Supreme Shift (Part 4): Final on Barrett's Past Record

As Nick raised his glass, Father Keller said out loud, "Finally."

—from WHERE HAVE YOU GONE WITHOUT ME, by Peter Bonventre

Yes, "Finally," Part 4.

Chip Somodevilla/Getty Images

Late last year, in the previous installments in this series, we saw a pretty clear pattern. We were looking at now-Justice Amy Coney Barrett's record while a judge on the 7th Circuit Court of Appeals. Specifically, we were reviewing the disagreements she had with her colleagues, in cases she felt so strongly about that she chose to go public, and to expend the time and effort to write a dissenting opinion.

In the dissenting opinions that we have reviewed, she argued against the majority's protection of inmates, in support of drastic restrictions on immigration, in favor of gun rights for convicted felons, and to overlook a prosecutor's constitutional violation, (See Part 2 and Part 3 in this series.) 

As noted previously, these are the positions to be expected of an immigration resistant, law & order, pro-gun rights, conservative politician or voter. Good or bad, that is what it is. Now let's finish with her other, revealing dissents.

Sentencing

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In U.S. v. Uriarte (2020), the defendant claimed that, under the so-called First Step Act (2018), the trial judge was wrong to impose an enhanced recidivist sentence. A majority of the 7th Circuit panel agreed because the defendant's previous sentence, which the trial judge considered as the predicate for determining recidivism, was illegal and had already been vacated. Judge Barrett, on the other hand, argued in dissent that the previous illegal sentence should still count and that the enhanced sentence in question should be upheld.

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In another case, United States v. Rutherford (2019). Judge Barrett similarly dissented to argue against reviewing a sentence. In that case, the defendant had asked the trial judge to reconsider his sentence. When the trial judge declined, the defendant appealed. The majority of Barrett's colleagues, applying the traditional rule that motions to reconsider extend the time to appeal, permitted the defendant to seek their review. But Barrett dissented, arguing that the traditional rule was no longer valid (under the Federal Rules of Criminal Procedure) and that any opportunity the defendant had to appeal had expired.

Right to Counsel

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Judge Barrett dissented in one other criminal case we have not yet discussed. Same result: against the defendant. In this case, Schmidt v. Foster (2018), the trial judge called the defendant and his attorney into chambers. The judge then proceeded to question the defendant about his defense, while not permitting the attorney to advise his client or to participate in the question and answer in any way. The majority of the appellate panel ruled that the judge had violated the defendant's right to counsel. But Barrett dissented, arguing that there was no right to counsel during the judge's questioning because it took place without the prosecutor and, therefore, it was not a "critical stage" of the criminal proceeding.

(Subsequently, the entire 7th Circuit [en banc] reconsidered the ruling and, in a deeply divided decision, held that the right to counsel might have been violated, but the violation was not so clear as to require reversing the trial judge.) 

Abortion

Judge Barrett dissented two more times while on the 7th Circuit. In each of these cases, she cast her vote to join a dissenting opinion written by one of her colleagues. Each of these two cases involved abortion. After what we've already reviewed about her record, is there any doubt which side she took on abortion rights?

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In Planned Parenthood of Indiana & Kentucky v. Commissioner of Indiana State Dept. of Health (2018), a panel of the 7th Circuit invalidated a state law that restricted the reasons for which the right to choose might be exercised. Because the law applied to early, as well as later-term abortions, the panel held that the law violated Supreme Court precedents that established a clear right to choose prior to viability. When the 7th Circuit as a whole (en banc) declined to reconsider that decision, Barrett dissented. She cast her vote with the dissenting opinion which urged a narrower view of pre-viability abortion rights.

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Similarly, the following year, in Planned Parenthood of Indiana & Kentucky v. Box (2019), a panel had invalidated a state law that required an ultrasound at least 18 hours prior to any abortion. The panel held that this 18-hour waiting period, together with the two trips to the facility that it would require, was an unjustified burden ("undue burden") on a woman's right to choose. The 7th Circuit declined to reconsider that ruling en banc, just as it had declined with regard to the ruling the year before. Barrett again joined the dissenting opinion, this time arguing that the state's law should be allowed to take effect because the issue was not clear.

We have now reviewed all of the dissents--opinions and votes--of Amy Coney Barrett while an appellate judge on the 7th Circuit Court of Appeals, just prior to her appointment to the Supreme Court. Remember, the purpose here is not to label her decisions and arguments right or wrong, wise or foolish, etc. But it is to connect the dots and discern any patterns. 

