Monday, February 26, 2018

NY Court of Appeals: Steep Cut in Criminal Cases (part 1)

New York's highest court, the Court of Appeals, "granted the fewest number of criminal appeals in a decade-and-a-half" last year. According to a report in the New York Law Journal, figures for 2017, which were provided by the Court itself, indicate that number to be 25, or 1.11% of the 2.244 applications. (See Court of Appeals Hears Fewest Criminal Cases in 15 Years, by Colby Hamilton, NYLJ, January 30, 2018.)

The Court's figures, however, don't go much deeper than revealing the overall number of "Criminal Leave Applications" (CLA's) that were granted and denied. The figures do not indicate how many CLA's were granted or denied by each member of the Court. Indeed, the figures published each year in the Court's official Annual Reports do not include any such information.
[For those unfamiliar with Court of Appeals procedures: CLA's are decided by one Judge. The incoming CLA's are distributed randomly among the Judges, and the Judge who receives a CLA is the only one who decides it.]

So let's look behind the CLA numbers. See where the dramatic drop is coming from.

Now, I could not independently confirm the calendar-year 2017 figures provided to the NYLJ by the Court. The raw underlying data is not yet completely available on at least 2 accessible databases that would corroborate each other and would give me confidence. But I could independently determine the figures for a slightly earlier 12 month period--from fall 2016 through summer 2017. The complete raw data for that year-long period is already available on at least 2 separate databases to check against each other. So, at this point, I'm much more confident in those numbers, and those are the ones we'll focus on.
[The data that I do have for calendar-year 2017 are from 2 separate sources that are still a bit dissimilar, likely because at least one of those sources is not yet complete through the year. IAE, it turns out that the unconfirmed figures for calendar year 2017 and the figures I have been able to confirm for the slightly earlier 12-month period are very similar, and they similarly reveal the same dramatic drop in CLA grants.]

Okay, what are the figures for fall 2016 thru summer 2017? Specifically, what are the number of  CLA's granted by each Judge during that 12 month period, shortly into the tenure of Chief Judge Janet DiFiore--which began on January 21, 2016? Here they are graphically:

(click on graph to enlarge)
Five of the Judges were on the Court during that entire 12-month period. So their receptive grant numbers reflect the entire year. Judge Eugene Pigott was forced off the Court by mandatory retirement age at the end of 2016. So the grant number for him reflects that calendar year--which includes the entire year of DiFiore's appointment in January, as well as the 3 weeks immediately prior. As for Judges Rowan Wilson and Paul Feinman, they were each appointed during 2017 and, thus, their grant numbers reflect less than a year on the Court.

With that in mind, the graph reflects that Judge Pigott granted the most CLA's. After him, in descending order, was Judge Eugene Fahey, Chief Judge DiFiore, and then Judges Leslie Stein, Michael Garcia, and Jenny River:
  • Pigott,  11
  • Fahey,  7
  • DiFiore,  5
  • Stein,  4
  • Garcia,  3
  • Rivera,  2
In a vacuum, those numbers don't necessarily tell us much. So let's put them in perspective. Let's compare them to the number of CLA grants for the very same Judges during a similar period under Chief Judge Jonathan Lippman--as well as for the Chief Judges themselves. Here is a graphic look at the figures for fall 2016 thru summer 2017 alongside those for fall 2014 thru summer 2015--the last such 12-month period under Lippman:

(click on graph to enlarge)

As shown in the graph, here are the contrasting numbers, DiFiore Court versus Lippman Court:
  • Pigott,  11 versus  17
  • Fahey,  7  versus  8
  • Stein,  4  versus  6
  • Rivera,  2 versus  6
  • DiFiore, 5  versus  Lippman, 26
Let's look at these numbers somewhat differently. In this next graph, the respective numbers for each Judge, and for the Chief Judges, are juxtaposed:
(click on graph to enlarge)

The contrast could hardly be clearer. Obviously, the starkest contrast is between the number of CLA's granted by Chief Judge Lippman (26) and those by his successor (5). The drop for Pigott from the Lippman to the DiFiore courts is also quite stark (17 to 11). And although not as dramatic, the number of CLA grants by each of the other Judges has also dropped.

Well that's the underlying data on CLA grants for each of the Judges who have served with both Chief Judges Jonathan Lippman and Janet DiFiore--and for Lippman and DiFiore as well.

