Tag: kennedy

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.

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.

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.

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.

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.