And one pattern could not be more clear: she took positions one would expect of a social and political conservative. Remember also, she took those positions when she felt so strongly that she was willing to disagree with the majority of her colleagues publicly, openly proclaim that they were wrong, expend collegial capital by risking offense and, when writing the dissenting opinion, expend the time and effort and resources of her chambers to do so.

Just consider a public official who took the opposite positions of then-Judge Barrett in all those cases. Consider a public official who sided with injured inmates against correctional officials, with an accused against a prosecutor who failed to disclose helpful evidence, with an accused against a judge who questioned him without the advice of counsel, with defendants who challenged harsh sentences, with restricting gun rights, but against restrictions on immigration, and against limitations on abortion rights. Clearly a social and political liberal.

There would be little hesitancy in so-labeling a politician who took those positions. And there is little reason for hesitancy in characterizing now-Justice Barrett's record as an appellate judge: it's just like that of a socially and politically conservative politician. 

It is of course possible that she will undergo some dramatic transformation--she would not be the first--or that there is some other reason to suspect that her past record is not necessarily prologue. Otherwise, the strong probability at this point is that Amy Coney Barrett will significantly increase the ideologically conservative direction of the Supreme Court.

Supreme Shift (Part 2): Barrett's Record

(Since the previous post, Amy Coney Barrett was confirmed by the Republican controlled Senate, without a single Democratic, and Republican President Trump who nominated her was defeated in the election by Democratic candidate Joe Biden.  Back to now-Justice Barrett.)

Yuri Gripas/Abaca Press/TNS

In her three years as a federal appellate judge, Amy Coney Barrett established a distinct record. That is--need it be said again--distinctly politically conservative.

And need I repeat, not judicially conservative, as in judicial restraint, strict interpretation, adherence to stare decisis, deference to the laws and policies of the elected branches and the states, textualism, originalism, etc. But politically conservative, as in voting like a conservative Republican politician would vote on the those "hot-button" issues like guns, abortion, immigration, criminal law, etc. Whether that's good or bad, right or wrong, wise or foolish is not the point. It's just what her record is.

From the time she was nominated by President Trump and confirmed by the Senate to the 7th Circuit Court of Appeals in 2017, Barrett disagreed publicly with the majority of her colleagues on that court several times. That is, she dissented either in a separate opinion of her own or, at times, she voted to join a dissent written by others. When she did dissent, it was uniformly for the politically conservative legal result. And as judicial scholars understand, dissents are extremely revealing.

Dissents tell us what it is that a judge thought--oftentimes, felt--was very important. So important that it justified going public with a disagreement. Consider that the dissenting judge is announcing to the world, "I lost." The judge is announcing that, despite having lost the majority vote, "I feel compelled to register a public disagreement."

A public disagreement, that is, instead of going along with the majority. Instead of going along to get along. It entails expending collegial capital. Irritating and, yes, sometimes antagonizing the majority by telling the world that my colleagues on the court are so seriously wrong, about something that is so seriously consequential, that the public must know just how wrong they are and how their decision is so harmful to the law, society, or both.

Beyond that, if the judge who disagrees with the majority is actually authoring a dissenting opinion--i.e., not just voting to join someone else's dissenting opinion--that judge is personally choosing to expend time and effort and the resources of her chambers to engage in a public act of protest. She is not required to do so. There's no institutional requirement or obligatory directive that she must do so. This is purely a matter of personal choice. So too is casting a vote to join another dissenting colleague, even if not as exacting as writing one's own dissenting opinion.

That's a long way of restating that dissents are very revealing. Voting in dissent and, even more so, writing a dissenting opinion.

So let's start looking at then-Judge (now-Justice) Barrett's dissents. Let's consider the common threads. You know: connect the dots. 

Immigration

In several cases, Barrett joined the majority of her colleagues or actually wrote the majority opinion, ruling against immigrants and immigration rights--e.g., approving deportation, despite issues of due process or equal protection or the likelihood of torture upon return to the home country.

But she dissented in one case, Cook County v. Wolf (2020). The majority had ruled for the immigrant.

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In that case, the majority of Barrett's court rejected the Trump administration's expansion of the "public charge" rule. That Trump expansion would deny entry to any immigrant who might need any public assistance at any time. That expansive restriction on immigration was held by the majority to be well beyond the authorized bounds of governing immigration law.

