Supreme Court, Legal Feed

SCOTUS & the travel ban

In this CNN article about today's SCOTUS decision on the (immoral) travel ban, the key paragraph is this one:

"That's going to be an extreme headache. Think about how the people at the border, at airports are going to make that decision," said Page Pate, CNN legal analyst. "Who is going to make this decision? If we leave it to the folks on the front line, that's just going to lead to more litigation."

SCOTUS often seems unaware of the real world implications of their decisions.  This could sow unnecessary chaos.  They should have maintained the hold until they ruled on the merits of the issue itself.

I'm reminded of something I read about Sandra Day O'Connor when she retired.  Her version of conservatism was Platonic--that the philosopher-kings should make decisions that maintained order and didn't create disruption.  The author said this is why she ultimately ruled in Casey v. Planned Parenthood for reproductive choice instead of against it as had been anticipated, because she didn't want to create chaos by overturning Roe.  

Also, there's this description of English common law I read this morning in the essay on the life of the mind by philosopher Roger Scruton:

It was there, as a member of the Inner Temple, that I first became acquainted with the common law of England, and I was astonished by what I found. The meticulously reported cases, going back over cen­turies, were not only an eloquent expression of life as my ancestors had known it, but also an illustration of thought in action. The laws governing the English, I discovered, have emerged from the judgments of the courts, and not been imposed upon the courts by government. Those brought up on Roman law or the Code Napoléon find this amazing, since they see law as a deductive system, beginning from first principles and working downward to the particular case. But common law arises as morality arises, from the desire to do what is right, not from the desire to expound the principle that makes it so. And often the principle eludes us, even when the rightness of the act is clear. Readers of Jane Austen will not need to be reminded of this. Like morality, the common law builds upward from the particular to the general. For justice is done in the particular case, and until tried in the courts, abstract principles have no more authority than the people who declare them.

The facts of the case may never have been considered before, and the judge may have no explicit rule of law, no precedent, and no act of Parliament to guide him. But still there is a difference, the common law says, between a right and a wrong decision. Thus it was in the celebrated case of Rylands v. Fletcher (1868) in the law of tort, in which water from the defendant’s reservoir had flooded the mines of the plaintiff and put them out of use. No similar case had come before the courts, but this did not prevent Mr. Justice Blackburn from giving judgment in the following terms: “We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie liable for all the damage which is the natural consequence of its escape.”

Until Rylands v. Fletcher no such rule had ever been formulated. But in Blackburn’s eyes, he was not inventing the rule; he was discovering a legal truth buried in the heart of things, bringing it to the surface, and clarifying matters that no politician had yet addressed. He thereby set the standard for environmental legislation in my country, and laid the foundations for the doctrines of enterprise liability in American law.

American law is supposed to be based on English common law, and historically common law was used to interpret our own law.  This excerpt shows both the folly of today's decision and the so-called "originalist" position of many of the current conservatives on the court.

Changes to the Court

Here is an intriguing list of recommended changes to the Supreme Court, including expanding the number of seats to 19.  One goal of such a move would be that every president would then likely get a few appointments, lessening the fighting over each seat and bringing a wider diversity of people and voices to the court.  The author's main objection to 9 is that we have invested far too much power into a small number of people and often the one moderate who becomes the decisive vote.  Most nations now have far larger highest courts than we do and generally don't have the number of cases decided by one vote that we do.

More on Gorsuch

This Atlantic essay is particularly informative.  The author interprets Gorsuch as being in the tradition of Jeffersonian natural law and concludes, "he will likely be even more willing to enforce constitutional limitations on any excesses committed by the president who appointed him."  That a particularly good thing.

The essay details Gorsuch's views on euthanasia.  They are not views I agree with, as they are rooted in a Kantianism that, while I respect its intellectual integrity and consistency, I do not believe is adequate for real life ethical commitments.  These are, of course, debates within philosophical ethical theory, but my ethics on these points are particularly informed by my experience as a minister providing pastoral care for persons and families making end-of-life decisions.  Plus, I'm a virtue theorist, not a deontologist.

But I continue to be impressed with what I read about him. These were my earlier thoughts.