There's little question about it. As the NYLJ reported, significantly fewer applications for the Court of Appeals to review criminal cases are being granted by the Judges. And clearly significantly fewer than when Jonathan Lippman was Chief Judge.
[Here's the link to the Jan. 30, 2018 NYLJ article by Colby Hamilton.]

In the next post, we'll put this current drop in CLA grants in the context of modern Court of Appeals history in which a similar sharp drop previously occurred.

Thursday, February 8, 2018

The FISA Court's Judges?

There's lots of nonsense being spread about the FISA Court. (Officially, the Foreign Intelligence Surveillance Court.) Not that it's surprising that nonsense should be passed around as fact. Not with hyper-partisanship, hyper-polarization, and resulting nonsensical claims being given the veneer of validity by increasingly numerous and feverish "news" venues and commentators.

One such claim currently being widely and wildly circulated throughout extreme right-wing websites and social media is that the FISA Court judges are Obama appointees. The particular assertion echoing in these circles is that 10 of the 11 FISA Court judges were appointed to the bench by former President Obama. Consequently, of course, whatever that court does is highly suspicious. Indeed, the warrants issued by the FISA Court in the Russia investigation should not be trusted because they were issued by corrupt judges--i.e., Obama appointees.

(click to enlarge)
Well, at least they got the number 11 right.
Yes, there are 11 judges on the FISA Court. The rest of the claim is utter gibberish. But with facts and objectivity so thoroughly devalued in much public discourse today, it's to be expected that such baseless assertions are accepted as true and repeated with reckless indifference to their source or veracity. The nonsense about the FISA Court--apparently very appealing to those who want to believe that the entire Russia investigation is a hoax--is just one example of the sort of widespread, groundless assertions we've come to expect.

So what's the truth about the FISA Court? For those who still care about facts, what are they? Here are the relevant ones about the court's membership:

  • Appointments to the FISA Court are made by the Chief Justice of the United States. (Not by the President, past or present. Never has been.)
  • The current Chief Justice, John G. Roberts, a conservative Republican appointed by a conservative Republican President, George W. Bush, has appointed every judge currently sitting on the FISA Court. (That's Chief Justice Roberts, not former President Obama.)
  • The FISA Court judges have maximum 7 year terms; John Roberts has been Chief Justice for more than 12 years; so every one of the FISA Court judges were appointed while Roberts has been Chief Justice. And since it is the Chief Justice--and not the President--who appoints those judges to the FISA Court....
  • The 11 FISA Court judges are selected from among the judges sitting on other federal courts--i.e., the district (trial) courts or circuit (appeals) courts. All of those judgeships are presidential appointments. So, the FISA Court judges selected by the Chief Justice had all been previously appointed to some other federal court by some President. 
  • The 11 current FISA Court judges had been appointed to their district or circuit court positions by several different presidents. (Not all or 10 out of the 11--or even a majority--by Obama.)
  • In fact, a plurality of the FISA Court judges--5 out of the 11--had been appointed to their federal court judgeships by President George W. Bush: Rosemary M. Collyer (the Presiding Judge), Claire V. Eagan, Robert B. Kugler, Michael W. Mosman, and F. Dennis Saylor IV.
  • One had been appointed to her federal judgeship by President George H. W. Bush: Anne C. Conway.
  • One had been appointed by President Ronald Reagan: Raymond J. Dearie.
  • That's 7 out of the 11 FISA Court judges--more than a majority--were appointed to their federal judgeships by Republican Presidents. (Need I repeat, not by Democratic Obama.)
  • Two of the FISA Court judges had been appointed to their federal judgeships by President Barack Obama: James E. Boasberg and Rudolph Contreras. (That's 2--not 10--out of 11.)
  • And, finally, two had been appointed to their federal judgeships by President Bill Clinton: James P. Jones and Thomas B. Russell.
To summarize:
  • All 11 of the FISA Court judges were appointed by Republican Chief Justice Roberts.
  • 7 of the 11 had been appointed to the federal bench by Republican Presidents.
  • 2 of the 11 by President Obama.
[Here's the link to the FISA Court's website:]

Finally, a few additional points about that court and its function. First, it was established in 1978 under the Foreign Intelligence Surveillance Act (FISA). Congress enacted that law and established the FISA Court in order to protect against the kind of political abuse of intelligence surveillance that had recently been engaged in by the Nixon administration.

Second, the specific protection provided by the law is the requirement that the federal government must obtain "approval" from the FISA Court before undertaking "electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes" within the United States.

