir dire procedure proceeding a trial without stating a reason. Usually, both side have a certain number of such strikes which varies form one State to another. Peremptory challenges come on top of challenges for cause which allow attorneys to dismiss any number of jurors suspected of bias. In Batson v. Kentucky, 476 U.S. 79 (1986), the US Supreme Court ruled that the prosecutor could not use peremptory challenges to exclude jurors based solely on their race as this practice violated the Equal Protection Clause of the 14th Amendment.
The Majority opinion in Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), written by Justice Kavanaugh, and joined by Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan and Chief Justice Roberts, pointed to “four critical facts, [which] taken together, require reversal“:
“First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court… Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.” [pp2-3]
As to the importance of each fact, the Court held that:
“We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.” [p3]
In issuing its verdict, the Court felt that it was not doing anything beyond applying the holding of Batson v. Kentucky, 476 U.S. 79 (1986):
“In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.” [p3]
The Majority opinion also briefly analysed the historical relationship between the Equal Protection Clause of the 14th Amendment and the right to serve in juries. This included, apart from the 14th Amendment itself, the judgment in the Slaughter-House Cases, 16 Wall. 36, 71 (1873), the Civil Rights Act of 1875 and the judgments in Strauder v. West Virginia, 100 U. S. 303 (1880), Brown v. Board of Education, 347 U. S. 483 (1954) and Swain v. Alabama, 380 U. S. 202 (1965).
Then, the Majority opinion summarised the main principles established by Batson v. Kentucky, 476 U.S. 79 (1986):
“First, the Batson Court rejected Swain’s insistence that a defendant demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination…
Second, the Batson Court rejected Swain’s statement that a prosecutor could strike a black juror based on an assumption or belief that the black juror would favor a black defendant…
Third, the Batson Court did not accept the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all “equally” subject to race-based discrimination…
Fourth, the Batson Court did not accept the argument that race-based peremptories are permissible because both the prosecution and defense could employ them in any individual case and in essence balance things out…” [pp13-15]
The Court also listed the types of evidence which could be relied on by the Defendant when bringing a Batson challenge:
- “statistical evidence about the prosecutor’s use of peremptory strikes against black prospective jurors as compared to white prospective jurors in the case;
- evidence of a prosecutor’s disparate questioning and investigation of black and white prospective jurors in the case;
- side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case;
- a prosecutor’s misrepresentations of the record when defending the strikes during the Batson hearing;
- relevant history of the State’s peremptory strikes in past cases; or
- other relevant circumstances that bear upon the issue of racial discrimination.” [pp16-17]
Based on the history of Flowers’s case and the holding in Batson v. Kentucky, 476 U.S. 79 (1986), the Majority opinion held that the prosecution had not given sufficient race-neutral reasons to justify the exclusion of the five African-American jurors during Flowers’s 6th and final trial. This led the Court to conclude that his rights under the Equal Protection Clause of the 14th Amendment were violated and the conviction had to be reversed.
Interestingly, Justice Thomas, the only African-American on the bench, dissented arguing that the Court “almost entirely ignores—and certainly does not refute—the race-neutral reasons given by the State for striking [five] black prospective jurors” in Flowers’s final trial [p2]. Justice Thomas claims that the Court “never should have taken this case” because it did not present any real question of law and the Court only wanted to “reconsider the factual findings of the state courts” [p4]. He also points to a bigger picture – the Majority opinion in Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), and its effect on Batson v. Kentucky, 476 U.S. 79 (1986), will make it “impossible to exercise a peremptory strike that cannot be challenged by the opposing party, thereby requiring a ‘neutral’ explanation for the strike. But requiring an explanation is inconsistent with the very nature of peremptory strikes.” [p40].
Justice Thomas finishes his Dissenting opinion with his own views on peremptory challenges:
“In sum, as other Members of this Court have recognized, Batson charted the course for eliminating peremptory strikes… Although those Justices welcomed the prospect, I do not. The peremptory system ‘has always been held essential to the fairness of trial by jury’.” [p40]
It seems that Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019) was as much about a racial bias in the jury selection as it was about the nature and place of peremptory challenges in today’s criminal justice system.
The UK Supreme Court has announced that three new Justices will join its bench in 2020. Lord Justice Hamblen will join on 13 January 2020, Lord Justice Leggatt will join on 21 April 2020 and Professor Andrew Burrows will join on 2 June 2020. They will replace Lady Hale of Richmond, Lord Carnwath of Notting Hill and Lord Wilson of Culworth. At the same time, Lord Reed, the current Deputy President of the Court, will take up the position of President of the Court which is now held by Lady Hale.
Lord Reed was appointed as a Justice of the Supreme Court in February 2012. Prior to his appointment, he served as a Judge in the Scottish Court of Session between 1998 to 2012. He is also a member of the panel of ad hoc judges of the European Court of Human Rights and a Non-Permanent Judge of the Hong Kong Court of Final Appeal. He was educated at the Universities of Edinburgh and Oxford. Lord Justice Hamblen served as an Assistant Recorder in 1999 and as a Recorder from 2000. He has sat as a Justice in the High Court from November 2008. He was educated at St John’s College, University of Oxford and Harvard Law School. Lord Justice Leggatt sat as a Recorder on the Western Circuit for 10 years. He was also appointed to the Queen’s Bench Division of the High Court in 2012, later promoted to the Court of Appeal. He was educated at King’s College, Cambridge and the Harvard University. Professor Andrew Burrows is Professor of the Law of England at the University of Oxford and a Fellow of All Souls College. He has been sitting as a part-time judge for over 20 years, first as a Recorder and then as a Deputy High Court Judge. He was educated at Prescot Grammar School, Knowsley, Merseyside and Brasenose College, Oxford (UK Supreme Court).
The UK Supreme Court was established in 2009 by the Constitutional Reform Act 2005 replacing the Appellate Committee of the House of Lords which had served as the UK’s highest Court for centuries. Unlike in the United States, Justices of the UK Supreme Court are selected by a non-political panel and are subject to mandatory retirement.
On 26 July 2019, in Trump v. Sierra Club, 588 U. S. (2019), the US Supreme Court stayed an injunction blocking President Trump’s allocation of funds for a border wall with Mexico. The decision was supported by Justices Alito, Gorsuch, Thomas and Kavanaugh and Chief Justice Roberts, with Justice Breyer concurring in part and dissenting in part. Justices Kagan, Sotomayor and Ginsburg dissented.
The Supreme Court ruled that the Trump Administration had “made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” The injunction was lifted on the grounds that the Trump Administration would suffer ‘irreparable harm’ if the injunction had been left in force. This was based on the fact that if the funds had not been released, the Trump Administration would not have been able to finalise contracts with building companies by 30 September 2019, meaning that the funds would have had to be “returned to the Treasury and the injunction [would] have operated, in effect, as a final judgment.” The injunction is stayed pending the appeal before the Court of Appeals for the Ninth Circuit and a potential appeal from that Court to the US Supreme Court, if pursued.
In his partly-concurring and partly dissenting opinion, Justice Breyer, the least liberal of the four liberals on the US Supreme Court, argued that the injunction should have been stayed in so far as to allow the Trump Administration to finalise the contracts but not to begin construction. According to Justice Breyer, this would have allowed the Trump Administration to use the funds before they expire on 30 September 2019, yet at the same time, it would have prevented the wall from being erected before the case was properly decided on the merits.
The original injunction was prompted by Proclamation 9844 declaring a state of emergency at the Southern border issued by President Trump under the National Emergencies Act 1976 on 15 February 2019. The National Emergencies Act 1976 contains a list of special 136 emergency powers which can be relied on once an emergency has been declared. Under Proclamation 9844, the Trump Administration relied on section 8005 of the Department of Defense Appropriations Act of 2019 allowing the Secretary of Defense to transfer funds for military purposes if the Secretary determines that the transfer is “for higher priority items, based on unforeseen military requirements” and “the item for which funds are requested has [not] been denied by the Congress.” Under Proclamation 9844, the Trump Administration moved $8 billion from the Department of Defense to the Department of Homeland Security to finance the construction of the wall at the US-Mexico border after Congress had refused to allocate more than $1.375 billion for that purpose (NY Times).
As soon as Proclamation 9844 was issued, the Sierra Club and Southern Border Communities Coalition, two advocacy groups represented by the ACLU, sued claiming that Proclamation 9844 violated the Appropriation Clause of Article I, Section 9 of the Constitution which identifies Congress as the only body responsible for the allocation of funding. In May 2019, in Sierra Club v Trump, 19-cv-00892-HSG, the District Court for the Northern District of California imposed a preliminary injunction declaring that the redirection of the funds towards the construction of the wall violated the Appropriation Clause. Then, in June 2018, in a second decision, the same Court made the injunction permanent. The Trump Administration appealed against the injunction, but in a 2-1 decision, the Court of Appeals for the Ninth Circuit declined to lift the injunction pending a full appeal. Now, that the US Supreme Court has stayed the injunction, the construction of the wall will proceed while the case is being considered by the Court of Appeals for the Ninth Circuit on the merits.
However, the case of Sierra Club v Trump is not the only Court case against Proclamation 9844. On the announcement of Proclamation 9844, the House of Representatives, being co-responsible for the allocation of funding under the Appropriate Clause, sued in the District Court for the District of Columbia seeking to block the redirection of funds for the wall. On 3 June 2019, the Court ruled, in US House of Representatives v Mnuchin, 1:19-cv-00969, that the House of Representatives had no legal standing to sue the President and, therefore, it lacked jurisdiction to hear the case. No decision on the merits was issued (The Washington Post).
Interestingly, the decision in US House of Representatives v Mnuchin, 1:19-cv-00969 can be contrasted with a recent case of US House of Representatives v. Burwell, 130 F. Supp. 3d 53, 81, where, in September 2015, the same District Court for the District of Columbia (although a difference Judge) held that the House of Representative (with a Republican majority) had a legal standing to sue the Obama Administration for unauthorised payments under a cost-sharing program under the ObamaCare. In fact, in its subsequent decision on the merits in May 2016, in US House of Representatives v. Burwell, 185 F. Supp. 3d 165, the Court ruled that those payments had in fact violated the Appropriate Clause. However, the ruling was stayed while the Obama Administration pursued an appeal before the Court of Appeals for the District of Columbia Circuit. In December 2017, with the 2016 presidential election intervening, the lawsuit was settled with the new Administration. Nevertheless, when it comes to the question of the House of Representatives’ legal standing to sue for unauthorised spending, the case produced a definite positive answer at the District Court level (HealthAffairs).
Conversation with Ruth Bader Ginsburg at the University of Chicago.
Associate Justice Neil Gorsuch discusses his brand-new book, A Republic, If You Can Keep It, at the Reagan Library.
The National Constitutional Center has announced that it would award its 2019 Liberty Medal to former Justice Anthony Kennedy “for his efforts to preserve, protect, and defend liberty by inspiring Americans of all ages to learn about the Constitution through civic education and civil dialogue.” The ceremony will take place on 27 October 2019. The National Constitutional Center is a private, nonprofit organization serving as a leading platform for constitutional education and debate, bringing together people from across America to learn about, debate and celebrate the US Constitution. The Liberty Medal was established in 1988 to commemorate the bicentennial of the US Constitution in order to recognise individuals working to secure the blessings of liberty to people worldwide. To date, recipients have included President George W. Bush, Nelson Mandela, Sandra Day O’Connor, Kofi Annan, Malala Yousafzai and Colin Powell (NCC).
Justice Kennedy sat on the US Supreme Court for 30 years between 1988 and 2018. He was considered a Swing Vote casting the deciding vote in many 5-4 cases, including on affirmative action (Fisher v. University of Texas, 579 U.S. (2016)), gay marriage (Obergefell v. Hodges, 576 U.S. (2015)), gun rights (District of Columbia v. Heller, 554 U.S. 570 (2008)), death penalty (Kennedy v. Louisiana, 554 U.S. 407 (2008)) and abortion (Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)). He was replaced by Justice Kavanaugh nominated by President Trump.
The judgment of the UK Supreme Court in R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland  UKSC 41 concerning the legality of the prorogation of the UK Parliament.
On 24 September 2019, the UK Supreme Court ruled unanimously, in the case of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland  UKSC 41, that the prorogation of the UK Parliament ordered on 28 August 2019 was unlawful and therefore null and void. The prorogation had been ordered by the Queen on advice of Prime Minister Boris Johnson as part of his Brexit strategy.
Prorogation of Parliament is a standard procedure, which normally follows the end of a parliamentary session. In practice, in means that neither Houses of Parliament can meet and all bills automatically lapse. The procedure can only be ordered by the Queen herself, as part of her royal prerogatives. It takes effect when a royal proclamation issued by the Queen-in-Council is read to both Houses of Parliament. Usually, prorogation means that Parliament does not reconvene until the State Opening of Parliament.
Prime Minister Boris Johnson advised the Queen to prorogue Parliament starting from between 9 and 12 September 2019 and lasting until the State Opening of Parliament on 14 October 2019. According to the Minutes of the Cabinet meeting held by conference call on 28 August 2019, the “decision to prorogue Parliament for a Queen’s Speech was not driven by Brexit considerations: it was about pursuing an exciting and dynamic legislative programme to take forward the Government’s agenda”. However, the prorogation was generally viewed as a means of preventing Parliament from interfering with the Brexit process. First of all, the requested length of the prorogation was unusual as Parliament had not been prorogued for more than three weeks since 1979 and is typically prorogued for no more than one week. Secondly, Prime Minister Boris Johnson was determined to secure a no-deal Brexit by 31 October 2019 and this was no secret. Thirdly, by the end of August 2019, it was becoming clear that the government would lose its majority in Parliament if it were to try to force a no-deal Brexit and, therefore, Parliament was likely to stand in his way.
In fact, immediately before the prorogation entered into force, on 4 September 2019, the House of Commons passed the European Union (Withdrawal) (No 2) Bill requiring the Prime Minister to seek a Brexit extension of three months, unless by then Parliament has either approved a withdrawal agreement or approved leaving without one. The Bill then passed the House of Lord under a special procedure and received Royal Assent on 9 September 2019, therefore becoming a law.
On the announcement of prorogation, Gina Miller (the same Gina Miller who successfully brought the claim in R (Miller) v Secretary of State for Exiting the European Union  UKSC 5) launched proceedings in the High Court (in England and Wales), seeking a declaration that the Prime Minister’s advice to the Queen to prorogue Parliament was unlawful. This petition was heard by the heads of the UK judiciary (Lord Chief Justice of England and Wales, Master of the Rolls and President of the Queen’s Bench Division) on 5 September 2019. They rejected the claim on 11 September 2019 on the ground that the issue was not justiciable, i.e. was of political nature and therefore outside the Courts’ power of review. The High Court, however, granted a ‘leap-frog’ certificate allowing the appeal to be heard directly by the UK Supreme Court, bypassing the Court of Appeal.
The UK Supreme Court ruled unanimously, in the opinion written by Lady Hale and Lord Reed, that the issue was in fact justiciable as it fell under a standard supervisory jurisdiction over the lawfulness of acts of the executive. It was held that the case was essentially about the limits of the power to advise the Queen to prorogue Parliament and the Courts had jurisdiction to decide on the existence and limits of this power [paras 28-37].
Then, the Supreme Court considered what the limits of the power to advise the Queen to prorogue Parliament were. The Court held that allowing the executive branch of Government, through the use of the prerogative, to prevent Parliament from legislating for extended periods of time would undermine the doctrine of Parliamentary sovereignty, which is a cornerstone of the UK constitutional system. Furthermore, proroguing Parliament for extended periods of time also breached the principle of Parliamentary accountability, dictating that the executive was collectively responsible and accountable to Parliament. For the Court, “a decision to prorogue (or advise the monarch to prorogue) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive” [paras 38-51].
In answering this question, the Supreme Court took into account that the requested prorogation:
- was not a normal prorogation in the run-up to a Queen’s Speech;
- prevented Parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and Brexit day;
- took place in the exceptional circumstances of a huge constitutional change prompted by Brexit;
- prevented the House of Commons, as the elected representatives of the people, from having a voice in how that change comes about;
- was not justified in any reasonable manner beyond being ‘desirable’ [paras 55-60].
In those circumstances, the Court ruled that there was not “any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October” 2019 and therefore such prorogation was unlawful [para 61].
Interestingly, at that point, the Supreme Court turned to the question what remedy, other than a declaration of unlawfulness, was appropriate in this case. The Prime Minister argued that in case of declaring the prorogation unlawful, the Court could not issue any further relief because the prorogation was a ‘proceeding in Parliament’ and therefore immune from any Court interference under Article 9 of the Bill of Rights of 1688. However, the Court ruled that the prorogation was not a ‘proceeding in Parliament’ because, although it took place in the House of Lords chamber in the presence of members of both Houses, it was not their decision.In fact, the prorogation ended the business of Parliament – exactly what the Bill of Rights of 1688 was designed to protect against, albeit from any potential Court interference. In consequence, the Court quashed the Order in Council ordering the prorogation which means that when the Royal Commissioners walked into the House of Lords with the royal proclamation ordering the prorogation, it “was as if the Commissioners had walked into Parliament with a blank piece of paper” [paras 62-71].
Crucially, although the proceedings leading to the Supreme Court declaring the prorogation to be unlawful were triggered by a clam that the Prime Minister’s motivation to request the prorogation (i.e. to prevent Parliament from interfering with the Brexit process) was unlawful, this is not the basis for the Court’s decision. In its judgment, the Court indicated that such an issue would likely not be justiciable, but decided that this would have only been required to be ruled upon if the prorogation were declared lawful [paras 53-54]. Ultimately, it was not the Prime Minister’s motivation that doomed the prorogation, but its effect on the Parliament’s functions to legislate and to hold the executive accountable.
The case of R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland  UKSC 41 is yet another (next to R (Miller) v Secretary of State for Exiting the European Union  UKSC 5) high profile constitutional case which has been prompted by Brexit. On a practical level, the case means that the UK Parliament will have a say in the Brexit process. However, beyond that, from a constitutional perspective, the case limits the powers of the executive branch of Government and illustrates how vague concepts such as the separation of powers and the democratic form of government might be used by Courts as decisive factors in adjudicating public law issues.
On 16 July 2019, at the age of 99, passed away former Justice of the US Supreme Court John Paul Stevens. Justice Stevens was appointed to the US Supreme Court in 1975 as the only nominee of President Ford. He retired from the bench in 2010. At the time, he was the second-oldest-serving justice in the history after Oliver Wendell Holmes Jr., who was 90 years and 309 days when he retired in 1932.
Justice Stevens, although appointed by a Republican President, by the end of his time at the Court became one of the most liberal Justices. Justice Stevens wrote Majority opinions in landmark cases including Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (forcing Courts to give deference to government agencies’ interpretation of statutes they administer), Gonzales v. Raich, 545 U.S. 1 (2005) (allowing the federal government to prosecute patients using medical marijuana even where such use is legal under state law) and Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) (forcing EPA to regulate greenhouse gases as pollutants). He also voted with the Majority in Grutter v. Bollinger, 539 U.S. 306 (2003) (to uphold affirmative action).
Justice Stevens was in dissent in Texas v. Johnson, 491 U.S. 397 (1989) (voting to uphold a prohibition on flag-burning), United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000) (voting to wider the federal government’s powers under the Interstate Commerce Clause), Van Orden v. Perry, 545 U.S. 677 (2005) (voting to disallow a display of the Ten Commandments on a monument located at the Texas State Capitol in Austin), District of Columbia v. Heller, 554 U.S. 570 (2008) (voting against an individual right to own firearms at home) and Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (voting to allow restrictions on corporate spending on political campaign).
After his retirement from the Supreme Court, Justice Stevens was replaced by Elena Kagan nominated by President Barack Obama.
U.S. Supreme Court Justice Ruth Bader Ginsburg discusses “My Own Words” with Nina Totenberg at the 2019 Library of Congress National Book Festival. Introduced by: Carla Hayden, Librarian of Congress.
Justice Neil M. Gorsuch joins National Constitution Center President and CEO Jeffrey Rosen for a special Constitution Day conversation exploring his new book, A Republic, If You Can Keep It. Justice Gorsuch draws on his 30-year career as a lawyer, teacher, judge, and justice to explore essential aspects of our Constitution, the role of the judge under our Constitution, and the vital responsibility of each American in maintaining a healthy republic.
On 17 June 2019, the US Supreme Court ruled 7-2, in Gamble v. United States, No. 17-646, 587 U.S. (2019), that the Double Jeopardy Clause of the Fifth Amendment did not protect the petitioner against federal prosecution for an unlawful possession of firearms on the basis that the had already been tried for this act before a State court. The Majority opinio written by Justice Alito and joined by Justices Thomas, Breyer, Sotomayor, Kagan, Kavanaugh and Chief Justice Roberts demonstrates a strong literal approach to constitutional interpretation, an faithful adherence to the document’s original meaning and a great concern for federalism.
Justice Alito, writing for the Majority, held that the Double Jeopardy Clause, which protects against being ‘twice put in jeopardy’ ‘for the same offence’, remained subject to the doctrine of separate sovereignty, specifically allowing for prosecution by a State and the federal governments based on the same charges. The Majority opinion in Gamble v. United States applies a strict literal interpretation of the Fifth Amendment (Part IIA), in doing so relying on Justice Scalia’s reasoning in Grady v. Corbin, 495 U. S. 508 (1990) where he distinguished between protection against being prosecuted for the same ‘offence’ and the same ‘act’ (at 529). Justice Alito therefore argues that, as originally understood, an ‘offence’ is defined by a law and law can only be defined by a sovereign. Given that States are sovereign creators of laws, a federal offence and a State offence pertaining to the very same conduct are not in fact ‘the same offence’ and therefore the Double Jeopardy Clause does not apply.
Justice Alito refuses to consider an argument based on the legislative history of the Double Jeopardy Clause holding that “the private intent behind a drafter’s rejection of one version of a text is shoddy evidence of the public meaning of an altogether different text.” (Part IIA). But at the same time, he claims that even if the legislative history was to be relied on, it would support the doctrine of separate sovereignty. This, however, by no means is a rejection of the importance of the original meaning of the Fifth Amendment. The Majority opinion deals extensively with the argument that the doctrine of separate sovereignty goes against the English common law understanding of the rule against double jeopardy pre-dating the adoption of the Fifth Amendment, but it rejects this argument as both unsubstantiated (Part IIIA) as well against a long strain of US cases going back as far as 1847. The Majority invokes the case of Fox v. Ohio, 5 How. 410 (1847) where, at 435, the Supreme Court held that “offences falling within the competency of different authorities to restrain or punish them would not properly be subjected to the consequences which those authorities might ordain and affix to their perpetration.” (Part IIB).
Finally, Justice Alito adds yet another layer of argument – federalism. For him, States could be compared to foreign countries in terms of their sovereignty vis-a-vis the federal government. Justice Alito argues that in the absence of the doctrine of separate sovereignty, American courts would not be able to try people who have been tried in foreign courts as this would inevitably trigger the Double Jeopardy Clause. In fact, he states that “[the] Constitution rests on the principle that the people are sovereign, but that does not mean that they have conferred all the attributes of sovereignty on a single government” (Part IIB).
