Amy Coney Barrett (Part 2)--"Non-Hack"

Source: Elizabeth Frantz/NY Times

“The Supreme Court’s second-newest justice is proving herself to be a non-hack —to the increasing consternation of MAGA.”

That's Matt Ford, Associate Editor of the politically liberal The New Republic magazine.

But it's not just liberals who have nice things to say about Justice Amy Coney Barrett. Edward Whelan, former law clerk to Justice Antonin Scalia, holder of the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center, and one of the nation's foremost conservative legal commentators had this to say: "She’s a careful, precise thinker, and she’s been thrust into this very volatile environment.” 

Jodi Kantor, who has reported behind-the-scenes stories about the Supreme Court for the New York Times, compared Barrett favorably to others on the Court: "Justice Barrett has favored a more deliberate approach than some of her colleagues."

These views of Amy Coney Barrett are far more common among the less-partisan observers of the Court than those of the uber-MAGA crowd, some of which were included in the previous post. (See Amy Coney Barrett (Part 1)--"Rattled Law Professor.")

Again, the facts. Here is my graph from the previous post that shows how Justice Barrett has been voting:

(click to enlarge for a better view) 

In the 29 ideologically laden cases last term--i.e., those clearly identifiable as "politically conservative" versus "politically liberal" among the 64 full-appeals decided--Barrett was unmistakably on the conservative side of the Court. No doubt about that when her 62% conservative voting is contrasted with the 7% and 10% conservative records of Justices Jackson and Sotomayor, respectively. Of course, her record is also a far cry from the 93% conservative voting of both Justices Thomas and Alito. So yes, it's clear to see why she would be a disappointment to the partisans who expected her to be or hoped her to be far more ideologically disposed.

But worse than that for the most die-hard Trump supporters is her record in cases directly involving Trump himself or his policies. Let's take a look at Barrett's record, as well as those of her colleagues, in those cases.

There were 22 such cases. These included 16 that were decided on an emergency basis--i.e., the so-called "shadow docket," where there were no arguments held and no full briefing. Just a petition for relief by a party unhappy with a decision by a lower court, and a vote in conference by the Justices to grant or deny the request. 

In fact, most of the cases directly involving Trump or his policies were decided that way last term. And most of the time, the Court's majority gave absolutely no reason for its decision. As the headline from one of veteran Court reporter Adam Liptak's column summarized the situation: “Supreme Court Keeps Ruling in Trump’s Favor, but Doesn’t Say Why.” (NY Times, July 16, 2025.) 

Here's what the voting looked like in all those 22 "Trump Cases"--full appeals and "emergency" decisions: 

(click to enlarge for a better view) 

As was clear from the previous graph showing Justice Barrett's 62% politically conservative voting in the full appeals, her 68% voting in favor of Trump and his policies, as depicted above, is hardly the record of a political liberal. Certainly not when contrasted with the 0% and 5% pro-Trump voting of Justices Jackson and Sotomayor.

But neither is Barrett's record even close to the 100%--yes, 100%--pro-Trump voting of both Justices Thomas and Alito. No, Justice Barrett's voting in the cases directly involving Trump or his policies--full appeals plus emergency decisions--is not a record of a blind partisan. Not a record of a blind Trump loyalist. Hence, the ire of the uber-Trumpists and the respect of just about everyone else. Even cautious optimism among some liberals.

By way of illustration, Barrett's record this year included voting in a 5-4 majority to order the Trump administration to unfreeze nearly $2 billion in foreign-aid reimbursements, in another 5-4 majority refusing to recognize Trump's claimed presidential-elect immunity, in a 6-3 majority to preclude presidential hiring and firing of certain "lesser" executive officials, and in dissent with the three liberal Justices to uphold broad authority of the Environmental Protection agency. 

Lest it be thought that Justice Barrett's voting last term could have been an aberration. Perhaps it was a particular mix of cases that resulted in her voting "pro-Trump" much less than other Republican appointees on the Court. It turns out that Barrett's record in cases involving Trump or his policies has consistently been much less pro-Trump than some of her colleagues.

Indeed, eminent Supreme Court scholar Lee Epstein, who probably tracks the voting records of the Justices more closely than anyone else, has compiled all the votes on former and current President Trump since Justice Barrett was appointed to the Court--by Trump--in 2020. Here's what Lee Epstein and her colleagues found: 

(click to enlarge for a better view) 

According to the Epstein & Colleagues calculations, Barrett has voted pro-Trump less than any other Republican appointee. Her 59% record since she joined the Court is not only just above 50-50 pro-Trump, but it is a far cry from the 94% for Justice Alito and the 88% for Justices Gorsuch and Thomas.

To be sure, her voting is also a far cry from the heavily anti-Trump records of Justices Sotomayor, Jackson, and Kagan. But still, Barrett's record is hardly one to be applauded by the MAGA crowd or even the more moderate Trump partisans. 