Barrett authored a dissenting opinion. She approved the Department of Homeland Security's restrictive rule. She argued that the immigration law should be read to bestow very broad regulatory discretion to the Department, enabling it to decide who should be considered a "public charge" and, therefore, inadmissible.

Gun Rights

Barrett dissented in several cases involving various issues of criminal justice. In her dissenting opinions, she always argued against the accused, or the criminal defendant, or the inmate, or the convict--except once. That one case involved the gun rights of convicted felons.

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In that one case, Kanter v. Barr (2019), the convicted felon, following his release from prison, challenged the constitutionality of laws that prohibit his possession of firearms. The court upheld the federal and state laws in question. The majority held such laws to be reasonable regulations consistent with a non-absolute 2nd Amendment right to bear arms. According to the majority, both Congress and the Wisconsin legislature found that persons who have committed felonies, whether their crimes were violent or not, were more likely to abuse firearms.

Barrett disagreed. In her dissenting opinion--again, the only dissenting opinion or vote in which she sided with a criminally accused, a defendant, an inmate, or a convict--she sided with the convicted felon. According to her, the federal and state laws were unreasonable restrictions on gun rights. Declining to defer to Congress or the state legislature, she argued that such restrictions should only apply to persons proven to be dangerous, not merely convicted of felony that was non-violent.

We'll continue with  other cases involving criminal justice in the next post. But it already bears repeating after discussing only two cases: the point is not whether then-Judge Barrett's positions were right or wrong, wise or foolish, etc., etc. The point is the common thread--i.e., politically conservative. Not judicially conservative or restrained.

In the immigration case, Barrett declined to give a strict reading to a federal statute and, instead, approved an extremely broad reading by an administrative agency. In the gun rights case, she declined to defer to the other branches of the federal government or to the state--both of which had adopted what they believed to be reasonable restrictions.

This is not strict construction or deference to the politically accountable branches and the states. Not judicial restraint. It's today's political conservativism.

It's Roberts' (somewhat less right-wing) Court (Part 1)

Source: Reuters//Jonathan Ernst

Sure, let's not go overboard. Despite some recent decisions welcomed by political liberals, the Supreme Court has hardly turned liberal.

Indeed, most decisions of the past year--let alone of the last few decades--have been those favored by political conservatives. Whether in civil rights and liberties, the rights of the accused, employment and labor law, war and foreign affairs, and other crucial areas that define the nation's principles, the Court has largely rendered rulings that conservative Republican politicians would reach if up for a vote in their elected representative chambers.

         BUT...

Neither can it be denied that the Court has issued some major politically-liberal decisions. And the difference often has been Chief Justice Roberts. He is the one who, more than any of the other conservative Republican appointees, has deviated from the Court's typical partisan divide.

There were some indications, even before the retirement of "swing vote" Justice Anthony Kennedy, of Roberts disrupting the holy political alliances among the Justices. ("Holy," because some members of the Court, such as the late Justice Antonin Scalia, would react to Roberts breaking with the conservatives as though it were blasphemy, heresy, or some other mortal religious transgression.) But the Chief Justice's breaking with the other conservatives has in the past few years become a foreseeable--if not expected--phenomenon of Court dynamics.

A quick survey of some major decisions in which Roberts voted on the politically liberal side of a hot-button issue should leave little doubt. Oftentimes, the Chief Justice authored the majority opinion himself--meaning that he often assigned the Court's opinion to himself in these high profile cases. And oftentimes, his vote was the deciding one in giving his liberal colleagues a victory over his usual conservative allies. Here's a sample:

Obamacare. Perhaps Roberts' best known break with the conservatives was his saving of Obamacare: his dispositive opinion for the 5-4 majority--himself and the Court's 4 liberals--upholding the constitutionality of the Affordable Care Act's "individual mandate." He did so, over the bitter opposition of the other 4 Republican appointees [Scalia, Kennedy, Thomas, and Alito], by characterizing the enforcement mechanism as a tax imposed within Congress's power, rather than an otherwise invalid penalty. National Federation of Independent Business v. Sebelius, 2012.

Three years later, Roberts again saved a major aspect of Obamacare: his 6-3 majority opinion--joined by all 4 liberals and Justice Kennedy [with Scalia, Thomas, and Alito dissenting]--upholding federal tax subsidies for all lower-income Obamacare insureds, even if their state declined to set up an insurance exchange. King v. Burwell, 2015.

