Tag: abortion

Trump Administration Litigation Tracker (Ongoing/Prospective/Resolved)

ONGOING

 

Census citizenship question challenge

CaseState of New York v US Department of Commerce, 18-CV-5025 (JMF)

Stage: On appeal before the Supreme Court

Question: Whether adding a citizenship question to the 2020 census is lawful?

Background: While preparing for the upcoming 2020 nation-wide census, the Trump Administration has planned to add a question about one’s citizenship to the list of questions the census will ask. Such a census takes place every ten years and affects how federal funding and seats in the House of Representatives are apportioned. The Trump Administration argues that the citizenship question is necessary in order to comply with the Voting Rights Act 1964 and that this question has been asked during all but one censuses from 1820 to 2000. However, Democratic states, along with some NGOs, such as ACLU, argue that the citizenship question would distort the outcome of the census by deterring illegal immigrants from participating. To this effect, they sued to prevent the Trump Administration from changing the 2020 census questions. On 5 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 1946 governing the creation of new regulations by administrative agencies. The Court held that the rationale for adding the citizenship question was ‘pretextual’ and the decision was made in violation of the Administrative Procedures Act 1946 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 in fact 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, the Trump Administration petitioned the Supreme Court to hear the appeal bypassing the Court of Appeals. The Supreme Court agreed given that census questionnaires must be ready in the summer of 2019 and with an ordinary appellate procedure, it would not have been possible to meet this deadline.

Prospects: The Supreme 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). It is not clear how the Court will rule as the case involves technical administrative issues of the Administrative Procedure Act 1946. If the Trump Administration is able to establish that all internal procedures have been dully followed, the Court will be rather unlikely to find the question unlawful on ‘pretextual’  grounds.

Significance: The case of State of New York v US Department of Commerce,18-CV-5025 (JMF) will have a huge impact on the appropriation of federal funding and seats in the House of Representatives among States as, under US Constitution, Article 1, Clause 3, those depend on States population numbers. 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 States with a large portion of illegal immigrants, such as California, loosing billions of dollars in federal funding as well as between one and three seats in the House of Representatives (The Hill).

 

2nd Amendment challenge

CaseNew York State Rifle & Pistol Association Inc. v. City of New York, No. 15-638 (2d Cir. 2018)

Stage: On appeal before the Supreme Court

Question: Does the 2nd Amendment protect the right of gun owners to transport their firearms outside their homes?

Background: 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 one’s home? Both issues have been hotly litigated over, especially in the 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.

Prospects: There is a very strong chance the Supreme Court will hold that the 2nd Amendment protects the right of gun owners to transport their firearms to various locations for lawful purposes. The ruling, however, is likely to be narrow in scope and might not address the question of whether the 2nd Amendment protects the right to carry arms outside one’s home in general, whether by way of open or concealed carry. Out of the five Justices constituting the majority in District of Columbia v. Heller,554 U.S. 570 2008, two (Justices Kennedy and Scalia) are no longer on the bench. However, Justices Gorsuch and Kavanaugh who have replaced them, both have a strong record on the 2nd Amendment (e.g. Heller v. District of Columbia, No. 10–7036. 2011; Peruta v. County of San Diego, 824 F.3d 919, 939 (2016) dissenting from the denial of certiorari).

Significance: The case of New York State Rifle & Pistol Association Inc. v. City of New York, No. 15-638 (2d Cir. 2018) will have a huge impact on the operation of the right to bear arms under the 2nd Amendment. So far the Supreme Court has recognised the right to possess and use firearms in self-defence at home. This case might expand this right to at least some public areas in at least some circumstances.

 

ObamaCare challenge

CaseTexas v the United States, No. 4:18-cv-00167-O

Stage: On appeal before the Court of Appeals for the 5th Circuit

Question: Whether the Affordable Care Act 2010 (ObamaCare), as amended by the Tax and Jobs Act 2017, is unconstitutional (in part or in entirety)?