A "rattled law professor," "Amy commie Barrett," "evil," and "a disgusting fraud." Or perhaps a "non-hack," "careful, precise thinker," one who "favor[s] a more deliberate approach than some of her colleagues."

Well, the facts of Justice Barrett's voting record demonstrate that she is certainly a political conservative. She wouldn't be confused with a liberal--let alone a communist. Except by the most ideologically or politically fanatical out there.

But neither does Justice Barrett's record confirm what many political liberals feared she would be. Nor does it confirm the view adhered to by many political liberals that she remains hopelessly tied to the right wing of the Court. Conservative, yes. But also a Justice who, like Justices Sandra Day O'Connor and Anthony Kennedy before her--or even John Marshall Harlan II before them--has a strong, confident, independent streak. She has shown herself to be unafraid and unhesitant to break from her usual or expected ideological allies on some of the most politically-charged cases before the Court.

Amy Coney Barrett (Part 1)--"Rattled Law Professor"

Source: Allison Robbert/NY Times

The complete line: "She’s a rattled law professor with her head up her a**."

By the way, that's from a gentleman named Mike Davis, speaking on Steve Bannon's podcast. This Davis fellow actually served as the head counsel for nominations for the Republican Chair of the U.S. Senate Judiciary Committee. Shortly before that, he had urged that Neal Gorsuch be appointed to the Supreme Court, and then he was hired by Gorsuch to be his law clerk.

Davis & Gorsuch, hmm!

[In all fairness to Justice Gorsuch, Davis only lasted, for whatever reason, a few months in Gorsuch's chambers.]

Davis is hardly the only supposed "conservative"--i.e., here, referring to a Trump die hard--who's unhappy with Justice Barrett.

There's the oh-so dignified "Catturd"--his trademark--Phillip Buchanan, who posted this: "Amy Commie Barrett—she’s been an ungrateful, backstabbing POS since day one."  So she's a backstabber, an ingrate, and....a communist? Well, she's each of those because she doesn't vote in support of everything and anything that Trump and his administration try to do. Oh, also, she's "an Absolute disgusting fraud."

Then there's the social-media "influencer," Michael Cernovich, famous among other reasons for calling date rape "a liberal fiction." He summarised his thoughtful appraisal of Justice Barrett this way: "She is evil." So more than rattled or ungrateful or even disgusting. She's actually evil!

Mark Levin, the FOX News host, was a bit softer in his assessment: "The power has gone to her head."

Then there's Trump confidant and travel companion, Laura Loomer, who was among those who figured that their disappointment was to be expected: "Amy Coney Barrett was a DEI [diversity, equity, and inclusion] appointee." 

And according to numerous sources, Trump himself has been complaining about Barrett--as well as his other appointees for not marching in lockstep. In fact, he's expressed his fury about Leonard Leo, the leader of the Federalist Society. Trump apparently blames Leo for his advice on judicial appointees. Trump has ranted that Leo is "a real sleazebag...who in his own way probably hates America."

But back to Barrett.

Beyond all this unhinged commentary--along with the vicious and vile outpourings of agreement by the commentators' fans--is Barrett's record. Here is how she, as well as her colleagues, have been voting:

 (click to enlarge for a better view) 

This graph represents the Justices' voting and the Court's decisions in all 29 "conservative" versus "liberal" cases last term. That is, the 29 cases which--after examining all 64 full appeals decided in the Court's most recent term--could be identified as having an issue with a clear politically "conservative" versus politically "liberal" side.*

 *[The terms "liberal" and "conservative" are used here, as in judicial studies generally, to identify patterns, social and political, reflected in the decisions and votes of judges and the courts on which they sit. See e.g., my discussion, ‘Liberal’ Justices, ‘Conservative’ Justices, in  Supreme Shift: What the 6-3 Conservative Majority Means Going Forward, 93 NYSBA Journal 9 (Jan./Feb. 2021).

This is especially true and revealing when considered over the course of ideologically charged “hot-button,” issues where, for example, “conservative” Republican politicians and voters would typically support one position, while “liberal” Democratic politicians and voters would typically support the other.]   

As the graph shows, Justice Barrett can hardly be viewed as a liberal. Compare her voting record to that of the two unquestionably liberal Justices, Jackson and Sotomayor. They supported the conservative position in only 7% and 10% of these cases, repectively. Barrett did so much more regularly and, indeed, more than half of the time; 62% in these close, divided cases. 

To be sure, Barrett's voting record is a far cry from that of the staunchly conservative Justices Thomas and Alito--both at 93% conservative. Apparently, that's the kind of voting her right-wing critics wanted and what many of them, including Trump, were expecting. 

Beyond that, what is perhaps the most telling aspect of Justice Barrett's record, at least for the fury within the Trump camp about her, is her voting in those cases specifically involving Trump, or involving policies especially advanced by him and his administration. Think immigration, firings without cause, environmental regulations, witholding funds from states that don't embrace his policies, etc. 

In the next post, we'll focus on Barrett's and her colleagues' voting in those cases. 