On the other hand, Justice Gorsuch, in his Dissenting opinion, rejects the Majority opinion as grounded nowhere in the Constitution. He argues that the history of the western legal tradition, the legislative history of the Fifth Amendment as well as the English common law understanding of the rule against double jeopardy all point to the word ‘offence’ as not having any technical meaning allowing for a double set of prosecution by a State and the federal governments.
Interestingly, Justice Thomas, used his Concurring opinion, submitted in addition to the Majority opinion which he joined, to re-emphasise his latest criticism of the doctrine of stare decisis as an inviolable rule:
“Given that the primary role of federal courts today is to interpret legal texts with ascertainable meanings, precedent plays a different role in our exercise of the ‘judicial Power’ than it did at common law. In my view, if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent. Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law. ” (Part C)
Beyond the impact on the Double Jeopardy Clause, Gamble v. United States appears to be important as it falls within the recent trend of cases decided by the US Supreme Court based on some form of historical approach. In this case, both the Majority and the Dissent argued mainly over the history of the western legal tradition, the legislative history of the Fifth Amendment and the old English common law understanding of the rule against double jeopardy. Crucially, this includes not only the five originalists, but also the four liberals.
On 6 June 2019, the UK Supreme Court ruled, unanimously, in the case of In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland)  UKSC 26, that trials with no juries could continue for terrorism-related offences committed in Northern Ireland during the Troubles. The Court held that juries were neither indispensable for securing a fair trial, nor required under the European Convention on Human Rights.
Trials with no juries were introduced in Northern Ireland by the Northern Ireland (Emergency Provisions) Act 1973 in response to a report prepared in 1972 by Lord Diplock. They came to be known as Diplock trials and continued until 2007. Diplock trials were meant to ensure that defendants guilty of terrorism-related offences could not escape punishment because of biased juries. In 2007, the Justice and Security (Northern Ireland) Act 2007 effectively abolished Diplock trials but allowed the Director of Public Prosecutions for Northern Ireland to bring back this mode of trial on an exception basis.
Under section 1 of the the Justice and Security (Northern Ireland) Act 2007, a trial without a jury can take place where “there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury” (s1(2)(b)), “the offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons” (s1(6)) and there is no evidence of bad faith or dishonesty (s7(1)(a)&(b)). Such a trial also cannot violate the defendant’s right to a fair trial under Article 6 of the European Convention on Human Rights (s7(2)).
The Applicant in In the matter of an application by Dennis Hutchings for Judicial Review (Northern Ireland)  UKSC 26, Mr Hutchings, commanded a patrol of Life Guards regiment of the British Army in 1974 which routinely engaged in combat against the Provisional Irish Republican Army. On 15 June 1974, a Life Guards patrol encountered a man, Mr Cunningham, who seemed startled and, seeing the patrol, climbed a gate into a field and started running away. Mr Hutchings, together with two other members of the patrol, pursued the man and after shouting a number of commands to stop, Mr Hutchings and another soldier fired shots at Mr Cunningham who, as a result, was killed. Subsequently, it turned out that Mr Cunningham had limited intellectual capacity, was unarmed and was running towards his home.
In 2015, following a review, Mr Hutchings was charged with the attempted murder and the Director of Public Prosecutions for Northern Ireland certified his case under section 1 of the the Justice and Security (Northern Ireland) Act 2007 as appropriate for a trial without a jury. Mr Hutchings filed a Judicial Review challenging this decision and the case eventually reached the Supreme Court.
On the relationship between a fair trial and juries, the Supreme Court ruled:
“34. It is important to focus on the need for a fair trial. Trial by jury is, of course, the traditional mode of trial for serious criminal offences in the United Kingdom. It should not be assumed, however, that this is the unique means of achieving fairness in the criminal process. Indeed, as the Court of Appeal’s statements in Jordan show, trial by jury can in certain circumstances be antithetical to a fair trial and the only assured means where those circumstances obtain of ensuring that the trial is fair is that it be conducted by a judge sitting without a jury.
“35. So-called Diplock trials took place in Northern Ireland between 1973 and 2007. No one suggests that this mode of trial failed to deliver fairness of process, by reason of the fact that the trial took place before a judge sitting without a jury. Although Article 6 of ECHR (which guarantees a right to a fair trial) is not prayed in aid by the appellant in this case, it is interesting to reflect that it has been held that this article does not require trial by jury. As the European Commission of Human Rights observed in X and Y v Ireland (Application No 8299/78) (1980) 22 DR 51, para 19, “… Article 6 does not specify trial by jury as one of the elements of a fair hearing in the determination of a criminal charge”.
“36. It is, of course, to be remembered that the system of trial introduced as a result of Lord Diplock’s report (Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland (1972) (Cmnd 5185)), required the trial judge to give a reasoned judgment if the defendant was convicted. And that a defendant, upon conviction, was entitled to an automatic right of appeal, not only on points of law but on the factual conclusions reached and inferences drawn by the trial judge. These remain features of trials without a jury since the 2007 Act – section 5(6) and (7).
“37. The statement made by Lord Judge CJ in R v Twomey  1 WLR 630 at para 10 (relied on by the appellant) that, “[i]n this country trial by jury is a hallowed principle of the administration of criminal justice … properly identified as a right, available to be exercised by a defendant unless and until the right is amended or circumscribed by express legislation” must be viewed against this background. In the first place, although the Lord Chief Justice described entitlement to trial by jury as a right, he did not suggest that this was an absolute right; indeed, he accepted that it could be constrained in certain circumstances…”
Diplock trials were introduced at the time when the UK was struggling with biased juries refusing to convict defendants guilty of violent offences committed as part of a religious unrest in Northern Ireland. Interestingly, a similar struggle took place in the 50s and 60s in Southern States in the US where all white juries often refused to convict defendants guilty of violence against African-Americans. However, the US Federal Government, unlike the UK Government, was not in the position to interfere with jury trials as this would have been contrary to the principle of federalism and would have also violated a constitutional right to being tried before a jury guaranteed by Article Three of the Constitution as well as the 6th Amendment (applicable to States by virtue of the 14th Amendment). Instead, the Federal Government often tried defendants acquitted in State Courts in Federal Courts on other charges, such as ‘violation of civil rights’. The UK Government, on the other hand, was never constrained by a written constitution and was able to introduce trials without juries to address the problem of biased jurors. In fact, biased juries is not the only reason a trial without a jury can take place in the UK. Apart from trials involving terrorism-related offences committed in Northern Ireland, trials without juries are also allowed in the UK in complex fraud cases and where there is a risk of jury tampering (sections 43-44 of the Criminal Justice Act 2003).
On 23 May 2019, the European Court of Human Rights ruled 6-1, in the case of Doyle v Ireland (App. no.: 51979/17), that the European Convention on Human Rights did not guarantee the right to have a lawyer physically present during police questioning. In doing so, the Court followed a new approach to Article 6 of the European Convention on Human Rights and refused to be influenced by American jurisprudence such as the famous case of Miranda v. Arizona, 384 U.S. 436 (1966).
The case of Doyle v Ireland (App. no.: 51979/17) concerned a murder suspect who was apprehended by the Irish Police and subjected to multiple rounds of questioning. Before the first questioning and in between the later rounds, he was allowed consultation with his solicitor. Further consultation with the solicitor was also allowed during an interview via telephone which caused the interview to be paused. However, the solicitor was not allowed to be physically present during questioning itself. During the trial for murder, the Applicant sought to exclude the confession made during questioning on the grounds that he was denied the right to legal assistance. A judge, without a jury, allowed the confession to be admitted in evidence and the Applicant was eventually convicted. On appeal, the Irish Supreme Court held that the Applicant’s argument for an absolute rule of presence of a lawyer rested almost entirely on the reasoning of the US Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966) and had no support in Irish jurisprudence.
The argument before the European Court of Human Rights was twofold. Firstly, the Applicant argued that the lack of access to a lawyer during questioning rendered the whole trial unfair within the meaning of Article 6(1) and, secondly, that it breached also his specific rights under Article 6(3) of the Convention. However, relying on the 2018 case of Beuze v Belgium (App. no.: 71409/10), the Court deemed it appropriate to consider the claim under one heading of the fairness of the trial:
“71. Compliance with the requirements of a fair trial must thus be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be ruled out that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings. In evaluating the overall fairness of the proceedings, the Court will take into account, if appropriate, the minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases. They can be viewed, therefore, as specific aspects of the concept of a fair trial in criminal proceedings in Article 6 § 1.
“72. According to the Court, those minimum rights guaranteed by Article 6 § 3 are, nevertheless, not ends in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see Beuze, cited above, § 122, and Ibrahim and Others, cited above, §§ 251 and 262 with further references).”
Employing what it described as a ‘very strict scrutiny’, the European Court of Human Rights found (at paras -) that the overall fairness of the proceedings was maintained despite a limited access to legal assistance because:
- the Applicant, as an adult native English speaker, was not a vulnerable person;
- questioning rounds were not excessively long;
- extensive breaks were allowed during questioning;
- access to lawyer by phone or, at times, in person, was allowed on request;
- the Applicant was physically and mentally strong throughout questioning;
- there was no ill-treatment of the Applicant;
- the applicant was able to challenge the use of the statements made during his questioning before the trial court;
- the Applicant had the opportunity to re-argue the admissibility of the statements on appeal before the Court of Appeal and the Supreme Court;
- the Applicant’s conviction was not based solely on the statements made during questioning;
- the Applicant was convicted by a jury which had seen videos of his questioning;
- the Applicant was notified of his rights on arrest.
Consequently, the majority of the European Court of Human Rights held that there was no violation of Article 6 of the European Convention on Human Rights. However, Judge Yudkivska submitted a dissenting opinion, where she argued that Beuze v Belgium (App. no.: 71409/10) had been incorrectly decided and the Majority Opinion was building on its ‘unfortunate legacy’ (para [B]).
Judge Yudkivska further argued (at para [B]) that the Court should follow the 2008 case of Salduz v Turkey (App. no.: 36391/02) and its line of reasoning:
“Salduz thus seemingly advanced a test whereby if an applicant’s access to a lawyer has been restricted and there is an absence of compelling reasons to justify that restriction, the proceedings will be irreparably prejudiced and therefore there will be a finding of a violation of Article 6. Accordingly, in accordance with (what I consider to be the “correct” interpretation of) Salduz, the Court ought to have determined that, due to the absence of any compelling reasons to justify the applicant’s restricted access to a lawyer (paragraph 84), there has been a violation of Article 6 §§ 1 and 3 (c) in this case.”
Judge Yudkivska also pointed (at para [B]) to the relationship between the jurisprudence of the European Court of Human Rights and other Courts:
“…The Salduz jurisprudence on the right to have access to a lawyer (including to have a lawyer present during interrogations), with its clear prohibition of blanket restrictions, was followed in subsequent cases and is supported by a number of international instruments and case-law (see for example, CPT/Inf (92)3-part1; [CPT/Inf (2011) 28]; CPT/Inf(2011)28-part1; E/CN.4/1998/39/Add.4; and Miranda v Arizona, 384 US 436 (1966)).”
Finally, Judge Yudkivska concluded (at para [C1]) that “…the above interpretation of Salduz would result in a more fair and just conclusion in the present case – namely an automatic finding of a violation due to the absence of compelling reasons to justify the restrictions on the applicant’s right of access to a lawyer…“
On 13 May 2019, the US Supreme Court ruled, 5-4, in the case of Franchise Tax Board of California v. Hyatt, 587 U. S. (2019), that a State could not be sued in a Court of another state. The case, although relates to a minute procedural rule, is significant because it shows the willingness of the majority of the Court to overrule a 40 year-old precedent if it stands in the way of searching for the original meaning of the US Constitution.
In Franchise Tax Board of California v. Hyatt, 587 U. S. (2019), the Majority Opinion, delivered by Justice Thomas, expressly overruled Nevada v. Hall, 440 U.S. 410 (1979) which had held that the Constitution did not bar suits against one State in a Court of another State, even though at the time of the ratification of the Constitution, States were immune from such actions.
The Majority Opinion in Franchise Tax Board of California v. Hyatt, 587 U. S. (2019) brings together all of the hallmark traits of Justice Thomas’s judicial philosophy. First of all, the case overrules a 40 year-old precedent showing his limited interest in stare decisis. On this issue, he claims:
“But stare decisis is “‘not an inexorable command,’” Pearson v. Callahan, 555 U. S. 223, 233 (2009), and we have held that it is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment,” Agostini v. Felton, 521 U. S. 203, 235 (1997). […] Nevada v. Hall is irreconcilable with our constitutional structure and with the historical evidence showing a widespread preratification understanding that States retained immunity from private suits, both in their own courts and in other courts.” (pp16-18).
Secondly, the opinion is based solely on the historical approach to the relevant legal principles. In fact, throughout his opinion, Justice Thomas talks about nothing else but history and, in doing so, he goes back even further than the time of the ratification of the Constitution:
“The common-law rule was that “no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him.” 1 W. Blackstone, Commentaries on the Laws of England 235 (1765) (Blackstone).” (p7)
Thirdly, despite the fact that Justice Thomas is believed to always employ strictly literal interpretation of the Constitution, the opinion shows his willingness to recognise unwritten constitutional doctrines, so long as they do not conflict with the prevailing understanding at the time of the founding. On this issue, he argues that:
“There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice—including, for example, judicial review, Marbury v. Madison, 1 Cranch 137, 176–180 (1803); intergovernmental tax immunity, McCulloch, 4 Wheat., at 435–436; executive privilege, United States v. Nixon, 418 U. S. 683, 705–706 (1974); executive immunity, Nixon v. Fitzgerald, 457 U. S. 731, 755–758 (1982); and the President’s removal power, Myers v. United States, 272 U. S. 52, 163–164 (1926). Like these doctrines, the States’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.” (p16)
The opinion delivered by Justice Thomas is in no way different from his other opinions. They are all based on the same principles. However, this time, his opinion was the Majority Opinion – he was not in dissent, nor did he have to submit a separate concurring opinion, which he often feels compelled to do. With the recent changes to the composition of the Supreme Court, it seems plausible that Justice Thomas, or at least his judicial philosophy, will be seen more and more in control of the Court’s precedents.
The Majority Opinion was supported by Justices Alito, Gorsuch, Kavanaugh and Chief Justice Roberts. The four liberal Justices dissented. In his dissenting opinion, Justice Breyer also takes a historical approach to the doctrine of State immunity, but, above all, he points to the effect of stare decisis:
“In any event, stare decisis requires us to follow Hall, not overrule it. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854–855 (1992); see also Kimble v. Marvel Entertainment, LLC, 576 U. S. ___, ___–___ (2015) (slip op., at 7–8). Overruling a case always requires “‘special justification.’” Kimble, 576 U. S., at ___ (slip op., at 8). What could that justification be in this case? The majority does not find one.
“The majority believes that Hall was wrongly decided. But “an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent.” Kimble, 576 U. S., at (slip op., at 8). Three dissenters in Hall also believed that Hall was wrong, but they recognized that the Court’s opinion was “plausible.” 440 U. S., at 427 (opinion of Blackmun, J.). While reasonable jurists might disagree about whether Hall was correct, that very fact—that Hall is not obviously wrong—shows that today’s majority is obviously wrong to overrule it.(p10)
“Perhaps the majority believes that there has been insufficient reliance on Hall to justify preserving it. But any such belief would ignore an important feature of reliance. The people of this Nation rely upon stability in the law Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives. Each time the Court overrules a case, the Court produces increased uncertainty. To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay” (pp12-13)
On 15 May 2019, the UK Supreme Court ruled 4-3, in R (on the application of Privacy International) v Investigatory Powers Tribunal and others  UKSC 22, that rulings of the Investigatory Powers Tribunal are subject to the supervisory jurisdiction of the High Court on the point of law. In its ruling, the Supreme Court discusses a common law presumption against clauses restricting access to judicial review and, more crucially, the limits of the doctrine of parliamentary sovereignty.
The Investigatory Powers Tribunal is a specialist tribunal created by the Regulation of Investigatory Powers Act 2000 (RIPA 2000) and tasked with supervising intelligence surveillance and other conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (GCHQ). Under RIPA 2000, s 67(8), rulings of the Investigatory Powers Tribunal seem to be final:
“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”
However, Lord Carnwath, in his Majority Opinion, held that judgments containing errors of law were not ‘determinations’ within the meaning of RIPA 2000, s 67(8) and the supervisory jurisdiction was therefore not ousted. This interpretation flows from the old decisions of the House of Lords in Anisminic v Foreign Compensation Commission  2 AC 14 and O’Reilly v Mackman  UKHL 1 which established that:
“…If a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie, one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported ‘determination’, not being a ‘determination’ within the meaning of the empowering legislation, was accordingly a nullity…” [para 54]
Therefore, Lord Carnwath held that ‘…a determination arrived at on an erroneous view of the relevant law was not a “determination” within the meaning of an ouster clause...’ [para 54]. This approach is consistent with a general common law presumption against ousting the jurisdiction of the High Court [para 107].
However, in his Majority Opinion, Lord Carnwath moves beyond the common law presumption against clauses restricting access to judicial review and the concept of ‘nullity’ determinations and suggests that the question of the supervisory jurisdiction of the High Court should come down to the concept of the rule of law:
“This proposition should be seen as based, not on such elusive concepts as jurisdiction (wide or narrow), ultra vires, or nullity, but rather as a natural application of the constitutional principle of the rule of law (as affirmed by section 1 of the [Constitutional Reform Act] 2005), and as an essential counterpart to the power of Parliament to make law. The constitutional roles both of Parliament, as the maker of the law, and of the High Court, and ultimately of the appellate courts, as the guardians and interpreters of that law, are thus respected…” [para 132]
“…Arguably, following the logic of the reasoning in R (Cart) [v Upper Tribunal  UKSC 28], it may be thought implicit in the constitutional framework for the rule of law, as established by the Senior Courts Act 1981 and the Constitutional Reform Act 2005, that legal issues of general importance should be reviewable by the appellate courts; and that an ouster clause which purports to exclude that possibility cannot, consistently with the rule of law, be upheld…” [para 142]
Consequently, Lord Carnwath concluded that:
“…[A]lthough it is not necessary to decide the point, I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.” [para 144]
The Majority Opinion in R (on the application of Privacy International) v Investigatory Powers Tribunal and others  UKSC 22 constitutes a vital part of UK constitutional jurisprudence on the doctrine of parliamentary sovereignty as it seems to suggest that there are some ultimate limits as to what Parliament can and cannot do. The Supreme Court appears to suggest that the concept of the rule of law might pose limits to the Parliament’s power to regulate access to judicial review. It is not clear what those limits are but the Court points to the fact that unlike the Court of Appeal and the Supreme Court, which are the creation of statutes, the High Court enjoys the original common law jurisdiction [para 141] and, although there is no constitutional right of appeal form the High Court, its supervisory jurisdiction is somehow special because ‘[a]t least since the time of Blackstone, this has been a central part of the function of the High Court as constitutional guardian of the rule of law’ [para 139]. The Supreme Court therefore recognises the long history of the supervisory jurisdiction of the High Court which was established at the end of the 13th century as the King’s Bench and its ‘supervisory role was preserved by section 16 of the Judicature Act 1873 which vested the common law powers of the Queen’s Bench in the newly created High Court. Those powers were in turn preserved by section 19 of the Senior Courts Act 1981‘ [para 33].
Although the Supreme Court points to the Judicature Act 1873, the Senior Courts Act 1981 and the Constitutional Reform Act 2005 as a potential source of the rule of law, those statutes only recognised the powers of the High Court and the concept of the rule of law, rather than created them. The Judicature Act 1873 combined the Court of Chancery, the Court of Queen’s / King’s Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate and the Court of Divorce and Matrimonial Causes into the Supreme Court of Judicature, composed of the High Court with original jurisdiction and the Court of Appeal with appellate jurisdiction. The Senior Courts Act 1981, s 19 provided that ‘(2) [s]ubject to the provisions of this Act, there shall be exercisable by the High Court – (b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act…’ while the Constitutional Reform Act 2005, s 1 provided that ‘[t]his Act does not adversely affect – (a) the existing constitutional principle of the rule of law…” None of these Acts created supervisory jurisdiction of the High Court, nor did they established the rule of law as one of the principles of UK constitutional law but rather recognised what had already existed.
Finally, the Supreme Court confirmes that as ‘constitutional statutes’, the Judicature Act 1873, the Senior Courts Act 1981 and the Constitutional Reform Act 2005 are immune to implied repeal by Parliament [para 120]. Consequently, Parliament cannot implicitly modify rules governing the supervisory jurisdiction of the High Court. The question remains, what would happen if Parliament was to expressly abolish that jurisdiction or the concept of the rule of law in its entirety. It is not clear from the judgment whether Parliament can abolish something that it has not created but only recognised as already in existence.
On 22 April 2019, the US Supreme Court issued a writ of certiorari for the cases of Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. 2018) and Gerald Lynn Bostock v. Clayton County, No. 17-13801 (11th Cir. 2018) concerning the question of protection against discrimination in the workplace due to sexual orientation and, separately, for the case of Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, No. 16-2424 (6th Cir. 2018) concerning discrimination due to gender identity. All three cases will be heard under Title VII of the Civil Rights Act 1964.
The application of Title VII of the Civil Rights Act 1964 to discrimination based on sexual orientation has so far divided the federal Courts. Under Title VII of the Civil Rights Act 1964, discrimination is prohibited, inter alia, based on ‘sex’ and in Zarda v. Altitude Express, Inc., No. 15-3775 (2d Cir. 2018), the Court of Appeals for the 2nd Circuit ruled that Title VII applied to sexual orientation as well because it should be considered a ‘function of sex’ and therefore inextricably linked to the concept of ‘sex’. On the other hand, in Gerald Lynn Bostock v. Clayton County, No. 17-13801 (11th Cir. 2018), the Court of Appeals for the 11th Circuit held, in a short per curiam opinion, that under Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), “[d]ischarge for homosexuality [was] not prohibited by the Title VII.” This classic circuit split has prompted the Supreme Court to consolidate the two cases to answer the question whether Title VII of the Civil Rights Act 1964 applies to discrimination based on sexual orientation. Similarly, in Equal Employment Opportunity Commission v. R.G. &. G.R. Harris Funeral Homes, No. 16-2424 (6th Cir. 2018), the Court of Appeals for the 6th Circuit ruled that Title VII of the Civil Rights Act 1964 also applied to discrimination based gender identity explaining that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex.” The Supreme Court will now determine whether Title VII of the Civil Rights Act 1964 in fact applies to discrimination based on gender identity as part of discrimination on account of ‘sex’ (The New York Times).