Third, to obtain that "approval"--or warrant--from the FISA Court, the government must satisfy the 4th Amendment requirement of probable cause. Hence, the government must show that there are reasonable grounds to believe that the particular person to be surveilled may be involved in particular criminal activity. The requirement of constitutional probable cause is to help insure that there is some bona fide justification for the surveillance. That is, to help insure that the surveillance is neither political "dirty tricks" nor a "witch hunt" nor any other arbitrary fishing expedition. But neither is proof positive of criminality required; just reasonable grounds. That's the Constitution's 4th Amendment standard.

The point of all this is that regardless of what is being spread or reported or argued or imagined--whether by partisans or extremists or ignorants, and no matter the political or ideological stripe--about the FISA Court and the granting and renewing of warrants in the Russia investigation, there actually are some facts to be kept in mind to make some sense out of the din. Before the FBI obtained authorization (a warrant and renewals of that warrant) to conduct electronic surveillance in the Russia investigation, it had to persuade a judge or judges of the FISA Court--all of whom were appointed to that court by Chief Justice Roberts (who in turn had been appointed by President George W. Bush)--that their were reasonable grounds, credible bases, for conducting that surveillance.

Nevertheless, there are those who choose to believe that the FBI which sought the authorizations to conduct the surveillance was corrupt. That the FISA Court which granted the authorizations was also corrupt. And that the entire Russia investigation is a corrupt fraud. Unfortunately, such chosen conspiratorial beliefs, with or without any basis in fact or logic, are all too common in today's political and cultural climate.

And if memory serves me correct about another time of political and cultural turmoil, nearly half a century ago, there was a similar refusal to accept reality by a sizable chunk of the public, and it persisted right up until President Nixon resigned from the Watergate scandals. And even thereafter.

To be sure, it may well be that our current President is not guilty of any actual criminal misconduct as Nixon was. But it cannot be denied that there is a considerable amount of nonsense, blind disbelief, and utter disingenuousness being propagated in the defense of President Trump at all cost. The misinformation about the FISA Court, as well as the willful or ignorant spreading of that misinformation, is but a symptom of what has made intelligent public debate on important national issues so difficult.

Hopefully, this post has now dispensed with at least a little bit of that nonsense for those who are willing to accept the facts.

For additional discussion of the FISA Court and questions about the warrants obtained in the Russia investigation, here's the link to my interview this past Monday, Feb. 2, on Fred Dicker's Focus on The State Capitol!

Sunday, October 1, 2017

A Supremely Blockbuster New Term?

For much of the last two terms, the United States Supreme Court was short one Justice. The vacancy created by the death of Justice Antonin Scalia in early 2016 remained unfilled until the appointment of Neil Gorsuch late last term. During that interim period, the eight sitting Justices came to a 4-4 draw in several cases; in other cases, the competing ideological sides obviously compromised in order to render some decision; and in still other cases, the Justices either declined to grant review or they did grant review in cases that would be heard when there would be a full complement of nine Justices.

For the 2017-18 term of Court that is to begin Monday, October 2--the iconic First Monday in October--the cases that are already on the Court's docket strongly suggest that this will be a year of blockbuster decisions. It is always possible, of course, that the Justices will bob and weave and avoid confronting some of the hot-button constitutional questions at the heart of these cases. But with four Justices who lean very politically conservative, and four very politically liberal--oftentimes leaving Justice Anthony Kennedy to cast the deciding vote-- the Court can be expected to resolve some very ideologically-contentious issues with some very ideologically-charged rulings.

Here are several of the most significant issues the Court will tackle this term:

Partisan Gerrymandering
As in extreme gerrymandering. As in extreme mathematical efficiency to virtually guarantee that the political party in power remains in power. As in making it extremely difficult for that party to lose elections.
So, for example, in the case to be heard by the Court this week, Gill v. Whitford, the Republican party in power in Wisconsin has carved up voting districts in the state in ways that severely dilute the effect of Democratic votes. This gerrymandering has, in fact, produced a near certainty that the Republicans retain control of the legislature. Indeed, even when the Democratic party has won a substantial majority of the statewide vote in recent years, the Republicans have still won a substantial majority of the voting districts.
[Yes, Democrats have done the same thing when they can.]
Racial gerrymandering is unconstitutional. But what about partisan gerrymandering? Is it just another "political question" which the majority of the Court believes should be resolved in the political process? Or is partisan gerrymandering, at least in extreme cases, a fundamental violation of our democratic voting process that calls for a judicial redress?

