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

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

Gorsuch with Scalia
CNS photo/via Reuters

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

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

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

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

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

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

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

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

U.S. v. Carloss: [This one requires close attention.] The majority ruled that the defendant's rights were not violated when FBI agents went to the home where he was staying, walked to the front door and knocked, and then spoke to the defendant when he came outside from the back door; the defendant never referred to the signs saying “Private Property No Trespassing” or otherwise objected to the agents' presence. Gorsuch dissented, this time siding with the defendant on the ground that the agents had trespassed on the house despite the signs. Yes, he sided with the defendant.
BUT--and this is what's most significant here--he did so by echoing the very narrow, literal view of search and seizure rights that his hero, and the justice he replaced, the late Antonin Scalia, had taken. That is, that the 4th Amendment does not prohibit unreasonable searches. Rather, it only prohibits unreasonable searches of the specific items mentioned in the amendment--i.e., "persons, houses, papers and effects."
Soooo, the Constitution does protect a house, such as defendant's in this case. But, according to this narrow, literal view, the Constitution does not protect private property other than one's house. Nor does it protect the airspace immediately above one's house. Nor does it protect private conversations. Nor does it protect a person's comings and goings or whereabouts. Etc., etc., etc. Why not? Because none of those things are specifically mentioned in the 4th Amendment.
This is precisely the position Scalia argued in search and seizure cases, and it is precisely the position Gorsuch took in his dissent in this case.
This is what Gorsuch wrote:

The Fourth Amendment, we know, prohibits “unreasonable” searches of particular places and things: “persons, houses, papers, and effects.” U.S. Const. amend. IV. So even if an officer commits a common law trespass when searching your wheat fields, he does not commit a Fourth Amendment violation...[A] 'search' occurs when the government physically enters a constitutionally protected area. [Bold added.]

And just what authority did Gorsuch rely upon for his narrow, literal view of 4th Amendment search and seizure protections? Two opinions by Scalia insisting on that narrow, literal view, as well as some earlier decisions of the Supreme Court that allowed searches--without any warrant or even probable cause--of a person's private property beyond the home or from the air above the home.
[For more on this narrow, literal view of search and seizure rights as applied by Scalia, see Justice Scalia's Record (Part 6: Technological Surveillance); and see conservative Justice Samuel Alito's separate concurring opinion in U.S. v. Jones, 565 US 400 (2012), harshly condemning Scalia's view as being based on decisions that the Supreme Court had actually overruled a long time ago and as contrary to the Court's "legitimate expectations of privacy" jurisprudence.]

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

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

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

Gorsuch, Part 4: His (Backward and Extreme) Past IS Prologue

Then-Judge Gorsuch compiled a distinctive record on the federal appeals court.

Now-Justice Gorsuch has already begun to build another distinctive record at the Supreme Court.

They are very much the same.

Let's look at them both.

At his confirmation hearing, Democratic Senators harped on an opinion that then-Judge Gorsuch had written involving a fired truck driver. In his opinion, Gorsuch took the position that the company was within its rights to fire the trucker who had left his rig on the side of a highway--even though the trucker had done so in order to save his life, which was in danger, because he and his rig were stranded in a severe winter storm.

Whatever one might think about Gorsuch's opinion, it's actually worse, or better, depending on one's point of view. Gorsuch's opinion was a dissent. That is, his colleagues had sided with the trucker who, therefore, won the case and was vindicated. But Gorsuch apparently thought that his colleagues were so wrong, and that it was so important that the company be allowed to fire the trucker, that he authored a dissenting opinion to make public his disapproval of his colleagues' decision favoring the trucker.

At the confirmation hearing, Republican Senators, as well as Gorsuch himself, sought to downplay the Democrats' criticism. They insisted that this particular opinion did not really represent any overall bias against workers, or in favor of business, or reflect a callous indifference or ultra-conservative ideology.

Hmmmm.

The truth of the matter is this. Anyone willing to actually review Gorsuch's record as a federal appeals court judge, and willing to be honest about what that review revealed, would have to acknowledge that his trucker opinion was fairly typical--not an aberration--and that Gorsuch's record was ultra-conservative. Good or bad, that is what it was. Not moderate. Not balanced. Not neutral in any real sense of that term. But overwhelmingly, ideologically, one-sided.