Immigration. Like Obamacare, there are, of course, the immigration issues that have been among the most contentious and divisive along party lines. And like Obamacare, the Chief Justice saved DACA [the Deferred Action for Childhood Arrival program] from partisan attempts at elimination. In his majority opinion, this past week, for himself and the Court's 4 liberals--once again raising the ire of the other conservative Republican Justices [Thomas, Alito, Gorsuch, and Kavanaugh]--he declared the Trump administration's attempt to scrap DACA "arbitrary and capricious."
Moreover, Roberts made clear his determination that the administration's proffered reasons were dishonest, labeling them "post-hoc rationalizations" and "convenient litigation arguments." Department of Homeland Security v. Regents of the University of California, 2020.

A pair of related decisions should be included here: one dealing with state immigration policy; the other dealing with immigrants and, again, the Trump administration's dishonesty.

The immigration case, eight years prior to the DACA decision, involved an Arizona law allowing the arrest of any person, without a warrant, who the police suspected was an unauthorized immigrant "removable" from the United States. The Chief Justice joined a 5-3 decision--together with 3 liberals [Justice Kagan did not participate] and Justice Kennedy, who authored the opinion--invalidating the Arizona law for interfering with federal immigration policy. The remaining Republican appointees [Scalia, Thomas, and Alito] each wrote dissenting opinions emphasizing states' rights and denying any conflict with federal law. Arizona v. U.S., 2012.

The Citizenship Question--and Dishonesty Before the Court.  The other case related to the DACA decision was the one last year involving the Trump administration's attempt to insert a citizenship question on census forms. The Chief Justice's vote was decisive in thwarting this transparent attempt to undercount the population of states such as New York and California--home to large numbers of immigrants who would be discouraged from completing such a form.
In his 5-4 majority opinion, Roberts, joined by the Court's 4 liberals--and again denounced by the other Republican appointees [Thomas, Alito, Gorsuch, and Kavanaugh]--blocked this initiative of the administration, just as he did the attempted repeal of DACA, because the administration's beneficent rationale for doing so was a lie. That's my word, not his. But,  his words were no less pointed.
As Roberts himself put it, there was "a significant mismatch between the decision the Secretary [of Commerce] made and the rationale he provided." For emphasis, the Chief Justice repeated that "the evidence tells a story that does not match the explanation the Secretary gave." And just in case any doubt remained, he said the same thing a third way: the "rationale—the sole stated reason—seems to have been contrived."
Roberts concluded by leaving no doubt about his contempt for the administration's dishonesty. "We are presented," he wrote, "with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process." And therefore, the Court--meaning at least the Chief Justice with the 4 liberals--"cannot ignore the disconnect between the decision made and the explanation given." Department of Commerce v. New York, 2019.

Ok, let's start with those cases. Only a few, but major and very revealing.

We'll continue our look at the Chief Justice's and his Court's "somewhat less than right-wing" record next time with LGBTQ rights, search and seizure, the death penalty, and then a few other issues.

The Travel Ban Decision

The shouting has largely subsided. The Court's ruling has settled in, and the outward manifestations of euphoria and despair have largely moved on to other issues. Despite what has been said--both leading up to the decision and immediately thereafter--it was neither one of the very best or very worst decisions in recent memory. Not even among this past term's collection of 5-4 rulings.
[Disclosure: I do think that this case was close on the legal validity of "Travel Ban #3." That being said, I do not think it's at all close whether President Trump's language and behavior on this matter have been disgraceful, dangerous, and contrary to basic American constitutional principles. I would have voted with the dissenters.]

As the world knows, the Supreme Court upheld the 3rd version of President Trump's so-called "travel ban." After several courts had invalidated the first and second versions, a third one was drafted. This executive order--Proclamation No. 9645 (as later amended by Proclamation No. 9723)--suspended the entry into this country of nationals from seven foreign nations. Five of the seven mostly-Muslim countries from the original executive order remained on the list; North Korea and Venezuela were then added.

In a 5-4 decision, the Court ruled that the Proclamation was within the "extraordinary" authority given to the President under the Immigration an Nationality Act, specifically, §1182(f).

Let's get a sense of the majority opinion, authored by Chief Justice John Roberts, and the main dissent by Justice Sonia Sotomayor. The Chief Justice's opinion for the Court included the following:

A “total and complete shutdown of Muslims entering the United States” is needed.