Gay Rights/Religious Liberty
What happens when equal rights for gays and lesbians competes with religious objections to supporting their life choices? In Masterpiece Cakeshop v. Colorado, a baker refused on religious grounds to make a cake for a same-sex wedding. Colorado ruled that this refusal was a violation of the state's public accommodation law which, among other things, prohibits sexual-orientation discrimination.
There are many legal and constitutional ingredients relevant to this case. Nevertheless, it is a pretty sure bet that predetermined positions on LGBT rights will be reflected in the voting of most, if not all, of the Justices. For example, it is very very difficult to conceive of Justices Ginsburg and Sotomayor siding with the religiously objecting baker against the same-sex couple. It is at least as difficult to imagine Justices Thomas and Alito and Gorsuch siding with the same-sex couple against the baker. On the other hand, it is not difficult to see Justice Kennedy--or even Chief Justice Roberts--actually balancing the competing interests and determining the outcome of the case.
There are a few wrinkles that may affect the Court's decision. One has to do with the requested design of the cake in question--would the baker be required to include a message on the cake that expresses support for same-sex marriage, perhaps infringing on the baker's free speech?
Another wrinkle involves the current state of 1st Amendment religious liberty under which any "otherwise vaild law" defeats religious objections--thanks to the 1990 Scalia-authored decision, in Oregon v. Smith, derogating the religious freedom of Native Americans. [See Justice Scalia's Record (Part 1), New York Court Watcher, Feb. 18, 2016; The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007).]
One last wrinkle to mention is that Colorado apparently does allow exemptions from its public accommodations law--e.g., an African-American baker need not include a white supremacy message. That raises the question of whether the state is discriminating against religious requests for exemptions.

Technology-Enabled Searches
When seeking a cell phone company's location records on a cell phone user, must law enforcement first obtain a warrant? Or as the Court has often styled the issue in other cases, when the government seeks to obtain and examine such records, is that a "search" within the meaning of the 4th Amendment? If it is, then a warrant supported by probable cause is required. If it's not a "search," then no warrant is required. This is the question presented in Carpenter v. U.S.
Whether or not the Court will view obtaining and examining cell phone location records as a "search"--thus triggering the warrant requirement--depends upon whether or not a majority of the Justices adhere to some search and seizure doctrines it has applied in the past. Some of these doctrines were, until recently, thought to have been permanently rejected by the Court. Others have never been explicitly rejected, but seem to have been weakened in Court decisions involving technology.
One of these doctrines is that a search is not a "search" unless there is a "trespass"--some illegal entry or contact--by the government on one of the things mentioned in the 4th Amendment. Sooooo, since the location records kept by a cell company do not belong to the cell phone user, there is no "trespass" upon something he owns and, thus, there is no "search." Additionally, cell phone location records are obviously not mentioned or even implicated by any of the items listed in the 4th Amendment which was ratified in 1792 (or its state government application via the 14th Amendment of 1868). 
Then there's the 3rd party doctrine. Since the cell phone company--the 3rd party--has access to the cell user's location, there is no "reasonable expectation of privacy" in such records and, thus, the government's examining of those records is not a "search" under the 4th Amendment.
[Hey, those aren't my doctrines. Like others--other courts, other judges and justices, other rulings--I disagree with those doctrines and, indeed, believe they are preposterous and were developed to approve very questionable, warrantless searches. See Is a Search a Search.]
We might see whether the Court abandons or at least further undermines those doctrines--or sticks to them.

Union Dues
May a state require non-members of a public employees union to pay some reduced dues (aka "agency fees") to help defray the expenses of collective bargaining and other services that the union provides for all the covered public employees, whether members or not?
The Court approved such dues in its 1977 decision in Abood v. Detroit Bd of Ed. But since then, some of the Justices have made clear their disagreement with Abood. Then, in 2016, following Scalia's death, the Court split 4-4 on that issue in Friedrichs v. California Teachers Assn.
Now, in Janus v. American Federation of St, Cnty, and Munic Employees (AFSCME), which the Justices just granted review last week, that question is back before the Court.
The issue pits the need of public employee unions in representing the rights of the workers against the counter claims of free speech and association of non-members who do not wish to support the positions of the unions--bargaining or otherwise.
Gorsuch would seem to be the tipping vote, ending the 4-4 tie, and that should not give comfort to the unions. But will both Roberts and Kennedy agree to actually overturn Abood? Stay tuned.

