Category: US Supreme Court

Lawsuit against Firearms Manufacturer Allowed to Proceed (SCOTUS)

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.

Net Neutrality Repeal Upheld (DC Circuit)

On 1 October 2019, the US Court of Appeals for DC Circuit ruled, in the case of Mozilla Corporation v Federal Communications CommissionNo. 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 CommissionNo. 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 CommissionNo. 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 CommissionNo. 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.

President Trump’s Accountants Ordered to Turn Over His Financial Records to Congress (DC Circuit)

On 11 October 2019, the US Court of Appeals for DC Circuit ruled 2-1, in the case of Trump v. Mazars USA, LLPNo. 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 Jr19‐3204 (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, LLPNo. 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, LLPNo. 19-5142 (D.C. Cir. 2019), like the case of Trump v Vance Jr19‐3204 (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, LLPNo. 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.

President Trump’s Accountants Ordered to Turn Over His Tax Records to NY Prosecutor (2nd Circuit)

On 4 November 2019, the US Court of Appeals for the 2nd Circuit ruled unanimously, in the case of Trump v Vance Jr19‐3204 (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 Jr19‐3204 (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 Jr19‐3204 (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.

University Procedure for Sexual Misconduct Allegations Declared Unconstitutional (7th Circuit)

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).

Furthermore:

“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.

States Unable to Punish Faithless Presidential Electors (10th Circuit)

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.

Trump Administration Allowed to Withdraw Funds from Sanctuary Cities (9th Circuit)

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 vSebelius567 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 vSebelius567 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.Incv. Natural Resources Defense CouncilInc., 467 U.S. 837 (1984)) (p21). In this respect, the Court ruled that “DOJ’s inclusion of immigration-related scoring factors as a component of its implementation of its grant program is well within DOJ’s broad authority to carry out the Act” and that “nothing in the Act precludes DOJ from allocating federal funds to state or local governments to focus on problems raised by the presence of illegal aliens within their jurisdictions.” This is because “DOJ’s understanding that illegal immigration presents a public safety issue has been acknowledged by the Supreme Court” (per Arizona v. United States, 567 U.S. 387 (2012)) (p22-28).

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.

Giant Cross on Public Land Declared Constitutional (SCOTUS)

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.

Federal Courts Barred from Reviewing Partisan Gerrymandering (SCOTUS)

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. Perry548 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. Jubelirer541 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.

Citizenship Question on 2020 Census Blocked (SCOTUS)

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.

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.

Racial Bias in Jury Selection Punished (SCOTUS)

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.

Border Wall Funding Upheld (SCOTUS)

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-HSGthe 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).

Former Justice Kennedy Awarded Liberty Medal

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.

Former Justice Stevens Dies at 99

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. Bollinger539 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. Lopez514 U.S. 549 (1995) and United States v. Morrison529 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.

Scope of Double Jeopardy Clause Limited (SCOTUS)

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.

40-year-old Precedent on State Immunity Overturned (SCOTUS)

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)

SCOTUS to rule on discrimination protections for LGBT workers

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.

Originalist Approach to Capital Punishment Prevails (SCOTUS)

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”.

9th Circuit Counts Dead Judge as Member of Majority Opinion (SCOTUS)

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.

 

Categories: US Supreme Court

Civil Asset Forfeiture Limited (SCOTUS)

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. Bajakajian524 U.S. 321 (1998).

The 8th Amendment prohibits, among other things, ‘excessive fines [being] imposed’. In Waters-Pierce Oil Co. v. Texas212 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.

SCOTUS to Hear Citizenship Question Case Bypassing Court of Appeals

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.

Chief Justice Roberts Caught Up in Politics (SCOTUS)

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.

 

Judicial Philosophy

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.

 

Court Composition

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.

 

Court Legitimacy

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).

 

Conclusions

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.

 

Epilogue

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.

SCOTUS to Hear 2nd Amendment Case for the First Time in 9 Years

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).

Christian Baker Sues Colorado for Anti-religious Hostility

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.

Justice Ginsburg Hospitalised with Cancerous Growths in Lungs (SCOTUS)

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.

ObamaCare Declared Unconstitutional Again (District 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.

The End of Chevron Doctrine on the Horizon (SCOTUS)

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.

SCOTUS to Hear Cross-shaped War Memorial Case

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.

Former Justice Sandra Day O’Connor Announces She Has Dementia (SCOTUS)

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.

Affirmative Action Goes on Trial (Again)

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.

Impeaching a Supreme Court Justice

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.

Justice Kavanaugh Joins SCOTUS

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.

President Trump Unable to Flip Appeal Courts Circuits

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.

After the Hearings: Kavanaugh Likely to be Confirmed

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.

Interesting Cases to Look For during the Next SCOTUS Term

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.

Justice Ginsburg Has no Plans to Retire

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.

President Trump’s ‘Record-breaking’ Number of Judicial Appointments

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.

Judge Kavanaugh to Replace Justice Kennedy

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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.

Justice Kennedy Retires (SCOTUS)

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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.