Background: So far 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 (i.e. the requirement that all individuals buy health insurance plans) 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 Individual 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 four 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 the holding of National Federation of Independent Business v. Sebelius, 567 U.S. 519 2012. On 14 December 2018, the District 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 Individual Mandate could not possibly fall within the Congress’s taxation power. The Court struck down the whole of ObamaCare holding that the Individual Mandate was inseverable from the rest of the law. The House of Representatives, under Democratic control, intervened before the Court to defend that law and appealed the ruling to the Court of Appeals for the 5th Circuit. Initially, the Trump Administration, argued that parts of ObamaCare  were severable from the Individual Mandate and should be upheld, however, on 26 March 2019, the Department of Justice amended its stance petitioning the Court of Appeals to uphold the District Court’s ruling in its entirety, ie, strike down the whole of ObamaCare (CNN).

Prospects: There is a very strong chance that the Court of Appeals for the 5th Circuit (with 11 Republican-appointees and 5 Democrat-appointees) will strike down the Individual Mandate as unconstitutional. However, the question of severibility is more complex. The Court might declare only parts of the law inseverable from the Individual Mandate (e.g. community ratings) and uphold the rest. In any event, the case is bound to reach the Supreme Court regardless what the Court of Appeals decides. Before the Supreme Court, the situation is even less straightforward. When it comes to ObamaCare, Chief Justice Roberts is undoubtedly the Swing Vote. He has upheld ObamaCare at least twice already and it is highly unlikely he will let the law fall in its entirety this time. There is a decent chance the Individual Mandate will be stuck down but whether it will drag any other parts of the law with it, is impossible to tell.

Significance: The case of Texas v the United States, No. 4:18-cv-00167-O will have a huge impact on the shape of federal powers, as enumerated under Article I, Section 8 of the US Constitution. It will determine the limits of the Congress’s taxation power and once again discuss the limits of the power to regulate commerce. Furthermore, the case will provide instruction on the issue of severibility of Congressional statutes. Beyond that, the potential invalidation of ObamaCare would completely transform the healthcare market.

 

DACA rescission challenge

CaseRegents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.)

Stage: On appeal before the Court of Appeal for the 9th Circuit

Question: Whether the rescission of DACA is lawful and whether DACA is unconstitutional?

Background: 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 US as children. The policy was introduced in response to Congress not being able to pass the DREAM Act which would put the policy on a statutory footing. Since then, 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. Texas579 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. This was challenged in Regents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.). At the same time, Texas, along with other States, once again challenged the constitutionality of DACA before the District Court for the Southern District of Texas in Texas, et al. v. United States, No. 18-00068 (S.D. Tex. May 1, 2018). The case is still pending before the Court.

Prospects: The constitutionality of DACA will undoubtedly be eventually resolved by the Supreme Court. It is, however, not clear whether the Court will address the constitutionality of the programme as such when considering whether its rescission was lawful (Regents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.)). If not, this question will likely be resolved in Texas, et al. v. United States, No. 18-00068 (S.D. Tex. May 1, 2018), when it finally reaches the Supreme Court. At that point, Justices Gorsuch, Thomas, Alito and Kavanaugh are likely to take a narrow view of executive power which must necessarily lead them to the conclusion that DACA was an attempt by the Obama Administration to circumvent Congress which was unable to pass the necessary legislation (DREAM Act) and therefore constituted an executive overreach. Consequently, the issue will ultimately come down to Chief Justice Roberts as the deciding vote.

Significance: The case of Regents of the University of California, et al. v. United States Department of Homeland Security, et al., No. 3:17-cv-05211 (N.D. Cal.) will have a huge impact on the shape of executive power. It will determine the limits of inherent Presidential powers vis-a-vis statutes. Beyond that, the potential invalidation of DACA would completely transform the immigration system and put millions of illegal immigrants at risk of deportation.

 

Affirmative action challenge

Case: Students for Fair Admissions v Harvard

Stage: Pending before the District Court for the District of Massachusetts

Question: Whether affirmative action constitutes unlawful discrimination under the Equal Protection clause of the 14th Amendment?

Background: On 15 October 2018, a lawsuit against the Harvard University alleging race discrimination went on trial before a federal District Court in Boston. The lawsuit was brought by the Students for Fair Admissions founded by anti-affirmative action activist Edward Blum and is supported by the Trump Administration. 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) (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. In any event, if this cases proceeds to the US Supreme Court, the Court might rule on the constitutionality of affirmative action in general.