Of course, that should be no surprise. That is exactly why the Federalist Society and the Heritage Foundation--too institutions that are unabashedly conservative [Again, good or bad.]--recommended Gorsuch to Trump. Nor should that be a surprise to anyone who cared to pay attention to what Gorsuch had previously said and written about the role of judges. And more to the point, about his view of judicial decision-making. In my own view, as I have written previously, it is "extreme and backward." [See Part 3; Part 2; Part 1.] 

Now that may sound good to some. That may indeed be what some believe to be appropriate for a judge. That is, a judge should strictly adhere to the past, strictly oppose judicial attempts to move the law forward, strictly insist on preserving those "traditional" values such as old school religion, free market capitalism, etc., etc.

But whether one believes that being "extreme and backward"--in that sense--is good or bad, preferable and appropriate in a judge or not, it cannot seriously be disputed that Gorsuch's record is just that. Sure, anything can be disputed, just as some of the Senators and commentators disputed any such characterization. And especially if one is entirely unfamiliar with Gorsuch's record, or if one is so ideologically motivated that Gorsuch's actual record is simply denied.

So let's take a look at Gorsuch's record. And since dissenting opinions, like Gorsuch's opinion in the trucker case, are so revealing about what the authoring judge thinks is important--i.e., important enough to disagree openly and take a stand against a majority of that judge's colleagues--let's focus on those.

We'll begin with employment law cases. They demonstrate that siding against workers, even in the most sympathetic cases, was the pattern--not the exception--for Gorsuch.

Worker/Employer
TransAm Trucking, Inc. v. Administrative Review Board: This is the fired trucker case. The majority of the appeals court held that the need to save his life necessarily justified the trucker's leaving his rig. Judge Gorsuch disagreed; in dissent he argued that the employment contract and the employer's rules did not permit the trucker to leave, regardless of the dire circumstances.

Compass Environmental, Inc. v. Occupational Safety and Health Review Com’n: The majority upheld OSHA's finding that the company committed a serious safety violation by failing to train its now-deceased employee on avoiding an electrocution hazard at work. Gorsuch dissented; he argued that the company only violated its own internal rules.

N.L.R.B. v. Community Health Services: The majority upheld the NLRB's award of backpay to workers where the employer had wrongfully reduced their working hours. Gorsuch dissented; he argued that the workers' backpay should be reduced if they had taken a "second or 'moonlighting' job" to make up for their reduced hours.

Strickland v. United Parcel Service, Inc.: The majority held that the evidence that the female worker was treated worse than her male co-workers entitled her to a jury trial on her sex discrimination claim. Gorsuch dissented on the ground that, in his view, the evidence showed that the employer harassed male workers too.

See a pattern emerging?
Let's continue with a few other civil cases.
(We'll look at criminal cases in the next post.)

Consumer Protection
Ragab v. Howard: The majority held that the plaintiff was entitled to sue the corporate defendants for violating consumer credit repair laws. Gorsuch dissented; he argued that, despite inconsistencies in the parties' several agreements, the "non-essential [procedural] terms" show that the plaintiff should be forced into arbitration.

Right to Choose
Planned Parenthood Association of Utah v. Herbert: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled in favor of Utah Planned Parenthood. The latter had claimed that the governor's stated reason for stopping funding for Planned Parenthood was pretextual, and that his true motivation was to punish the exercise of constitutional rights. Gorsuch dissented; he argued on procedural grounds for a rehearing and on substantive grounds that the governor had the authority to discontinue the funding.

Church-State Separation
American Atheists, Inc. v. Davenport: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled that Utah's action, erecting twelve-foot high white crosses along public highways to honor fallen state troopers, was an unconstitutional endorsement of a certain religion. Gorsuch dissented; he argued that the original decision was wrong because only an "observer [who was] biased, replete with foibles, and prone to mistake" would believe that the white crosses were endorsing a religion. [Sic!]