[For those of you experiencing deja vu--Yes, Yogi, all over again--I have written about Justice Barrett previously, and about aspects of her voting record at that point. See Part1: Amy Coney Barrett; Part 2; and Part 3.]

Splinters in the 6-3 Supreme Court (Part 3: Amy Coney Barrett again)

Credit: Mark Schiefelbein/AP

In the first installment in this series, back in December last year, we saw that Justice Amy Coney Barrett's voting record had unmistakenly moderated. It had become less politically conservative in the most recently completed term of Court, 2023-2024, than it had been in her previous three years since her appointment to the Court. In fact, her record was the least politically conservative of the six politically conservative Justices. Beyond that, her record had grown increasingly distant from the records of the Court's two most politically conservative members, Justices Clarence Thomas and Samuel Alito. (See the graph reprinted below at *.)

In the second installment, we saw that Justice Barrett voted with the three politically liberal Justices--Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson--in several of the term's most important cases. Sometimes Chief Justice John Roberts--another moderating conservative on the Court-- was with the liberals as well, but sometimes not. So, for a few examples:

• She had joined the bare majority to refuse to halt New York's criminal proceedings against then-president-elect Trump.
• She had agreed with the liberals in dissent that some of the charges against Trump were clearly criminal and non-presidential and thus outside the scope of immunity.
• She also agreed with the liberals in dissent that disqualifying Trump from public office for insurrection under the 14th Amendment did not require an act of Congress.
• She wrote the dissent for herself, Sotomayor, and Kagan, that the January 6 Capitol rioters were guilty of "obstructing an official proceeding."
• She also wrote the dissent, joined by all three liberals, to uphold Environmental Protection Agency regulations to protect downwind states from the air pollution emitted by upwind states. 

There were others, but those few should suffice to make the point. Indeed, the point is recently being recognized by reporters covering the Court. And by political allies of President Trump and Trump himself, who are furious and calling her "weak," a "rattled law professor," a "DEI appointee," a "closet Democrat," and even "evil."

(See, e.g., Ann E. Marimow, Justice Amy Coney Barrett ignites anger on the right after ruling against Trump, Washington Post, March 6, 2025; Devin Dwyer, MAGA rage against Justice Barrett has been brewing, ABC News, June 3, 2025; Kristen Holmes and John Fritze, Trump privately complains about Amy Coney Barrett and other Supreme Court justices he nominated, CNN, June 3, 2025; Farrah Tomazin, Trump Is Melting Down in Private at ‘Weak’ Amy Coney Barrett, Daily Beast, June 3, 2025.)

As for the Federalist Society which had recommended judicial nominees to Trump, including Barrett, he condemned the former leader of the society in a post on Truth Social: "a real ‘sleazebag’ named Leonard Leo, a bad person who, in his own way, probably hates America." [Whoa! A wee bit unhinged?]

(See Nia Prater, Amy Coney Barrett Has Become a Trump-Administration Villain, New York Magazine Intelligencer, June 3, 2025.)

Early this year, a few days following the second installment in these pages, the "weak" and "rattled" Justice Barrett again broke with the Court's most politically conservative Justices. In Glossip v. Oklahoma, she concurred in the majority opinion of Justice Sotomayor in this death penalty case, that "the prosecution violated its constitutional obligation to correct false testimony."

Barrett agreed with the reasoning of the other members of the majority that the decision below must be overturned: the prosecution, not the lawyer for the defendant, has the duty to correct false testimony. And like the majority, she disagreed with the view of Thomas and Alito that the Oklahoma court had upheld the conviction on pure state law and, therefore, the Supreme Court had no right to review that decision. (She did disagree with the majority's total reversal and grant of a new trial. Instead, she argued that the case should be returned to the state court to make a factual determination whether the prosecutor actually knew that the testimony in question was false.)

In a vote that apparently especially enraged President Trump and his allies, Barrett sided with the three liberals and Roberts in Dept. of State v. AIDS Vaccine Advocacy Coalition, refusing to freeze around $2 billion in foreign aid as previously ordered by Trump.

The case arose from an executive order issued the month before. President Trump had halted the payment of foreign aid funds to federal agencies, in an effort to ensure that payments would only go to programs aligned with Trump's policies. But a district court ordered that foreign aid payments--about $2 billion worth--be made for work already completed. The Supreme Court rejected the Trump administration's request to vacate what the district court had done and to give effect to Trump's executive order. That ruling of the Court's bare majority--which included Justice Barrett--"stunned" the dissenting four conservative Justices. 

Just one more to underscore what the foregoing votes of Justice Barrett should make clear. In Trump v. J.G.G., she sided with the three liberals on the Court, dissenting from the 5-4 majority decision that lifted orders of the D.C. District Court, which had stopped the Trump administration from summarily deporting certain Venezuelan immigrants. In short, the deportations could now continue.