“Islam hates us.”

The United States is “having problems with Muslims coming into the country."

”Europe has instituted plans to “ban Muslim immigration…You know my plans. All along, I’ve been proven to be right.”

The first executive order was a needed “Muslim ban."

The second executive order, regrettably, is “watered down."

”The “travel ban . . . should be far larger, tougher, and more specific [but] stupidly that would not be politically correct.”

Justice Sotomayor's dissenting opinion included these lines:

A "total and complete shutdown of Muslims entering the United States" is needed. 

"There is great hatred towards Americans by large segments of the Muslim population."

"They believe that "violence against Americans here in the United States is justified as a part of the global jihad." 

"Shariah authorizes such atrocities as murder against nonbelievers who won’t convert, beheadings and more unthinkable acts." 

"It is obvious to anybody the hatred is beyond comprehension." 

"Our country cannot be the victims of the horrendous attacks by people that believe only in Jihad." 

"Islam hates us." 

"We can’t allow people coming into this country who have this hatred of the United States . . . [a]nd of people that are not Muslim.” 

“We’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” 

Muslims “do not respect us at all.” 

“You know my plans [to“ban Muslim immigration”]. All along, I’ve proven to be right.” 

"The lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!” 

“Study what General Pershing . . . did to terrorists when caught [i.e., the apparently apocryphal story about General Pershing’s massacre of Muslims in the Philippines]. There was no more Radical Islamic Terror for 35 years!” 

Of course, both the Chief Justice and Justice Sotomayor were quoting Donald Trump, while he was a candidate and after his election. Also, of course, neither one of them were endorsing a single word. But then, what to make of those words and the sentiments that they expressed when assessing the legal validity of the travel ban?

For all 4 dissenting Justices, the travel ban was based on little more than Donald Trump's clearly manifested bigotry against Muslims. The President's hostility toward a religion violated fundamental American constitutional traditions and principles and, as such, rendered the resulting travel ban invalid under the 1st Amendment. That was one side of the controversy. The one-vote short-of-winning side.

The 5-vote winning side emphasized that the power vested in the office of the President with regard to immigration and other travel into this country is "extraordinary." First, however, Chief Justice Roberts dealt with Donald Trump's anti-Muslim outbursts and other fits of fury. He didn't try to ignore them, and he left no doubt that he found them shameful.

Addressing presidential authority and how that authority has been nobly used in the past, the Chief Justice remarked:

Our Presidents have frequently used that power to espouse the principles of religious freedom and tolerance on which this Nation was founded. In 1790 George Washington reassured the Hebrew Congregation of Newport, Rhode Island that “happily the Government of the United States . . . gives to bigotry no sanction, to persecution no assistance [and] requires only that they who live under its protection should demean themselves as good citizens.” President Eisenhower, at the opening of the Islamic Center of Washington, similarly pledged to a Muslim audience that “America would fight with her whole strength for your right to have here your own church,” declaring that “[t]his concept is indeed a part of America.” And just days after the attacks of September 11, 2001, President George W. Bush returned to the same Islamic Center to implore his fellow Americans—Muslims and non-Muslims alike—to remember during their time of grief that “[t]he face of terror is not the true faith of Islam,” and that America is “a great country because we share the same values of respect and dignity and human worth.” 

Then the Chief Justices added:

Yet it cannot be denied that the Federal Government and the Presidents who have carried its laws into effect have—from the Nation’s earliest days—performed unevenly in living up to those inspiring words.

Hmmmm, "unevenly." Roberts then went further, albeit implicitly:

But the issue before us is not whether to denounce [Trump's] statements.

The denunciation to be inferred could hardly be missed. Still, explaining his majority's view of the case, the Chief Justice continued:

We must consider not only the statements of a particular President [as in the current one], but also the authority of the Presidency itself.

Roberts then outlined the reasons for upholding travel ban #3:

• it does have some legitimate basis in national security interests
• religion is nowhere mentioned
• only a small fraction of the world’s Muslim population is covered
• it covers only countries that Congress and prior administrations designated as national security risks
• it is the result of a comprehensive review process by multiple Cabinet agencies

For the majority, those factors placed "Travel Ban #3" well within the previously emphasized "extraordinary" constitutional and statutory authority the President has over such matters. For the four dissenters, however, the clear religious hostility motivating the travel ban undermined any ostensibly legitimate purposes. As Justice Sotomayor summed up the dissenters' view at the outset of her opinion:

Based on the evidence in the record [i.e., Donald Trump's language and behavior outlined by both the majority and dissent], a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Establishment Clause claim. 