Green v. Haskell County Board of Com’rs: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled that the erection of a Ten Commandments monument on county courthouse grounds was an unconstitutional government endorsement of religion. The proposal for the monument had been approved by the county board when a local resident told the officials that "the Lord had burdened [his] heart" to create it. Gorsuch dissented; he argued that only "the perceptions of an unreasonable and mistake-prone observer" would lead to the majority's conclusion that religion was being endorsed.
[Again, sic! One may disagree with the "reasonable observer/endorsement" test to determine a constitutional violation. But it can hardly be denied that a perfectly rational observer might well perceive that religion was indeed being endorsed by a monument to the Decalogue--presented to Moses by God--on government grounds.]

Do those dissents of Gorsuch--those occasions where he felt strongly enough to disagree openly with his colleagues and author an opinion criticizing their decision--demonstrate that he's a moderate? Neutral? Balanced? Or ideologically ultra-conservative?

In the next post, we'll look at Gorsuch's dissents in criminal cases.
(It's not hard to guess what pattern emerges. Hint: it's neither pro-accused nor moderate.)
And following that, we'll look at his record to date on the Supreme Court.
(Same.)

Gorsuch--Yes, Backward and Extreme (Part 3--Criminal Justice)

We've seen how the Scalia-esque approach to judicial decision-making avowed by now-Justice Gorsuch would have precluded cherished landmarks in American history. [See Part 2; Part 1.] His "focusing backward, not forward," insisting on what constitutional provisions specifically meant "at the time" they were drafted and ratified, is directly at odds with the vigorous enforcement of the overarching, fundamental principles at the heart of those provisions.

We've discussed how that Gorsuch-Scalia approach to constitutional decision-making has been employed to fight, and then to condemn, virtually every advance in the fulfillment of equal protection, of due process, and of freedom from government intrusion into private matters. Indeed, virtually every cherished advance in the protection of our civil rights and liberties.

The same is true for the rights of the accused. Those fundamental rights in our criminal justice system which we now take for granted.

Most of those cherished criminal justice rights became protected because of landmark decisions that rejected traditional, "focusing-backward" practices that were based on what the Constitution was believed to permit "at the time." In those landmarks, the Gorsuch-Scalia jurisprudence--many will object to even calling it "jurisprudence"--was repeatedly rejected in the interests of much higher constitutional values.

Of course, most of those who espouse that Gorsuch "backward-looking," "at the time" approach are actually far too embarrassed to denounce those landmarks today. But their ilk did exactly that when those landmarks were being considered and decided. And they condemned those advances in criminal justice--and some still do--using the same so-called "originalist-textualist" arguments embraced by Gorsuch and Scalia.

Here are a few of those advances in criminal justice:

• The right to have an attorney when being criminally prosecuted, even if poor and can't afford one--the Supreme Court in Gideon v. Wainwright (1962) ruled that such a right to counsel is a constitutional guarantee because of the “noble ideal [of] fair trials," despite the absence of any specific mention in either the 6th Amendment (federal trials) or the 14th Amendment (state trials) about providing the poor with a lawyer, and despite precedent to the contrary.
• The right to be protected from unreasonable searches into our private lives--the Court in Katz v. U.S. (1967) held that constitutional search and seizure rights protected our legitimate privacy interests, not just those very few specific places and items that happen to be mentioned in the 4th Amendment; and the Court overruled "originalist-textualist" decisions to the contrary.
• The right to a jury trial in criminal cases--the Court in Duncan v. Louisiana (1968) ruled that to be a constitutionally guaranteed option for an accused as a necessary protection against sometimes overzealous prosecutors and callous judges; the Court overruled precedent and disregarded the absence of any specific words or meaning of words in the 14th Amendment (state trials) about guaranteeing jury trials.
• The rights against against compulsory self-incrimination and double jeopardy--in Malloy v. Hogan (1964) and Benton v. Maryland (1969), respectively, the Court overruled a line of precedents and ruled that those rights were constitutionally guaranteed because they were among the "principles of a free government" and "fundamental to the American scheme of justice," even though those rights were not identified and not specifically meant by the words of the 14th Amendment (state trials).
• The right to be informed of one's rights to silence and to an attorney before being interrogated--the Court in Miranda v. Arizona (1966) required the recitation of the now well known Miranda warnings to insure that persons being interrogated understood the constitutional rights they were being asked to waive; there is no mention of such warnings anywhere in the Constitution and such warnings were not intended by any words in the relevant 5th, 6th, or 14th Amendments.
• The prosecution must prove guilt beyond a reasonable doubt--the Court in In re Winship (1970) explicitly adopted the very protective reasonable doubt standard for criminal trials, even though not explicitly stated in the Constitution or explicitly meant by the words "due process" in the 5th (federal trials) or 14th (state trials) Amendments; the Court did so because of "a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free."
• The right to take the stand and testify on one's own behalf in a criminal prosecution--in Rock v. Arkansas (1987), the Court held that the Constitution guaranteed that right because "There is no justification today for a rule that denies an accused the opportunity to offer his own testimony [my emphasis]," notwithstanding the absence of any mention of such a right in the Constitution, and despite the historical, "at the time" refusal to permit accused persons to testify at their own trials.

