Tag: supreme court

Giant Cross on Public Land Declared Constitutional (SCOTUS)

On 20 June 2019, the US Supreme Court ruled 7-2, in the case of American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019), that a 40 feet (12m) Cross monument erected in 1925 as a World War I memorial did not violate the Establishment Clause of the First Amendment. In its reasoning, the Court took a step away from the Establishment Clause test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971).

The monument was erected by the residents of Prince George’s County, Maryland, with the help of a local American Legion, as a memorial for the county’s soldiers who fell in World War I. The cross had been built on private land which was later acquired in 1961 by the Maryland-National Capital Park and Planning Commission. However, at that point, the American Legion reserved the right to continue using the site for memorial-related ceremonies. Since the acquisition in 1961, public funds have been used to maintain the monument. In 2014, the American Humanist Association sued in a District Court alleging that the Cross violated the Establishment Clause of the First Amendment because it was located on public land and public funds had been used for its maintenance.

Justice Alito, writing for the Majority, held that keeping existing religious monuments must be distinguished from erecting new ones He gave four reasons for that. Firstly, it is often difficult to identify the exact purpose of monuments erected decades earlier (per Salazar v. Buono, 559 U. S. 700). Secondly, long-standing monuments might take on non-religious purposes such as historical significance or cultural heritage (per Van Orden and McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844). Thirdly, the message of an old monument might evolve over time (as per Pleasant Grove City v. Summum, 555 U. S. 460, 477). Fourthly, removing long-standing religious monuments which take on historical significance or cultural heritage is no longer being ‘neutral’ in relation to religion. Therefore, according to the Majority, the passage of time creates a strong presumption of constitutionality (pp16–21). Furthermore, Justice Alito pointed to the relationship between the cross and World War I. For example, the US adopted cross as part of its military honors, such as Distinguished Service Cross in 1918 and the Navy Cross in 1919. On top of that, the fallen soldiers’ final resting places abroad were marked by white crosses (or Stars of David) (pp21-24). Based on those criteria, the Majority held that the Cross in this case did not violate the Establishment Clause of the First Amendment. The Cross was almost 100 years old, giving it historical significance and it had a secular meaning (in addition to a religious one) as a war memorial (pp28-31).

The case of American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019) is especially important in the context of the Establishment Clause test which is to be applied in cases of publicly displayed religious symbols or publicly held religious ceremonies. Under the Lemon test set out in Lemon v. Kurtzman, 403 U.S. 602 (1971), such a symbol or ceremony must satisfy a threefold test in order to be deemed constitutional under the Establishment Clause of the First Amendment:

  • the statute must have a secular legislative purpose
  • the principal or primary effect of the statute must neither advance nor inhibit religion
  • the statute must not result in an “excessive government entanglement” with religion, considering:
    – character and purpose of institution benefited
    – nature of aid the state provides
    – resulting relationship between government and religious authority

For almost 50 years, federal Courts have been applying the Lemon test, yet no consistency in jurisprudence has been achieved. This leads many to argue that the Lemon test is a failure and the Supreme Court should move towards some other way of adjudicating the constitutionality of publicly displayed religious symbols and publicly held religious ceremonies. In American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019), the Court appears to be doing just that.

The Majority held that “Lemon ambitiously attempted to distill from the Court’s existing case law a test that would bring order and predictability to Establishment Clause decisionmaking“; however, “if the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it” (e.g. Zobrest v. Catalina Foothills Sch. Dist., 509 U. S. 1). In fact, “the [Lemon] test has been harshly criticized by Members of this Court, lamented by lower court judges, and questioned by a diverse roster of
scholars.” Consequently, the Court is moving from “evaluate […] cases under Lemon and toward application of a presumption of constitutionality for longstanding monuments, symbols, and practices” (pp12-16).