The question of the application of Title VII of the Civil Rights Act 1964 to discrimination based on sexual orientation and gender identity comes down to the manner of interpretation of Title VII. Under an ordinary literal interpretation, discrimination based on ‘sex,’ must necessarily refer to discrimination of women (comparing to men) or of men (comparing to women). This is further confirmed by the fact that Title VII offers an exhaustive list of characteristics that attract its protection – originally it included race, color, religion, sex and national origin and then, over time, pregnancy, age and disability were added (by Pregnancy Discrimination Act of 1978, Age Discrimination in Employment Act and Americans with Disabilities Act of 1990). Out of these, ‘pregnancy’ is especially interesting as it is necessarily closely linked to sex, yet Congress considered it necessary to add it separately thereby reinforcing the position that ‘sex’ does not cover other characteristics that it is simply linked to. The same conclusion is arrived at using the originalist approach and looking at the understanding of this provision at the time it was being passed. Clearly, in the 1960s, Congress could not contemplate protection for homosexuals in the workplace given that many States at the time (and long afterwords) had anti-sodomy laws on the books. In fact, the unconstitutionality of such laws was only established by the Supreme Court in 2003 in Lawrence v. Texas, 539 U.S. 558 (2003). On the other hand, under a purposive interpretation, Title VII could be taken to be intended to prevent discrimination of minorities in the workplace. With such a purpose, the close relationship between sex and sexual orientation and sexual identity is probably enough to apply a wide construction equating those characteristics.
Given that the application of Title VII of the Civil Rights Act 1964 comes down to the manner of interpretation, the case is likely to be resolved along the ideological lines, with conservative Justices taking a literal/originalist approach and liberal Justices taking a purposive approach. The ultimate outcome of the case will probably lie with Chief Justice Roberts who, although an originalist, is also wary of political implications of the case. Chief Justice Roberts has a record of siding with the conservative Justices in gay rights cases (e.g. United States v. Windsor, 570 U.S. 744 (2013), Obergefell v. Hodges, 576 U.S. (2015)), however this is the first time the Court will hear such a case after the departure of Justice Kennedy who, although a conservative, always sided with the liberals in cases concerning gay rights. This dynamics might affect the way Chief Justice Roberts will vote.
On 9 April 2019, the European Court of Human Rights ruled unanimously, in the case of Navalny v Russia (No. 2) (App. no. 43734/14), that Russia violated Navalny’s right not to be arbitrarily detained under Article 5, his freedom of expression under Article 10 while at the same time acting contrary to Article 18 of the European Convention on Human Rights. The judgment comes after the European Court of Human Rights vindicated Navalny in Navalny v Russia (App. no.: 29580/12) in November 2018.
The November 2018 ruling in in Navalny v Russia (App. no.: 29580/12) concerned Navalny’s complaint against the Russian government claiming a political persecution through different methods and over an extensive period of time. In respect of Article 5, Navalny complained about having been arbitrarily arrested on seven occasions while attending peaceful demonstrations, including twice for an alleged failure to obey a police order (on 9 May 2012 and 24 February 2014) and about having been detained for over three hours in violation of the statutory time-limit pending his trial (paras. 68-9). In respect of Article 6, Navalny argued that on all seven occasions when he was arrested, he was unfairly convicted of an administrative offence in violation of his right to a fair hearing, including the right to the equality of arms, presumption of innocence, impartiality of the tribunal and the adversarial nature of the proceedings (para. 73). In respect of Article 11, Navalny claimed that arresting him seven times while attending peaceful demonstrations had violated his freedom of peaceful assembly (para. 85). In November 2018, the European Court of Human Rights agreed with most of Navalny’s claim (discussed by The Jurist’s Corner at length here).
The April 2019 ruling concerns Navalny’s house arrest which was ordered by a Russian domestic Court pending Navalny’s criminal trial for an alleged fraud and money laundering. Navalny lodged a complaint with the European Court of Human Rights claiming that the decision to place him under house arrest, together with a further ban on communication with anyone other than his close family, was designed to prevent him from pursuing his public and political activities as an opposition leader therefore violating his rights under Articles 5 and 10 of the European Convention on Human Rights. Navalny also claimed, similarly as in his previous case, that the actions of the Russian government were contrary to Article 18 of the Convention which prescribes that “the restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” In response, the Russian government argued that the decision to place Navalny under house arrest was made due to his non-compliance with a previous preventive measure not to leave Moscow during the investigation.
In relation to an arbitrary deprivation of liberty contrary to Article 5 of the European Convention on Human Rights, the European Court of Human Rights first acknowledged that subjecting Navalny to a house arrest over the period of 10 months amounted to a deprivation of liberty (para 59). The Court then analysed Navaly’s history of complying with previous preventive measures and found that there was no evidence of any non-compliance which led the Court to hold that there was no credible risk of absconding. Ultimately, the Court ruled that “the domestic courts had no criminal-process reasons which called for the undertaking to be converted into house arrest. The house arrest was therefore ordered against the applicant unlawfully.” (para 63). On the subject of Article 10 of the Convention, the Court first acknowledged that the ban on “(i) leaving his flat, (ii) communicating with anyone apart from his immediate family, (iii) using means of communication and the Internet, and (iv) making statements, declarations, or addresses to the public or commenting on the criminal case to the media” (para 74), which was attached to the house arrest order, amounted to an interference with Navalny’s freedom of expression under Article 10 of the Convention. Then, the Court held that most of the ban was unlawful under Russian domestic law, which had been admitted by a domestic Court (paras 76-77). Ultimately, the Court held that the ban was “applied without any apparent connection with the requirements of the criminal investigation. The ban on the applicant’s access to means of communication in the house-arrest order did not serve the purpose of securing his appearance before the investigator or at his trial, and, as with the decision to place him under house arrest, had no connection with the objectives of criminal justice.” (para 80).
Similarly as in his previous case before the European Court of Human Rights, Navalny argued, beside his substantive claim under Articles 5 and 10 of the European Convention on Human Rights, that Russia also violated Article 18 of the Convention. In the November 2018 ruling, the judges voted 14-3 in favour of finding a violation of Article 18. In the April 2019 ruling, the Court was unanimous:
“93. The Court has found above that the applicant’s detention under house arrest was ordered unlawfully, and that the ban on his access to means of communication did not pursue a legitimate aim (see paragraphs 63 and 81 above). In view of those conclusions, the Court may dispense with an assessment of the issue of plurality of purposes in respect of those measures and focus on the question whether, in the absence of a legitimate purpose, there was an identifiable ulterior one (see Navalnyy, cited above, § 166).
94. The request to have the undertaking not to leave Moscow replaced with house arrest was lodged on 26 February 2014, immediately following the applicant’s two arrests on 24 February 2014 for taking part in unauthorised public gatherings; both arrests were found by the Court to be in breach of Articles 5 and 11 of the Convention, and one of them also in breach of Article 18 (see Navalnyy, cited above, §§ 71-72, 125-26, 138, 146 and 175). Moreover, the Court noted the pattern of the applicant’s arrests and found that the grounds given for his deprivation of liberty had become progressively more implausible (see Navalnyy, cited above, §§ 167-68). It accepted the allegation that he had been specifically and personally targeted as a known activist (ibid., § 170). His deprivation of liberty in the present case must be seen in the context of that sequence of events.
95. The Court observes next that the applicant’s house arrest, together with the restrictions on his freedom of expression, lasted for over ten months. This duration appears inappropriate to the nature of the criminal charges at stake; in particular, no such measures were applied to the applicant’s brother, who was the main accused in the fraud case. The restrictions imposed on the applicant, especially the communication ban, which even the domestic courts considered unlawful (see paragraph 77 above), became increasingly incongruous over the course of that period, as their lack of connection with the objectives of criminal justice became increasingly apparent (see paragraph 80 above).
96. In Navalnyy, cited above, in its discussion of Article 18 of the Convention in connection with Articles 5 and 11, the Court relied on the converging contextual evidence that at the material time the authorities were becoming increasingly severe in their response to the conduct of the applicant and other political activists and, more generally, to their approach to public assemblies of a political nature (ibid., § 172). It also referred to the broader context of the Russian authorities’ attempts to bring the opposition’s political activity under control (ibid., § 173) and noted the applicant’s role as an opposition politician playing an important public function through democratic discourse (ibid., § 174).
97. The Court considers that the evidence relied on in Navalnyy is equally pertinent to the present case and is capable of corroborating the applicant’s allegations that his placement under house arrest with restrictions on communication, correspondence and use of the Internet pursued the aim of curtailing his public activity, including organising and attending public events.
98. In view of the above, the Court considers that the restrictions on the applicant’s right to liberty in the present case pursued the same aim as in Navalnyy, namely to suppress political pluralism. This constituted an ulterior purpose within the meaning of Article 18, which moreover attained significant gravity (ibid., § 174).
99. There has accordingly been a violation of Article 18 taken in conjunction with Article 5 of the Convention.”
A violation of Article 18 of the European Convention on Human Rights necessarily implies an element of bad faith on the part of a state. Very rarely does a violation of a substantive right (such as the right not to be arbitrarily detained under Article 5 or the freedom of expression under Article 10 of the Convention) entail a violation of Article 18 of the Convention. Most cases before the European Court of Human Rights in which applicants are successful concern situations where states acted in good faith but nevertheless violated some Convention rights. But a violation of Article 18 means that the motives of the Russian government, when dealing with Navalny, where malicious. This conclusion is only reinforced by the fact that the ruling on Article 18 was unanimous.
On 1 April 2019, the US Supreme Court ruled 5-4, in the case of Bucklew v. Precythe, 587 U.S. (2019), that a person sentenced to death, who wants to challenge the method of execution on the grounds that it would cause excessive pain, must demonstrate that alternative methods of execution are available and would cause considerably less pain. Strictly speaking, the decision does not introduce any new rule to this area of law as this approach was already confirmed in Glossip v. Gross, No. 14-7955, 576 U.S. (2015), however it is illustrative of the growing dominance of the originalist approach among the Court’s majority.
The case concerned Russell Bucklew who had been sentenced to death for raping his former girlfriend and murdering her lover. He challenged the use of lethal injection, as an execution method, on the grounds that his medical condition (cavernous hemangioma) could prevent the execution from being effective and cause him tremendous pain before death. The challenge was brought under the 8th Amendment to the US Constitution prohibiting ‘cruel and unusual punishments’.
Since the 1970s, when dealing with challenges to the capital punishment under the 8th Amendment, the Supreme Court, in its majority opinions, has used a mixture of originalism and more liberal methods of interpretation to establish what form of punishment could be considered ‘cruel and unusual’, therefore forbidden. This has produced two sets of decisions. First, those decisions which declared the death penalty unconstitutional in certain circumstances, such as where used against mentally impaired perpetrators (Atkins v. Virginia, 536 U.S. 304 (2002)), those who committed the relevant crime while still being a minor (Thompson v. Oklahoma, 487 U.S. 815 (1988); Roper v. Simmons, 543 U.S. 551 (2005)) or where no death was caused (Coker v. Georgia, 433 U.S. 584 (1977); Kennedy v. Louisiana, 554 U.S. 407 (2008)). Those decisions had the liberal members of the Court (previously: Justices Stevens, Brennan, Marshall, Blackmun; more recently: Justices Breyer, Ginsburg, Sotomayor, Kagan) in the majority, usually with Justice Kennedy or O’Connor joining them, employing some progressive methods of interpretation such as an evolving standard of decency, ie, the idea that whether something is constitutional or not (here the death penalty or various methods of its execution) changes over time as social norms change. In those cases, conservative members of the Court (Alito, Roberts, Rehnquist, Scalia, Thomas, etc) were always in dissent.
The second set of decisions upheld the constitutionality of the death penalty as such and all methods of its execution (Glossip v. Gross, No. 14-7955, 576 U.S. (2015), Baze v. Rees, 553 U.S. 35 (2008)) and minimised the number of procedural hurdles that need to be cleared before the penalty can be imposed (Payne v. Tennessee, 501 U.S. 808 (1991); Herrera v. Collins, 506 U.S. 390 (1993); Schriro v. Summerlin, 542 U.S. 348 (2004); Oregon v. Guzek, 546 U.S. 517 (2006); Kansas v. Marsh, 548 U.S. 163 (2006); Leal Garcia v. Texas, 564 U.S. 940 (2011)). Those decisions were usually issued with a majority opinion based on a ‘soft’ form of originalism (sometimes with a trace of more liberal methods of interpretation) and were supported by Justices such as Kennedy, O’Connor, Alito and Chief Justices Roberts or Rehnquist. However, they were always accompanied by concurring opinions of Justices Thomas and Scalia employing what might be called ‘hard’ originalism. In those decisions, the liberal members of the Court were always in dissent.
The difference between ‘soft’ and ‘hard’ originalism in capital punishment cases is accurately summarised by Justice Gorsuch in his majority opinion in Bucklew v. Precythe, 587 U.S. (2019). The soft originalism:
“…teaches that where (as here) the question in dispute is whether the State’s chosen method of execution cruelly superadds pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.” (p13)
On the other hand, under their ‘hard’ originalist approach to the 8th Amendment, Justice Scalia and Thomas:
“…argued that establishing cruelty consistent with the Eighth Amendment’s original meaning demands slightly more than the majority opinion there (or the Baze plurality opinion it followed) suggested. Instead of requiring an inmate to establish that a State has unreasonably refused to alter its method of execution to avoid a risk of unnecessary pain, Justice Thomas and Justice Scalia contended that an inmate must show that the State intended its method to inflict such pain.” (p14)
The case of Bucklew v. Precythe, 587 U.S. (2019) is significant as it illustrates how the new majority of the Court (with two Justices appointed after 2016) gravitates towards ‘hard’ originalism. First of all, the very fact that the majority opinion was written by Justice Gorsuch, who is a proud originalist, sets the tone of this decision from the start. Secondly, in his opinion, Justice Gorsuch conducted a thorough analysis of the use of the capital punishment at the time of the adoption of the 8th Amendment as the only benchmark against which all decisions in this area must be taken (pp8-10). Then Justice Gorusch, speaking on behalf of the majority, confirmed the validity of old precedents upholding various methods of execution such as by firing squad (Wilkerson v. Utah, 99 U.S. 130 (1879)) or using electric chair (In re Kemmler, 136 U. S. 436, 447 (1890)) (pp10-11). What is more, appreciating the difference in approach between ‘soft’ and ‘hard’ originalists, Justice Gorsuch, and with him the majority, did not disapprove of the ‘hard’ originalist approach and instead concluded that:
“…revisiting that debate isn’t necessary here because, as we’ll see, the State was entitled to summary judgment in this case even under the more forgiving Baze-Glossip test [ie ‘soft’ originalist approach].”
Furthermore, even though Justice Thomas submitted his own concurring opinion, he dedicated it almost in its entirety to Justice Breyer’s dissent:
“I adhere to my view that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain.” Baze v. Rees, 553 U. S. 35, 94 (2008) (opinion concurring in judgment); ante, at 14 [ie ‘hard’ originalist approach]. Because there is no evidence that Missouri designed its protocol to inflict pain on anyone, let alone Russell Bucklew, I would end the inquiry there. Nonetheless, I join the Court’s opinion in full because it correctly explains why Bucklew’s claim fails even under the Court’s precedents. I write separately to explain why Justice Breyer’s dissenting opinion does not cast doubt on this standard…” (p1)
At the same time, Justice Kavanaugh, who also submitted his concurring opinion despite joining the majority, dedicated it solely to:
“…the Court’s additional holding that the alternative method of execution need not be authorized under current state law—a legal issue that had been
uncertain before today’s decision.” (p1)
Finally, what also makes Justice Gorusch’s opinion so significant is making it abundantly clear for future litigants that the 8th Amendment “forbids ‘cruel and unusual’ methods of capital punishment but does not guarantee a prisoner a painless death”.
On 28 March 2019, the European Court of Human Rights ruled unanimously, in the case of Eiseman-Renyard v UK (App. No.: 57884/17), that the preventive detention of opponents of the 2011 Royal Wedding did not breach their rights under Article 5 of the European Convention on Human Rights. In fact, relying on the doctrine of subsidiarity, the Court did not even properly consider the merits of the case but instead classified the application as ‘manifestly ill-founded’ and therefore wholly inadmissible.
The main applicant, Hannah Eiseman-Renyard, along with other applicants, arrived in the centre of London between 10 and 11 AM on the day of the wedding of the Duke and Duchess of Cambridge (29 April 2011) with the intention to participate in a ‘zombie picnic’ organised by the ‘Queer Resistance’. Before any demonstration took place, the applicant had been arrested by the police for the purpose of ‘preventing a breach of the peace’. The police were acting on information that the group was planning to gather at Westminster Abbey at 11 AM to throw maggots (as confetti) during the wedding procession. The applicant was taken to the Belgravia police station where she were detained until 3:45 PM, i.e. until the wedding had ended. She was then released with no charges.
Firstly, the ECtHR considered the classification of the complaint and ruled that it should be reviewed under Article 5(1)(c) of the ECHR, determining that Article 5(1)(b) of the ECHR, even though raised by the applicant, was irrelevant in this case in light of the holding in S., V. and A. v. Denmark (App. Nos.: 35553/12, 36678/12 & 36711/12) (para 39). Article 5(1)(b)&(c) state:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;”
Secondly, the ECtHR considered the domestic legal basis for the detention. The Court recognised that “breach of the peace is a common-law concept dating back to the tenth century” whereby “every constable, and also every citizen, enjoys the power and is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur” (R (Laporte) v Chief Constable of Gloucester  2 AC 105) (para 26). In line with the domestic authorities, the Court recognised that “the power is confined to a situation in which the person making the arrest reasonably believes that a breach of the peace is likely to occur in the near future. Moreover, there is only a power of arrest if it is a necessary and proportionate response to the risk.” (para 27). In this respect, the ECtHR held that “there was no dispute that the applicants’ detention was lawful under domestic law. It may be noted that the High Court was satisfied that the arresting officers had reasonable grounds for believing that a breach of the peace was imminent.” (para 41).
Thirdly, the ECtHR considered the compliance of the common law offence of ‘breach of peace’ with the rights guaranteed under Article 5 of the ECHR. On that issue, the Court found that:
“The offence of breach of the peace which all the applicants were charged with was sufficiently concrete and specific in the circumstances. Against the factual background of the royal wedding in terms of crowd size and international interest, coupled with the threat level of ‘severe’ in the United Kingdom at the relevant time, the Court finds that an objective observer would be satisfied that the applicants would in all likelihood have been involved in the concrete and specific offence had its commission not been prevented by their detention. Finally, it notes that the applicants were released as soon as the imminent risk had passed and in all cases their detention was for a matter of hours, which the Grand Chamber identified as broadly appropriate in the context of preventive detention…” (para 43).
Finally, the ECtHR relied on the doctrine of subsidiarity whereby an in-depth consideration of relevant issues in light of ECtHR’s jurisprudence by a domestic court creates a strong presumption in favour of a domestic ruling. In line with this approach, the Court deferred to the domestic rulings:
“In the circumstances of the present case the domestic courts in fact examined these elements in the context of their analyses of national law, the Court of Appeal observing that there was no practical distinction between the test in common law and under the Convention (see § 87). The Supreme Court noted that:
“5. The Administrative Court rejected the broad complaint that the police adopted an unlawful policy for the policing of the royal wedding. After close examination of the facts of the individual arrests, it also held that the arresting officers had good grounds to believe that the arrests were necessary in order to prevent the likelihood of an imminent breach of the peace. It dismissed as unrealistic the argument that lesser measures would have been adequate to meet the degree of risk. Continuous police supervision was not a feasible option, given the many demands on police resources. The claims that the police acted unlawfully as a matter of domestic law therefore failed.”
The Court considers there are no cogent reasons (see S., V. and A. v. Denmark, cited above, § 154) which would lead it to depart from the Supreme Court’s finding for the second and fifth applicants that:
“31. In this case there was nothing arbitrary about the decisions to arrest, detain and release the appellants. They were taken in good faith and were proportionate to the situation”…“
Overall, the ECtHR held “that the domestic courts struck a fair balance between the importance of the right to liberty and the importance of preventing the applicants from disturbing the public order and a causing danger to the safety of individuals and public security.”
On 25 February 2019, the US Supreme Court issued an unsigned per curiam opinion in Yovino v. Rizo, 586 U. S. (2019) reversing the decision of the Court of Appeals for the 9th Circuit where the Court listed Judge Reinhardt as the author of that en banc decision issued on 9 April 2018 despite the fact that the Judge had died 11 days earlier.
The ruling is yet another example of the US Supreme Court reversing decisions of the most liberal of all US Courts of Appeals. The case has now been remanded back to the 9th Circuit for further proceedings. However, in its short anonymous opinion, the US Supreme Court managed to summarise the absurdity of the situation in one short phrase:
‘Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.‘
On 30 January 2019, the UK Supreme Court held 5-2, in the case of R (on the application of Hallam) v Secretary of State for Justice  UKSC 2, that people convicted of criminal offences, who have their convictions subsequently overturned, had no right to compensation unless they could demonstrate that the new evidence proved ‘beyond reasonable doubt‘ that they had not committed the offences.
The Appellant in this case spent about seven years in prison before his conviction was eventually quashed for being unsafe in light of newly discovered evidence. He then applied for compensation under section 133 of the Criminal Justice Act 1988 (as amended by section 175 of the Anti-social Behaviour, Crime and Policing Act 2014). The entitlement to compensation under Section 133 of the Criminal Justice Act 1988 is based on the concept of ‘miscarriage of justice’ which is defined under section 133(1ZA) of the Criminal Justice Act 1988 as occurring ‘if and only if the new or newly discovered fact shows beyond reasonable doubt that the person did not commit the offence‘. The Appellant’s application for compensation was refused by the Secretary of State for Justice on the grounds that, inasmuch as newly discovered evidence cast doubt on his conviction as to render it unsafe and therefore resulted in quashing, it did not prove beyond reasonable doubt that the Appellant had not committed the offence. The Appellant brought judicial review proceedings against the decision claiming that the requirement contained in section 133(1ZA) of the Criminal Justice Act 1988 was incompatible with the presumption of innocence under Article 6(2) of the European Convention on Human Rights.
In the majority opinion written by Lord Mance, the five Justices held that based on the jurisprudence of the European Court of Human Rights, most notably the case of Allen v UK (App. no. 25424/09), the requirement contained in section 133(1ZA) of the Criminal Justice Act 1988 did not breach Article 6(2) of the European Convention on Human Rights. The case was concerned with claims for compensation where new evidence rendered the conviction unsafe because, had it been available at the time of trial, a reasonable jury might or might not have convicted. This type of claims also falls short of the requirement contained in section 133(1ZA) of the Criminal Justice Act 1988, yet the European Court of Human Rights did not consider it incompatible with Article 6(2) of the ECHR. Even though Allen v UK (App. no. 25424/09) was never concerned with the requirement to prove innocence beyond reasonable doubt itself, the reasoning of the European Court of Human Rights prompted the majority in R (on the application of Hallam) v Secretary of State for Justice  UKSC 2 to uphold section 133(1ZA) of the Criminal Justice Act 1988 and confirmed that the Appellant had no right to compensation despite spending seven years in prison.
Lord Reed and Lord Kerr dissented. Lord Reed, with whom Lord Kerr agreed, accepted that compensation could be denied under Allen v UK (App. no. 25424/09) in cases where new evidence rendered the conviction unsafe because, had it been available at the time of trial, a reasonable jury might or might not have convicted, but argued that section 133(1ZA) of the Criminal Justice Act 1988 was nevertheless incompatible with the presumption of innocence under Article 6(2) of the ECHR, because it effectively required the Secretary of State for Justice to decide whether persons, whose convictions had been quashed, established that they were innocent (para 187).