Anti-Gay Employment Discrimination (possible case)
Is discrimination against gays and lesbians a violation of the civil rights laws? The 11th Circuit Court of Appeals--the federal appellate court that sits in Atlanta, GA--recently ruled, in Evans v. Georgia Regional Hospital, that discrimination against a worker because she is a lesbian does not violate Title VII of the Civil Rights Law. That 1964 law prohibits sex discrimination, but it does not explicitly prohibit sexual-orientation discrimination.
The Obama administration took the position that sexual orientation discrimination is a form of sexual discrimination. Among other things, it is based on discriminatory sexual stereotyping--e.g., a man may partner with a woman, but a woman may not; a woman may partner with a man, but a man may not. By contrast, the Trump administration has argued that sex discrimination covers no such thing.
The 7th Circuit, the federal appeals court that sits in Chicago, recently took the position in Hively v. Ivy Tech that prohibited sex discrimination does include discrimination based on sexual-orientation. Notably, that court's position was supported by several of the federal judiciary's well-recognized heavyweights, including Judges Diane Wood, Frank Easterbrook, and Richard Posner--the latter authoring a separate concurring opinion arguing the irrational bigotry of discrimination against gays and lesbians, and even listing some gays throughout history who have contributed immensely to civilization. 
With this split among the circuits, and the challenge of Posner to any legitimate defense of sexual-orientation discrimination, it seems very likely that the Supreme Court will grant review to address the issue.

Gun Rights (possible case)
Does it violate the individual right to bear arms to require a license to carry a concealed weapon, based on some actual need for self-protection? The D.C. Circuit recently held that the D.C. law requiring such a license was invalid. That the law was contrary to the Supreme Court's 2008 decision, in D.C. v Heller, that the 2nd Amendment guarantees an individual right to bear arms.
This D.C. Circuit decision, in Wrenn v. D.C., seems to conflict with the 9th Circuit's 2016 decision in Peruta v. San Diego County, upholding a similar concealed-carry licensing requirement. Adding to the intrigue, the Supreme Court, just this past spring, declined to review that 9th Circuit's decision. Adding to that, Justices Thomas and Gorsuch dissented from the Court's decision not to review that case. Those dissenters argued that the Supreme Court was disparaging gun rights.
So it's pretty clear how Thomas and Gorsuch would vote if the Supreme Court now granted review in Wrenn in order to resolve the conflict among the circuits. But how the others would vote--especially after denying review in Peruta--is another question.

Trump's Travel Ban (moot?)
President Trump's original travel ban was replaced by a second. And last term, by a  6-3 majority in Trump v. Int'l Refugee Asst Project, the Court partially upheld the orders of the courts below that had temporarily barred enforcement of that executive order. The Court did, however, unanimously reverse the lower courts "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States"--i.e., the Trump ban could be enforced against them. At the same time, the Court agreed to hear the case this term.
However, on the way to the hearing, which had been scheduled for this week, the Trump administration promulgated travel ban 3.0. That certainly seemed to make the case involving travel ban 2.0 moot--i.e., no longer an ongoing case or controversy in need of judicial resolution. So the Court cancelled oral arguments and asked for briefing on the question of mootness.
In short, the original case involving travel ban 2.0, which had been granted review, is no longer on the Court's schedule.

There are surely other significant cases which the Court has already accepted for review, and others which it will accept. But the foregoing six--which have been granted review or are very likely to be granted soon--are certainly among the most hot-button and ideologically-charged among the cases that promise to make this 2017-18 term a blockbuster one.

Wednesday, August 2, 2017

Gorsuch, Part 6: The Now-Justice Like the Then-Judge

We've seen how Neil Gorsuch's record as an appeals court judge was ultra-conservative. Reviewing those cases where he stuck his neck out to disagree publicly with his colleagues by writing a dissenting opinion--presumably because he felt strongly that his colleagues were wrong on an important issue--reveals a clear ideological pattern. (See Part 4 and Part 5.)

In civil cases, he repeatedly sided against the worker and for the employer; sided against consumer protection; sided against Planned Parenthood; sided against the separation of church and state. In criminal cases, he argued that correction and police officers should be immune from liability despite majority findings that the vindicated suspects' constitutional rights had been violated; and he argued that convictions should be upheld despite findings that the defendants' lawyers were ineffective, or that Miranda rights were violated, or that the incriminating evidence was unconstitutionally obtained.