In terms of concurrence, Justice Breyer, joined by Justice Kegan, agreed that “there is no single formula for resolving Establishment Clause challenges. The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its ‘separate spher[e]’” He also agreed that “ordering its removal or alteration at this late date would signal ‘a hostility toward religion that has no place in our Establishment Clause traditions’.” And, “the case would be different […] if the Cross had been erected only recently, rather than in the aftermath of World War I” (p1-3). On the other hand, Justice Kegan, in her separate Concurring opinion, attempted to save at least parts of the Lemon test arguing that although “rigid application of the Lemon test does not solve every
Establishment Clause problem, […] that test’s focus on purposes and effects is crucial in evaluating government action in this sphere” (p1).

Interestingly, Justice Thomas, in his separate Concurring opinion, argued that, based on its text and history, the Establishment Clause did not apply to States at all. He had been holding this opinion at least since the 2002 case of Zelman v. Simmons-Harris, 536 U. S. 639, 677–680. He argued that the 1947 case of Everson v. Board of Ed. of Ewing, 330 U. S. 1, which incorporated the Establishment Clause against States on the grounds that the Free Exercise Clause had already been incorporated, was wrongly decided. According to Justice Thomas and his originalist approach, the Establishment Clause was supposed to protect the States’ right to establish a State-wide religion. Furthermore, based on a literal approach, the Establishment Clause applied only to ‘laws’, not monuments or ceremonies (pp1-3). Nevertheless, Justice Thomas argued that even if the Establishment Clause were to be applied against States, the 40 feet Cross monument would not offend it because of the lack of any coercion on the part of the State (pp3-4). Finally, Justice Thomas also agreed that the Lemon test was not adequate for its purpose and even called it ‘long-discredited’ saying that he would “take the logical next step and overrule the Lemon test in all contexts” as the “test has no basis in the original meaning of the Constitution” and “has ‘been manipulated to fit whatever result the Court aimed to achieve‘” (per McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 900 (2005) (Scalia, J., dissenting)) (p5).

Justices Ginsburg and Sotomayor dissented. They argued that the cross was an inherently Christian symbol and using it “as a war memorial does not transform it into a secular symbol” (p2). However, not all crosses violated the Establishment Clause. “When a religious symbol appears in a public cemetery—on a headstone, or as the headstone itself, or perhaps integrated into a larger memorial—the setting counters the inference that the government seeks “either to adopt the religious message or to urge its acceptance by others” (per Van Orden v. Perry, 545 U.S. 677 (2005), at 737 (Souter, J., dissenting)) (p16).

The case of American Legion v. American Humanist Association, No. 17-1717, 588 U.S. (2019) is yet another example of litigation concerning publicly-displayed religious symbols. However, unlike its predecessors, it seems to establish crystal-clear criteria, at least in relation to long-standing monuments. In doing so, it confirms that the Supreme Court is moving away from the test laid down in Lemon v. Kurtzman, 403 U.S. 602 (1971). This is no surprise given how much criticism the Lemon test has attracted over the years. But it also illustrates the Court’s willingness to do away with long-established precedents, something that has been more and more prevailing lately.

Federal Courts Barred from Reviewing Partisan Gerrymandering (SCOTUS)

On 27 June 2019, the US Supreme Court ruled, 5-4, in the case of Rucho v. Common Cause, No. 18-422, 588 U.S. (2019), that partisan gerrymandering was not regulated by the US Constitution. The Court ruled that federal Courts had no jurisdiction to hear challenges to unfairly drawn electoral districts, leaving State Courts as the only possible adjudicator. The case illustrates two opposing visions for the nature of the judicial power – one limited (the conservative Majority) and one expansive (the liberal Minority).

The case involved two separate allegations of partisan gerrymandering. The first concerned North Carolina’s congressional districts, which favoured the Republican Party, while the second concerned Maryland’s congressional districts, which favoured the Democratic Party. In both cases, there was undisputed evidence that districts had been in fact drawn to favour one political party at the expense of the other. Challengers in both cases argued that using partisan considerations to draw electoral districts violated the Equal Protection Clause of the Fourteenth Amendment, the First Amendment as well as Article I of the US Constitution.