Neil Gorsuch

Vox has a very good introduction to the judge and his approach to the law.  He sounds acceptable to me.  I have never opposed justices for their ideological positions (I'm too young to have known enough when Bork was being debated).  I've only objected to Thomas and Harriet Miers because they didn't seem to be the best qualified.  I may disagree with Judge Gorsuch on some issues, but he passes my test for someone who is qualified, respected, and within the broad mainstream of American constitutional law.

Yes, I do think the GOP Senate stole this seat, but blocking this nominee will not heal that breach of constitutional norms.

Antonin Scalia

Antonin Scalia is the only Supreme Court Justice I've personally encountered.  In February 1992, six years into his tenure and when he was still among the junior members of the Court, I was representing Oklahoma in the United States Senate Youth Program funded by the William Randolph Hearst Foundation.  We spent a splendid week in D. C. meeting with and hearing from government officials and touring behind-the-scenes in places like the State Department.  Among the highlights of the week was our presentation from and question and answer session with Justice Scalia in the Supreme Court chamber.  Afterwards, a Hearst reporter along for the ride said something like, "Most journalists crave a chance for a q&a with a justice like you high school students just had."

Scalia was sharp, brilliant, funny, and charming.  Passionate about the law and about conveying appreciation for the Constitution and the rule of law to us students.  I enjoyed him.  My, albeit limited, personal experience chimes with the beautiful reflection that liberal scholar Cass Sunstein offered this week about his friendship with Scalia.

But.  And the but is big.  Scalia's jurisprudence was harmful to people and maybe damaging to the Republic.  As Jedediah Purdy explains in this piece from The New Yorker.

My disenchantment with Scalia began with Bush v. Gore.  At the time I was completing my Ph. D. in philosophy at the University of Oklahoma and the debacle of the Florida election was a constant topic of conversation in the department lounge.  The liberals (of whom I was not a part, being one of the few people in the department who had voted for Bush) were worried that the Supreme Court could decide the election, cutting short the messy, democratic process.  I said, "That won't happen.  Justice Scalia, for instance, knows that the House of Representatives must settle presidential election disputes and will refuse to insert the Court."

Upon reflection, the final 5-4 ruling in Bush v. Gore (remember there was first a 9-0 ruling and then a 7-2 ruling as well) may have been the beginning of the end for my time as a conservative and a Republican.

As Purdy explains in his piece, Scalia's originalism did not resolve partisanship but masked it, which did become apparent when Scalia was no longer writing dissents.

So, another example is D. C. v. Heller, in which Scalia, without precedent, interpreted the Second Amendment as protecting an individual right to bear arms instead of a right of the state militias.  Justice Stevens' dissent (one of his best and most eloquent) was, to me, a far more convincing originalist argument.  He demonstrated persuasively that the 18th century meaning of the amendment was connected with the militias not an individual right.  The best persuasive evidence being the existence at the time of laws limiting and regulating individual gun ownership.  To me that case revealed the hypocrisy in Scalia's jurisprudence and, as Purdy pointed, out, originalism simply became a different form of partisanship instead of the way out of it.

Then, in Citizens United the Court, again, without precedent, granted rights to corporations.  As Purdy writes, "Much of his jurisprudence protected the powerful, such as corporations with money to spend on elections, and white plaintiffs against affirmative action."  Scalia could find no Constitutional principle for granting legal protections to harmed minorities--gays and lesbians for instance--but could invent legal protections for corporations.

And, then the deal was sealed in the Hobby Lobby case.  For years as the religious exemption discussion swirled around contraception and gay rights I kept quoting Justice Scalia in the Peyote case from the early 1990's: "The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability."  He thought that carving out religious exemptions to neutral laws would be a horror-- "any society adopting such a system would be courting anarchy."

And, yet, when it was a conservative corporation making a case that also would impact exemptions from neutral laws for Roman Catholics (of which Scalia is one), Scalia overturned his own precedent.  To me, that was the final straw.  His jurisprudence was inauthentic and harmful to people and the Republic.

Natural Born

Laurence Tribe points out that Ted Cruz' own originalist standard for constitutional interpretation (something Tribe should know about since he was Cruz' constitutional law professor) would deny Cruz the presidency.

Growing up, I always understood that you had to be born in the United States, not simply born to American citizens.  The constitutional provision had disqualified Alexander Hamilton from being president, for instance (and it seems that I read once that some thought this was intentional).  I dated a girl in college who was very political, but because she had been born of missionary parents in the Philippines, she had always been told she couldn't run for president.