Perhaps most notable (and in my view most worrisome), is that even when Gorsuch sided with the defendant, he set forth the very narrow, literalist view of the 4th Amendment that it does not prohibit unreasonable searches or seizures. Rather, it only prohibits unreasonable searches and seizures if they involve one of the few particular items mentioned in that amendment--i.e., "persons, houses, papers, and effects." But nothing else. This is a view, by the way, based on long-overruled decisions of the Supreme Court from an earlier era. This also just happens to be the same narrow, literalist view of search and seizure protections taken by Gorsuch's hero, the late Justice Antonin Scalia, to whose vacancy he was appointed. And it is the view condemned in recent years by, among others, conservative Justice Samuel Alito, whose separate concurring opinion in U.S. v. Jones, 565 US 400 [2012] exposed the dangers of that view which was embraced in Scalia's opinion in that case.

Sooooooo, has Gorsuch's record on the federal appeals court been reflected in his record to date at the Supreme Court? He has been a justice for only a short time. Confirmed by the Senate in April, he has only participated in those cases which the Court considered as it was wrapping up its term. And yet....

Let's take a look.

Death Penalty
McGehee v. Hutchinson: In Gorsuch's first public vote, he sided with execution. He broke the Court's 4-4 tie to allow Arkansas to proceed with several executions that the state wanted to complete before its supply of lethal drugs expired. Each of the death inmates had already been imprisoned for 10 years; a few for more than 20. Each of them had legal claims challenging their convictions or sentences or even insisting on innocence. State and federal courts at various stages of the litigations had found some merit in their claims. But the Supreme Court declined to review the claims and, with Gorsuch's vote making a bare majority, approved the executions.

Campaign Finance
Republican Party of Louisiana v. FEC: The Supreme Court majority summarily affirmed--in a four word entry--the decision of the court below to uphold a particular provision of the federal campaign finance law (the Bipartisan Campaign Finance Reform Act of 2002, aka “McCain-Feingold”). The provision in question prohibits the use of unregulated contributions made to political parties for federal election activities. Gorsuch, together with Justice Thomas, noted his disagreement with the majority's disposition of the case and would have proceeded with the full review process.

Indigent Criminal Defense
McWilliams v. Dunn: The Alabama courts had denied the death penalty defendant the assistance of a mental health expert. By a typical 5-4 ideological split, with Justice Kennedy casting his vote with the liberals, the Court held that indigent defendants who have raised serious mental health issues do have such a right, and it sent the case back to the lower courts to apply the law correctly. Gorsuch joined Justice Alito's dissenting opinion, taking the position that the decision of the state courts should have been affirmed, because the Supreme Court had not previously "clearly establish[ed] that a defendant is entitled to an expert."

Employee Grievance
Perry v. Merit Systems Protection Board: A 7-2 majority of the Court ruled that an employee could seek judicial review of his "mixed" grievance (i.e., discrimination underlying a civil service grievance) in federal district court; significantly, such a court is not required to defer to an administrative ruling which, in this case, was adverse to the employee. Gorsuch dissented. In an opinion joined by Thomas, Gorsuch argued that an employee seeking judicial review of an adverse administrative ruling on his civil service grievance can do so only in the Federal Circuit Court. And, again here's the significance: that court must affirm the employee-adverse administrative ruling unless it is utterly irrational.

Trump's Travel Ban
Trump v. Int'l Refugee Asst Project: The Court unanimously agreed to review the constitutionality of President Trump's executive order that suspended the entry of certain foreign nationals into the United States. At the same time, by a  6-3 majority, the Court mostly upheld the orders of the courts below that had temporarily barred enforcement of the executive order. The Court did, however, partially reverse the courts by allowing the executive order to be enforced "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States." Gorsuch joined Thomas's dissenting opinion, arguing that the executive order should be allowed to be enforced in its entirety--i.e., including its enforcement against those with "a close familial relationship" with an American--because the "Government’s interest in preserving national security" outweighed the resulting hardships to affected individuals.

Church-State Separation
Trinity Lutheran Church v. Comer: By a 5-2-2 majority, the Court held that Missouri engaged in unconstitutional religious discrimination when it denied the church's request for funding for its playground--which funding was generally available to non-religious institutions. [Missouri is one of those state's with an strict (originally anti-Catholic immigrant) prohibition against aiding religious institutions.] Chief Justice Roberts' majority opinion, in a footnote, underscored that "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination." Gorsuch, joined by Thomas, wrote a separate concurring opinion disassociating himself from that limiting footnote. Anticipating other applications of law to religious institutions, he wrote that "general [constitutional] principles here do not permit discrimination against religious exercise—whether on the playground or anywhere else." [Hmmm, such as laws requiring equal treatment of gays and lesbians and same-sex married couples, even in the face of religious objections? And see immediately below!]