Writing for the Majority, Chief Justice Roberts, joined by the remaining four conservatives, held that the issue of partisan gerrymandering was non-justiciable, i.e., not suitable for judicial review. In doing so, the Majority started with tracing the origins of partisan gerrymandering back to the foundation era when Patrick Henry was accused of creating unfair Congressional districts in Virginia to prevent the election of James Madison to the very first Congress (p8). Based on this historical approach, Chief Justice Roberts concluded that when the Constitution was being drafted, “at no point was there a suggestion that the federal courts had a role to play [in respect of partisan gerrymandering]. Nor was there any indication that the Framers had ever heard of courts doing such a thing” (p11).

Then, the Majority analysed existing precedents concerning the shape and contents of electoral districts. It was held that the issue of partisan gerrymandering must be distinguished from the malapportionment of districts, which had been declared contrary to Article I of the US Constitution under the ‘one person, one vote’ doctrine (Wesberry v. Sanders, 376 U.S. 1 (1964)) and from racial gerrymandering which had been declared contrary to the Fifteenth Amendment (Gomillion v. Lightfoot, 364 U.S. 339 (1960)) (pp11-12). It was claimed that “the one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims...” (p20). Furthermore, “unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence… It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship” (p21). The Majority argued that unlike in relation to the malapportionment or racial gerrymandering, there was no constitutional basis for challenges based on a partisan bias. In fact, it was said that “to hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities.” (p12).

At that point, the Majority turned to the question of standard of review applicable in potential partisan gerrymandering cases. The central question considered was “how to ‘provid[e] a standard for deciding how much partisan dominance is too much’?” (per League of United Latin American Citizens v. Perry548 U.S. 399 (2006) at 420) (p15). Chief Justice Roberts claimed that “partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence” and, therefore, they “invariably sound in a desire for proportional representation” (p16). However, the Chief Justice rejected such a premise as absent from the US Constitution as well as from the early political life of the Republic where “many States elected their congressional representatives through at-large or ‘general ticket’ elections” (p16). In the absence of the requirement of proportional representation, partisan gerrymandering cases would require federal Courts to rule on the basis of nothing more than fairness. However, “federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so.” (p17)

At the end, the Majority pointed to State Courts as the only possible adjudicators of partisan gerrymandering claims. This solution requires, however, that States’ Constitutions provide some form of basis for such a judicial intervention. This could be illustrated by the case of League of Women Voters of Florida v. Detzner, 172 So. 3d 363 (2015) where the Supreme Court of Florida struck down a State’s congressional districting plan on the grounds that it violated the Fair Districts Amendment to the Florida Constitution (p31). In the absence of relevant provisions in States’ Constitutions, citizens must seek redress with State legislatures.

Justice Kegan, writing for the four liberal dissenters, focused on the harm caused by partisan gerrymandering and announced that the Court abdicated its obligation to guard the US Constitution. The Dissent argued that “partisan gerrymandering operates through vote dilution—the devaluation of one citizen’s vote as compared to others” and, consequently, “that practice implicates the Fourteenth Amendment’s Equal Protection Clause” (p11). Furthermore, it was claimed that “partisan gerrymandering implicates the First Amendment too…” because it “…subject[s] certain voters to “disfavored treatment”—again, counting their votes for less—
precisely because of ‘their voting history [and] their expression of political views‘” (per Vieth v. Jubelirer541 U.S. 267 (2004) at 314) (p12). Addressing the Majority’s concern over the lack of any workable standard of review, the Dissent put forward their own suggestions, most of which had already been employed by lower Courts. Finally, responding to the Majority’s suggestion that proper redress lies with State Courts and State legislatures, the Dissent argued that precisely because of partisan gerrymandering, members of State institutions would not be interested in rectifying a partisan skew which helped them get elected in the first place.