Prospects: There is a very strong chance that the Supreme Court will declare affirmative action unconstitutional. The recent decisions on this issue have been extremely closely decided and Justice Kennedy has been the one casting the deciding vote. Now that Justice Kennedy has been replaced by Judge Kavanaugh, the Court might easily swing the other way. This is even more likely given that, while upholding the practice in Fisher v. University of Texas579 U.S. (2016), the Court held that Universities must continue to review their affirmative action practices to ascertain whether they are still required. With Justice Kennedy gone, the five conservative Justices might simply come to a conclusion that there is no longer any need to consider race in admission processes. When it comes to affirmative action, Chief Justice Roberts has always consistently voted to declare it unconstitutional and it would be surprising for him to suddenly switch sides.

Significance: The case of Students for Fair Admissions v Harvard will have a huge impact on the operation of the Equal Protection clause of the 14th Amendment and the understanding of what constitutes racial discrimination. Beyond that, the potential invalidation of academic admission processes based on affirmative action would completely transform the basis on which universities accept new students.

 

Emergency declaration challenge

Case: State of California et al v. Trump et al

Stage: Pending before the District Court for the Northern District of California

Question: Whether President Trump’s national emergency declaration on the US-Mexico border wall is lawful under the National Emergencies Act 1976?

Background: On February 15, 2019, President Trump declared a National Emergency Concerning the Southern Border of the United States (Proclamation 9844) under the National Emergencies Act 1976 to channel funds for the construction of a wall at the US-Mexico border. The Declaration came after President Trump had been unable to obtain $5.7 billion in funding for the wall in the 2019/2020 budget due to Congress refusing his requests. The disagreement between President Trump, Republican Senate and the Democratic House of Representatives, preceding the Declaration, led to a 35 day-long government shutdown (the longest in the US history), which ended with Congress passing a bipartisan funding bill containing $1.375 billion for new fencing on 55 miles of the border. Immediately after the budget was passed by Congress and accepted by President Trump, he issued Proclamation 9844 redirecting $8 billion in previously-agreed expenditure to build the wall instead. The funding comes from planned military construction expenditures ($3.6 billion), the Department of Defense’s drug interdiction activities ($2.5 billion) and Treasury’s forfeiture funds ($600 million). In response, Congress passed, under the National Emergencies Act 1976, a Resolution seeking to nullify Proclamation 9844, however, President Trump vetoed it therefore leaving Proclamation 9844 in effect (Reuters). At this point, California, together with other States, sued in State of California et al v. Trump et al to stop Proclamation 9844 as unlawful under the National Emergencies Act 1976 and therefore in violation of the Appropriation Clause contained in Article I, Section 9 of the US Constitution. The Appropriation Clause stipulates that Congress is the sole body responsible for allocating funds and Presidents cannot unilaterally channel funding for any purpose they want. However, in the National Emergencies Act 1976, Congress empowered Presidents to take unilateral executive action (including funding allocation) in 136 distinct areas in times of  ’emergency’. Unfortunately, the legislation fails to define ’emergency’ and therefore seems to leave a wide discretion to the executive branch. Since the National Emergencies Act 1976 was enacted, a number of national emergencies have been declared (Carter (2); Reagan: (6); H.W. Bush (4); Clinton (17); W. Bush (12); Obama: (13); Trump (4) (Snopes).

Prospects: It is highly likely that President Trumps Emergency Declaration will be declared unlawful in the District Court and the Court of Appeals for the 9th Circuit which in recent years have tended to side with Democratic challengers. No doubt the case will ultimately proceed to the Supreme Court. However, it is unclear how the Justices might vote on this issue.

Significance: The case of State of California et al v. Trump et al will have a huge impact on the limits of Presidential emergency powers under the National Emergencies Act 1976. It will also discuss the operation of the Appropriation Clause and the rules regarding the allocation of funding. Beyond that, the case can prevent the construction of the wall at the border with Mexico which constitutes a crucial element of President’s Trump immigration policy.