Barrett agreed with Sotomayor's dissenting argument that the deportations were clear due process violations, whether the challenges were brought in D.C. or Texas. She joined the dissenting opinion's warning that, "if the Government removes even one individual without affording him notice and a meaningful opportunity to file and pursue habeas relief," that would violate the bare requirements of constitutional due process and of the Court's decisions--including assertions in today's per curiam opinion. Together with the three liberals, Barrett saw no good reason for the majority--the remaining five conservative Justices--to intervene in the case and interfere with the district court's decision to stop the deportations. 

These and similar votes of Justice Amy Coney Barrett are infuriating Trump allies and disappointing many other political conservatives. On the other hand, some political liberals are warming up to her and applauding her defiance of conservative expectations.

Regardless, unlike the Court's hard-core political conservatives--or liberals--she is displaying a measure of independence, unshackled from ideological purity that should be welcomed by those (of us) who decry the Court's usual, crass partisan divide. Republican Justices Anthony Kennedy and Sandra Day O'Connor were disappointments to those who preferred partisan purity. In the past, Democratic Justice Felix Frankfurter was a notable disappointment to his partisans for similar reasons.

But at least to some--including me--this independence, this lack of partisan one-sidedness, this open-mindedness, this refusal to view judging as an adversarial team sport, is something that is encouraging. One of the developments on this current 6-3 Court that is especially welcomed.

In the next few posts, we'll look at some other cracks or splinters in the Court's 6-3 partisan divide.

 * Here's that promised graph

(click to enlarge for a better view) 

Splinters in the 6-3 Supreme Court (Part 2: Amy Coney Barrett cont'd)

Justice Barrett with liberal Justices Sotomayor, Kagan, and Jackson.
Credit: Supreme Court Collection

On January 9, shortly after this series began (see Part 1), the Supreme Court rejected then-President-Elect Donald Trump's request to halt the New York State criminal proceedings against him. Specifically, he sought to have the Court stay the sentencing proceedings incident to his multiple state criminal convictions. In a 5-4 decision, the Court declined to do so.

(click to enlarge for a better view)

As is customary, the Court's order was unsigned. But Justices Thomas, Alito, Gorsuch, and Kavanaugh did go on record that they disagreed and would have granted Trump's request.

Most notably, perhaps, Justice Amy Coney Barrett, who, like Gorsuch and Kavanaugh, was appointed by Trump, joined Chief Justice Roberts and the three liberal Justices--Sotomayor, Kagan, and Jackson--to deny Trump's request. She is increasingly showing signs of independence and distance from the Court's most politically conservative Justices--Thomas, Alito, and Gorsuch. Her vote in this case is another illustration of what appears to be her emergence as a moderating voice within the 6 - 3 conservative Republican majority. 

Here are some other recent examples:

Trump v. U.S. is, perhaps, the most publicly debated decision of the last term. The 6-3 majority, speaking through Chief Justice Roberts, ruled that presidents--here, Donald Trump--are absolutely immune from criminal prosecution for any acts in the course of exercising core presidential functions. They are also presumptively immune regarding other presidential functions.

Justice Barrett, while labeling her separate opinion a concurring one, actually dissented in major part:

I agree with the dissent that the Constitution does not justify such an expansive view.... [For example,] a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.

Barrett also took direct aim at the majority's rule prohibiting any mention of the protected presidential function related to the president's criminal activity. That made little sense, according to Barrett. It effectively precluded prosecution, not only for the exercise of a presidential function, but for the clearly criminal conduct itself:

The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution...excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability. 

[I cannot resist adding that several Justices, who insist that they adhere to the text of the Constitution and do not make policy, nevertheless embraced presidential immunity, which is nowhere mentioned in the Constitution, and they did so purely for policy reasons.Which is not to say anything about the merits of the policy. Only that it is policy, and not constitutional text.]

Trump v. Anderson, although not as heatedly debated as the immunity decision, is no less controversial among constitutional and judicial scholars. The seemingly plain language of the 14th Amendment's section 3 declares that an insurrectionist is simply disqualified from holding any official government office: No person shall...hold any office...under the United States, or under any State, who...shall have engaged in insurrection or rebellion.

Despite that language of automatic disqualification, the Court, in a per curiam opinion, unanimously rendered a practical decision that "States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."

The Court was divided 5-4, however, on an equally critical matter. If a state cannot enforce the disqualification under the 14th Amendment and keep an insurrectionist off the state's ballot, then who can? The 14th Amendment says nothing about that. Again, it simply declares that an insurrectionist is ineligible to hold office, without any conditions. But the bare majority of five held that the "responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress." 

Among the remaining four Justices, three of them--Sotomayor, Kagan, and Jackson--in a joint opinion, took issue with the majority for deciding a question unnecessary to the case and deciding it wrongly:

The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation...In doing so, the majority shuts the door on other potential means of federal enforcement.... It [for example,] forecloses judicial enforcement of that provision....[N]othing in Section 3’s text supports the majority’s view. 