It is clear that both the conservative Majority and the liberal Minority in Rucho v. Common Cause, No. 18-422, 588 U.S. (2019) accepted evidence of existing partisan gerrymandering practices. They also both accepted that such practices caused a lot of harm to the US political system. They even both accepted that something should be done about it. Where the two groups differed was not the issue of partisan gerrymandering, but the question of the nature of the judicial power. The conservative Majority took a limited view of the judicial power. They looked for any constitutional provision which would expressly apply to partisan gerrymandering. Having been unable to find it, they concluded that the Court had no jurisdiction to outlaw such practices. They relied on legendary Chief Justice Marshall who laid foundations of what was understood by the judicial power: “it is emphatically the province and duty of the judicial department to say what the law is” (p34). Based on this, the Majority believed that it was also their place “to say ‘this is not law'”, even in the face of dire consequences brought by partisan gerrymandering.

On the other hand, the liberal Minority took a typically more expansive view of the judicial power. The judiciary was there to safeguard the Constitution and the Constitution set up a certain political system. If this political system was threatened, then the Constitution should be interpreted in a way that allowed a judicial intervention in its defence. While the Majority was looking for a basis for the intervention, the Minority was primarily concerned with the potential consequences of the failure to intervene. They believed that “of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections” (p33). It is this divergence of the Majority’s and Minority’s views on the nature of the judicial power that resulted in this case being decided 5-4, along the ideological lines.

US Supreme Court Blocks Citizenship Question

On 27 June 2019, the US Supreme Court ruled in Department of Commerce v. New York, No. 18–966, 588 U.S. (2019) that the Trump Administration could not add a citizen question to the upcoming 2020 national census. In a convoluted decision, Chief Justice Roberts, together with the four liberals, held the Trump Administration’s rationale for adding the citizen question was merely pretextual and therefore in violation of the Administrative Procedures Act. In other words, Chief Justice Roberts sent a strong signal that he did not like being lied to.

At the Supreme Court, the Majority (Chief Justice Roberts joined by Justices Thomas, Alito, Gorsuch and Kavanaugh) held that the Enumeration Clause (Article 1, sections 1 & 2 of the Constitution) permitted a citizen question on a census. Therefore, in theory, there was nothing preventing a presidential administration from adding the question to the 2020 census (pp11-13).

Secondly, the Majority (joined by Justices Thomas, Ginsburg, Breyer, Sotomayor, Kagan and Kavanaugh) held that a decision to add the citizen question was reviewable under the Administrative Procedure Act. The Administrative Procedure Act empowers the Courts to invalidate decisions of executive agencies which are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (5 U. S. C. §706(2)(A)). Although the Administrative Procedures Act does not allow for a review in cases where a decision is “committed to agency discretion by law” (§701(a)(2)), this exception does not apply to a national census. In this case, the Census Act does not leave an unfettered discretion and, therefore, a decision to add any question to any national census remains subject to judicial review under Administrative Procedures Act (pp13-16).

Thirdly, the Majority (Chief Justice Roberts joined by Justices Thomas, Alito, Gorsuch and Kavanaugh) held that the Trump Administration’s decision to add the citizen question to the 2020 census was supported by evidence, made following a proper examination of the Census Bureau’s analysis of various methods of collecting data and overall reasonable. The decision was not ‘arbitrary’ or ‘capricious’ under the Administrative Procedures Act (pp16-20).