Given the outcome of the case, it is possible that the European Court of Human Rights will have a final say on the issue.
On 20 February, the US Supreme Court unanimously held, in the case of Timbs v. Indiana, 586 U.S. ___ (2019), that the prohibition on excessive fines contained in the 8th Amendment applied to States (as well as the federal government) and prevented Indiana from confiscating a Land Rover worth $42,000 just because it had been used during a drug transaction. The judgment is significant because it is a rare case of the Court limiting States’ civil asset forfeiture powers but also because of its discussion of the Bill of Rights’ selective incorporation process.
Civil asset forfeiture is a legal tool used by law enforcement to confiscate private property from persons suspected of illegal activity without necessarily charging them with any wrongdoing. According to some estimations, between 2011 and 2014, local and state agencies confiscated $2.5 billion in approximately 62,000 cash seizures conducted ‘without search warrants or indictments’ (The Washington Post). When it comes to the federal government, in 1985, the Justice Department’s Assets Forfeiture Fund brought in $27 million but by 2017, that figure skyrocketed to $1.6 billion (The Atlantic). In Timbs v. Indiana, 586 U.S. ___ (2019), Justice Ginsburg, writing for the majority, referred to the protection from excessive fines as a historically important safeguard recognised as early as the Magna Carta. However, the effective application of the Excessive Fine Clause of the 8th Amendment is a novelty in the Court’s jurisprudence as the Court found a violation of the Excessive Fine Clause for the first time in 1998, in United States v. Bajakajian, 524 U.S. 321 (1998).
The 8th Amendment prohibits, among other things, ‘excessive fines [being] imposed’. In Waters-Pierce Oil Co. v. Texas, 212 U.S. 86 (1909), the Supreme Court held that excessive fines were defined as fines ‘so grossly excessive as to amount to a deprivation of property without due process of law’. In Austin v. United States, 509 U.S. 602 (1993), the Court ruled for the first time that the Excessive Fines Clause applied to civil asset forfeiture conducted by the federal government, but the case was silent on its potential application to States’ actions.
Originally, just as the other Amendments constituting the Bill of Rights, the 8th Amendment was meant to apply only against the federal government. After the Civil War, with the enactment of the 14th Amendment, the Courts began to apply various safeguards contained in the Bill of Rights against States as well as the federal government. Throughout that time, the Courts usually invoked the Due Process Clause of the 14th Amendment as the provision rendering the Bill of Rights applicable against States. In Timbs v. Indiana, 586 U.S. ___ (2019), 7 Justices, in the opinion written by Justice Ginsburg, held that the 8th Amendment applied against the State of Indiana by virtue of the Due Process Clause. On the other hand, Justice Thomas, while concurring in the outcome of the case, produced a separate opinion on the issue of the selective incorporation where he explained that the application of the Bill of Rights against States was possible by virtue of the Privileges or Immunities Clause of the 14th Amendment, rather than the Due Process Clause. Justice Neil Gorsuch, who joined the majority opinion, also wrote a concurring opinion, agreeing with Justice Thomas on the issue of the selective incorporation.
The ruling is expected to have a considerable impact on the the use of civil asset forfeiture as it establishes a strong protection against its abuse, now applicable to both the federal and States’ governments. The case also signals potential future discussions among Justices on the effect of the 14th Amendment on the selective incorporation.
On 15 February 2019, the US Supreme Court agreed to hear the census case on whether the Trump Administration could add the citizenship question to the 2020 census. The Court’s decision comes after, on 15 January 2019, the District Court for the Southern District of New York ruled in State of New York v US Department of Commerce, 18-CV-5025 (JMF) that Commerce Secretary’s decision to add the citizenship question violated the Administrative Procedure Act governing the creation of new regulations by administrative agencies. Following the ruling, the Justice Department asked the US Supreme Court to bypass the ordinary appellate stage at the US Court of Appeals and take the case in light of the approaching June deadline for printing census forms. The Court will hear the case in April 2019 and the ruling is expected to be delivered in June 2019, before the Justices adjourn for the summer (CNN).
Adding the citizenship question to the upcoming 2020 census became very controversial after some groups, such as the ACLU, had said that it would deter many illegal immigrants from participating in the census. This in turn would lower the official population numbers for States with a large portion of illegal immigrants, mainly California. This could have a considerable impact on the apportionment of federal funds and seats in the House of Representatives which directly depends on population numbers (US Constitution, Article 1, Clause 3). ACLU claims that adding the citizenship question would stop about 6.5 million people from entering their details in the census which could lead to the State of California loosing billions of dollars in federal funding as well as between one and three seats in the House of Representatives (The Hill).
The Trump Administration argues that the citizenship question is necessary in order to comply with the Voting Rights Act and that this question has been asked during all but one census from 1820 to 2000. But in January 2019, a District Judge (an Obama appointee) disagreed, holding that the rationale was ‘pretextual’ and the decision was made in violation of the Administrative Procedures Act because it had failed to ‘consider all important aspects of a problem’ as required by the Act, implying also that the true intentions behind the citizenship question was to deter participation (Bloomberg).
Ordinarily, the decision of the District Court for the Southern District of New York would have to be appealed to the US Court of Appeals for the 2nd Circuit. However, as with many other unfavorable judicial rulings, the Trump Administration petitioned the Supreme Court to hear the appeal bypassing the Court of Appeals. For the first time, the Court agreed. The Court’s decision is clearly motivated by the urgency of the matter given that census questionnaires must be ready in the summer of 2019. With an ordinary appellate procedure, it would not have been possible to meet this deadline. Given how rare it is for the Supreme Court to accept cases bypassing the Courts of Appeals, it is understandable that the Trump Administration is holding this decision as a small victory.
It does not come as a surprise to anyone that the judicial appointment process in the United States has become very divisive in the recent years. With the refusal of Senate Majority Leader McConnell to hold a confirmation hearing for President Obama’s replacement for Justice Scalia in 2016, then the ugly confirmation hearing of then Judge Gorsuch for the same position in 2017 and the infamous confirmation hearing of then Judge Kavanaugh in 2018 as the replacement for Justice Kennedy, the US Supreme Court has become a central issue of a public debate in Washington. Unfortunately, this has not left the Court unaffected.
The latest bit of surprising news from the US Supreme Court came on 8 February 2019 when the Court, in the case of June Medical Services v Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals 586 U. S. ____ (2019), issued a stay of a new Louisiana law restricting access to abortion by requiring that physicians obtain surgical privileges in a nearby hospital before they are legally permitted to carry our the procedure. The decision of the Court relates only to an order preventing the law from going into effect until lower Courts rule on its constitutionality and is not a judgment on the merits. Nevertheless, the decision came as a surprise to many commentators because the case was decided 5-4 with Chief Justice Roberts siding with a liberal minority, something Justice Kennedy used to do from time to time in the past. Immediately after the decision was published, many conservative commentators declared Chief Justice Roberts to be the new Swing Vote (Fox News). However, it seems that the there is more to Chief Justice Roberts’s decision than just being the new Swing Vote.
With the appointment of Justices Gorsuch and Kavanaugh, President Trump has hoped to solidify a strong originalist majority on the US Supreme Court for decades to come. In fact, 4 out of 5 Republican-appointed Justices now do in fact identify as originalists, of some form at least (Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh). The case of the 5th, Chief Justice Roberts, is less straightforward. He is undeniably a conservative, but his underlying judicial philosophy has never been clearly articulated.
In fact, he has already been regarded by conservative commentators as an unreliable vote for a while now. As early as 2006, Chief Justice Roberts voted along side the 4 liberal Justices in Jones v. Flowers, 547 U.S. 220 (2006) holding that, before a home could be seized and sold in a tax-forfeiture sale, owners must receive effective notification. Perhaps the most famous case of Chief Justice Robert’s liberal sympathies was the 2012 case of National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) where the Chief Justice sided with the 4 liberal Justices and upheld the core of ObamaCare. In fact, Chief Justice Roberts rescued ObamaCare twice, again in 2015 in the case of King v. Burwell, 576 U.S. ___ (2015), this time together with Justice Kennedy in a 6-3 decision though. Finally, in December 2018, Chief Justice Roberts again sided with the 4 liberals in declining to hear the case of Planned Parenthood v. Andersen, No. 16-3249 (10th Cir. 2018) therefore leaving intact the pro-choice judgment of the Court of Appeals in favor of Planned Parenthood.
Although Chief Justice Roberts has voted with the conservative/originalist majority (against the 4 liberal Justices) concerning many crucial issues such as abortion (Gonzales v. Carhart, 550 U.S. 124 (2007)), affirmative action (Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007)), campaign financing (Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)), religious freedom (Burwell v. Hobby Lobby, 573 U.S. ___ (2014)), gay rights (Obergefell v. Hodges, 576 U.S. ___ (2015)) and the exlusionary rule (Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056 (2016)), it is clear from his voting record that Chief Justice Roberts has never been a full conservative/originalist, at least not the way Justices Thomas, Scalia and Alito have been. He probably sits somewhere in between his former colleague Justice Kennedy and the pure originalists. He has voted with the 4 liberals less often than Justice Kennedy, but more often than any other Republican-appointed Justice in the recent decade.
Beyond the question of Chief Justice Roberts’s judicial philosophy, he appears to see himself as the man shaping the legacy of the today’s US Supreme Court. It is not without meaning when the Court is referred to by a name of the Chief Justice that presides over it. From the liberal Warren Court to the conservative Rehnquist Court, each Chief Justice has always left his imprint on the Court’s jurisprudence. Since 2005, the US Supreme Court is referred to as the Roberts Court and the Chief Justice does not take this responsibility lightly.
Between 2005 and 2018, what could be described as the ‘early’ Roberts Court, had no clear one majority. Although, Republican-appointed Justices held the majority, they did not share one common judicial philosophy. It all changed in 2018 with the retirement of Justice Kennedy who, although had been appointed by President Reagan, had some liberal sympathies and often sided with Democrat-appointed Justices. Now that Justice Kennedy has been replaced by Justice Kavanaugh, Chief Justice Roberts has 4 strong liberals to his left (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan) and 4 strong originalists to his right (Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh) which leaves him in the very middle. Because Chief Justice Roberts is not a strict originalist unlike the other 4 Republican appointees, now that Justice Kennedy is gone, he has been naturally pushed towards the centre.
On top of this internal dynamics of the US Supreme Court, there are also a whole range of external factors affecting the functioning of the Court. The political climate in Washington, especially around the judicial appointment process, has left Chief Justice Roberts genuinely worried about the Court’s legitimacy. According to the latest poll conducted in February 2019, 35% of voters choose the U.S. Supreme Court as the branch of the US Government that they trust the most but this is down from 45% in February 2017 (Fox News). The Court is clearly suffering collateral damage of the political fights between the Republicans and Democrats within the other two branches of the Government, perhaps in the Senate in particular which plays a vital role in the appointment process.
This was clearly visible in November 2018 when, in response to President Trump referring to a Judge who had ruled against his Administration as an ‘Obama Judge’ (as the Judge was indeed an Obama appointee), Chief Justice Roberts issued an official statement replying that “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.” (The Washington Post).
Given this combination of factors – Chief Justice Roberts’s lack of strong originalist beliefs, his personal responsibility for ‘his‘ Court, the natural push towards the centre in the absence of Justice Kennedy and the political fights within the other two branches of the Government – Chief Justice Roberts probably feels like he is forced to preserve the legitimacy of the Court by all means necessary.
Finally, inasmuch as Chief Justice Roberts might not be a full-blown originalist, it does not mean he has no leading judicial philosophy whatsoever. However, it appears that the Chief Justice’s judicial philosophy is more about the form than the substance. He has been a firm believer in a form of judicial formalism dictating that cases should be decided based on recent precedents and with a strong presumption of constitutionality of federal law. Chief Justice Roberts does not like judicial activism and that includes both the liberal push to expend the powers of the federal Government and socio-economic rights and the originalist push towards the opposite. The Chief Justice seems to like his status quo and judicial precedent because those values promote the Court’s legitimacy in the eyes of the public.
It is this judicial philosophy that explains how Chief Justice Roberts has been able to side with the liberals in upholding ObamaCare in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) and King v. Burwell, 576 U.S. ___ (2015) (ie the presumption of constitutionality) and in protecting abortion access in Planned Parenthood v. Andersen, No. 16-3249 (10th Cir. 2018) (ie existing status quo) while at the same time he has voted for campaign financing freedom in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)) (ie existing status quote) and against gay rights in Obergefell v. Hodges, 576 U.S. ___ (2015)) (ie existing status quote / precedent).
This also explains why in February 2019 Chief Justice Roberts sided with the 4 liberals in issuing a stay of a new Louisiana law restricting access to abortion in June Medical Services v Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals 586 U. S. ____ (2019). The law attempted to impose restrictions on who can perform abortion procedures in a similar way to a 2013 Texas law which the US Supreme Court had struck down in the case of Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016). For Chief Justice Roberts, the case of June Medical Services v Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals 586 U. S. ____ (2019) was probably all about the precedent. The Court already ruled on this issue and the precedent must be followed. Given that this case was about nothing more than a stay while the issue was being considered by lower Courts, it must have been unthinkable for the Chief Justice to allow lower Courts to strike down a law that the US Supreme Court had upheld only 2 years earlier.
This is, however, not the end for the type of abortion restrictions which are subject of consideration in June Medical Services v Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals 586 U. S. ____ (2019). This is because the case of Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016), ie the case establishing the precedent Chief Justice Roberts decided to defend, had been decided 5-4 with the Chief Justice dissenting. This case was decided by the 4 liberals joined by Justice Kennedy and Chief Justice Roberts was in the minority along with the other originalists. This is why the case of June Medical Services v Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals 586 U. S. ____ (2019) describes Chief Justice Roberts so well – he was willing to vote with liberals against a law which he had voted to upheld only 2 years earlier because this was what was required to preserve the Court’s legitimacy.
That being said, the case of the new Louisiana abortion law might still return to the US Supreme Court in 2020 for consideration of on the merits and this time Chief Justice Roberts might have another go at it. With Justice Kennedy gone and Justice Kavanaugh already voting against the stay (ie in favour of the law), the Chief Justice will have the chance to flip the 2016 precedent and uphold the restrictions as constitutional. Whether he will do so remains to be seen. One thing is clear however at this point, for Chief Justice Roberts, if any Court is to flip a precedent of the US Supreme Court, it must the US Supreme Court itself.
On 24 January 2019, the European Court of Human Rights ruled unanimously, in the case of Catt v UK (App. no.: 43514/15), that the retention by police of information on the Domestic Extremism Database about a 91 year-old applicant’s involvement in political protests breached his right to private life under Article 8 of the European Convention on Human Rights.
The applicant had participated in political protests for decades and he had never been convicted of any criminal offence. However, the police had collected his personal data and retained it in a searchable database under ‘Domestic Extremism’, without his knowledge or consent. There was also nothing stopping the police from retaining the data indefinitely, even in the absence of any evidence of criminal behaviour on the part of the applicant. In 2015, the UK Supreme Court ruled 4-1, in the case of R (Catt) and R (T) v Commissioner of Police of the Metropolis  UKSC 9, that the applicant’s rights under the European Convention on Human Rights were not violated by the retention of his data by the police. The European Court of Human Rights disagreed.
The Court first held that there had been indeed “a pressing need to collect the personal data about the applicant” as “it is in the nature of intelligence gathering that the police will first need to collect the data, before evaluating its value” (para ). Secondly, the Court also recognised that the police had indeed had appropriate reasons to gather intelligence about members of Smash EDO (the protest group to which the applicant belonged) as the group had members that were known to be violent and potentially criminal (although not the applicant himself) and the applicant “had after all decided to repeatedly and publicly align himself with the activities of a violent protest group” (para ).
However, in the end, the majority of the Court, under the heading of ‘proportionality analysis’ of Article 8(2), decided that there was no “pressing need to retain the applicant’s data“. Although the Court recognised that personal data (such as applicant’s) might be retained over some time after having been legitimately collected, the whole scheme lacked appropriate safeguards preventing potential abuse (para ). The Court was most concerned with the fact that “whilst the applicant could and did request the disclosure and destruction of his data, this safeguard appears to have been of limited impact given the refusal to delete his data or to provide any explanation for its continued retention – including the later disclosure without explanation of the retention of additional data… So far as the Court is aware, at least some of the applicant’s personal data concerning his involvement in non-violent protest was collected over six years ago and remains in the domestic extremism database… despite the fact that the police concluded, and the domestic courts affirmed, that the applicant was not considered a danger to anyone” (para ).
Finally, the Court pointed to the possibility of undermining the democratic process by the government collecting, retaining and potentially abusing data about one’s legitimate political activities:
“123. Moreover, the absence of effective safeguards was of particular concern in the present case, as personal data revealing political opinions attracts a heightened level of protection (see paragraph 112 above). Engaging in peaceful protest has specific protection under Article 11 of the Convention, which also contains special protection for trade unions, whose events the applicant attended (see paragraph 10, above). In this connection it notes that in the National Coordinator’s statement, the definition of “domestic extremism” refers to collection of data on groups and individuals who act “outside the democratic process”. Therefore, the police do not appear to have respected their own definition (fluid as it may have been (see paragraph 105)) in retaining data on the applicant’s association with peaceful, political events: such events are a vital part of the democratic process (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 92, ECHR 2004-�I). The Court has already highlighted the danger of an ambiguous approach to the scope of data collection in the present case (see paragraph 97 above). Accordingly, it considers that the decisions to retain the applicant’s personal data did not take into account the heightened level of protection it attracted as data revealing a political opinion, and that in the circumstances its retention must have had a “chilling effect”.”
Interestingly, although the judgment was unanimous as to its outcome, it contained a Concurring Opinion of Judge Koskelo and Judge Felici. The opinion focused on the fact that the issue of the lack of safeguards and the possibility of abuse of data retained in the database should have been dealt with under the heading of ‘in accordance with the law’ of Article 8(2), as “…the phrase “in accordance with the law” […] requires not only that the impugned measure must have a basis in domestic law, but that it must also be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and is inherent in the object and purpose of Article 8. Thus, the requirement of lawfulness also refers to the quality of the law in question. This entails that the law should be adequately accessible and foreseeable as to its effects...” (para ).
The Judges held that, given the lack of sufficient safeguards concerning the database and the fact that it the applicant was unable to get his data deleted even in the absence of any evidence of criminality on his part, “…it would have been appropriate for the Chamber to focus its analysis more thoroughly and consistently on the assessment of the “quality of the law” aspect of the case, because that is where the crux of the case lies, instead of leaving that issue open and resolving the case on the basis of the assessment of “necessity”. …[T]he quality of the relevant legal framework was not adequate in a context such as the present one, and therefore the interference was not “in accordance with the law” within the meaning of Article 8 § 2. This finding is sufficient to conclude that there has been a violation of Article 8″ (para ).
It is worth remembering that the European Court of Human Rights has not said in this case that a database containing information about political activists violates the European Convention on Human Rights, even where there is no evidence of any criminal activities. The case in fact has confirmed that states are entitled to gather intelligence about political protesters if the group they associate themselves with could be reasonably believed to produce criminal activities. However, any database containing such intelligence must have adequate safeguards concerning the retention policy, access by 3rd parties as well as persons concerned and the possibility of deletion, either automatic or on a person’s request.
In August 2018, The Jurist’s Corner speculated that one of the cases to look for in the next US Supreme Court term would be a 2nd Amendment case. On 22 January 2019, the Supreme Court announced that it would hear a case from New York concerning restrictions on transporting firearms outside one’s home (CNBC). The case of New York State Rifle & Pistol Association Inc. v. City of New York, No. 15-638 (2d Cir. 2018) comes 9 years since the Court last considered a 2nd Amendment case and 11 years since the landmark decision in District of Columbia v. Heller, 554 U.S. 570. The Supreme Court will now decide if the New York law preventing gun owners from transporting lawfully owned firearms, except to and from shooting ranges, is compatible with the 2nd Amendment.
So far the Supreme Court’s jurisprudence on the 2nd Amendment is limited to two cases only. In 2008, the Court ruled in District of Columbia v. Heller, 554 U.S. 570 2008 that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010 the rule was extended in McDonald v. Chicago, 561 U.S. 742 2010 to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. ___ (2016)). This has left at least two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside of one’s home? Both issues have been hotly litigated over, especially in the so called Blue States. On 24 July 2018 a three-judge panel of the Court of Appeals for the 9th Circuit ruled in the case of Young v State of Hawaii No. 12-17808 that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013 in the case of Moore v Madigan, USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788 that a complete ban on concealed carry was unconstitutional. This situation constitutes a clear example of the so called ‘circuit split’ which creates a pressure on the Supreme Court to resolve the issue rather sooner than later.
However, in 2018, the Supreme Court refused to hear any case that would resolve the circuit split and avoided ruling on the wider issue of the right to carry firearms outside one’s home. Now, it seems, the Court is slowly engaging with this question, although it might take more than just one case to establish some clear principles on the issue. The appointment of Judge Kavanaugh as a new Supreme Court Justice will probably have a considerable impact on this case, and any similar cases in the future, as he has a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia, No. 10–7036. 2011).
The ceremony of swearing in of Lord Sales as a new Justice of the UK Supreme Court.
On 10 January 2019, the European Court of Human Rights ruled, in the case of Wunderlich v. Germany (App. no.: 18925/15), that the German ban on homeschooling did not breach the right to private and family life under Article 8 of the European Convention on Human Rights. The case was brought by a Christian family who had refused to register their oldest daughter in a school in accordance with German law. As a result, they were fined and prosecuted by the German authorities and the child was temporary taken into care to enforce the school attendance requirement.
The European Court of Human Rights held that the actions of the German state, although interfered with the Article 8(1) rights, were justified for the purposes of protecting the health, rights and freedoms of the children (under Article 8(2)). When considering the case, the Court referred to its previous jurisprudence on the issue of compulsory public education. It recalled that “the State, in introducing such a system, had aimed at ensuring the integration of children into society with a view to avoiding the emergence of parallel societies, considerations that were in line with the Court’s own case-law on the importance of pluralism for democracy and which fell within the Contracting States’ margin of appreciation in setting up and interpreting rules for their education systems...” (para 50).
The Court held further that although the removal of the child from the parent’s care was a very intrusive measure, it was not disproportionate given that it was only temporary and that all other measures (such as fines and regulatory penalties) had already failed to persuade the parents to comply with the school requirement. In considering the question of proportionality, the Court gave “due account to the margin of appreciation to be accorded to the competent national authorities, which had the benefit of direct contact with all of the persons concerned, often at the very stage when care measures are being envisaged or immediately after their implementation...” (para 47).
The case leaves no doubt that homeschooling is not protected under the European Convention on Human Rights. In contrast, the US Supreme Court has ruled on several occasions that the US Constitution protects the right to homeschooling. As early as 1925, in the case of Pierce, Governor of Oregon, et al. v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925), the Court struck down an Oregon statute requiring all children to attend public school. It was held that children were not ‘the mere creature[s] of the state’ (para 535) and that the responsibility for education belonged to parents so the Court deemed the ability to make educational choices a ‘liberty’ within the meaning of the 14th Amendment (thereby expanding the so called Substantive Due Process doctrine in its jurisprudence). Furthermore, almost 50 years later, in the case of Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court also upheld the right of an Amish family to withdraw their children from public school past 8th grade It was ruled that States could not force families to send their children to attend school where it would infringe their (legitimate) religious beliefs protected under the First Amendment.