 

Transgender ban challenge

CaseKarnoski v. Trump, 2:17-cv-01297-MJP

Stage: Pending before the District Court for the Western District of Washington

Question: Whether President Trump’s Memorandum preventing people diagnosed with gender dysphoria from serving in the US military is constitutional?

Background: On 23 March 2018, President Trump issued the Presidential Memorandum on Military Service by Transgender Individuals reversing President Obama’s policy of encouraging transgender military personnel to be open about their sexuality. The Memorandum is a variation of the traditional “Don’t Ask, Don’t Tell” policy. It allows transgender people to join the military provided they identify in line with their biological sex and are not diagnosed with gender dysphoria. The Memorandum also allows current transgender military personnel to continue to serve, however, unlike under President’s Obama, the military will not fund their transgender surgeries (Reason). The Memorandum was challenged in Karnoski v. Trump, 2:17-cv-01297-MJP before the District Court for the Western District of Washington on the grounds that it was issued contrary to the Due Process Clause of the 5th Amendment as a denial of equal protection by the federal government and to the 1st Amendment as violation of the right to free expression and association. While the merits of the case were being considered, the Court issued an injunction which was appealed to the Court of Appeals for the 9th Circuit. The Court upheld it which was appealed against to the Supreme Court which voted 5-4 to lift the stay and allow the Memorandum to go into effect. The merits of the challenge are still being considered by the District Court.

Prospects: Given the decision of the Supreme Court to lift the injunction and allow the Memorandum to go into effect while the merits of the case were being considered by the District Court, there is a strong chance that the Memorandum will be ultimately upheld, if not by lowers Courts, then by the Supreme Court.

Significance: The case will have a huge impact on the operation of the 1st Amendment (freedom of expression/association), 5th Amendment (Due Process Clause) and the 14th Amendment (Due Process Clause & Equal Protection Clause) in relation to transgender people. Beyond that, the decision will have some impact on the position of transgender personnel currently serving in the US military and potential new recruits.

 

Sanctuary cities funding challenge

CaseCity and County of San Francisco v. Trump or San Francisco v. Trump, No. 3:17-cv-00485 (N.D.Cal. 2017)

Stage: Pending before the District Court for the Northern District of California

Question: Whether the withdrawal of funding from sanctuary cities is lawful and whether sanctuary policies are constitutional?

Background: The question of funding for sanctuary cities is inextricably linked with the question of lawfulness of sanctuary policies. On 25 January 2017, President Trump issued Executive Order 13768 stating that sanctuary jurisdictions which refuse to comply with immigration enforcement would not receive federal grants (except where necessary for law enforcement purposes as determined by the Attorney General or Secretary of Homeland Security). In response, San Francisco sued the Trump Administration alleging that the withdrawal of funding violated the 10th Amendment which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” While the case was being considered on its merits, the District Court issued a nationwide preliminary injunction against Executive Order 13768 which was appealed by the Trump Administration to the Court of Appeals for the 9th Circuit. The Court of Appeals upheld the injunction but struck down its nationwide application and remanded the issue back to the District Court for further consideration. The question of constitutionality of sanctuary polices has never been answered by the Supreme Court. However, in its 10th Amendment jurisprudence, the Court has developed the anti-commandeering doctrine which stipulates that the Federal Government cannot compel States to enforce federal law. The doctrine has been applied to prevent the Federal Government from forcing States to take ownership of radioactive waste (New York v. United States, 505 U.S. 144 (1992)) and conduct background checks on people attempting to purchase handguns (Printz v. United States, 521 U.S. 898 (1997)). It was also used to strike down federal legislation preventing States from legalising sport betting (Murphy v. National Collegiate Athletic Association, No. 16-476, 584 U.S. (2018)). This doctrine is also relied on by States to justify their refusal to cooperate with the Federal Government in relation to immigration enforcement. On the other hand, the Trump Administration relies on the Supremacy Clause under Article VI, Clause 2 of the US Constitution which stipulates that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Under the Supremacy Clause, State statutes, jurisprudence and actions cannot violate Federal law. In its Supremacy Clause jurisprudence, the Supreme Court ruled that a state law could be found unconstitutional even where it is not in direct conflict with a federal law but “is an obstacle to the accomplishment and execution of Congress’s full purposes and objectives” (Crosby v. National Foreign Trade Council530 U.S. 363 (2000)).