Nevertheless, ultimately, the Majority (Chief Justice Roberts joined by Justices Ginsburg, Breyer, Sotomayor and Kagan) ruled that the Trump Administration’s decision was unlawful because the rationale given was pretextual. The Majority believed that “the decision to reinstate a citizenship question cannot adequately be explained in terms of [the Department of Justice]’s request for improved citizenship data to better enforce the [Voting Rights Act].” This is because the Secretary of Commerce began preparations for adding the citizenship question a week into his tenure, at the point when no argument was being raised regarding the Voting Rights Act. In fact, there was evidence that the Director of Policy at the Commerce Department was eliciting requests for citizenship data from the Department of Justice and the Department of Homeland Security before invoking the Voting Rights Act. The Majority agreed that, normally, an agency could have both stated and unstated reasons for any decision but, in the case of the census question, the Trump Administration provided only one argument (the argument based on the Voting Rights Act) and this argument turned out to be false. Consequently, the decision to add the citizenship question to the 2020 census violated the Administrative Procedures Act because it breached the requirement to offer a genuine justification behind the agency’s action (pp23-28).

Justices Thomas, Gorsuch and Kavanaugh submitted a partly dissenting opinion criticising the ultimate decision of the Court to invalidate the decision to add the citizenship question on the grounds that the rationale offered by the Trump Administration was pretextual. The dissenters argue that “for the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale” (p1) and that “the Court engages in an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion” (p5). They remind the Majority that the US Supreme “Court has never held an agency decision arbitrary and capricious on the ground that its supporting rationale was ‘pretextual’” (p6). They also claim that the Majority’s reasoning is contrary to the long-standing precedent on the ‘presumption of regularity’ dating back to United States v. Chemical Foundation, Inc., 272 U. S. 1, 14–15 (1926) (p7). Finally, the dissenters also warn that the Majority “has opened a Pandora’s box of pretext-based challenges in administrative law” (p13).

The case of Department of Commerce v. New York, No. 18–966, 588 U.S. (2019) is yet another example of Chief Justice Roberts trying to find a common ground between the liberals and conservatives on the Court. Beyond that, however, the Chief Justice appears also to be sending a message to the Trump Administration that he will not accept apparent lies. The Court is ready to give the Administration some degree of deference, but providing a rationale which could easily be disproven will not fly. With this highly politicised case, Chief Justice Roberts attempts to stay above politics and, in the process, is positioning himself as a new Swing Vote. More about Chief Justice Roberts and his position on the Court could be found here: The Jurist’s Corner.

US Supreme Court Combats Racial Bias in Juries

On 21 June 2019, the US Supreme Court ruled 7-2, in the case of Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), that a persistent use of peremptory challenges to remove black jurors during a series of trials against Curtis Flowers violated his rights under the Equal Protection Clause of the 14th Amendment as explained in Batson v. Kentucky, 476 U.S. 79 (1986). The only African-American on the bench, Justice Thomas, dissented.

Curtis Flowers was accused of four murders in a furniture store in Winona, Mississippi in 1996. Altogether, he had six separate jury trials. The first three ended with convictions which were later overturned by the Mississippi Supreme Court on the grounds of prosecutorial misconduct. During these, no African-American sat on the jury despite the fact that the population distribution near Winona was approximately 50% African-American. Next two ended with a mistrial due to hung juries. The sixth trial was held in 2010. During the voir dire procedure proceeding the trial, the prosecution used peremptory challenges to dismiss five African-American jurors, leaving only one African-American on the jury. This trial ended with a conviction and the death sentence. Flowers appealed to the Mississippi Supreme Court arguing that the use of peremptory challenges to dismiss African-American jurors violated his rights under the Equal Protection Clause of the 14th Amendment as explained in Batson v. Kentucky, 476 U.S. 79 (1986). The conviction was upheld and Flowers petitioned the US Supreme Court to hear his case.

Peremptory challenges allow attorneys from both sides to dismiss potential jurors during the voir dire procedure proceeding a trial without stating a reason. Usually, both side have a certain number of such strikes which varies form one State to another. Peremptory challenges come on top of challenges for cause which allow attorneys to dismiss any number of jurors suspected of bias. In Batson v. Kentucky, 476 U.S. 79 (1986), the US Supreme Court ruled that the prosecutor could not use peremptory challenges to exclude jurors based solely on their race as this practice violated the Equal Protection Clause of the 14th Amendment.