In June 2018, the US Supreme Court ruled 7-2, in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018), that the Colorado Civil Rights Commission had violated a Christian baker’s freedom of religion under the First Amendment when it punished him for refusing to create a personalised wedding cake for a gay couple. The Court held that the Commission, when considering the case, manifested hostility towards the baker’s religious beliefs.
Shortly afterwards, the Masterpiece Cakeshop got involved in another incident when it refused to make a cake with a transgender message, which, despite the earlier ruling from the Supreme Court, led to yet another set of proceedings before the Colorado Civil Rights Commission (The Denver Post). In August 2018, the Masterpiece Cakeshop owner sued the State of Colorado in a federal District Court claiming religious persecution. The lawsuit alleges violation of the First and the 14th Amendments. On 08 January 2019, Judge Wiley Y. Daniel of the U.S. District Court for the District of Colorado ruled that the lawsuit against Colorado could proceed (Fox News).
The case is considered of high importance as it is likely that regardless of its outcome before the District Court, it will move up the judicial ladder towards the Supreme Court. Although the Court has already ruled on this issue, its conclusions were reached on very narrow grounds. The wider question of the priority of the freedom of religion under the First Amendment over non-discrimination legislation still remains open.
On 21 December 2018, the US Supreme Court announced that Justice Ginsburg had had surgery at Memorial Sloan Kettering Cancer Center in New York to remove two malignant growths from her left lung. It was also reported that doctors had found ‘no evidence of disease elsewhere in the body’ and no further treatment was planned at this point. Apparently, the growths were spotted during tests she had after fracturing her ribs in a fall on 7 November 2018. Since her appointment in 1993, Justice Ginsburg has already had 3 cancer-related procedures (ABC).
Justice Ginsburg is the oldest sitting Justice of the Court. She was originally appointed by President Clinton in 1993 at the age of 60 as the second woman ever appointed to the US Supreme Court. She is a known liberal who openly opposed the candidacy of Donald Trump during the 2016 presidential election (CNN). In fact, it is common knowledge that Justice Ginsburg will not voluntarily retire during a Republican president. Given her age, she was pressured to retire during the second term of the Obama’s presidency in case his predecessor turned out to be a Republican but she did not cave (NY Times). Now that President Trump appoints strictly conservative judges to the federal benches, Justice Ginsburg embraces herself to wait out his term in office. During the next presidential election in 2020, she will be 87 but her retirement plans will necessarily depend on whether President Trump is re-elected or not. If President Trump wins again in 2020, Justice Ginsburg will have no choice but to endure yet another 4 years on the bench. If successful, this would bring her to over 91 thereby beating the current record-holder, Justice Oliver Wendell Holmes, Jr., who stepped down at the age of 90 years and 10 months. She would also beat her former colleague Justice John Paul Stevens, who retired in 2010 at the age of 90 years and 2 months. Justice Ginsburg, despite her history of cancer and regular nodding-off during official events, remains active both as an opinion writer on the bench as well as a public speaker outside the Court.
In August 2018, The Jurist’s Corner speculated that the question of the constitutionality of the Affordable Care Act 2010 (ACA or ObamaCare) might be heading towards the US Supreme Court again in 2019. On 14 December 2018, a District Court for the Northern District of Texas held, in the case of Texas v the United States No. 4:18-cv-00167-O that the ObamaCare, in its entirety, was unconstitutional. This is yet another time the ACA is ruled unconstitutional, but it is the first time since Congress passed the Tax and Jobs Act 2017 eliminating the tax/penalty for a failure to comply with the ObamaCare’s Individual Mandate (i.e. the requirement to buy a health insurance).
So far the ObamaCare has withstood, albeit not in its entirety, several challenges before the federal courts. In 2012 the US Supreme Court ruled in the case of National Federation of Independent Business v. Sebelius 567 U.S. 519 2012 that, inter alia, although the Individual Mandate was not a valid exercise of the Congress’s power to regulate inter-state commerce, the penalty for its breach could be read as a tax and thereby be a valid exercise of the Congress’s taxation power instead. This is because the so called ‘penalty’ for breaching the Mandate was limited to a financial fee processed by the IRS together with individuals’ income taxes. This saving construction persuaded Chief Justice Roberts who joined the 4 liberal Justices on the Court and voted to uphold the Individual Mandate.
However, the Tax and Jobs Act 2017 passed by Congress in 2017 eliminated this tax/penalty while leaving the Individual Mandate as such intact. In those circumstances, several Red States sued in a Texas federal District Court again claiming that the elimination of the tax had rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce and that would violate National Federation of Independent Business v. Sebelius 567 U.S. 519 2012. The lawsuit went even further claiming that the Individual Mandate was inseverable from the rest of the law, or at least from its certain parts, such as the community rating. As such, the lawsuit argued that in case of finding the Individual Mandate unconstitutional, the Court should strike down the rest of the ObamaCare with it. Shortly afterwards, the Trump Administration announced that it would not to defend the lawsuit, so several Red States led by California intervened in the case submitting briefs in defence of the ACA (The Atlantic).
On 14 December 2018, the Court issued its judgment. Judge O’Connor analysed the effect of the elimination of the tax attached to the Individual Mandate by the Tax and Jobs Act 2017 and found that in the absence of any tax, the Mandate could not possibly fall within the Congress’s taxation power (pp20-27). Next, Judge O’Connor once again considered the possibility of the Individual Mandate being a valid exercise of the power to regulate inter-state commerce but rejected it on the grounds of the Majority Opinion in National Federation of Independent Business v. Sebelius 567 U.S. 519 2012 (pp27-34). Ultimately, “the Court [found that] the Individual Mandate is no longer fairly readable as an exercise of Congress’s Tax Power and continues to be unsustainable under Congress’s Interstate Commerce Power. The Court therefore finds the Individual Mandate, unmoored from a tax, is unconstitutional...” (p34).
At this point, the main question became whether the Individual Mandate was severable from the rest of the ObamaCare so that the rest of the ACA could remain in force. Judge O’Connor examined the approach of the Supreme Court to the question of the severability of the Individual Mandate in both National Federation of Independent Business v. Sebelius 567 U.S. 519 2012 and King v. Burwell 576 U.S. ___ (2015) and summarised:
“The ACA’s text and the Supreme Court’s decisions in NFIB and King thus make clear the Individual Mandate is inseverable from the ACA. As Justice Ginsburg explained, “Congress could have taken over the health-insurance market by establishing a tax-and-spend federal program like Social Security.” Id. at 595 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.). But it did not. “Instead of going this route, Congress enacted the ACA . . . To make its chosen approach work, however, Congress had to use . . . a requirement that most individuals obtain private health insurance coverage.” Id. (citing 26 U.S.C.§ 5000A). That requirement—the Individual Mandate—was essential to the ACA’s architecture. Congress intended it to place the Act’s myriad parts in perfect tension. Without it, Congress and the Supreme Court have stated, that architectural design fails. “Without a mandate, premiums would skyrocket. The guaranteed issue and community rating provisions, in the absence of the individual mandate, would create an unsustainable death spiral of costs, thus crippling the entire law.” BLACKMAN, supra note 3, at 147; accord NFIB, 567 U.S. at 597 (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.) (noting the mandate was essential to staving off “skyrocketing insurance premium costs”). Congress simply never intended failure.” (p47)
Next, Judge O’Connor analysed the potential effect of retaining the rest of ObamaCare, in the absence of the Individual Mandate, on other major provisions of the ACA:
“Even if the Court preferred to ignore the clear text of § 18091 and parse the ACA’s provisions one by one, the text- and precedent-based conclusion would only be reinforced: Upholding the ACA in the absence of the Individual Mandate would change the “effect” of the ACA “as a whole.” See Alton, 295 U.S. at 362. For example, the Individual Mandate reduces the financial risk forced upon insurance companies and their customers by the ACA’s major regulations and taxes. See 42 U.S.C. §§ 18091(2)(C), (I). If the regulations and taxes were severed from the Individual Mandate, insurance companies would face billions of dollars in ACA-imposed regulatory and tax costs without the benefit of an expanded risk pool and customer base—a choice no Congress made and one contrary to the text. See NFIB, 567 U.S. at 698 (joint dissent); 42 U.S.C. § 18091(2)(C) and (I).” (p48)
“Similarly, the ACA “reduce[d] payments by the Federal Government to hospitals by more than $200 billion over 10 years.” NFIB, 567 U.S. at 699 (joint dissent). Without the Individual Mandate (or forced Medicaid expansion), hospitals would encounter massive losses due to providing uncompensated care. See BLACKMAN, supra note 3, at 2–4 (discussing the freerider and cost-shifting problems in healthcare).” (p48)
“The story is the same with respect to the ACA’s other major provisions, too. The ACA allocates billions of dollars in subsidies to help individuals purchase a government-designed health-insurance product on exchanges established by the States (or the federal government). See, e.g., 26 U.S.C. § 36B; 42 U.S.C. § 18071. But if the Individual Mandate falls, and especially if the pre-existing-condition provisions fall, upholding the subsidies and exchanges would transform the ACA into a law that subsidizes the kinds of discriminatory products Congress sought to abolish at, presumably, the re-inflated prices it sought to suppress.” (pp48-49)
“Nor did Congress ever contemplate, never mind intend, a duty on employers, see 26 U.S.C. § 4980H, to cover the “skyrocketing insurance premium costs” of their employees that would inevitably result from removing “a key component of the ACA.” (Ginsburg, J., joined by Breyer, Kagan, and Sotomayor, JJ.). And the Medicaid-expansion provisions were designed to serve and assist fulfillment of the Individual Mandate and offset reduced hospital reimbursements by aiding “low-income individuals who are simply not able to obtain insurance.” Id. at 685 (joint dissent).” (p49)
“The result is no different with respect to the ACA’s minor provisions. For example, the Intervenor Defendants assert that, “[i]n addition to protecting consumers with preexisting medical conditions, Congress also enacted the guaranteed-issue and community-rating provisions to reduce administrative costs and lower premiums.” Intervenor Defs.’ Resp. 35, ECF No. 91; see also id. at 34 (“Congress independently sought to end discriminatory underwriting practices and to lower administrative costs.”). But Congress stated explicitly that the Individual Mandate “is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs.” 42 U.S.C. § 18091(2)(J) (emphasis added). At any rate, to the extent most of the minor provisions “are mere adjuncts of the” now-unconstitutional Individual Mandate and nonmandatory Medicaid expansion, “or mere aids to their effective execution,” if the Individual Mandate “be stricken down as invalid” then “the existence of the [minor provisions] becomes without object.” Williams, 278 U.S. at 243.” (pp49-50).
On that basis Judge O’Connor held:
“…Congress was explicit: The Individual Mandate is essential to the ACA, and that essentiality requires the mandate to work together with the Act’s other provisions. See 42 U.S.C. § 18091. If the “other provisions” were severed and preserved, they would no longer be working together with the mandate and therefore no longer working as Congress intended. On that basis alone, the Court must find the Individual Mandate inseverable from the ACA. To find otherwise would be to introduce an entirely new regulatory scheme never intended by Congress or signed by the President.” (pp47-48).
“In the face of overwhelming textual and Supreme Court clarity, the Court finds “it is ‘unthinkable’ and ‘impossible’ that the Congress would have created the” ACA’s delicately balanced regulatory scheme without the Individual Mandate. Alton, 295 U.S. at 362. The Individual Mandate “so affect[s] the dominant aim of the whole statute as to carry it down with” it. Id. To find otherwise would “rewrite [the ACA] and give it an effect altogether different from that sought by the measure viewed as a whole.” Alton, 295 U.S. at 362. Employing such a strained view of severance would be tantamount to “legislative work beyond the power and function of the court.” Wallace, 259 U.S. at 70.” (pp50-51)
Finally, Judge O’Connor rejected the argument that in 2017, when passing the Tax and Jobs Act 2017, Congress indicated that the Individual Mandate was severable from the rest of the ObamaCare because it did not repeal the rest of the ACA while eliminating the tax attached to the Individual Mandate (pp52-54). In conclusion, the Court held that:
“In some ways, the question before the Court involves the intent of both the 2010 and 2017 Congresses. The former enacted the ACA. The latter sawed off the last leg it stood on. But however one slices it, the following is clear: The 2010 Congress memorialized that it knew the Individual Mandate was the ACA keystone, see 42 U.S.C. § 18091; the Supreme Court stated repeatedly that it knew Congress knew that, see, e.g., NFIB, 567 U.S. at 547 (Roberts, C.J.) (citing 42 U.S.C. § 18091(2)(F)); King, 135 S. Ct. at 2487 (citing 42 U.S.C. § 18091(2)(I)); and knowing the Supreme Court knew what the 2010 Congress had known, the 2017 Congress did not repeal the Individual Mandate and did not repeal § 18091.” (pp54-55)
The ruling is now bound to be appealed to the Court of Appeals for the Fifth Circuit and then probably to the US Supreme Court. The appeal proceedings will likely focus on the question of the severability of the Individual Mandate from the rest of the ObamaCare. With the new judgment and the prospects of future appeals, it seems that the ObamaCare has now become the most litigated issue of our time.
On 27 November 2018, the UK Supreme Court refused, in the case of R (on the application of Conway) v Secretary of State for Justice  UKSC B1, to consider an appeal from the High Court (Divisional Court) where the Court had upheld the ban on assisted suicide as compatible with Article 8 of the European Convention on Human Rights. Assisted suicide remains illegal in the United Kingdom under the Suicide Act 1961, s2(1), despite numerous attempts to overturn the ban as in breach of the European Convention on Human Rights. In its short opinion, the Supreme Court relied on previous precedents from the European Court of Human Rights leaving the question of the so called ‘right to die’ for states to decide. As the decision was merely on the application for permission to appeal, the Claimant had to demonstrate only a ‘prospect of success’ upon a full hearing that would justify giving the permission. Nevertheless, the Court held “not without some reluctance […] that in this case those prospects are not sufficient to justify giving permission to appeal” (at para. 8).
Since the enactment of the Human Rights Act 1998, rendering the European Convention on Human Rights directly applicable in the United Kingdom, there have been several challenges to the Suicide Act 1961 as incompatible with the Convention. Most notably, in the case of Pretty v United Kingdom (2002) 35 EHRR 1, following a dismissal by the UK House of Lords, the European Court of Human Rights also ruled that Article 2 of the Convention could not be interpreted as containing any right to die. It was further held that although the ban on assisted suicide interfered with the right to private life under Article 8(1) of the Convention, it could be justified ‘for the protection of the rights of others’ under Article 8(2). 13 years later, a similar challenge was mounted in the case of Nicklinson v United Kingdom (2015) 61 EHRR SE7 but the European Court of Human Rights maintained its position from 2002 relying on a wide margin of appreciation states enjoyed on the question of assisted suicide. Interestingly, before the case reached the European Court of Human Rights, the UK Supreme Court (having succeeded the Appellate Committee of the House of Lords), had followed Pretty only 7-2, with Lady Hale and Lord Kerr dissenting. In her Dissenting Opinion, Lady Hale “reached the firm conclusion that [the] law [was] not compatible with the Convention rights […and…] little [was] to be gained, and much to be lost, by refraining from making a declaration of incompatibility.” (R (Nicklinson) v Ministry of Justice  UKSC 38 at para. 300).
Paradoxically, Lady Hale and Lord Kerr, who were both willing to hold the ban on assisted suicide incompatible with the European Convention on Human Rights in 2014, constituted the majority of the Supreme Court panel (along with Lord Reed) refusing the permission to appeal in Conway. In fact, they were in the position to accept the case on behalf of the Court, even in the face of opposition of Lord Reed.
On 15 November 2018, the Grand Chamber of the European Court of Human Rights ruled unanimously in the case of Navalny v Russia (App. no.: 29580/12) that the treatment of Russian opposition leader Alexei Navalny by the Russian government had violated his rights under:
- Article 5 of the Convention (concerning arbitrary arrest on 7 occasions and pre-trial detention on 2 occasions);
- Article 6 of the Convention (concerning 6 out of 7 administrative proceedings leading to his conviction of administrative offences);
- Article 11 of the Convention (concerning the inability to peacefully assemble).
Furthermore, the Court also held 14-3 that there had been a breach of Article 18 considered in conjunction with Article 5 and Article 11 of the Convention. At the end, the Court ordered the Russian government to pay €50,000 in respect of non-pecuniary damage, €1,025 in respect of pecuniary damage and €12,653 in respect of costs and expenses, which adds up to €63,678 in total. The ruling comes after the Russian government appealed against the original judgment of the Third Section of the European Court of Human Rights. The Grand Chamber has now upheld the main bulk of the Third Section’s reasoning unanimously dismissing the Government’s objection:
- of non-exhaustion of domestic remedies under Article 5 of the Convention;
- of non-exhaustion of domestic remedies under Article 11 of the Convention;
- as to the failure to comply with the six-months rule under Article 18 of the Convention.
Mr Navalny lodged a complaint against the Russian government in 2014 effectively claiming a political persecution through different methods and over an extensive period of time. In respect of Article 5, Navalny complained about having been arbitrarily arrested on 7 occasions while attending peaceful demonstrations, including twice for an alleged failure to obey a police order (on 9 May 2012 and 24 February 2014) and about having been detained for over 3 hours in violation of the statutory time-limit pending his trial (paras. 68-9). In respect of Article 6, Navalny argued that on all 7 occasions when he was arrested, he was unfairly convicted of an administrative offence in violation of his right to a fair hearing, including the right to the equality of arms, presumption of innocence, impartiality of the tribunal and the adversarial nature of the proceedings (para. 73). In respect of Article 11, Navalny claimed that arresting him 7 times while attending peaceful demonstrations had violated his freedom of peaceful assembly (para. 85).
Finally, in respect of Article 18 (stipulating that “the restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed”), arguably the most interesting element of Mr Navalny’s claim, he:
“156. … submitted that since the 2011-2012 protest rallies in which he played a leading role, the authorities had become wary of his participation in any kind of informal gathering. They sought to punish him for his political criticism and took steps to discourage his supporters. He was specifically and personally targeted by the authorities who acted to suppress political dissent. He referred, in particular, to the footage of his arrest in front of the courthouse on 24 February 2014 (the sixth episode). He also alleged that he had been arrested even though the gatherings in question had been peaceful and had raised no public-order issues. The procedure set out by law for drawing up the administrative offence report had been manipulated so as to remove him from the event venue unnecessarily and to detain him without a lawful purpose. Whilst he had promoted the ideas and values of a democratic society … and as the most prominent opposition figure advocating these values, he had been harassed precisely because of his active engagement in political life and the influence that he had on the political views of the Russian people.“
On that subject, the Court held that:
“168. … It cannot be overlooked that the arrests took place in the context of the applicant exercising his Convention right to freedom of assembly. The Court finds that a certain pattern may be discerned from the series of seven episodes. Moreover, the pretexts for the arrests were becoming progressively more implausible, whereas the degree of potential or actual disorder caused by the applicant diminished. It is also noteworthy that in the first four episodes the applicant was one of the leaders of the gatherings, and this could explain to a certain extent why he was among the first persons to be arrested. However, this was not the case in the subsequent episodes where the applicant did not play any special role.
169. In the fifth episode (on 27 October 2012) the applicant was one of some thirty activists taking part consecutively in a stationary demonstration. There were several prominent public figures among the participants and no obvious leadership. Moreover, according to the official version, the applicant was arrested not in connection with the demonstration itself but for holding a “march” when he was walking away from the venue followed by a group of people, including journalists. Nothing suggests that the applicant had arranged for these people to accompany him, or that he was somehow in charge of his followers or that he was in a position to control them in the very brief moments before his arrest (see paragraph 32 above).
170. An equally evident example was the sixth episode (on 24 February 2014) with his arrest in front of the courthouse, where he was merely one of the persons waiting to be allowed inside the building to attend the public hearing. The police deliberately divided the crowd to retrieve the applicant and remove him from the venue, although nothing in his conduct or appearance distinguished him from other peaceful individuals quietly waiting behind the police cordon. In this episode it is particularly difficult to dismiss the applicant’s allegation that he was specifically and personally targeted as a known activist, even in the most innocuous situation remotely resembling a public gathering (see paragraph 156 above).
171. In this context, the Court’s observation in Merabishvili to the effect that in a continuous situation the predominant purpose may vary over time (§ 308) assumes particular significance. It may well appear that the predominant purpose of the measures taken against the applicant has indeed changed over the period under examination. What might possibly have seemed a legitimate aim or purpose at the outset appears less plausible over time. Thus, as held in paragraphs 126 and 127 above, whereas the Court has serious doubts that any legitimate aim as claimed by the Government existed on the first four occasions, it has found that no such aim was present on the fifth and sixth occasions, and was again highly questionable on the seventh occasion. Also, as noted above, the violations in the present case occurred despite the authorities’ increasing awareness that the practices in question were incompatible with Convention standards (see paragraph 149 above). In this connection, the Court considers that regard should also be had to the wider context (ibid., § 317), notably to its similar findings in Navalnyy and Yashin (cited above) with regard to a demonstration three months before the first of the seven episodes in the present case. Equally relevant to the general context are its findings with regard to the sequence of events that unfolded in two sets of criminal proceedings which were being conducted against the applicant in parallel. In one case it found that the national courts had “omitted to address” and “had heightened … concerns that the real reason for the applicant’s prosecution and conviction had been a political one” (see Navalnyy and Ofitserov, cited above, §§ 116-19). In the other it held that the applicant’s criminal sentence was “arbitrary and manifestly unreasonable”, that the law was “extensively and unforeseeably construed” and applied in an arbitrary manner which flawed the proceedings “in such a fundamental way that it rendered other criminal procedure guarantees irrelevant” (see Navalnyye v. Russia, no. 101/15, §§ 83-84, 17 October 2017).
172. In addition, there is converging contextual evidence corroborating the view that the authorities were becoming increasingly severe in their response to the conduct of the applicant, in the light of his position as opposition leader, and of other political activists and, more generally, in their approach to public assemblies of a political nature. The Court has previously noted the important legislative changes which took place in the reference period, increasing and expanding liability for a breach of the procedure for conducting public events (see Lashmankin and Others, cited above, §§ 301-06). In particular, the maximum amount of the fine payable for such offences was increased by twenty times; new types of aggravated offences were introduced with correspondingly severe sanctions; and the limitation period for the offences in question was extended. Further restrictions of the legislative framework on freedom of assembly introduced in July 2014, including criminal liability for assembly-related offences, although falling outside the period under consideration, may be noted as a continuous trend…
173. Against this background, the applicant’s claim that his exercise of freedom of assembly has become a particular object for targeted suppression appears coherent within the broader context of the Russian authorities’ attempts at the material time to bring the opposition’s political activity under control. At this point, the Court considers it appropriate to have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, bearing in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law (seeMerabishvili, cited above, § 307).