Justice Barrett--like the three liberal Justices, but in a very brief, restrained separate opinion--said that the majority should not have specified a single, lone means of enforcing the insurrection disqualification of the 14th Amendment. Not only was that unnecessary, but at a particularly volatile time, it generated intense disagreement within the Court--which she also viewed as unfortunate. As she put it, this case,

does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced. The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. 

In another case related to the January 6, 2020 rioters at the Capitol, Fisher v. U.S., the Court ruled that the phrase "obstruction of an official proceeding," as used in the Sarbanes-Oxley Act of 2002, was intended to apply only to impeding official access to records, documents, and similar evidentiary objects.

Justice Barrett--writing for herself and liberal Justices Sotomayor and Kagan--disagreed with the other five Republican appointees (who were joined by Justice Jackson).

Barrett minced no words. In her view, the statute's application was "straightforward," and the majority was stretching the limits of the judicial role by limiting the very terms the legislature chose. The actions of the January 6 "mob" clearly fit within the scope of the statute:

The Court does not dispute that Congress’s joint session qualifies as an “official proceeding”; that rioters delayed the proceeding; or even that Fischer’s alleged conduct (which includes trespassing and a physical confrontation with law enforcement) was part of a successful effort to forcibly halt the certification of the election results. Given these premises, the case that Fischer can be tried for “obstructing, influencing, or impeding an official proceeding” seems open and shut. 

The Court...does textual backflips to find some way— any way—to narrow the reach of [the statutory language].

In other cases, unrelated to the conduct of Trump or the January 6 "rioters," Barrett also broke with her more natural conservative Republican allies on the Court. A brief glimpse at her positions in a sampling of these demonstrates an unmistakably independent, more moderate jurisprudence.

In Ohio v. Environmental Protection Agency, she dissented--joined by the three liberal Justices--from the majority's holding that the EPA's "Good Neighbor Rule" [i.e., protecting downwind states from upwind states' air pollution] was, in the words of Justice Gorsuch, "arbitrary" and "capricious." Barrett criticized the majority for underestimating the consequences of its decision to block the EPA rule: “leav[ing] large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years.”

In the Murthy case, Barrett wrote for a 6-member majority, above the dissent of the Court's most politically conservative Justices--Thomas, Alito, and Gorsuch. Rejecting the lawsuit brought against Biden administration officials for communicating with social media companies, Barrett explained that the complaining parties failed to show any "substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant.”

In the Chiaverini case, Barrett joined that same 6-Justice majority over that same 3-Justice dissent. She signed onto Justice Kagan's opinion that upheld the validity of a malicious-prosecution claim based on a legally meritless criminal charge, even if there was some justification--i.e., probable cause--for some other charge in the same criminal proceeding. 

In Moore v. Harper, Barrett again joined the six-judge majority over the dissent of Thomas, Alito, and Gorsuch. This time, she agreed with Chief Justice Roberts's opinion that the Constitution, although giving state legislatures the power to draw the lines for congressional districts, did not mean free a state legislature to violate state constitutional law or decisional rulings in doing so.

Finally--for this post at least--in Haaland v. Bracken, Barrett penned the majority opinion, over separate dissenting opinions of Justices Thomas and Alito. (Justice Gorsuch joined the majority to embrace, as he usually does, the position more favorable to Indian tribes.) The Court, in an opinion by Barrett, upheld the constitutionality of the Indian Child Welfare Act of 1978. Among other provisions, aimed at keeping Native American children with Native American families, the Act mandates a preference that Native American children, who are removed from their biological families, be placed with extended family members or other Native homes. 

Again, this is just a sampling of cases in which Justice Amy Coney Barrett sided with positions opposed by other conservative Republican appointees on the Court. Sometimes her positions differed from those adopted by all the other five Republican appointees. Sometimes she was at odds with only the three most politically conservative Justices--agreeing not only with the Court's three liberals (Sotomayor, Kagan, and Jackson), but also with the Court's other more moderate conservatives (Roberts and Kavanaugh). 

The point here is not whether Justice Barrett's positions are preferable when she opposes the more politically conservative positions of some of her colleagues. [Although--disclosure--I do personally prefer her positions.]

Or that her positions are more legally correct. [Unless one is ideologically blind, it must be acknowledged that there are strong legal arguments on both sides in these cases.]

Nor is the claim here that Barrett is turning liberal. No, she still joins the politically conservative Justices on most issues that divide the Court. [Again, unless one is ideologically blind, it's hard to be certain that she is less wise and fair when she's with the conservatives and more so when she opposes them.]

The only point here is that Justice Barrett is showing an independence--at least some significant sparks of it-- from her more politically natural allies on the Court. In this regard, she may be less of what political liberals feared the most about her. Indeed, she may be evolving--like Justice Sandra Day O'Connor did--to become a centrist on the Court who typically avoids the more ideological extremes-- of either side of the Court's spectrum.

[I, for one, do hope so.] 

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.)