The Majority opinion in Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), written by Justice Kavanaugh, and joined by Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan and Chief Justice Roberts, pointed to “four critical facts, [which] taken together, require reversal“:

“First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court… Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.” [pp2-3]

As to the importance of each fact, the Court held that:

“We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.”  [p3]

In issuing its verdict, the Court felt that it was not doing anything beyond applying the holding of Batson v. Kentucky, 476 U.S. 79 (1986):

In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.” [p3]

The Majority opinion also briefly analysed the historical relationship between the Equal Protection Clause of the 14th Amendment and the right to serve in juries. This included, apart from the 14th Amendment itself, the judgment in the Slaughter-House Cases, 16 Wall. 36, 71 (1873), the Civil Rights Act of 1875 and the judgments in Strauder v. West Virginia, 100 U. S. 303 (1880)Brown v. Board of Education, 347 U. S. 483 (1954) and Swain v. Alabama, 380 U. S. 202 (1965).

Then, the Majority opinion summarised the main principles established by Batson v. Kentucky, 476 U.S. 79 (1986):

“First, the Batson Court rejected Swain’s insistence that a defendant demonstrate a history of racially discriminatory strikes in order to make out a claim of race discrimination…
Second, the Batson Court rejected Swain’s statement that a prosecutor could strike a black juror based on an assumption or belief that the black juror would favor a black defendant…
Third, the Batson Court did not accept the argument that race-based peremptories should be permissible because black, white, Asian, and Hispanic defendants and jurors were all “equally” subject to race-based discrimination…
Fourth, the Batson Court did not accept the argument that race-based peremptories are permissible because both the prosecution and defense could employ them in any individual case and in essence balance things out…” [pp13-15]

The Court also listed the types of evidence which could be relied on by the Defendant when bringing a Batson challenge: 

  • “statistical evidence about the prosecutor’s use of peremptory strikes against black prospective jurors as compared to white prospective jurors in the case;
  • evidence of a prosecutor’s disparate questioning and investigation of black and white prospective jurors in the case;
  • side-by-side comparisons of black prospective jurors who were struck and white prospective jurors who were not struck in the case;
  • a prosecutor’s misrepresentations of the record when defending the strikes during the Batson hearing;
  • relevant history of the State’s peremptory strikes in past cases; or
  • other relevant circumstances that bear upon the issue of racial discrimination.” [pp16-17]

Based on the history of Flowers’s case and the holding in Batson v. Kentucky, 476 U.S. 79 (1986), the Majority opinion held that the prosecution had not given sufficient race-neutral reasons to justify the exclusion of the five African-American jurors during Flowers’s 6th and final trial. This led the Court to conclude that his rights under the Equal Protection Clause of the 14th Amendment were violated and the conviction had to be reversed.

Interestingly, Justice Thomas, the only African-American on the bench, dissented arguing that the Court “almost entirely ignores—and certainly does not refute—the race-neutral reasons given by the State for striking [five] black prospective jurors” in Flowers’s final trial [p2]. Justice Thomas claims that the Court “never should have taken this case” because it did not present any real question of law and the Court only wanted to “reconsider the factual findings of the state courts” [p4]. He also points to a bigger picture – the Majority opinion in Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019), and its effect on Batson v. Kentucky, 476 U.S. 79 (1986), will make it “impossible to exercise a peremptory strike that cannot be challenged by the opposing party, thereby requiring a ‘neutral’ explanation for the strike. But requiring an explanation is inconsistent with the very nature of peremptory strikes.” [p40].

Justice Thomas finishes his Dissenting opinion with his own views on peremptory challenges:

In sum, as other Members of this Court have recognized, Batson charted the course for eliminating peremptory strikes… Although those Justices welcomed the prospect, I do not. The peremptory system ‘has always been held essential to the fairness of trial by jury’.” [p40]

It seems that Flowers v. Mississippi, No. 17–9572, 588 U.S. (2019) was as much about a racial bias in the jury selection as it was about the nature and place of peremptory challenges in today’s criminal justice system.

