Tag: abortion

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.