174. At the core of the applicant’s Article 18 complaint is his alleged persecution, not as a private individual, but as an opposition politician committed to playing an important public function through democratic discourse. As such, the restriction in question would have affected not merely the applicant alone, or his fellow opposition activists and supporters, but the very essence of democracy as a means of organising society, in which individual freedom may only be limited in the general interest, that is, in the name of a “higher freedom” referred to in the travaux préparatoires (see paragraph 51 above). The Court considers that the ulterior purpose thus defined would attain significant gravity.
175. In the light of all the above-mentioned elements, and in particular the sequence and pattern of the events in the present case (see paragraphs 167-68 above), viewed as a whole, the Court finds it established beyond reasonable doubt that the restrictions imposed on the applicant in the fifth and the sixth episodes pursued an ulterior purpose within the meaning of Article 18 of the Convention, namely to suppress that political pluralism which forms part of “effective political democracy” governed by “the rule of law”, both being concepts to which the Preamble to the Convention refers (see, mutatis mutandis, Ždanoka v. Latvia [GC], no. 58278/00, § 98, ECHR 2006‑IV, and Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 147, ECHR 2016 (extracts)). As the Court has pointed out, notably in the context of Articles 10 and 11, pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids abuse of a dominant position (see, among other authorities, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44; Gorzelik and Others v. Poland [GC], no.44158/98, § 90, ECHR 2004‑I; Leyla Şahin, cited above, § 108; and Karácsony and Others, cited above, § 147).”
Interestingly, the issue of Article 18, unlike other issues in this case, divided the Grand Chamber. Accordingly, the ruling includes a Partly Concurring and Partly Dissenting Opinion of Judges Pejchal, Dedov, Ravarani, Eicke and Paczolay in which the Judges argued that the abuse of the Convention rights perpetrated by the Russian government should have been dealt with on the basis of Article 17 (stipulating that “nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth or at their limitation to a greater extent than is provided for in the Convention“) rather than Article 18 of the Convention (para. 3). The Judges admit in their Joint Opinion that the Court could not have properly considered Article 17 since the complaint had originally been made under Article 18 (paras. 4-5) but they nevertheless decided to elaborate on this subject. Firstly, they claim that Article 17 is clearly applicable to abuses of Convention rights perpetrated by states, not only individuals or groups (paras. 6-19). However, the Judges recognise that such an application of Article 17 is extremely rare. Secondly, the Judges, while admitting that Article 17 and Article 18 have a similar scope of application, distinguish the two on the basis of the difference between an ‘abuse of power’ and a ‘misuse of power’ claiming that
“26. If misuse of power is also undoubtedly an abuse of power, the opposite is not necessarily true. There may be instances of abuse of power when the authorities in taking an individual decision do not, in fact, pursue an ulterior purpose. To use the paradigm of the theory of sets, Article 18 is a subset of Article 17. The concept of abuse of rights is broader than that of misuse of power, meaning that certain acts will be considered “abusive”, not because the purpose is unlawful, but because of the way in which the power was used.”
The Judges conclude:
“33. In light of the above, we are of the view that, if the case had been presented in those terms, an examination of the facts of the present case under Article 17 would have enabled the Court to assess whether the number of individual episodes addressed in the judgment, taken together, are evidence or isolated manifestations of a system that abusively seeks to limit, by legislative, administrative and/or judicial means, the democratic rights of the applicant in a way that substantially runs counter to the purpose and general spirit of the Convention and is aimed at unduly limiting those rights; and to do so without (a) having to adopt a narrow focus on the (administrative) authorities involved in the individual incident under consideration and (b) having to address the difficult issue of whether those authorities, in their response to each individual occasion on which the applicant sought to exercise his fundamental freedom of assembly, pursued an ulterior purpose.”
It seems that the Joint Opinion of Judges Pejchal, Dedov, Ravarani, Eicke and Paczolay by no means was designed to limit the scope of liability on the part of the Russian government, as recognised in the Majority Opinion. To the contrary. Under the approach to Article 17 and Article 18 advocated in the Joint Opinion, the liability of the Russian government for a repeated pattern of abuse of power towards Mr Navalny would probably only deepen. In any event, the Joint Opinion in this case is a rather rare example of the Court, or at least a part of it, trying to clarify confusing rules of application of Articles which are rarely relied on by applicants and therefore not sufficiently explained in the Court’s jurisprudence.
The Chevron Doctrine is the key element of the modern administrative state in the US. It was created by the US Supreme Court in 1984 in the case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and since then, it has been a subject of many heated debates among constitutional lawyers (Take Care). Recently, there has been more and more indications that the Court might be changing its mind and considering the Doctrine to be a dead end from which it needs to gallantly retreat. The original decision was unanimous in a sense that all Justices considering the case (Justices Burger, Brennan, White, Blackmun and Powell) joined the Majority Opinion written by Justice Stevens. However the remaining 3 Justices (Justices Marshall, Rehnquist and O’Connor) took no part in the consideration of the case making it an unusual 6-0 decision. The holding of the case is rather simple and dictates that, in cases involving disputes between administrative agencies of the US Government (such as Environmental Protection Agency or Internal Revenue Service) and citizens or corporations, Federal Courts must always defer to an agency’s interpretation of an ambiguous statute which it administers, so long as the interpretation is ‘reasonable’. This simple rule of construction has automatically tipped the scales in favour of administrative agencies over ordinary citizens and corporations.
It comes as no surprise that the composition of the Court has changed completely since 1984 and out of those new 9 Justices, at least 3 have publicly disapproved of the Chevron Doctrine. Justice Thomas wrote in his Concurring Opinion in the case of Michigan v. Environmental Protection Agency, 576 U.S. (2015) that “Chevron deference raises serious separation-of-powers questions”. Similarly, Justice Gorsuch in his Opinion in the case of Gutierrez-Brizuela v. Lynch, No. 14-9585 (10th Cir. 2016) suggested that the Chevron was “a judge-made doctrine for the abdication of judicial duty” while Justice Kavanaugh described the Chevron Doctrine as ‘troubling’ (Harvard Law Review). It is not hard to see that this makes 1/3 of the current Supreme Court openly hostile to the Chevron Doctrine. The question remains whether the other Justices, especially Justice Alito and Chief Justice Roberts, share this hostility. This will only become clear once the Supreme Court come to deal with some case involving the Chevron Doctrine. A case like BNSF Railway Company v. Loos 17-1042.
On 14 May 2018, the US Supreme Court (with Justice Kennedy still on the bench) issued a writ of certiorari to the US Court of Appeals for the Eighth Circuit agreeing to hear an appeal in the case of BNSF Railway Company v. Loos 17-1042. The case raises the question of “whether a payment to a railroad employee for lost wages on account of a personal physical injury is subject to employment taxes under the Railroad Retirement Tax Act,” with the Claimant arguing YES and the Respondent arguing NO (SCOTUSBlog). While the Act itself is silent on this issue, the Internal Revenue Service (which is an administrative agency) in its 1994 regulations stipulates that ‘pay for time lost’ is taxable under the Railroad Retirement Tax Act. According to the Chevron Doctrine, given that the statute itself is silent (i.e. ambiguous), deference should be made to the interpretation put forward by the Internal Revenue Service (unless such an interpretation could be proved to be grossly unreasonable). If the Court was minded to follow the Chevron Doctrine, this would be a very simple case for the Claimant. In fact, under the Doctrine, it is surprising that the Court of Appeals for the Eighth Circuit ruled for the (now) Respondent, Mr Loos. The decision of the Court of Appeals might in itself be an indicator that lowers Courts feel that the US Supreme Court will not defend the Chevron Doctrine on appeal.
Interestingly, it is not only the lower Courts that can sense the hostility of the Supreme Court towards the Chevron Doctrine. Lisa Blatt, who appeared before the Court for the Claimant, mentioned the Chevron Doctrine only briefly at the end of her argument, even though the Doctrine clearly favours her client. Furthermore, Rachel Kovner, an assistant to the Solicitor General, who appeared as a ‘friend of the court’ in support of the Claimant, also almost completely ignored the Chevron Doctrine until the last moment before resting her case (SCOTUSBlog). The hostility of the Court transpires also from the questions that the Justices asked during the oral argument stage of the proceedings. Justices Gorsuch and Kegan seemed to be ready to recognise that the silence of the Railroad Retirement Tax Act on the issue of payments in question was not an ambiguity of the statute within the meaning of the Chevron Doctrine therefore making the Doctrine inapplicable in this case. Justice Kavanaugh was also skeptical when it comes to taking the Internal Revenue Service’s interpretation as a given and questioned the Claimant’s lawyer on the historical changes of the Railroad Retirement Tax Act that would suggest that the payment could not be construed as being subject to a tax (SCOTUSBlog).
The holding in the case of BNSF Railway Company v. Loos 17-1042, whatever it might be, may or may not overrule the Chevron Doctrine. However, the very manner in which this case was argued before the Supreme Court suggests that the Doctrine is not popular these days. It is difficult to predict its future at this point, but is seems that even if the Doctrine is no completely overturned one day, the Court might simply drastically limit its scope either by reading ambiguous states as sufficiently unambiguous, so not to bring the Doctrine into play at all, or it might regularly treat interpretations of ambiguous statutes put forward by administrative agencies as grossly unreasonably, therefore not worthy of any special deference under the Doctrine. In either case, any limitation to the the Chevron Doctrine will have a profound impact on the functioning of the administrative state.
Very interestingly, federal jurisprudence is not the only level at which the struggle against the Chevron Doctrine is unfolding. During the midterm election on 6 November 2018, the people of Florida passed the ballot measure called Amendment 6 which prohibits state Courts from deferring to state administrative agencies (such as Florida Department of Revenue) in cases of ambiguous statutes (Florida Today). The measure was clearly designed to rid state law of anything resembling the Chevron Doctrine. Although the Amendment does not apply outside the state of Florida, and even within the state it applies only to state (not federal) law, it is yet another signal that the Chevron Doctrine might be in trouble.
On 2 November 2018, the US Supreme Court issued a writ of certiorari to the Court of Appeals for the 4th Circuit in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017, thereby agreeing to hear the case of a 93-year-old war memorial in the shape of a cross (SCOTUS Blog). The memorial was completed in 1925 to commemorate 49 local residents who had died in World War I. In 2014, the American Humanist Association sued Maryland public bodies responsible for the upkeep of the monument alleging that it “discriminates against patriotic soldiers who are not Christian, sending a callous message to non-Christians that Christians are worthy of veneration while they may as well be forgotten” (Fox News). In 2017, the Court of Appeals for the 4th Circuit ruled 2-1 in the case of American Humanist Association v Maryland-National Capital Park and Planning Commission No. 15-2597 2017 that even assuming that the monument had some nonreligious function, “the sectarian elements easily overwhelm the secular ones” and that “the cross is by far the most prominent monument in the area, conspicuously displayed at a busy intersection” [p22] and as such its presence on a public land violated the Establishment Clause of the First Amendment. In March 2018 the Court sitting en benc refused to reconsider the case and Maryland petitioned the Supreme Court for a permission to appeal (The Washington Post).
The jurisprudence of the US Supreme Court in cases concerning the Establishment Clause is far from being clear. The Court has struggled over the years to agree on a set of precise directions as to when a religious symbol on a public land would violate the First Amendment. This has led to confusing rulings whereby some symbols have been upheld and others not. For instance, in 2005, in the case of Van Orden v. Perry, 545 U.S. 677, the Court ruled 5-4 that a Ten Commandments monolith on the Texas State Capitol grounds did not violate the Constitution. On the other hand, on the same day in 2005, in the case of McCreary County v. ACLU of Kentucky, 545 U.S. 844, the Court also ruled 5-4 that a Ten Commandments display at the McCreary County courthouse in Kentucky did violate the First Amendment. The two cases were extremely similar yet the Court reached the opposite conclusions. In both cases it was Justice Breyer who acted as the Swing Vote. With those two cases, the US Supreme Court has sent mixed signals to lower courts on the subject of the Establishment Clause. Nevertheless, the Court is now almost 15 years older and its composition has also changed, presumably became more conservative in nature. As a result, the majority of the bench might now have enough votes to articulate some clear guiding principles as to how lower courts should deal with similar cases in the future.
On 23 October 2018, former Justice Sandra Day O’Connor announced she had dementia (SCOTUSBlog). Justice O’Connor was born in 1930 and was appointed to the US Supreme Court in 1981 by President Reagan as the first woman in history. She sat on the bench until 2006 when she retired and was replaced by Justice Alito appointed by President Bush. Justice O’Connor went down in history not only as the first female Justice of the US Supreme Court but also as the Court’s early Swing Vote. Appointed by a Republican President, Justice O’Connor believed in a limited federal government and as such was part of the so called Rehnquist Revolution whereby the US Supreme Court intended to set limits to the powers of the federal government. With cases such as United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000), the Rehnquist Court strove to return to the concept of the federal government as a government of enumerated powers after several decades of a rapid federal expansion. Justice O’Connor joined the other Republican-appointed Justices in deciding those cases.
In fact, Justice O’Connor started as a reliable conservative vote siding with (Chief) Justice Rehnquist 87% of the time during her first 3 years on the bench (Greenburg). Since 1984 until 1998, Justice O’Connor’s support for (Chief) Justice Rehnquist’s opinions ranged from 93.4% to 63.2% (Los Angeles Times). With the passage of time, Justice O’Connor started to slowly drift towards the liberal side of the Court and between 1994 and 2004, she voted with the liberal Justices a total of 28 times (Harvard Law Review). This included some key issues such as affirmative action (Grutter v. Bollinger, 539 U.S. 306 (2003)), religious liberty (Lee v. Weisman, 505 U.S. 577 (1992)) and abortion (Planned Parenthood v. Casey, 505 U.S. 833 (1992)). In any event, Justice O’Connor will always be a symbol of an ever-changing Supreme Court.
On 18 October 2018, the European Court of Human Rights ruled in the case of Annen v. Germany (No. 6) (App. No.: 3779/11) that Article 10 of the European Convention on Human Rights did not protect statements comparing doctors conducting stem-cell research to Nazi experiments. The Claimant was originally convicted before a German court for the crime of ‘insult’ contrary to Article 185 of the German Criminal Code and the case was brought before the European Court of Human Rights on the grounds that the comparison had been made in the context of a larger public debate and was therefore covered by the freedom of speech.
The Claimant argued that the conviction constituted a disproportional interference under Article 10 of the Convention. The state on the other hand argued that the conviction was necessary for the purposes of the “protection of the reputation or rights of others”, which is an allowable exception to the Article 10 rights. Ultimately, the Court held that the conviction fell within the margin of appreciation granted to Germany. It was also emphasised that “regardless of the forcefulness of political struggles, it is legitimate to try to ensure a minimum degree of moderation and propriety and that a clear distinction must be made between criticism and insult.” (para. 24).
With this case, the European Court of Human Rights maintains its limited approach to the Article 10 protection whereby, unlike under the First Amendment to the US Constitution, the freedom of speech does not cover offensive statements, even if made on a topic of public importance (e.g. Handyside v UK (App. No.: 5493/72), Otto-Preminger-Institut v Austria (App. No.: 13470/87), Vejdeland v Sweden (App. No.: 1813/07), etc.).
On 25 August 2018 The Jurist’s Corner speculated about possible legal issues to reach the US Supreme Court in its current term. This included the question of the constitutionality of affirmative action in the light of a DoJ investigation into the admission practice of the Harvard University which allegedly discriminated against Asian-American candidates. It is now confirmed that on 15 October 2018, a lawsuit against the Harvard University alleging race discrimination goes on trial before a federal District Court in Boston. The lawsuit is being brought by the Students for Fair Admissions founded by anti-affirmative action activist Edward Blum, and is supported by the Trump Administration. Affirmative action has been so far upheld by the US Supreme Court on numerous occasions, most recently in 2016 in the case of Fisher v. University of Texas (579 U.S. (2016), commonly referred to as Fisher II. However, even so upheld, affirmative action is legally limited only to situations where no race-neutral solutions would be effective in increasing the number of minority students accepted by a University. The lawsuit now alleges that the Harvard University has not properly considered race-neutral admission schemes before factoring race in its application process (Reuters). In this type of lawsuits, the burden of proof rests on a University to justify the use of race as a consideration in its admission process. On the other hand, if this cases proceeds to the US Supreme Court, it is possible the Court will declare affirmative action unconstitutional in its entirety. Affirmative action has always been very controversial and recent cases were decided 5-4 with Justice Kennedy joining the 4 liberal Justices in upholding it. Now that Justice Kennedy has been replaced by Justice Kavanaugh, it is possible the Court will vote 5-4 to strike down all affirmative action programmes as a form of unconstitutional discrimination under the 14th Amendment.
The judgment of the UK Supreme Court in the case of Lee v Ashers Baking Company Ltd (Northern Ireland)  UKSC 49.
On 10 October 2018, the UK Supreme Court unanimously ruled in the case of Lee v Ashers Baking Company Ltd (Northern Ireland)  UKSC 49 that the business’s refusal to bake a cake with a message supporting gay marriage was completely lawful and not contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 (made under the Northern Ireland Act 1974) or the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (made under the Equality Act 2006), as claimed by the Claimant. Writing for the Court, Lady Hale argued that “obliging a person to manifest a belief which he does not hold has been held to be a limitation on his article 9(1) rights” under the European Convention on Human Rights (Buscarini v San Marino (1999) 30 EHRR 208) and that “the freedom not to be obliged to hold or to manifest beliefs that one does not hold is also protected by article 10 of the Convention” (RT (Zimbabwe) v Secretary of State for the Home Department  UKSC 38;  1 AC 152) [at 50-2]. However, Lady Hale expressly distinguished between refusing to serve a customer based on his or her sexual orientation and forcing a business owner to prepare a product promoting a message he or she profoundly disagreed with [at 55]. Consequently, the Court was cautious not to create the impression that the ruling was a free pass to discriminate against homosexual consumers. Ultimately, the Court was of the opinion that forcing Ashers Baking Company to supply the requested cake would be a disproportionate limitation on the exercise of their rights to free speech and religion under Articles 9 and 10 of the European Convention on Human Rights.
The decision of the UK Supreme Court comes not long after the US Supreme Court ruled in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. (2018
The issue of ‘gay cakes’ has become symbolic of a wider legal debate both in the United Kingdom and the United States on circumstances in which a business can refuse to serve a customer on the grounds of religious beliefs. The two recent judgments by the highest courts of both countries seem to tilt towards prioritising religious liberty over non-discrimination. It remains to be seen whether this will become a trend in both courts’ jurisprudence and to what degree their reasoning will overlap. Interestingly, in its ruling, the UK Supreme Court expressly relied on the approach taken by the US Supreme Court in its general First Amendment jurisprudence:
“The respondent suggests that the jurisprudence in relation to “compelled speech” has been developed principally in the United States as a result of the First Amendment. There is indeed longstanding Supreme Court authority for the proposition that “the right to freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all”: see Wooley v Maynard 430 US 705, 714, per Burger CJ, citing Board of Education v Barnette (1943) 319 US 624, 633-634. But in the light of Laramore and RT (Zimbabwe) , and the Strasbourg case law on which they are based, it cannot seriously be suggested that the same principles do not apply in the context of articles 9 and 10 of the Convention.” [at 53]
On other hand, and in somewhat usual manner, the Ashers Baking Company judgment of the UK Supreme Court contains a postscript where Lady Hale addresses the Masterpiece Cakeshop judgment of the US Supreme Court:
“After the hearing in this case, while this judgment was being prepared, the Supreme Court of the United States handed down judgment in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission (unreported) 4 June 2018. The facts are not the same. A Christian baker refused to create a wedding cake for a gay couple because of his opposition to same sex marriage. There is nothing in the reported facts to suggest that the couple wanted a particular message or decoration on their cake. The Colorado Civil Rights Commission, upheld by the Colorado courts, held that the baker had violated the Colorado law prohibiting businesses which offered sales or services to the public from discrimination based on sexual orientation. The baker complained that this violated his First Amendment rights to freedom of speech and the free exercise of his religion… The majority recognised that businesses could not generally refuse to supply products and services for gay weddings; but they acknowledged that the baker saw creating a wedding cake as an expressive statement involving his First Amendment rights; and contrasted the treatment that he had received, which they perceived as hostile, from the favourable treatment given to three bakers who had refused to produce cakes with messages demeaning gay persons and gay marriages. Justices Ginsburg and Sotomayor, in dissent, drew a clear distinction between an objection to the message on the cake and an objection to the customer who wanted the cake. The other bakery cases had been clear examples of an objection to the message rather than an objection to the customer. In their view the objection in this case was to the customer and therefore a violation. Justices Kagan and Breyer, who voted with the majority on the lack of neutrality point, also accepted that the Commission could have based its reasoning on that distinction – the other bakers would have refused to make cakes with the demeaning messages for anyone, whereas this baker had refused to make this cake because it was a gay couple who wanted it. Justices Thomas and Alito, on the other hand, considered that to make a cake for a gay wedding was expressive in itself and thus compelling it required strict scrutiny. Justice Gorsuch would also not have distinguished between a cake with words and a cake without. The important message from the Masterpiece Bakery case is that there is a clear distinction between refusing to produce a cake conveying a particular message, for any customer who wants such a cake, and refusing to produce a cake for the particular customer who wants it because of that customer’s characteristics. One can debate which side of the line particular factual scenarios fall. But in our case there can be no doubt. The bakery would have refused to supply this particular cake to anyone, whatever their personal characteristics. So there was no discrimination on grounds of sexual orientation. If and to the extent that there was discrimination on grounds of political opinion, no justification has been shown for the compelled speech which would be entailed for imposing civil liability for refusing to fulfil the order.” [at 59-62]
In any event, the inherent conflict between religious rights and the ban on discrimination will inevitably prompt similar cases in both the United Kingdom and the United States within the foreseeable future.
The swearing-in of Brett Kavanaugh as a new Associate Justice of the US Supreme Court replacing Justice Kennedy.
The next day Justice Kavanaugh had been confirmed to the Supreme Court, some Democrats called for his potential impeachment, should they flip the House of Representatives after the November mid-term elections (The Washington Post). Article II, Section 4 of the Constitution stipulates that “... all civil Officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors“. Accordingly, the impeachment process has several elements. Firstly, the alleged wrongdoing must fall within the scope of an impeachable offence. Secondly, the House of Representatives must approve the Articles of Impeachment with a simple majority vote. Thirdly, the Senate must convict (i.e. removed from office) with at least 67 votes or otherwise the proceedings result in an automatic acquittal. Although a Justice of the Supreme Court (and any other federal Judge), as an Officer of the United States, is subject to impeachment, it is very unlikely that Justice Kavanaugh will be (successfully) impeached in any foreseeable future. First of all, it is not clear anyone could be impeached for any alleged wrongdoing taking place prior to the taking of the office. In Justice Kavanaugh’s case, most allegations were at least 30 years old therefore not in any manner connected with the office from which a successful impeachment would seek to remove him. Secondly, even if the Democrats win a majority in the House of Representatives in November, it is not clear they will have 218 House Members willing to vote in favour of the Articles of Impeachment, given how many of them would be coming from Red States supporting Justice Kavanaugh. Thirdly, even if the House votes to impeach, the impeachment will inevitably fail in the Senate given that the Constitution requires a two-thirds super majority to convict (i.e. remove) a person subject to the impeachment proceedings. As of now the Democrats do not even have a simple majority in the Senate and even if they manage to flip it in November, it will not amount to a two-thirds majority. From a purely legal point of view, raising the possibility of the impeachment of Justice Kavanaugh could not be taken seriously. This is even more so considering that no Justice of the Supreme Court has ever been removed from office by way of impeachment. In 1804 Justice Chase was impeached by the House of Representatives but a year later the impeachment failed in the Senate. In terms of lower courts Judges, only 14 have ever been impeached and of those only 8 have been actually removed from office by the Senate and an overwhelming majority of them on the grounds strictly related to their functions as a Judge, such as taking bribes or abuse of power (Federal Judicial Center). The possibility of impeachment by Congress is an extremely powerful tool which goes against the traditional separation of powers and therefore, by design, its use is severely restricted only to the most serious examples of the abuse of power.