Surveillance Court Rulings Subject to Judicial Review (UK Supreme Court)

On 15 May 2019, the UK Supreme Court ruled 4-3, in R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22, that rulings of the Investigatory Powers Tribunal are subject to the supervisory jurisdiction of the High Court on the point of law. In its ruling, the Supreme Court discusses a common law presumption against clauses restricting access to judicial review and, more crucially, the limits of the doctrine of parliamentary sovereignty.

The Investigatory Powers Tribunal is a specialist tribunal created by the Regulation of Investigatory Powers Act 2000 (RIPA 2000) and tasked with supervising intelligence surveillance and other conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (GCHQ). Under RIPA 2000, s 67(8), rulings of the Investigatory Powers Tribunal seem to be final:

“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.”

However, Lord Carnwath, in his Majority Opinion, held that judgments containing errors of law were not ‘determinations’ within the meaning of RIPA 2000, s 67(8) and the supervisory jurisdiction was therefore not ousted. This interpretation flows from the old decisions of the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 14 and O’Reilly v Mackman [1983] UKHL 1 which established that:

“…If a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, ie, one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported ‘determination’, not being a ‘determination’ within the meaning of the empowering legislation, was accordingly a nullity…” [para 54]

Therefore, Lord Carnwath held that ‘…a determination arrived at on an erroneous view of the relevant law was not a “determination” within the meaning of an ouster clause...’ [para 54]. This approach is consistent with a general common law presumption against ousting the jurisdiction of the High Court [para 107].

However, in his Majority Opinion, Lord Carnwath moves beyond the common law presumption against clauses restricting access to judicial review and the concept of ‘nullity’ determinations and suggests that the question of the supervisory jurisdiction of the High Court should come down to the concept of the rule of law:

“This proposition should be seen as based, not on such elusive concepts as jurisdiction (wide or narrow), ultra vires, or nullity, but rather as a natural application of the constitutional principle of the rule of law (as affirmed by section 1 of the [Constitutional Reform Act] 2005), and as an essential counterpart to the power of Parliament to make law. The constitutional roles both of Parliament, as the maker of the law, and of the High Court, and ultimately of the appellate courts, as the guardians and interpreters of that law, are thus respected…” [para 132]

Furthermore:

“…Arguably, following the logic of the reasoning in R (Cart) [v Upper Tribunal [2011] UKSC 28], it may be thought implicit in the constitutional framework for the rule of law, as established by the Senior Courts Act 1981 and the Constitutional Reform Act 2005, that legal issues of general importance should be reviewable by the appellate courts; and that an ouster clause which purports to exclude that possibility cannot, consistently with the rule of law, be upheld…” [para 142]

Consequently, Lord Carnwath concluded that:

“…[A]lthough it is not necessary to decide the point, I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law.” [para 144]

The Majority Opinion in R (on the application of Privacy International) v Investigatory Powers Tribunal and others [2019] UKSC 22 constitutes a vital part of UK constitutional jurisprudence on the doctrine of parliamentary sovereignty as it seems to suggest that there are some ultimate limits as to what Parliament can and cannot do. The Supreme Court appears to suggest that the concept of the rule of law might pose limits to the Parliament’s power to regulate access to judicial review. It is not clear what those limits are but the Court points to the fact that unlike the Court of Appeal and the Supreme Court, which are the creation of statutes, the High Court enjoys the original common law jurisdiction [para 141] and, although there is no constitutional right of appeal form the High Court, its supervisory jurisdiction is somehow special because ‘[a]t least since the time of Blackstone, this has been a central part of the function of the High Court as constitutional guardian of the rule of law’ [para 139]. The Supreme Court therefore recognises the long history of the supervisory jurisdiction of the High Court which was established at the end of the 13th century as the King’s Bench and its ‘supervisory role was preserved by section 16 of the Judicature Act 1873 which vested the common law powers of the Queen’s Bench in the newly created High Court. Those powers were in turn preserved by section 19 of the Senior Courts Act 1981‘ [para 33].