Gay Rights
Pavan v. Smith: This case involved Arkansas's refusal to include the name of a biological mother's same-sex spouse as a parent on the child's birth certificate. By a 6-3 majority, the Court summarily granted review and reversed on the ground that, in accord with the Court's 2015 decision in Obergefell v. Hodges, same-sex married couples are equally entitled to “the constellation of benefits that the State has linked to marriage.” Gorsuch dissented. In his opinion joined by Thomas and Alito, Gorsuch insisted that "nothing in Obergefell indicates that a birth registration regime based on biology...offends the Constitution."

Gun Rights
Peruta v. California: The Court declined to review a decision of the 9th Circuit that “the Second Amendment does not preserve or protect a right of a member of the general public to carry concealed firearms in public.” The California law, which generally prohibits concealed guns in public places, was thus upheld. Gorsuch joined Thomas's dissent. The dissenters complained that the majority's decision not to take the case "reflects a distressing trend: the treatment of the Second Amendment as a disfavored right." They were also unequivocal about their position on the California law. As Thomas concluded for himself and Gorsuch: "the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right."

Well there it is. By his votes and separate opinions in these ideologically-laden cases, Neil Gorsuch has in short order left little doubt about his strong ideological leanings. And beyond ideology or political philosophy or jurisprudence, consider his partisan bent. How would a typical Republican politician vote on these issues? Not a judicially retrained judge or strict constructionist or believer in federalism (i.e., states' rights) or any other actual, coherent judicial or political philosophy. But a partisan Republican.

What's the common thread through his positions on issues as varied as gun rights and gay rights, Trump's travel ban and campaign finance, worker rights and rights of the accused? That's right, connect the dots. His record on the Supreme Court already screams "ultra-conservative partisan Republican."

Some--like the Federalist Society and the Heritage Foundation and other very conservative groups and individuals who recommended him to Trump--undoubtedly are pleased with Justice Gorsuch's record thus far. Others, more moderate or liberal, much less so. But whether pleased or not with Gorsuch's Supreme Court record to date, it is undeniably what it is: politically partisan, conservative Republican.

Sunday, July 16, 2017

Gorsuch, Part 5: Criminal Cases--His Past IS Prologue

In the last post, we began to look at now-Justice Neil Gorsuch's record as a federal appeals judge. [See Part 4.] We looked at his dissenting opinions--those very revealing writings--during his time on the 10th Circuit Court of Appeals, which is where he sat immediately preceding his appointment to the Supreme Court. We focused on civil cases.

Gorsuch with Scalia
CNS photo/via Reuters
On issues as varied as worker rights, consumer protection, the right to choose, and separation of church and state, there was a clear, unmistakable pattern: ideologically ultra-conservative. Some will view that positively; others negatively. Regardless, Gorsuch's record was what it was: ideologically ultra-conservative.

Now let's turn to the criminal appeals. Again, we'll look at those opinions in which he felt strongly enough to disagree publicly with the majority of his colleagues by authoring a dissent.

Ineffective Counsel
Williams v. Jones: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ordered the lower court to provide relief to the defendant whose constitutional right to counsel was violated. The attorney--whose deficiency was not in dispute--had threatened to withdraw when the defendant wanted to accept the prosecution's very lenient plea offer; afterwards, the defendant was tried and received a very harsh sentence. Gorsuch dissented; among other things, he argued that the defendant was not prejudiced by his lawyer's incompetence, because the ensuing trial was fair.

Hooks v. Workman: The majority reversed the defendant's death sentence on the ground that his lawyer was "woefully inadequate" at the sentencing hearing. The court explained that, in the lawyer's presentation, "[e]vidence of family and social history was sorely lacking; the mental-health evidence presented was inadequate and quite unsympathetic; and the lawyer not only failed to rebut the prosecution’s case in aggravation but actually bolstered it." Gorsuch dissented; he argued that the defendant was not prejudiced by the lawyer's "alleged deficiencies" because the jury would likely have voted for the death penalty anyway.

Section 1983 Liability/Immunity for Unconstitutional Action
Webb v. Thompson: The majority, siding with the former suspect, ruled that the correctional officers at the local county jail would be liable to him under 1983 for a deprivation of his constitutional rights, if the facts showed that they caused his illegally prolonged detention before he was brought before a judge for a probable cause hearing; at the eventual hearing, the prosecution dropped all the charges. Gorsuch dissented; he argued that, even if the officers caused the suspect's excessively long detention, it was not their duty to get him to a judge.