Today's Voter Removal Case & Why This Court is Awful

The Supreme Court's decision today in Husted v. A. Philip Randolph Institute upheld Ohio's procedure for removing registered voters from the state's rolls. The vote was 5 to 4. The Justices were split along party lines. All the Republican appointees on one side. All Democratic appointees on the other.

In short, not one Republican Justice found merit in the position of the Democratic Justices. And not one Democratic Justice found merit in the Republicans' position. That, of course, is common with the Court in the last few decades. Certainly on the tough, politically-charged cases. And that doesn't say much for a judicial tribunal whose members are supposed to be neutral, detached, and certainly non-partisan.

This is not about judges--whether on the Supreme Court or some other tribunal--being valueless, disembodied intellects, blind to inequities or other injustices, or unconcerned about the consequences of their decisions. But it is about judges on a court being so polarized along partisan political lines. Not along lines of judicial philosophy, or modes of interpretation, or hierarchy of competing fundamental principles. But split upon the basis of political party and upon the respective political parties' policy preferences.

So in the Husted case, at issue was Ohio's removal of voters who had not been voting and who did not respond to a mailed inquiry. Now, anyone who has been paying any attention to the ongoing debates about voting rights is well aware that Republican and Democratic political officials have been on heated opposite sides. Republican politicians have usually been opposing measures to make registering to vote easier and favoring measures that make actual voting a bit more difficult--typically in the name of reducing voter fraud. Democratic politicians have been opposing and favoring exactly the opposite--typically in the name of protecting the voting rights of minorities, the elderly, and the poor.

And soooooo, before the Husted decision was handed down today, it was a very good bet that the Republican Justices on the Court would vote the way Republican politicians would, and the Democratic Justices the way Democratic politicians would. Indeed, that is precisely how the vote went. 5 Republicans versus 4 Democrats.

The Ohio procedure did result in the removal of voters who had previously been registered. It would even remove some voters who although lawfully registered and still otherwise perfectly eligible to vote, were nevertheless removed without their knowledge and without their wanting to be. On the other hand, Ohio does not remove a voter under its procedure unless 1) there is no "voter activity" for 2 years (i.e., two consecutive years of elections or primaries or even signing a petition, whether federal, state of local), and 2) then there is no response to a mailed notice sent by the state, and 3) then four more years of no voter activity.

Whatever the motivation underlying Ohio's voter removal procedure and whatever the consequences, the legal question in the case was seemingly straightforward: whether the Ohio procedure violated federal law (i.e., the 2002 Help America Vote Act) which says that “no registrant may be removed solely by reason of a failure to vote.” The bare majority of 5 Republican Justices voted no violation; the 4 Democratic Justices said yes.

Speaking through Justice Samuel Alito, the Republican majority focused on the requirement that a voter have failed to respond to the mailed notice as being a reason for removal in addition to the mere failure to vote. So, according to that majority, the Ohio procedure did not violate the federal "failure-to-vote" rule.

Speaking through Justice Stephen Breyer, the 4 Democratic dissenters also focused on the mailed notice but, specifically, on its inadequacy--i.e., it was an unreliable way to determine whether a voter has moved or no longer wished to vote. Hence, the dissenters concluded, the failure to vote was for practical purposes the only reliable basis Ohio was using to remove a voter. (Breyer interwove his argument that federal law required a "reasonable effort" in removal procedures and that the mailed notice was not reasonable.)

Justice Sonia Sotomayor, who joined Breyer's dissenting opinion, also authored a lone one of her own. In it she emphasized the "substantial efforts by States to disenfranchise low-income and minority voters, including programs that purged eligible voters from registration lists because they failed to vote in prior elections." The federal requirements and the Ohio procedures should, according to Sotomayor, be read in light of that history.

Justice Alito's majority opinion dismissed both Breyer's and Sotomayor's arguments as based purely on the dissenters' policy preferences rather than on the only legal question before the Court: whether Ohio had actually violated the federal "failure-to-vote" law.

As anyone but a blind ideologue would recognize, there are strong considerations on both sides of this case. Consider whether Ohio does in fact have some basis other than "failure-to-vote" to remove voters from the rolls? Consider whether that additional basis, the mailed notice and failure to respond, is actually reliable and otherwise reasonable? Consider the history underlying these voter restriction and removal laws and their consequences when interpreting and applying the federal safeguards?

Well, all 5 Republican Justices voted that only the first consideration had any merit. All 4 Democratic Justices disparaged that consideration and found no merit in the majority's failure to give conclusive weight to one of the other considerations.

Again, none of the Republican Justices found merit in the position of the Democrats on the Court. Really? And none of the Democratic Justices found merit in the position of the Republicans. Really? Hmmmm. A polarized, partisan, poor Court.

To be more blunt, an awful Court in my view. Not all the time of course. There are cases, to be sure, where one or more of the Justices will vote with the other party on a politically controversial issue. But when Justice Anthony Kennedy is excluded from consideration, those cases are quite infrequent. On most of these tough, politically-charged cases, its the Republicans versus the Democrats--and we often simply have to see where Kennedy will land.