Although the Supreme Court points to the Judicature Act 1873the Senior Courts Act 1981 and the Constitutional Reform Act 2005 as a potential source of the rule of law, those statutes only recognised the powers of the High Court and the concept of the rule of law, rather than created them. The Judicature Act 1873 combined the Court of Chancery, the Court of Queen’s / King’s Bench, the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate and the Court of Divorce and Matrimonial Causes into the Supreme Court of Judicature, composed of the High Court with original jurisdiction and the Court of Appeal with appellate jurisdiction. The Senior Courts Act 1981, s 19 provided that ‘(2) [s]ubject to the provisions of this Act, there shall be exercisable by the High Court – (b) all such other jurisdiction (whether civil or criminal) as was exercisable by it immediately before the commencement of this Act…’  while the Constitutional Reform Act 2005, s 1 provided that ‘[t]his Act does not adversely affect – (a) the existing constitutional principle of the rule of law…” None of these Acts created supervisory jurisdiction of the High Court, nor did they established the rule of law as one of the principles of UK constitutional law but rather recognised what had already existed.

Finally, the Supreme Court confirmes that as ‘constitutional statutes’, the Judicature Act 1873the Senior Courts Act 1981 and the Constitutional Reform Act 2005 are immune to implied repeal by Parliament [para 120]. Consequently, Parliament cannot implicitly modify rules governing the supervisory jurisdiction of the High Court. The question remains, what would happen if Parliament was to expressly abolish that jurisdiction or the concept of the rule of law in its entirety. It is not clear from the judgment whether Parliament can abolish something that it has not created but only recognised as already in existence.

Judge Kavanaugh to Replace Justice Kennedy

No Comments

On 09 July 2018 President Trump nominated Judge Kavanaugh for the US Supreme Court vacancy created by the retirement of Justice Kennedy. Judge Kavanaugh is a Judge of the Court of Appeals for the powerful DC Circuit and has been serving in this capacity for 13 years. He had been initially appointed to this Court by President Bush after having served under him as a White House staffer. Even more interestingly, in the 1990s, Judge Kavanaugh worked with Independent Counsel Kenneth Starr investigating business deals of then President Bill Clinton in relation to the Whitewater development which famously led to the impeachment and then the eventual acquittal of President Clinton on the charges of perjury and the obstruction of justice in 1999.

Judge Kavanaugh is known to be an originalist with a strong record on gun laws (Heller v. District of Columbia (2011)) and the separation of powers (PHH Corp. v. Consumer Financial Protection Bureau (2017)). On the other hand, many conservative members of the Senate point out that he helped save ObamaCare’s individual mandate when the case was before the Court of Appeals by construing it as a tax (Seven-Sky v. Holder (2011)) and voted to uphold massive data collection by the NSA outside the Fourth Amendment’s protection of privacy (Klayman v. Obama (2015)). Finally, Judge Kavanaugh seems to have no clear record on the right to abortion (but see Garza v. Hargan (2017)) – the most crucial issue for the vast majority of progressive Senators.

In the incoming months, Judge Kavanaugh will face a Senate confirmation hearing and will be asked to answer multiple questions about his judicial and administrative past. The hearing will most likely be a contentious one with many Democratic Senators already vowing to vote against him. However, with a 51 majority, the Senate Republicans are likely to confirm Judge Kavanaugh in time for a new session of the Supreme Court beginning in October 2018. The vote will probably go down along the party lines with a few Democrat Senators from typically Red States perhaps voting for Judge Kavanaugh to strengthen their position before the November mid-term elections.

The Most Powerful Man in America Retires

No Comments

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.