Prospects: The current Supreme Court seems to favour the concept of federalism and therefore usually recognises the importance of State rights. If the anti-commandeering doctrine is found to apply to sanctuary policies, the Court will likely uphold this practice and strike down any attempt to withdraw funding from such jurisdictions. It is not, however, clear whether the doctrine does in fact apply and how it interacts with the Supremacy Clause when it comes to immigration enforcement.

Significance: The case of City and County of San Francisco v. Trump or San Francisco v. Trump, No. 3:17-cv-00485 (N.D.Cal. 2017) will have a huge impact on the concept of federalism and the operation of the 10th Amendment. It might transform the legal understanding of State rights and Federal power. Beyond that, the potential invalidation of sanctuary policies might put millions of illegal immigrants at risk of deportation.

 

PROSPECTIVE

1. A lawsuit by the House of Representatives challenging Attorney General Barr’s refusal to provide the House Judiciary Committee with a full and underacted copy of the Mueller Report.

2. A lawsuit by the House of Representatives challenging Treasury Secretary Mnuchin’s refusal to provide the House Ways and Means Committee with President Trump’s tax returns for the last six years.

3. A lawsuit against legislation of Kentucky, Mississippi and Ohio (and potentially other States) prohibiting abortion once the foetus’s heartbeat can be detected.

 

RESOLVED

1. A lawsuit against President Trump’s Executive Order 13780 (travel ban) limiting entry to the US from Iran, Libya, Syria, Yemen, Somalia, North Korea and Venezuela (Trump v. Hawaii, No. 17-965, 585 U.S. (2018)).

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.

Interesting Cases to Look For during the Next US Supreme Court 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.

The End is Near for Strict Northern Irish Abortion Laws

Northern Ireland has one of the strictest abortion laws in Europe. It also differs from the rest of the United Kingdom where abortion is easily accessible under the Abortion Act 1967. But Northern Irish women can only access abortion where the mother’s life or health is in danger. This has recently been challenged by the Northern Ireland Human Rights Commission as incompatible with Article 8 and Article 3 of the European Convention on Human Rights. In 2015 the Commission won a surprising victory at the Northern Irish High Court ([2015] NIQB 96) where the Court held that Northern Irish law failed to strike a fair balance between the right of the mother to private life guaranteed by Article 8 of the Convention and the need to protect the life of the foetus, in cases of pregnancy resulting from sexual crimes (prior to the point of viability) and foetus deformity (throughout the pregnancy). But this ruling was subsequently overruled by the Northern Irish Court of Appeal ([2017] NICA 42). Finally, on 7 June 2018, In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland), the UK Supreme Court ruled 4-3 that the Commission had no legal standing to bring the case in the first place and therefore the original ruling was void. However, at the same time, and somewhat unusual, it was held that had there been jurisdiction, the Court would have found the current Northern Irish abortion law incompatible with Article 8 of the Convention in cases of rape and incest (4-3 vote) and fatal foetal abnormality (5-2 vote).

This line of cases dating back to 2015 is extraordinary for at least three reasons. Firstly, the European Court of Human Rights has never found that strict abortion laws comparable to Northern Irish statutes, as a matter of substance, violate any Article of the European Convention on Human Rights, even when it was expressly invited to do so in A, B, C v Ireland (2011). For a domestic Court to find a violation of any Convention right in this situation is to curtail a wide margin of appreciation given to states by the European Court of Human Rights in relation to abortion regulations, at the expense of the legislature. Secondly, Northern Irish society is known to be extremely prone to social unrest and given how controversial the abortion debate is, the Courts have shown real courage by stepping into this debate so decisively. Thirdly, even though the case was ultimately thrown out on procedural grounds, the UK Supreme Court has sent a clear message that the Northern Irish abortion law must be liberalised as it considered it incompatible with the Convention. It is inconceivable that this unequivocal message could be ignored and as such, it is now a matter of time before Northern Irish abortion laws undergo a deep reform.

Judgment In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland Abortion Case)

The Judgment of the UK Supreme Court In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) concerning the compatibility of the Northern Irish abortion law with the European Convention on Human Rights.