So, the extremely broad power given to the office of the President, by the Constitution and by legislation, versus the unanimously acknowledged recurrent manifestations of religious bigotry by a particular president. That was the question. It was a close one. And one vote made the difference.

Now, for one final observation. What about that 1-vote difference? That 5-4 vote? All 5 Republicans on one side. All 4 Democrats on the other. Come on! What are the mathematical odds that such a partisan split in the vote could result if this case were actually considered in a neutral, detached, non-biased, non-partisan manner by each of the nine Justices? To pose the question is to answer it.

Not a single Republican Justice saw merit in the Democratic Justices' position? And vice-versa? Regardless of one's personal view of this case, it seems impossible to deny that the outcome in this case was the result of partisanship more than any independent, impartial judicial review. Ugh!--again for this current Court.

Okay, allow me one additional "final" observation. In her dissenting opinion, Justice Sotomayor compared the Court's decision to Korematsu v. United States (1944), where the Court had upheld the internment of Japanese-Americans during World War II. Naturally, Chief Justice Roberts disputed that comparison in his majority opinion.

But the Chief Justice then took "the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—“has no place in law under the Constitution.” (Quoting from the dissenting opinion in that case of [Albany Law School's favorite son] Justice Robert H. Jackson.)

The 9th Circuit's Ruling Against Trump: An Outline

9th Circuit Judges
Canby, Clifton, Friedland

The decision in one sentence:

The Trump administration failed to show that the country was in grave danger unless the Executive Order was allowed to go into effect immediately.

A step by step outline of the 9th Circuit Decision:

• What does President Trump's executive order do? It suspends for 90 days the entry of non-citizens from seven countries; suspends for 120 days the United States Refugee Admissions Program; and suspends indefinitely the entry of all Syrian refugees.

• Do the states (Washington and Minnesota) have a right to challenge the executive order? YES. The states have "standing" because non-citizens who live and work in those states will be seriously harmed by the executive order, and so will educational, business, and other institutions in those states that rely on those non-citizens.

• Does the President have the power to issue such an executive order? YES. On matters of immigration and national security, the President has wide-ranging authority, and the judicial branch should almost always defer to presidential judgments in these matters.

•  But is the President's executive order entirely immune from judicial review? NO. To quote from the decision, the "fundamental structure of our constitutional democracy" provides for a judicial check on the other branches of government to insure that they do not violate the Constitution, and executive orders such as this one are no exception.

District Judge Robart

• What did the trial judge do in this case? The trial judge, Federal District Court Judge James Robart (appointed by President George W. Bush) issued a temporary restraining order (TRO)--i.e., a temporary suspension of the enforcement of the executive order--until there is a full hearing to determine whether the executive order is constitutional.

• What specifically had to be decided when the Trump administration appealed from that TRO? The Federal Court of Appeals for the 9th Circuit had to decide whether to overturn that temporary restraining order (TRO), not whether the executive order is ultimately constitutional or unconstitutional.

• What determines whether the TRO should be overturned on appeal as sought by the Trump administration? That depends on the answer to 2 questions: 1) whether the Trump administration can show that it will probably win after a full hearing on the constitutional merits of the executive order, and 2) whether it can show that the country is in grave danger because of the TRO (i.e., if the executive order is not in effect).

• What did the 9th Circuit decide on those 2 questions? The 9th Circuit held that 1) the Trump administration failed to demonstrate that it would probably win the case on the constitutional merits (i.e., the court found that the states' due process and non-establishment of religion claims are substantial), and 2) the Trump administration failed to demonstrate that the TRO placed the country in grave danger of a terrorist attack.

• What precisely was the 9th Circuit's order? In a unanimous 29 page per curiam (for the court) opinion, a 3-Judge panel of the 9th Circuit denied the Trump administration's "emergency motion" to undo the TRO.

• Who were the 9th Circuit Judges who unanimously decided this appeal? The 3 judges who decided this appeal are: William Canby (appointed by President Carter), Richard Clifton (by George W. Bush), and Michelle Friedland (by Obama).