So maybe, to be more kind and accurate, a polarized, partisan, awful Court, except for Kennedy. And the Husted decision today is another case that demonstrates just that.

(Part 11--Sotomayor's & Kagan's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Justices Sonia Sotomayor and Elena Kagan, both appointed by President Obama, are the Court's newest members. Sotomayor joined the Court in August 2009. Kagan in August 2010. Consequently, unlike the other Justices whose records we have already reviewed, Sotomayor and Kagan have participated in only a few of the racial discrimination cases decided by the Court under Chief Justice Roberts.

Sotomayor has participated in only 7. Kagan in only 5. That's not much of a record for either Justice. Indeed, the sample is simply too small to tell us anything meaningful for some of the categories of voting we've been considering.

On the other hand, for some categories, the voting patterns for Sotomayor and Kagan are so consistent and so clear that even the relatively small samples are revealing. Let's take a look.

We'll begin with voting on what I've been categorizing as "racial equal protection." As explained in previous posts, this category of voting reflects the degree of support for equal treatment regardless of race--e.g., support for measures to eliminate unequal treatment, whether racial discrimination or racial preferences; support for the enforcement of equal rights and benefits; support for strict equal treatment regardless of whether Whites or Racial Minorities favor the result or may be the beneficiaries in any particular case.

(click graphs to enlarge)

GRAPH 1

The figures depicted in graph 1 reflect voting in 5 non-unanimous cases for Sotomayor, and 4 for Kagan. Notably, although the samples are relatively small, both Justices voted in support of strict equal treatment in every one of the cases in which they participated. These involved enforcing voting rights protections, supporting racial discrimination lawsuits, enforcing laws against retaliation, and prohibiting racial preferences in college admissions absent the showing of a compelling need.

Notably also, in all of these cases but one, the Court was divided 5-4, with the 5 Republican Justices on one side and the 4 Democratic Justices--including Sotomayor and Kagan--on the other. Stated otherwise, in every one of those cases but one, the 5 Republican Justices opposed the enforcement of equal treatment; the 4 Democratic Justices supported it.

The 2 Junior Justices & NY Judges (Part 6 of Supremes vs NY Court of Appeals: Judicial Output [with Charts!])

There are 2 members of each court whose judicial output we have yet to survey. Sonya Sotomayor and Elena Kagan of the Supreme Court. Jenny Rivera and Sheila Abdus-Salaam of the New York Court of Appeals. The most recently appointed Justices and Judges.

As mentioned in the last post, there's a wrinkle here. Neither Judge Rivera nor Judge Abdus-Salaam was on the New York court for the entire year. (Recall, we are reviewing summer break 2012 to summer break 2013). Rivera didn't join the court until February. Abdus-Salaam till May.

So for the purposes here, let's combine the records of each of those Judges with the records of their predecessors who sat on the court in the earlier part of the year. Rivera with that of Carmen Ciparick (who left because of mandatory age retirement at the end of 2012). Abdus-Salaam with that of Theodore Jones (who tragically passed away in November 2012).

But even those combinations do not constitute a full year. The Ciparick to Rivera seat was vacant for the Court of Appeals' January session and 1/2 of the February one. The Jones to Abdus-Salaam seat was vacant most of the year--neither Judge participated in decisions of appeals rendered from November through May.

Nevertheless, simply for the sake of completeness, we'll include those combinations in the graphs for this post. But we'll also include the averages for the Court of Appeals as a whole--and for symmetry, that for the Supreme Court as well--to have something meaningful with which to make comparisons.

With the foregoing in mind, let's get going.

CHART 1

(click to enlarge)

First, remember that the figures for the 2 New York Judges represent less than full years. And yet, the total number of judicial opinions authored by the Ciparick-Rivera seat (24) was still greater than that for Justice Sotomayor (17) and virtually the same as that for Justice Kagan (25).
(The number of total opinions by the Jones-Abdus-Salaam seat represents only 1 and 1/2 months of cases and, consequently, is not really amenable to any meaningful comparisons.)

Regarding that total number of judicial opinions by Justice Kagan, it is very close to the Court of Appeals average (27). In fact, it is greater than the Supreme Court average (~21) which, in turn, is lower than that of the New York court.

Let's look inside these figures. First, majority opinions.

CHART 2

The 7 Supreme Court Justices we've looked at in previous posts each authored 8 or 9 majority opinions. Sotomayor and Kagan were no different. That's half the Court of Appeals average (~17). In fact, it is half the number of majority opinions authored by the less-than-full-year Jones-Rivera seat (17).
(Again, the number for the Jones-Abdus-Salaam seat, representing only 1 and 1/2 months of cases, is not really amenable to any meaningful comparisons.)