I wondered about John McCain, who kept saying he was okay because the Panama Canal Zone was U. S. Territory at the time.

I think the provision is antiquated and ought to be changed, as does Tribe.  But, as Tribe points out, this is the standard of those of us who believe in a living constitution, which Cruz does not.

Roberts is ignorant to a vicious degree

His entire dissent revolts as it, like the district court ruling it upholds, ignores the actual questions in the case.  I had hoped he would be persuaded by Judge Posner's brilliant opinion; alas, he was not.

Throughout he commits errors.  He has a woefully ignorant understanding of the history of marriage and human sexuality.  In preparation for this case did he read no scholarly works on that topic?  Nor the actual case law, such as that in the Prop 8 case, which explored the question?

It simply is not true that human society has always defined marriage the same way.  Marriage, as a either a religious or a civil institution, doesn't/didn't exist in every society.  Humans have attached with one another throughout history, receiving various forms of recognition by their societies.  Same-sex couples have always been a part of this human history, and at times did enjoy various levels of social acceptance and support.  What is being sought in this case is not overturning or radically altering some ancient, sacred tradition of marriage, but the receipt of very concrete rights, privileges, and responsibilities by a segment of humanity that has always existed but has been denied those rights by US law due to animus.

Which brings me to the point that really set me off.  He is upset that the majority believes the laws banning same-sex marriage were enacted through bias.  Was he in a coma in 2004?  Roberts is ignorant to a vicious degree if he actually believes those laws weren't enacted via bias.  He writes: 

By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. 
Even if he was in a coma in 2004 (and after) and not paying attention to the political rhetoric, didn't he read the evidence presented in the Prop 8 trial?  Or the ruling in Oklahoma?  Or Judge Posner's ruling?  All of those focused on the discriminatory bias and animus of the campaigns for constitutional amendments defining marriage.
Again, if he is this ignorant of history and the facts of the cases before him, then it is a vicious form of ignorance.
Furthermore, one cannot believe Justice Roberts or trust his moral and legal reasoning when he denounces what he thinks is a formation of a right that didn't exist before as he has voted for an individual right to bear arms that didn't exist before, a right to corporate personhood that didn't exist before, and a right to religious expression of corporations that didn't exist before.  In the common language that sort of speaking out of both sides of ones mouth is called "hypocrisy."

It's not just Indiana

Ari Ezra Waldman gives a good legal analysis of the Indiana RFRA and why we shouldn't settle with changing it, we need to change the federal RFRA as well.  His conclusion:

We may win "clarifications" of Indiana's RFRA to make it more like the federal RFRA. That's not a victory. In fact, it's much more dangerous: it implies that the federal RFRA is a good thing that we're willing to accept. It isn't and we shouldn't.

Article on ruling

Reading today's Omaha World-Herald article on Judge Bataillon's ruling, there was something I really liked and a paragraph that was factually incorrect.

I was pleased that the article opened with the judge's primary concern--children of same-sex families.  For the last two years this has become a staple of the rulings (which it appears that our opponents never actually read).  This section was my favorite part of the ruling.

But then the article has a paragraph full of factual errors.  Here is the paragraph:

Bataillon struck down the state’s gay marriage ban Monday but stayed the implementation of his order for a week to give the state time to appeal.

Actually, Judge Bataillon rejected the state's motion for a stay.  He did declare when his ruling would go into effect.  It is often the case that a ruling does not go into effect immediately in order to give people time to prepare for implementation, which is what the judge did.  Here is the relevant paragraph from the ruling:

Because the standards for staying the injunction mirror the standards for issuing the injunction, the court's findings of likely success and severe irreparable harm make the court disinclined to stay the injunction. For the reasons stated herein and in the court's denial of an earlier motion for a stay, the court finds the State's oral motion for a stay should be denied.18 However, in an effort to assuage the State's concerns with respect to administrative turmoil, the court will delay the effective date of the injunction.

Note that he rejected the stay.  And unlike the World-Herald article's misleading paragraph, he did not do it in order to give the state time to appeal.

Also, a footnote explains why he did not grant a stay: "That stays have been granted in other cases in this Circuit pending appeal is of no consequence to this determination because those cases did not involve any showing of the sort of irreparable harm these plaintiffs (especially the Waters family) will suffer."