• What happens next? There are several possibilities. The Trump administration could ask the entire 9th Circuit (en banc) to hear this appeal; the administration could ask the Supreme Court for an emergency ruling to overturn the TRO [That would go to Justice Kennedy who would almost certainly ask the entire Supreme Court to make that decision.]; or the administration could simply return to the district court judge who originally issued the TRO for a full-blown hearing on the constitutional validity of the executive order.

Well, hope that helps.

[What I did not mention originally is a possible option outside the scope of these legal proceedings. That, of course, is for the Trump administration to simply go back to the drawing board and more carefully craft a new executive order which doesn't raise as many legal questions as the current one. VMB 2/11/17]

[final of] Roberts in the Middle: The Chief Justice as Moderate (Part 3--Concurring Opinions)

Source: reason.com

"Chief Justice John Roberts Splits

the Baby, " by Ed Krayewski

6/29/12

Rejecting a hard-line view, whether conservative or liberal, the Chief Justice has sometimes authored or joined a separate concurring opinion.
[The photo on the left is from "Chief Justice John Roberts Splits the Baby, " by Ed Krayewski, on reason.com, 6/29/12.]

In the last post, we looked at a few cases where Roberts was in the majority, endorsing a position more moderate than that taken by other conservative Justices, or by liberals on the Court. Let's take a look now at some cases where he similarly took a more moderate position, but did so by clarifying, emphasizing, or distinguishing his own view in a concurring opinion. That is, where his position--what some might call "split[ting] the baby"--was distinct from that of both the majority and the dissent.

As in those cases discussed in the last post, these cases, with the CJ in a separate concurrence, find him rejecting the dissenting opinion. But they also show him expressing a view that is less rigid, less ideological, and more subtle than that taken by the majority.

As in the last post, let's look at 5 such cases.

Strip Searches

Three of the Court's conservative Justices--the 2 most (Scalia and Thomas) and 1 more moderately so (Kennedy)--took the position that someone arrested and taken to jail for processing and awaiting an initial appearance before a judge can be strip searched for jail-security reasons. This is so regardless of the crime. And regardless of the lack of any suspicion that the person might be dangerous or might possess contraband.

[Here, the person was arrested pursuant to a warrant, for an unpaid fine, for a minor traffic offense. Oh, and he actually had already paid the fine. So he was ultimately released. But not until he was strip searched twice!]

The Court's 4 liberals argued that the strip search was entirely unreasonable and, hence, unconstitutional. The supposed offense was minor, and the arrestee was not suspected of being dangerous or of possessing anything dangerous or illegal.

The Chief Justice (as well as Alito, who wrote his own separate concurrence) voted with the conservatives, thereby giving them the majority. But Roberts wrote a short concurring opinion. He emphasized that the Court's ruling was qualified. It depended on particular facts.

As he noted, there was apparently no alternative in this case to placing the arrestee in the general jail population. Moreover, the narrow issue before the Court, as argued by the arrestee's lawyer, was whether suspicionless strip searches were illegal "no matter what the circumstances."

Roberts concluded his brief concurrence by underscoring the "possibility of exceptions" to the Court's "general" rule--as he put it--"to ensure that we 'not embarrass the future.'”

Violent Video Games/1st Amendment

A collection of conservative and liberal Justices formed the majority to invalidate a California law banning the sale or rental of violent video games to persons under the age of 17. That majority ruled that video games were protected speech under the 1st Amendment, and that there was no real proof that violent video games harmed children or made them more aggressive.

In dissent, a mixed duo (conservative Thomas and liberal Breyer) argued that the law was perfectly permissible. Thomas argued that free speech was not intended to protect the choices of children, but of their parents and other adults. Breyer argued that the violent materials defined by the law are outside 1st Amendment protection--i.e., material "utterly without redeeming social" value--and that studies did show the harm of such games to minors.

The Chief Justice joined Justice Alito's concurring opinion. For them, there was merit to both the majority and dissenting views. But also flaws.

Ultimately, Roberts joined Alito to say that it is constitutional to restrict some choices by children and to allow their parents to make the choices for them. That there is in fact good reason to be concerned about the effects of violent video games on children. But that California was insufficiently clear about which video games actually fell within the prohibition. If the law were clearer, it would pass constitutional muster.

[more of] Roberts in the Middle: The Chief Justice as Moderate (Part 2--In the Majority)

Clearly, some were very upset with Chief Justice Roberts' deciding vote to uphold Obamacare.
[The photo on the left is from Republic Magazine: The Voice of the Patriot Movement. See "John Roberts, Constitutional Traitor: Chief Justice Approves Obamacare Tax Mandate," June 28, 2012.]