(Part 3--the "Yoots") Court Elders: The Septuagenarian Justices

In parts 1 and 2 of this series, we took a quick look at the 4 septuagenarians currently on the Court--Justices Ginsburg, Scalia, Kennedy, and Breyer. Specifically, we pointed to their ages-- now and when President Obama's 2nd term ends--their ideological leanings, and the likelihood of their retiring in the next 4 years.
[See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012; (Part 2), Nov. 24, 2012.]

Here's a recap:

(click to enlarge)

In short, their ages range from the oldest, 79 ( Ginsburg), to the youngest, 74 (Breyer); and by the end of Obama's term, 83 to 78. Their years on the Court, by that time, will range from 30 (Scalia) to 22 (Breyer).

As for the remaining 5 Justices, they are all at least 10 years younger than the youngest septuagenarian. Just how young are these relative young-ens (or "yoots," per Joe Pesci's Vinny Gambini in My Cousin Vinny)?

Part 8: Focus on Justice Sotomayor. (Supreme Court: How Partisan? Ideological? Activist? --with graphs!)

Justice Sonia Sotomayor.

Appointed by President Obama.

Her votes on guns? Gays? God? Immigrants? Campaign finance?

Just guess!

And you'd probably guess right.

We looked at Sotomayor's record when she was nominated and being confirmed for the Supreme Court.

We looked at her voting and her opinions as a federal appeals judge.

Republicans were insisting she was unsuitable, and even a racist, because of her "wise Latina" comment.

Democrats were insisting she was a "moderate" without an ideological bent.

She was insisting that her role as a Justice would simply be to "apply the law" and not to make law or policy.

Of course, what both the Republicans and the Democrats were saying was pure nonsense.

And what she was saying was at least as preposterous.

We discussed all of that on New York Court Watcher in a series of posts. Among other things, we examined Sotomayor's record on the 2d Circuit Court of Appeals. It was pretty revealing. Indeed, it was pretty plain for anyone willing to take a look.

And for anyone who bothered to take a look--or simply to read the discussions and look at the graphs on New York Court Watcher!--there would be no surprise with what Sotomayor's record on the Supreme Court would be.

Her record was one of a political, ideological liberal, and, of course, she voted to make law and policy just as every appellate judge does.

[For the examinations of Sotomayor's record on the 2d Circuit, see Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions]), June 23, 2009; (Some Common Threads in Her Opinions), June 5, 2009; (Versus Her Colleagues), June 3, 2009;(Ideological Patterns in Her Opinions), June 2, 2009; (First, Some Prefatory Comments), May 28, 2009.) See also Sotomayor--Let's Put the Cards on the Table (SS on the 2d Amendment), Aug. 4, 2009.

For discussions of her confirmation hearings, see Sotomayor--Let's Put the Cards on the Table (Judiciary Committee Appoves the Dreadful Success), July 30, 2009: (More on the Dreadful Success: SS on Judging), July 20, 2009; (A Dreadful Success at the Hearings), July 19, 2009.]

So let's look at Sotomayor's record at the Supreme Court. Just as we have for the other members of the Court we've already focused on in this series.

As I've previously suggested: no surprise.

The GPS Decision--The Video

Here's a brief TV interview on the troubling aspects of the Supreme Court's ruling in U.S. v.. Jones:
Albany Law’s Bonventre Explains SCOTUS Ruling on GPS Tracking
[or paste on the browser:
http://www.nystateofpolitics.com/2012/01/albany-laws-bonventre-explains-scotus-ruling-on-gps-tracking/]

_______________________________________

For The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal, Feb. 12, 2012, see the immediately preceding post below.

The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal

The 4th Amendment does not prohibit unreasonable searches--only unreasonable searches of the few items it specifically mentions.
The 4th Amendment's fundamental concern is not even a search per se--it's concern is physical trespass.
The 4th Amendment is not even concerned with all physical trespasses--but only a physical trespass of an item it specifically mentions.
The Court's decisions protecting private activities from unreasonable searches (rather than protecting specified areas from physical trespass)--are deviations.
The Court's earlier decisions permitting warrantless wiretapping, warrantless eavesdropping, and warrantless searching of private property other than the house were correct under the 4th Amendment.
The GPS search in this case was unconstitutional, not because of its unreasonable invasion of personal privacy, but because the police "trespassorily" "encroached on a protected area."

--Justice Scalia's view of the 4th Amendment,
as expressed in his opinion for the majority in U.S. v. Jones

The 4th Amendment cannot be applied using 1791 trespass law.

The 4th Amendment must be adapted to 21st century technological surveillance.

A physical trespass is not the same as a search--nor is a physical trespass required for one.

4th Amendment doctrine must be concerned with modern, electronic surveillance, whether trespassory or not.
4th Amendment decisions that focused on physical trespass of a specified item have been repudiated.

The prolonged GPS search in this case was unconstitutional because it was an unjustified intrusion on privacy that reasonable people expect.

--Justice Alito's view of the 4th Amendment,

as expressed in his separate concurring opinion

Before going further, let's look at a few of the Court's past decisions that Scalia relied upon and explained with approval. Some, including me, may find this alarming.