On the night of 6 – 7 October Judge Kavanaugh was officially confirmed by a 51-49 majority of the US Senate as a new Associate Justice of the Supreme Court. Republican Senator Lisa Murkowski of Alaska, who was considered a swing vote, voted ‘present’ therefore opposing the candidacy. Another Republican swing vote, Susan Collins of Maine, aligned with a Republican majority after a forceful defence of Judge Kavanaugh on the Senate floor the day before. The Republicans also picked up one Democrat, Joe Manchin of West Virginia who is facing a tough re-election fight in his deeply red state. The vote comes after weeks of investigations and hearings concerning sexual misconduct allegations against Judge Kavanaugh put forward by 3 different women, among which was that of Dr Christine Blasey Ford, which was a subject of a special Senate Judiciary Committee hearing (summary of allegations: Business Insider UK). In the last days of the process, many Senators saw protesters roaming the Senate halls demonstrating both their support and opposition to Judge Kavanaugh’s confirmation. This also included many examples of disorderly behaviour leading to hundreds protesters being arrested (The Guardian). The opposition to Judge Kavanaugh’s confirmation was based on a whole range of arguments, from those related to his judicial record, through the non-disclosure of old communication records, to those concerning sexual misconduct allegations and his short temper. On the other hand, the Republicans complained that the Democrats were adamant to derail the confirmation process with malicious behaviour from the start and none of their arguments had any merits. At the end of the day, however, Judge Kavanaugh has been dully confirmed and will now join the other 8 Justices of the Supreme Court who have already returned to work from their summer break.
The appointment of Judge Kavanaugh to the Supreme Court is bound to create a reliable originalist majority for the first time in almost 80 years, i.e. since Justice Owen Roberts abandoned the originalist approach in the case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) thereby ending the so called Lochner era in the Court’s jurisprudence. Although since 1937 the Court has seen periods with a majority composed of Republican-appointed Justices, they have not been consistently originalist in their judicial philosophies. It was the appointment of Justice Scalia to the bench by President Reagan in 1986 that brought the originalist philosophy back from the exile to the mainstream. Since then, other originalists have been appointed to the Court, including Justice Thomas (1991), Chief Justice Roberts (2005), Justice Alito (2006), Justice Gorsuch (2017) and now Justice Kavanaugh. Although the originalism of Chief Justice Roberts is admittedly less rigorous than that of Justice Thomas, and in the incoming years he might be even moving more towards the centre, it seems that the current Court is bound to be concerned with the original meaning of the Constitution more than at any other point within the last 80 years.
These changes to the composition of the Supreme Court will have a profound impact on a whole range of cases which are likely to reach the Court in this term. Firstly, on the subject of the 2nd Amendment, the Court might be asked to decide what types of firearms are covered by the 2nd Amendment and whether the Amendment applies to all public spaces in addition to one’s home. In this respect there appears to be a circuit split between the 9th and the 7th Circuit Courts of Appeals (Peruta v. County of San Diego, 824 F.3d 919, 939 (2016) v Moore v Madigan (USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788)). Secondly, on the never-ending issue of ObamaCare, the Court will likely be asked to resolve the question whether the ObamaCare’s Individual Mandate (and possibly other parts of the statute with it) has been rendered unconstitutional by The Tax Cuts and Jobs Act 2017 which eliminated the tax/penalty for not complying with it. At this point, several Red States are suing claiming that the elimination of the tax has rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce which was already declared invalid by the US Supreme Court in its famous 2012 case (Texas Tribune). However, the lawsuit goes even further and claims that the Individual Mandate is inseverable from the rest of the law, or at least from its certain parts, such as the community rating, and if it is in fact struck down by the Court, it might drag other parts of the ObamaCare with it. Given that the Trump Administration decided not to defend the lawsuit, the case is now bound to proceed further up the ladder towards the Supreme Court (The Atlantic). Thirdly, the Court might be asked to rule whether the DACA programme (and its rescission via executive action) is constitutional. The Trump Administration announced in 2017 that it would rescind the DACA programme altogether as incompatible with federal immigration laws on the books. However, on 3 August 2018, a DC District Court ruled in the case of Trustees of Princeton University v United States (1:17-cv-02325-JDB) that the rescission of DACA was unlawful because the Administration did not supply the Court with any valid reason for its decision. Now an appeal in this case is expected by the Trump Administration. Fourthly, also on the immigration subject, the Court might be asked to finally resolve the question of the legality of the so called sanctuary cities. In 2017 the Department of Justice decided to withdraw funding from cities refusing to cooperate with the federal government in respect of immigration enforcement and in March 2018 it sued the State of California for its sanctuary policies. On the other hand, in return, two of California counties sued the Department of Justice claiming that such a withdrawal of funds was unconstitutional and persuaded a local District Court as well as the Court of Appeals for the 9th Circuit to grant an injunction (The Washington Post). Fifthly, the Court is likely to be asked again to rule on the constitutionality of affirmative action as last decisions on this subject have been extremely closely decided with Justice Kennedy always casting the deciding vote. So far there is no case pending before any federal court concerning affirmative action, however, there have been some moves by the Trump Administration to limits its impact, such as reversing President Obama’s policy on affirmative action in schools (NY Times) or investigating the impact of affirmative action programmes at the Harvard University on the Asian-American minority admissions (CNN). Finally, the Court will most likely, again, deal with abortion. On 4 May 2018 the State of Iowa passed into law in the so called ‘heartbeat’ Act banning abortions as soon as fetal heartbeat could be detected, which usually happens around the sixth week into pregnancy, which now constitutes the most restrictive abortion law in the country. Immediately, the American Civil Liberties Union sued in the Polk County District Court for a declaration of unconstitutionality as well as an interim injunction against the law which was granted on 1 June 2018 (Des Moines Register). The case is now being considered on its merits but regardless of the Court’s decision, it is bound to be appealed and eventually end up before the Supreme Court. Overall, given the multitude of important issues which await consideration by the US Supreme Court, the new originalist majority of the Court might leave a unique legacy for decades to come.
The judgment of the UK Supreme Court In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)  UKSC 48.
The swearing-in ceremony for Lady Arden and Lord Kitchin as new Justices of the UK Supreme Court.
On 30 August 2018, the UK Supreme Court ruled In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)  UKSC 48 that the current rules for the payment of Widowed Parent’s Allowance (WPA) violated Article 8 of the European Convention on Human Rights read in conjunction with Article 14. WPA is a contributory-based social benefit offered under s39A of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 to widowed parents with dependent children whose spouse or civil partner has died. The Court ruled that the requirement of a formal marriage or civil partnership as a precondition for receiving WPA discriminated against couples who although had children together, never formalised their relationship.
The Court was however cautious to say that not every type of social benefit requiring a formal union is necessarily incompatible with the Convention. It was held that WPA could not be dependent on the prior existence of marriage or civil partnership because it was designed to benefit children who have lost one of their parents rather than to make any form of compensation to the surviving parent him or herself. Accordingly, to condition the payment of WPA on the existence of a formal union between parents is to effectively discriminate between the so called legitimate and illegitimate children – a policy which was declared unlawful by the European Court of Human Rights in the case of Marckx v Belgium (App. no.: 6833/74), back in 1979. It is on this basis that the Lady Hale, writing for the majority, attempted to distinguish the case of Shackell v United Kingdom (App. No.: 45851/99) where the European Court of Human Rights had held inadmissible complaints that the lack of a formal marriage should not deprive the surviving widow of an analogous benefit (paras. 25-28). The attempt was nevertheless not entirely convincing and Lord Mance in his Concurring Opinion (with which Lady Hale agreed) further elaborated on this point ultimately considering the reasoning in Shackell to be simply unsatisfactory (para. 49).
This approach of the majority however prompted Lorde Hodge to claim, in his Dissenting Opinion, that the majority was departing from a settled line of case law of the European Court of Human Rights which had recently been confirmed in the case of Burden v United Kingdom (App. no.: 13378/05). Moreover, Lord Hodge pointed out that although the WPA could be construed as designed to ultimately benefit children, it was nevertheless payable directly to the surviving spouse and depended heavily on his or her circumstances so that “if she remarries or enters into a civil partnership, so long as she cohabits with a partner of either gender, or if she dies, the WPA ceases to be payable” and “the sums payable to the Survivor are not related to the children’s needs or increased by reference to the number of children for whom she is responsible.” (paras. 76-78). At the end of the day, the UK Supreme Court under the presidency of Lady Hale again took an active approach to the protection guaranteed by the European Convention on Human Rights.
President Trump has made clear on several occasions that judicial nominations are one of his top priorities. In terms of Appeal Courts, as of 15 September 2018, he has successfully appointed 26 Circuit Judges, with further 10 nominations pending before the Senate and another 3 positions awaiting his nomination (13 vacancies in total). Many commentators have been pointing out that President Trump might not only change the constitution of the US Supreme Court by appointing Judge Gorsuch (and most likely Judge Kavanaugh) to its bench, but also flip majorities of at least some Appeal Circuits. However, upon a closer examination, this seems rather unlikely, at least in President Trump’s first term in office.
The US Courts of Appeals are grouped in 11 Circuits in addition to the so called special DC Circuit. As of 15 September 2018, the 1st Circuit is the only one which has not had any vacancies since the last general election and as such it has a stable 4-2 Democratic majority. The 2nd Circuit has 3 vacancies but even if filled by President Trump, it will retain a Democratic majority of 7-6. The 3rd Circuit has 2 vacancies and it has already seen 1 judge appointed to its bench by President Trump in addition to 4 judges appointed by previous Republican Presidents so assuming President Trump fills those 2 empty seats, the Circuit will be evenly split 7-7 between the Republican and Democratic appointees. The 4th Circuit has also had 2 judges appointed to its bench by President Trump on top of 4 judges appointed by previous Republican Presidents but it retains a stable Democratic majority of 8-6. The 5th Circuit currently has 1 vacancy, 5 Trump appointees and 6 other Republican-appointed judges making its overwhelmingly Republican 12-5. The 6th Circuit is also overwhelmingly Republican with 4 Trump appointees on top of 7 other Republican-appointed judges adding up to a strong 11-5 Republican majority. The situation is similar in the 7th Circuit which has 4 Trump appointees in addition to other 5 judges appointed by previous Republican Presidents adding up to a stable 9-2 Republican majority. This is again seen in the 8th Circuit where President Trump has appointed 3 judges on top of 7 other Republican-appointed judges adding up to an overwhelming Republican majority of 10-1. The most liberal of all the Circuits, the famous 9th Circuit currently has 7 vacancies, 1 Trump appointee and another 5 Republican-appointed judges but even assuming all those vacancies are filled by President Trump, the Circuit will nevertheless retain a stable Democratic majority of 16-13. A stable Democratic majority of 7-5 will also hold in the 10th Circuit where President Trump has appointed 2 judges on top of another 3 appointed by previous Republican Presidents. The 11th Circuit is another Circuit which is evenly split 6-6 between the Democratic and Republican appointees after President Trump has appointed 3 judges in addition to another 3 Republican-appointed judges already on the bench. Finally, the DC Circuit consisting of 1 Trump appointee and 3 other Republican-appointed judges also retains a stable Democratic majority of 7-4.
Given the structure of vacancies inherited by President Trump, it is unlikely that his appointments will be able to flip any Appeal Circuit. As of 15 September 2018, despite any appointments made so far, and any other likely to be made in President Trump’s first term, Democratic-appointed judges hold majorities in 6 Circuits (1st, 2nd, 4th, 9th, 10th and the DC Circuit) and Republican-appointed judges hold majorities in 4 Circuits (5th, 6th, 7th and 8th). The only difference made by President Trump’s appointments to the Appeal Courts could be observed in the 3rd and 11th Circuits which moved from stable Democratic majorities to being evenly split. In any event, with the appointment of Judge Gorsuch and the likely appointment of Judge Kavanaugh to the US Supreme Court, it is not the Appeal Courts where President Trump intends to make his judicial legacy most visible.
On 13 September 2018, the European Court of Human Rights issued its ruling in the case of Big Brother Watch v UK (App. Nos.: 58170/13, 62322/14 & 24960/15) concerning 3 types of British surveillance programmes:
(1) The collection of metadata by the Government Communications Headquarters (GCHQ) under the programme codenamed ‘TEMPORA’ under Section 8 of the Regulation of Investigatory Powers Act 2000 (RIPA);
(2) The accessing of communication data retained by Communications Service Providers (CSPs) by various public authorities under Chapter II of RIPA and Part 4 of the Investigatory Powers Act 2016 (IPA);
(3) The accessing of metadata collected by the American National Security Agency (NSA) under the programmes codenamed ‘PRISM’ and ‘UPSTREAM’ by GCHQ.
The existence of all those programmes was revealed by Edward Snoweden in 2013 and immediately prompted litigation both in the United States as well as in the United States (see e.g. American Civil Liberties Union v. James Clapper, No. 13-3994 (S.D. New York December 28, 2013) & Klayman v. Obama (13-cv-881)).
In its 212-page-long opinion, the European Court of Human Rights held that the collection of metadata by the GCHQ under the programme codenamed ‘TEMPORA’ under Section 8 of RIPA violated Articles 8 and 10 of the European Convention on Human Rights:
“387 . In light of the foregoing considerations, the Court considers that the decision to operate a bulk interception regime was one which fell within the wide margin of appreciation afforded to the Contracting State. Furthermore, in view of the independent oversight provided by the Interception of Communications Commissioner and the IPT, and the extensive independent investigations which followed the Edward Snowden revelations, it is satisfied that the intelligence services of the United Kingdom take their Convention obligations seriously and are not abusing their powers under section 8(4) of RIPA. Nevertheless, an examination of those powers has identified two principal areas of concern; first, the lack of oversight of the entire selection process, including the selection of bearers for interception, the selectors and search criteria for filtering intercepted communications, and the selection of material for examination by an analyst; and secondly, the absence of any real safeguards applicable to the selection of related communications data for examination.
388. In view of these shortcomings and to the extent just outlined, the Court finds that the section 8(4) regime does not meet the “quality of law” requirement and is incapable of keeping the “interference” to what is “necessary in a democratic society”. There has accordingly been a violation of Article 8 of the Convention.
495. Nevertheless, in view of the potential chilling effect that any perceived interference with the confidentiality of their communications and, in particular, their sources might have on the freedom of the press and, in the absence of any “above the waterline” arrangements limiting the intelligence services’ ability to search and examine such material other than where “it is justified by an overriding requirement in the public interest”, the Court finds that there has also been a violation of Article 10 of the Convention.”
Furthermore, the European Court of Human Rights ruled that the accessing of communication data retained by Communications Service Providers (CSPs) by various public authorities under Chapter II of RIPA and Part IV of IPA also violated Articles 8 and 10 of the Convention as it constituted an interference which was not ‘in accordance with law’. This part of the judgment reflects an earlier finding of the High Court in the case of Liberty v Secretary of State for the Home Department  EWHC 975 (Admin) and the Court of Justice of the European Union:
“463 . The Court of Justice of the European Union has also addressed this issue. In Digital Rights Ireland v. Minister for Communications, Marine and Natural Resources and Others and Settinger and Others (Cases C-293/12 and C-594/12), the CJEU considered the validity of the Data Retention Directive, and in Secretary of State for the Home Department v. Watson and Others (C-698/15), the validity of domestic legislation containing the same provisions as that directive (see paragraphs 224 – 234 above). While its focus was on the retention of data by CSPs, it also considered the question of access to retained data by the national authorities. In doing so, it indicated that access should be limited to what was strictly necessary for the objective pursued and, where that objective was fighting crime, it should be restricted to fighting serious crime. It further suggested that access should be subject to prior review by a court or independent administrative authority, and that there should be a requirement that the data concerned be retained within the European Union. In light of the CJEU’s findings, Liberty sought to challenge Part 4 of the IPA, which included a power to issue “retention notices” to telecommunications operators requiring the retention of data. In response, the Government conceded that Part 4 was incompatible with fundamental rights in EU law since access to retained data was not limited to the purpose of combating “serious crime”; and access to retained data was not subject to prior review by a court or an independent administrative body. The High Court held that the legislation had to be amended by 1 November 2018 (see paragraph 196 above).”
At the same time, the European Court of Human Rights held that the accessing of metadata originally collected by the American NSA under the programmes codenamed PRISM and UPSTREAM by the GCHQ did not violate any Convention rights:
“447. In light of the foregoing considerations, the Court considers that the domestic law, together with the clarifications brought by the amendment of the IC Code, indicate with sufficient clarity the procedure for requesting either interception or the conveyance of intercept material from foreign intelligence agencies. In this regard, it observes that the high threshold recommended by the Venice Commission -� namely, that the material transferred should only be able to be searched if all the material requirements of a national search were fulfilled and this was duly authorised in the same way as a search of bulk material obtained by the signals intelligence agency using its own techniques -� is met by the respondent State’s regime. The Court further observes that there is no evidence of any significant shortcomings in the application and operation of the regime. On the contrary, following an investigation the ISC found no evidence whatsoever of abuse.”
In any event, it must be noted that the ruling was concerned with the surveillance scheme under the Regulation of Investigatory Powers Act 2000 which has since been replaced to a large degree by a different scheme under the Investigatory Powers Act 2016. According to the Government, the new scheme “includes the introduction of a ‘double lock’ which requires warrants for the use of these powers to be authorised by a secretary of state and approved by a judge. An investigatory powers commissioner has also been created to ensure robust independent oversight of how these powers are used. The government will give careful consideration to the court’s findings.” (GOV.UK). However, as mentioned earlier, the 2016 Act itself had already been declared unlawful in part (Liberty v Secretary of State for the Home Department  EWHC 975 (Admin)) thereby leaving the question of its overall legality open.
Between 5 and 7 September 2018, the Senate Judiciary Committee held confirmation hearings for the Supreme Court nominee Judge Kavanaugh. The Committee composed of 21 members (10 Democrats and 11 Republicans) questioned Judge Kavanaugh on his judicial record and philosophy. As expected, it was a hugely contentious hearing with constant shouts from the audience leading to multiple arrests and Democratic Senators attacking the nominee’s credibility and independence. However, after 3 long days, Judge Kavanaugh came out of the hearings without any significant blunder. Most of the time he followed the so called Ginsburg Rule declining to answer any question concerning any legal issue which could possibly come before the Court. Perhaps most crucially, Judge Kavanaugh also described Roe v Wade as an ‘important precedent’ therefore making it possible for the 2 pro-choice Republican Senators Lisa Murkowsky of Alaska and Susan Collins of Maine to support his nomination. The 2 Senators are considered the swing votes in the upcoming confirmation vote given that the Republicans need all their Senators to vote yes, assuming the vote would go down along the party lines, which is likely. Now that Judge Kavanaugh has not raised any red flags for any Republican Senator, he is likely to be confirmed by the Senate by the end of September so that he can join the Court by 01 October when its term starts.
The confirmation of Judge Kavanaugh to the Supreme Court will indeed be a historical moment. For the first time in almost 80 years the US Supreme Court will have a reliable originalist majority. The last time there was an originalist majority on the Court was prior to the so called ‘switch in time that saved nine’, i.e., before Justice Owen Roberts abandoned the originalist approach in the case of West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) thereby ending the so called Lochner era in the Court’s jurisprudence. For the next 80 years the Court will almost consistently decide cases coming before it based on the premise that the US Constitution is a living document whose meaning changes over time. Now all this is about to change. This, of course, does not mean that the Court will suddenly start overruling 80 years of precedents. However, given how much is at stake, it is no surprise the liberal forces are very anxious about their legacy.
Day 3 of Judge Kavanaugh Confirmation Hearing before the Senate Judiciary Committee.
Day 2 of Judge Kavanaugh Confirmation Hearing before the Senate Judiciary Committee.
Day 1 of Judge Kavanaugh Confirmation Hearing before the Senate Judiciary Committee.
While the US Supreme Court is in recess now, there are several potentially monumental cases which are either being processed in lower Courts at the moment or are likely to end up before the federal courts soon, which are due to eventually bubble up during the high court’s next term. As the Court reconvenes in October 2018, it will also most likely have a new member, Judge Kavanaugh, whom the Senate Republicans plan to confirm in September 2018 thereby consolidating a solid conservative majority on the bench. The Supreme Court so constituted, will face requests to adjudicate on a whole series of tough issues, some of which are now long overdue.
Here is a list of 6 big questions the US Supreme Court might be asked to answer during its next term:
1. Whether the 2nd Amendment Protects the Right to Bear Arms outside One’s Home
In its landmark 2008 opinion, the US Supreme Court ruled in District of Columbia v. Heller (554 U.S. 570 2008) that the 2nd Amendment protected the individual right to possess firearms within the confines of one’s home for the purposes of self-defence. In 2010 the rule was extended in McDonald v. Chicago (561 U.S. 742 2010) to apply to States as well. However, since then, the Court has taken very few cases concerning the scope of the 2nd Amendment (but see e.g. Caetano v. Massachusetts, 577 U.S. ___ (2016)). This leaves two big issues largely unresolved. First, what types of firearms are covered by the 2nd Amendment? Secondly, does the 2nd Amendment cover public arena outside of one’s home? Both issues are hotly litigated over, especially in the so called Blue States. On 24 July 2018 a three-judge panel of the Court of Appeals for the 9th Circuit ruled in the case of Young v State of Hawaii No. 12-17808 that the 2nd Amendment did in fact protect the right to bear arms in public. This is in spite of the 2016 decision of the same Court in Peruta v. County of San Diego, 824 F.3d 919, 939 (2016), which, sitting en banc, upheld a complete ban on carrying any firearms outside one’s home. However, the latter case was distinguished on the grounds that it was concerned with a concealed-carry while the former was concerned with an open-carry. Nevertheless, the State of Hawaii is entitled to apply for a reconsideration of this decision by an en banc Court which, given a strong liberal nature of the 9th Circuit, is likely to result in a reversal of the original decision. Regardless, the 2nd Amendment jurisprudence of the 9th Circuit stands in open opposition to other Circuits, such as the 7th Circuit which held in 2013 in the case of Moore v Madigan (USDC 11-CV-405-WDS, 11-CV-03134; 7th Cir. 12-1269, 12-1788) that a complete ban on concealed carry was unconstitutional. This situation constitutes a clear example of the so called ‘circuit split’ which creates a pressure on the Supreme Court to resolve the issue rather sooner than later. Here the appointment of Judge Kavanaugh as a new Supreme Court Justice might be of considerable impact as he has a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia No. 10–7036. 2011).