As noted in the last post, the Obamacare case was not the first one in which Roberts departed from the other conservative Justices on his Court. In some cases he actually sided with the liberals. In some, he voted with the conservatives, but adopted a less hard-line position. In some, he endorsed a middle ground which literally split the difference between the Court's two ideological wings.

More than that, some of these cases were ideologically significant and politically charged. The Chief Justice's vote and position in each of them was less conservative than that of the most conservative Justices. And collectively, his votes and positions evinced more moderation--at least in these cases--than either the conservative or liberal poles of his Court.

Let's look at a few examples. Let's start with some cases in which Roberts was part of the majority.

Arizona's Immigration Law

Three of the Court's conservative Justices--Scalia, Thomas, and Alito--voted to uphold all (or in Alito's case, most) of the provisions of the Arizona law. According to them, the additional restrictions and criminal penalties imposed on illegal immigrants were within the power of the states to police activities within their borders.
The liberal Justices (together with Justice Kennedy) voted to invalidate every challenged provision of the law, but one. They argued that federal immigration law comprehensively regulated the treatment of illegal immigrants and, therefore, preempted any state interference.
Roberts joined the liberals, plus Kennedy, thereby giving them a majority. (Arizona v. U.S., 2012 [the same week as the Obamacare decision].)

Worker Anti-Retaliation Protection

The Court's most conservative Justices--Scalia and Thomas--voted to dismiss a claim of retaliatory discharge brought by a worker who was fired after he complained that employees were being shortchanged on work-time. The two argued that the Fair Labor Standards Act only protected workers who filed formal complaints, either with a government agency or in court.

The liberal Justices (as well as Kennedy and Alito) took the position that oral complaints sufficed. That a worker's person-to-person complaints to his supervisor and to company managers were adequate to trigger the law's protections against retaliation.

Roberts joined the Court's 4 liberals, plus Kennedy and Alito, in rejecting the view of Scalia and Thomas. (Kasten v. Saint-Gobain, 2011.)

Shameless Partisans on Obamacare, Arizona Immigration Laws, Juvenile Life Sentences, and Campaign Finance

[I am drained from the last few days of live commentary and interviews. Oh sure I enjoyed it all, but I'm mentally exhausted. So....]

In lieu of a full blown post about the Obamacare decision--and a few other biggies rendered this past week--I'm going to rely on some interviews I've done.

Readers may find that a welcome break. Especially after wading through 193 pages of the Supreme Court's Obamacare opinions! Oh, you didn't?

But a few short comments before the interview links. [Go straight to the links below if you just can't bear to read any more commentary.]

There were several very important decisions handed down this past Monday and Thursday, the last 2 days of the 2011-12 term. I will let the interviews do most of the talking. But first a recap in terms of what we've been examining in the series on the Supreme Court's partisanship.

On Monday, the Court invalidated life sentences, imposed automatically without parole, for crimes committed by juveniles.

The voting line-up?

The 4 liberal Democratic Justices (Ginsburg, Breyer, Sotomayor, and Kagan) were, of course, against such "cruel and unusual" sentences.

The 4 conservative Republican Justices (Roberts, Scalia, Thomas, and Alito) were, of course, in favor of them.

Kennedy sided with the libs on that one.

The Court also invalidated Montana's 100 year old law limiting corporate campaign spending.

You know how it went: the 4 lib-Dems favored Montana's spending restrictions, and the 4 con-Repubs didn't and reaffirmed Citizens United.
Kennedy joined the conservatives on this one.

The Court also invalidated most of Arizona's immigration law. [It did unanimously uphold 1 provision on narrow grounds, warning that it better not be enforced in a racially/ethnically discriminatory manner.]
All 3 lib-Dems who voted [Kagan took no part.] agreed that most of the law should be thrown out.
Of the con-Repubs, 3 wanted all or most of the law saved.
Kennedy went with the libs.
Roberts, perhaps in a preview of the Obamacare decision, also joined the libs to give them a 5 Justice majority.

As for the decision upholding Obamacare decision:
All 4 lib-Dems voted (surprise, surprise) for Obamacare.
3 of the con-Repubs voted (again, surprise, surprise) against it.
Kennedy voted with the conservatives.
Roberts--as the entire world now knows--voted with the libs to make the 5 Justice majority.