Cortez v. McCauley: The majority ruled that the suspect's arrest was constitutionally unreasonable and could support a claim against the police under 1983; the arrest was based solely on information that was attributed to a "barely-verbal two-year old child," that had been relayed to the police in a telephone call by a nurse, who in turn had heard it from the mother, who had allegedly heard it from the two-year old. Gorsuch dissented; he argued that the police could not be liable because, in his view, it had not been clear that the officers should not rely on the relayed alleged statement of a two-year old to make an arrest.

U.S. v. Bernard: The majority vacated the defendant's guilty plea; he had entered it only after the trial judge refused to suppress statements he previously made to the police who had handcuffed him, placed him in custody, and then questioned him without advising him of Miranda rights. Gorsuch dissented; he argued that the Miranda violation was a harmless error because the defendant probably would have pleaded guilty anyway.

Search & Seizure
U.S. v. Dutton: The majority ruled that the search in question was unconstitutional and the evidence obtained should be suppressed because the warrant, which did not connect the defendant to the place to be searched, was patently invalid. Gorsuch dissented; he argued that the police presumably acted in good faith and relied on the warrant.

U.S. v. Carloss: [This one requires close attention.] The majority ruled that the defendant's rights were not violated when FBI agents went to the home where he was staying, walked to the front door and knocked, and then spoke to the defendant when he came outside from the back door; the defendant never referred to the signs saying “Private Property No Trespassing” or otherwise objected to the agents' presence. Gorsuch dissented, this time siding with the defendant on the ground that the agents had trespassed on the house despite the signs. Yes, he sided with the defendant.
BUT--and this is what's most significant here--he did so by echoing the very narrow, literal view of search and seizure rights that his hero, and the justice he replaced, the late Antonin Scalia, had taken. That is, that the 4th Amendment does not prohibit unreasonable searches. Rather, it only prohibits unreasonable searches of the specific items mentioned in the amendment--i.e., "persons, houses, papers and effects."
Soooo, the Constitution does protect a house, such as defendant's in this case. But, according to this narrow, literal view, the Constitution does not protect private property other than one's house. Nor does it protect the airspace immediately above one's house. Nor does it protect private conversations. Nor does it protect a person's comings and goings or whereabouts. Etc., etc., etc. Why not? Because none of those things are specifically mentioned in the 4th Amendment.
This is precisely the position Scalia argued in search and seizure cases, and it is precisely the position Gorsuch took in his dissent in this case.
This is what Gorsuch wrote:
The Fourth Amendment, we know, prohibits “unreasonable” searches of particular places and things: “persons, houses, papers, and effects.” U.S. Const. amend. IV. So even if an officer commits a common law trespass when searching your wheat fields, he does not commit a Fourth Amendment violation...[A] 'search' occurs when the government physically enters a constitutionally protected area. [Bold added.]
And just what authority did Gorsuch rely upon for his narrow, literal view of 4th Amendment search and seizure protections? Two opinions by Scalia insisting on that narrow, literal view, as well as some earlier decisions of the Supreme Court that allowed searches--without any warrant or even probable cause--of a person's private property beyond the home or from the air above the home.
[For more on this narrow, literal view of search and seizure rights as applied by Scalia, see Justice Scalia's Record (Part 6: Technological Surveillance); and see conservative Justice Samuel Alito's separate concurring opinion in U.S. v. Jones, 565 US 400 (2012), harshly condemning Scalia's view as being based on decisions that the Supreme Court had actually overruled a long time ago and as contrary to the Court's "legitimate expectations of privacy" jurisprudence.]

So there it is. Then-Judge Gorsuch opposing his colleagues' decisions when they enforced the rights of the accused, whether the right to effective assistance of counsel, the right to sue the government for violation of one's constitutional rights, the protections against wrongful interrogations, and search and seizure rights. And even when ostensibly supporting the rights of the accused, then-Judge Gorsuch espousing Scalia's very narrow, literal view of 4th Amendment protections.

Unless one simply chooses to be dense, or ideologically argumentative or blind, it can hardly be denied that Gorsuch's criminal law jurisprudence, as evidenced by those especially revealing separate dissenting opinions, is ultra-conservative, law and order, and largely unsympathetic to the rights of the accused. One may approve of that approach or not. But regardless, that IS Gorsuch's jurisprudence.

Next, we'll look at now-Justice Gorsuch's record thus far on the Supreme Court.