2. Whether the ObamaCare’s Individual Mandate Has Been Rendered Unconstitutional by The Tax Cuts and Jobs Act 2017
So far the ObamaCare has withstood, albeit not in its entirety, several challenges before the federal courts and a new one is gaining momentum now. In 2012 the US Supreme Court ruled in the case of National Federation of Independent Business v. Sebelius (567 U.S. 519 2012) that, inter alia, although the Individual Mandate was not a valid exercise of the Congress’s power to regulate inter-state commerce, it could be read as a tax and thereby be a valid exercise of the taxation power instead. This is because the so called ‘penalty’ for breaching the Mandate was limited to a financial fee processed by the IRS together with individuals’ income taxes. This saving construction persuaded Chief Justice Roberts who joined the 4 liberal Justices on the Court and voted to uphold the Individual Mandate. However, The Tax and Jobs Act 2017 recently passed by Congress eliminates this so called tax while leaving the Individual Mandate as such intact. In those circumstances, several Red States sued again claiming that the elimination of the tax had rendered the Individual Mandate unconstitutional as now, in the absence of any tax attached to it, it could only be construed as an exercise of the Congress’s power to regulate inter-state commerce which was already declared invalid by the US Supreme Court in 2012 (Texas Tribune). However, the lawsuit goes even further as it claims that the Individual Mandate is inseverable from the rest of the law or at least from its certain parts, such as the community rating, and if it is in fact struck down by the Court, it might drag other parts of the ObamaCare with it. Given that the Trump Administration decided not to defend the lawsuit, the case is now bound to proceed further up the ladder towards the Supreme Court (The Atlantic). Interestingly, the replacement of Justice Kennedy with Judge Kavanugh might actually push the Court to reject any challenges to the ObamaCare as Judge Kavanaugh appears to have been more accommodating in this respect than his predecessor, siding with the approach of the Chief Justice rather than Justice Scalia (Seven-Sky v. Holder (No. 11–5047 2011)).
3. Whether the DACA Program (and its Rescission via Executive Action) is Constitutional
Deferred Action for Childhood Arrivals (DACA) was announced by President Obama via an Executive Memorandum in 2012 to allow for a temporary lawful stay of illegal immigrants brought to the United States as children. The policy was introduced in response to Congress not being able to pass the DREAM Act which would put it on a statutory footing. Since then, DACA has been often cited as an example of executive overreach given that it was introduced via executive action thereby circumventing the legislature. The policy has been challenged in the federal courts several times. A lawsuit against the original policy was dismissed on procedural grounds in 2013 (Fox News) but as President Obama attempted to extend the programme, the expansion was blocked by the US Supreme Court in the case of United States v. Texas, 579 U.S. ___ (2016), although in a per curiam decision concerning an interim injunction with the crux of the matter soon becoming moot. The Trump Administration announced in 2017 that it would rescind the DACA program altogether as incompatible with federal immigration laws on the books. However, on 3 August 2018, a DC District Court ruled in the case of Trustees of Princeton University v United States (1:17-cv-02325-JDB) that the rescission of DACA was unlawful because the Administration did not supply the Court with any valid reason for its decision. This is yet another signature policy of the Trump Administration after the so called Travel Ban blocked by lower federal courts and therefore the decision is bound to be appealed by the Administration in hope that the US Supreme Court will vindicate its lawfulness, as it happened in the Travel Ban case (Trump v. Hawaii, No. 17-965, 585 U.S. ___ (2018)). In this area the impact of the appointment of Judge Kavanaugh to the Supreme Court is rather difficult to predict.
4. Whether the Policy of Sanctuary Cities is Constitutional
The question of the constitutionality of sanctuary polices has been looming for decades but so far it has never been properly decided. This, however, might change now that the Trump Administration vowed to crack down on Blue States shielding illegal immigrants from federal agencies. On the one hand, the Department of Justice decided to withdraw funding from cities refusing to cooperate with the federal government in respect of immigration enforcement and in March 2018 it sued the State of California for its sanctuary policies. On the other hand, in return, two of California counties (San Francisco and Santa Clara) sued the Department of Justice claiming that such a withdrawal of funds was unconstitutional and managed even to persuade a local District Court as well as the Court of Appeals for the 9th Circuit to grant an injunction (The Washington Post). Accordingly, given how high this issue is on the Presidential agenda and how much litigation it has generated so far, one of those cases is bound to end up before the US Supreme Court sooner or later and this time the Court will have no choice but to rule on a wider issue of sanctuary policies in general. As with the DACA programme, the impact of the appointment of Judge Kavanaugh to the Supreme Court on sanctuary policies is not easy to predict.
5. Whether Affirmative Action is Constitutional
Technically, the constitutionality of affirmative action has already been confirmed on several occasions, for the first time in 1978 in the case of Regents of the University of California v. Bakke (438 U.S. 265 1978), then in 2003 in Grutter v. Bollinger (539 U.S. 306 2003) and most recently in 2016 in the case of Fisher v. University of Texas (579 U.S. (2016), commonly referred to as Fisher II. However, the recent decisions have been extremely closely decided and Justice Kennedy has been the one casting the deciding vote. Now that Justice Kennedy is being replaced by Judge Kavanaugh, the Court might easily swing the other way. So far there is no case pending before any federal court concerning affirmative action, however, there have been some moves by the Trump Administration to limits its impact, such as reversing President Obama’s policy on affirmative action in schools (NY Times) or investigating the impact of affirmative action programmes at the Harvard University on the Asian-American minority admissions (CNN). Although no case has been brought on this issue so far, there are signs that affirmative action might once again end up before the federal courts and this time Justice Kennedy will not be around to save it.
6. Whether Fetal Heartbeat Legislation is Constitutional
The opposition of Red States to the constitutional right to abortion recognised in Roe v Wade (1973) is widely known. From time, to time, this opposition materliases in a form of some State legislation hindering access to abortion in hope that it would pass the Undue Burden test imposed on this type of legislation by the Supreme Court in the case of Planned Parenthood v Casey (1992). One of such measures was passed and signed into law in the State of Iowa on 4 May 2018. The so called ‘heartbeat’ Act bans abortions as soon as fetal heartbeat could be detected, which usually happens around the sixth week into pregnancy, and as such constitutes the most restrictive abortion law in the country. Immediately, the American Civil Liberties Union sued in the Polk County District Court for a declaration of unconstitutionality as well as an interim injunction against the law which was granted on 1 June 2018 (Des Moines Register). The case is now being considered on its merits but regardless of the Court’s decision, it is bound to be appealed and eventually end up before the US Supreme Court. This is especially interesting given that Judge Kavanaugh’s jurisprudence on abortion is very scarce and no one is able to predict how he might vote on this issue. If the newest Justice decides to side with the reliable conservatives on the Court, the fate of the right to abortion in the United States will depend solely on Chief Justice Roberts and he remains a huge unknown as well.
It seems that in its 2019 term, the US Supreme Court might be asked to decide at least 6 issues of historical importance and its decisions will be felt across the whole country in decades to come.
A list of helpful or interesting legal websites and blogs:
SCOTUS Blog – a comprehensive US Supreme Court news coverage and commentary.
Above The Law – takes a behind-the-scenes look at the world of law.
UKSC Blog – a law blog dedicated to the Supreme Court of the United Kingdom.
UK Human Rights Blog – a blog aiming to provide a free, comprehensive and balanced legal update service.
UK Constitutional Law Association Blog – news and commentary on constitutional law of the United Kingdom.
European Law Blog – a blog aiming to provide a range of interesting analyses of and ideas on EU law.
Legal Cheek – news & gossip, cheeky commentary and careers advice.
BAILII – a free website where you can find British and Irish case law & legislation, European Union case law, Law Commission reports, and other law-related British and Irish material.
HUDOC – free database of case law and press updates from the European Court of Human Rights.
As the US Supreme Court has gone to recess, Justice Ginsburg summarises the last term.
On 30 July 2018, the UK Supreme Court ruled, in the case of NHS Trust v Y (by his litigation friend, the Official Solicitor)  UKSC 46, that not all decisions concerning a withdrawal of life-sustaining treatment require the Courts’ approval. Unlike euthanasia or assisted dying, neither of which is legal in the United Kingdom (Suicide Act 1961,s 2), a withdrawal of life-sustaining treatment from a patient in a vegetative state is treated as an omission (as opposed to an ‘act’) conducted in the best interest of the patient and therefore does not incur any criminal liability (Airedale NHS Trust v Bland  1 All ER 821 HL). Up until now, however, any such decision was believed to require a declaration from a Court, usually the Court of Protection, that the withdrawal of treatment resulting in death would be lawful. In its opinion, the UK Supreme Court concludes now that such a procedure is only required where there is no agreement between the doctors and the family as to the withdrawal of treatment but where such an agreement has already been reached, no separate approval from any Court is needed.
In the recent years, there have been several attempts to legalise assisted dying in the United Kingdom, both through legislation and various Courts’ cases. However, in the 2014 case of R (Nicklinson) v Ministry of Justice  UKSC 38), the UK Supreme Court refused to recognise the right to assisted dying under Article 8 of the European Convention on Human Rights basing its decision on the 2002 ruling by the European Court of Human Rights in the case of Pretty v. United Kingdom (App. No.: 2346/02) and Lord Falconer’s Assisted Dying Bill was defeated in Parliament in 2015 (BBC). The decision in NHS Trust v Y does not change the status of assisted dying in the United Kingdom but it does remove most of life-death decisions from the immediate supervision of the Courts, at least where both the patient’s doctors and family members agree to withdraw the treatment. This decision should relieve the Courts from a considerable chunk of their workload in the area of medical treatment applications while at the same time reinforce the rights of family members of patients in a vegetative state by allowing them to make those critical decisions in the privacy of hospital rooms, without any state interference.
The Judgment of the UK Supreme Court in the case of NHS Trust v Y (by his litigation friend, the Official Solicitor)  UKSC 46 concerning the requirement to obtain Court’s approval before withdrawing a life-sustaining treatment from patients in vegetative state.
On 29 July 2018, Justice Ginsburg, who is currently 85 years old
declared that she planned to remain on the Supreme Court for at least 5 more years (The Guardian). The Justice is already the oldest sitting Justice of the Court. She was originally appointed by President Clinton in 1993 at the age of 60 as the second woman ever appointed to the US Supreme Court. She is a known liberal who openly opposed the candidacy of Donald Trump during the 2016 presidential election (CNN). In fact, it is common knowledge that Justice Ginsburg will not voluntarily retire during a Republican president. Given her age, she was pressured to retire during the second term of the Obama’s presidency in case his predecessor turned out to be a Republican but she did not cave (e.g. NY Times here). Now that President Trump appoints strictly conservative judges to the federal benches, Justice Ginsburg embraces herself to wait out his term in office. During the next presidential election in 2020, the Justice will be 87 but her retirement plans will necessarily depend on whether President Trump is re-elected or not. If President Trump wins again in 2020, Justice Ginsburg will have no choice but to endure yet another 4 years on the bench. If successful, this would bring her to over 91 thereby beating the current record-holder, Justice Oliver Wendell Holmes, Jr., who stepped down at the age of 90 years and 10 months. She would also beat her former colleague Justice John Paul Stevens, who retired in 2010 at the age of 90 years and 2 months. Justice Ginsburg, despite her history of cancer and regular nodding-off during official events, remains active both as an opinion writer on the bench as well as a public speaker outside the Court. Given her spirit, she might as well be capable of achieving the title of the oldest ever sitting Justice of the US Supreme Court, that is provided nothing unexpected happens of course.
On 27 June 2018, the UK Supreme Court ruled unanimously, in the case of R (on the application of Steinfeld and Keidan) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary), that the unavailability of civil partnerships to heterosexual couples was incompatible with Article 14 of the European Convention on Human Rights read in conjunction with Article 8. The Civil Partnership Act 2004 was introduced by the Labour Government to offer some form of formalised unions to homosexual couples at the time when British society was not ready for ‘gay marriage.’ Since it was designed to introduce formal relationships akin to marriage, the Act expressly applied to same-sex couples only as heterosexual couples could enter into actual marriage instead. This rationale was justified so long as same-sex couples could not marry. But this changed with the introduction of the Marriage (Same Sex Couples) Act 2013. Since then, homosexual couples have been able to choose between civil partnership and actual marriage while heterosexual couples could only marry. This has been challenged as a form of direct discrimination based on sexual orientation contrary to Article 14 of the Convention as applied by virtue of Article 8. Now the UK Supreme Court held that the need to “wait and evaluate” before enacting any reform, an argument the Government put forward to justify the discrimination, does not, in this case, constitute a legitimate aim under the Convention as this is not an instance of a discrimination with a long tradition which is only gradually becoming unacceptable but rather a novel issue whose discriminatory nature was apparent as soon as it was introduced (paras. 42-43). At the end, the Court did not hesitate to issue a declaration of incompatibility explaining that absent any legitimate aim, deference to a parliamentary process is not justified (paras. 54-57). The ruling goes a step further than the hitherto jurisprudence of the European Court of Human Rights which held in 2013, in the case of Vallianatos v Greece (App. Nos.: 29381/09 and 32684/09), that the availability of civil partnerships to heterosexual couples only violated Article 14 of the Convention read in conjunction with Article 8 because homosexual couples were not in a ‘comparable situation’ as they could neither marry nor enter into civil unions while heterosexual couples could do both (paras. 78-79). The same, however, could not be said about the situation of heterosexual couples in the United Kingdom. Moreover, the European Court of Human Rights ruled, in April 2018, in the case of Ratzenbock and Seydl v Austria (App. No.: 28475/12), that the unavailability of civil partnerships to heterosexual couples did not violate the Convention given that they could enter into marriage while same-sex couples could not. The Court was of the opinion that “the institutions of marriage and the registered partnership are essentially complementary in Austrian law.” (para. 40) – the same state of affairs one could observed in the UK between 2004 and 2013 but not since then. Accordingly, the judgment of the UK Supreme Court appears to have been built on the existing jurisprudence of the European Court of Human Rights while shrinking any deference to the legislature within the presumed margin of appreciation. Now it is only a matter of time before Parliament amended the Civil Partnership Act to remedy the injustice.
On 24 July 2018, the European Court of Human Rights found, in the case of ZG v. Hungary (App. No.: 65858/13), that the state’s ‘severance tax’ of 98% violated the applicant’s right to the peaceful enjoyment of property under Article 1 of Protocol 1 of the Convention. This case marks the tenth time this year the Court adjudicated on the same issue with the same effect. The line of cases dates back to the summer of 2013 when, in the cases of N.K.M. v. Hungary (App. No.: 66529/11) and R.Sz. v. Hungary (App. No.: 41838/11), the Court ruled that the 98% tax on severance payments for public employees did not strike a fair balance “between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” (para. 49) – a requirement which the Court read into Section 1 of Article 1. This is despite the clear wording of Section 2 of the same Article stipulating that “the preceding provisions shall not, however, in any way impair the right of a State … to secure the payment of taxes or other contributions or penalties.” This line of cases is remarkable as nowhere else has the European Court of Human Rights held a tax incompatible with the Convention solely for the reason of its rate. Although the Court was also concerned with the fact that the tax was levied on the payment which was contractually guaranteed when the employee was undertaking the employment, this could be said about any new tax, as any new tax is necessarily levied, to a certain degree, on a state of affairs which has already been initiated. Furthermore, even though the Court indicated that in different circumstances such a high tax rate might be allowed, nevertheless, it seems that the European Court of Human Rights has, with this line of cases, brought taxation rates within the ambit of the Convention rendering them fully reviewable. This move widens considerably the protection of private property under the Convention, which, as originally enacted in Protocol 1, was rather weak. If a severance tax can be held incompatible with the Convention based on its high rate, there is nothing stopping the Court from holding any other type of taxation, including an income tax, to be equally incompatible. Of course the Court remains cautious in this respect granting Member States the highest level of margin of appreciation, nevertheless, by maintaining its ‘severance tax’ jurisprudence, it sends a strong message that extraordinarily high taxes levied with no apparent justification are not beyond the Court’s jurisdiction.
On 7 June 2018, the UK Supreme Court ruled, 4-3, In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)  UKSC 27, that the Northern Ireland Human Rights Commission had no legal standing to bring challenge the Northern Irish abortion law and, therefore, the original ruling of the Northern Irish High Court was void. However, at the same time, and somewhat unusual, it was held that had there been jurisdiction, the Court would have found the current Northern Irish abortion law incompatible with Article 8 of the Convention in cases of rape and incest (4-3 vote) and fatal foetal abnormality (5-2 vote).
Northern Ireland has one of the strictest abortion laws in Europe. It also differs from the rest of the United Kingdom where abortion is easily accessible under the Abortion Act 1967. But Northern Irish women can only access abortion where the mother’s life or health is in danger. This was recently challenged by the Northern Ireland Human Rights Commission as incompatible with Article 8 and Article 3 of the European Convention on Human Rights. In 2015 the Commission won a surprising victory at the Northern Irish High Court ( NIQB 96) where the Court held that Northern Irish law failed to strike a fair balance between the right of the mother to private life guaranteed by Article 8 of the Convention and the need to protect the life of the foetus, in cases of pregnancy resulting from sexual crimes (prior to the point of viability) and foetus deformity (throughout the pregnancy). But this ruling was subsequently overruled by the Northern Irish Court of Appeal ( NICA 42).
This line of cases dating back to 2015 is extraordinary for at least three reasons. Firstly, the European Court of Human Rights has never found that strict abortion laws comparable to Northern Irish statutes, as a matter of substance, violate any Article of the European Convention on Human Rights, even when it was expressly invited to do so in A, B, C v Ireland (2011). For a domestic Court to find a violation of any Convention right in this situation is to curtail a wide margin of appreciation given to states by the European Court of Human Rights in relation to abortion regulations, at the expense of the legislature. Secondly, Northern Irish society is known to be extremely prone to social unrest and given how controversial the abortion debate is, the Courts have shown real courage by stepping into this debate so decisively. Thirdly, even though the case was ultimately thrown out on procedural grounds, the UK Supreme Court has sent a clear message that the Northern Irish abortion law must be liberalised as it considered it incompatible with the Convention. It is inconceivable that this unequivocal message could be ignored and as such, it is now a matter of time before Northern Irish abortion laws undergo a deep reform.
With the nomination of Judge Kavanaugh for Justice Kennedy’s seat at the Supreme Court, some commentators raised the issue of President Trump rapidly transforming the Federal Courts by appointing a record number of District and Circuit Court Judges (e.g The Guardian here and here). This claim is based mostly on the fact that a record number of such Judges have been appointed in President Trump’s first 1,5 years in the office comparing with previous Presidents (e.g. The Hill here). In as much as this is probably true, the claim that President Trump will appoint an unprecedented number of lower Courts Judges is rather misleading. As of 25 July 2018, President Trump has nominated 137 Judges of the so called Article III Courts (USCourts.gov). Although this seems like a high number for only 1,5 years into the presidency, so far the US Senate has confirmed only 44 of those 137 nominations (including 1 Justice of the Supreme Court, 23 Judges for the United States Courts of Appeals and 20 Judges for the United States District Courts). This is still claimed to be one of the highest numbers for any presidency after only 1,5 years. However, even if this pace is maintained, and President Trump is re-elected in 2020, he will have only appointed around 234 Judges throughout his two terms. This is not even close to his predecessor, President Obama, who appointed 308 Judges between 2008 and 2016. It is also far from the three record-holders in this regard, President Clinton, President Reagan and President W. Bush, who appointed 357, 347 and 310 Judges, respectively.
Even this calculation is based on the assumption that (a) President Trump will be re-elected and (b) that the Republicans are able to retain the Senate majority of at least 51 votes throughout the two presidential terms. Both assumptions are easy to displace. In fact, the Republicans might as well lose the Senate majority in the November mid-term elections and, given the degree to which the judicial confirmation process has been politicised, none of President Trump’s nominees awaiting a confirmation hearing might receive his or her judicial commission after all. It is clear that a Democratic Senate will not help President Trump elevate conservative Judges to the Federal Courts. In such case, President Trump might end up on the lower end of the SCOTUSBlog ranking with no more than 50 judicial appointments in total.
Judgment In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland Abortion Case)
The Judgment of the UK Supreme Court In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) concerning the compatibility of the Northern Irish abortion law with the European Convention on Human Rights.
Judgment in Steinfeld and Keiden v Secretary of State for the International Development (Civil Partnership Case)
The Judgment of the UK Supreme Court in the case of R (on the app. of Steinfeld and Keiden) v Sec. of State for the International Development concerning the availability of Civil Partnership to heterosexual couples.
On 09 July 2018 President Trump nominated Judge Kavanaugh for the US Supreme Court vacancy created by the retirement of Justice Kennedy. Judge Kavanaugh is a Judge of the Court of Appeals for the powerful DC Circuit and has been serving in this capacity for 13 years. He had been initially appointed to this Court by President Bush after having served under him as a White House staffer. Even more interestingly, in the 1990s, Judge Kavanaugh worked with Independent Counsel Kenneth Starr investigating business deals of then President Bill Clinton in relation to the Whitewater development which famously led to the impeachment and then the eventual acquittal of President Clinton on the charges of perjury and the obstruction of justice in 1999.
Judge Kavanaugh is known to be an originalist with a strong record on gun laws (Heller v. District of Columbia (2011)) and the separation of powers (PHH Corp. v. Consumer Financial Protection Bureau (2017)). On the other hand, many conservative members of the Senate point out that he helped save ObamaCare’s individual mandate when the case was before the Court of Appeals by construing it as a tax (Seven-Sky v. Holder (2011)) and voted to uphold massive data collection by the NSA outside the Fourth Amendment’s protection of privacy (Klayman v. Obama (2015)). Finally, Judge Kavanaugh seems to have no clear record on the right to abortion (but see Garza v. Hargan (2017)) – the most crucial issue for the vast majority of progressive Senators.
In the incoming months, Judge Kavanaugh will face a Senate confirmation hearing and will be asked to answer multiple questions about his judicial and administrative past. The hearing will most likely be a contentious one with many Democratic Senators already vowing to vote against him. However, with a 51 majority, the Senate Republicans are likely to confirm Judge Kavanaugh in time for a new session of the Supreme Court beginning in October 2018. The vote will probably go down along the party lines with a few Democrat Senators from typically Red States perhaps voting for Judge Kavanaugh to strengthen their position before the November mid-term elections.
The most powerful man in America has finally retired. There was no one in the country’s past 30 years who had a bigger impact on the law of the United States than Justice Kennedy. No President, no Majority Leader, no State Governor had power coming even close to that of Justice Kennedy, aka the Swing Vote. The number of cases Justice Kennedy single-handedly decided is breathtaking. He is the man who allowed gay people to marry (Obergefell v. Hodges 2015) and buy firearms (District of Columbia v Heller 2008) at the same time. It seems that President Trump is now likely to appoint another young judge in the vein of Justice Gorsuch, his first pick. Whoever President Trump chooses to replace Justice Kennedy will be subjected to the most vicious confirmation process this country has ever seen. Probably even more vicious than the confirmation hearings of Robert Bork or Clarence Thomas. The President is set to announce his pick on Monday, 9 July.