Each one of these criminal justice landmarks and countless others were possible because the Supreme Court avoided the Gorsuch approach. Instead of simply "focusing-backward" and applying what the words specifically meant "at the time" they were enacted, the Court gave life to the broader principles of justice, equity, and decency that underlie the constitutional provisions dealing with the rights of the accused. In fact, the "focusing-backward," "at the time," so-called "originalist-textualist" arguments were used to oppose those landmarks and are still used today to denounce, disparage, dilute, or try to undo some of them.

Should we go back, before these landmarks, before the right to counsel was enforced in Gideon? Or privacy in Katz? Or protections against double jeopardy and against compulsory self-incrimination as in Malloy and Benton? Etc., etc.

And what about advances in the future? Improvements and greater fulfillment of fundamental constitutional principles? Do we really want to forego that?

Well, that going back and foregoing advances is precisely the meaning and heritage of the Gorsuch-Scalia  "focusing-backward," "at the time," so-called "originalist-textualist" approach to constitutional decision-making.

Next in this series, we'll look at some of the actual decisions and opinions authored by now-Justice Gorsuch while he was an appeals court judge.

Gorsuch--Yes, Backward and Extreme (Part 2)

It's now Justice Neil Gorsuch, having been confirmed by the Senate following the Republicans' deployment of the nuclear option. I've been tied up with (over)commitments--not that I could have affected the outcome--but let's continue with this series because Gorsuch's record is at least as important now as it was when he was a nominee.

We saw how Judge, now Justice Gorsuch's avowed approach to judicial decision-making is "focusing backward, not forward." It's viewing constitutional rights in accordance with "what a reasonable reader at the time...would have understood the law to be." Judicial decision-making is "not a forward-looking but a backward-looking authority." Those are his words. That is his judicial creed. That is what he has reaffirmed repeatedly in speeches and writings, and applied in cases.

At first blush, Gorsuch's approach might sound perfectly reasonable. You know, it's a specie of the bromide that "judges should just apply the law and not make it." But any thoughtful consideration exposes Gorsuch's judicial creed as drastically reactionary. As a prescription for undoing our nation's cherished advances in fundamental constitutional protections.

That is no exaggeration. That is just plain fact and history. That might be his and others' preference. But that is what it is.

Gorsuch's judicial creed, which had been famously professed by his predecessor, Antonin Scalia, is part of a tradition that has opposed constitutional advances and has condemned those advances after they have been made. Yes, opposed them and condemned them--at least until those advances have become part of our culture, a cherished part of our culture, and to oppose them any longer is too embarrassing.

So, for  example, as mentioned previously [See Part 1.], the Gorsuch-Scalia creed would have precluded the landmark protections of equal rights for African-Americans, for women, for gays and lesbians, etc. Consider again the consequences if the Supreme Court had adopted the Gorsuch-Scalia approach to decision-making--i.e., looking "backward" to what the constitutional provisions meant "at the time":

•  Racial segregation would have been upheld, not outlawed--the Supreme Court in Brown v. Board of Education (1954) deliberately re-construed the 14th Amendment to prohibit segregation, contrary to what had long been permitted and to what that amendment meant "at the time" it was ratified in 1868.
• State laws preventing women from owning property or running a business or going to law school, etc., would have been upheld, not overruled--the Supreme Court in Reed v. Reed (1971) extended "equal protection" beyond what it meant "at the time" of ratification and invalidated laws that treated men better than women.
• State laws that discriminated against and even criminally punished gays and lesbians would have been upheld, not declared unconstitutional--the Supreme Court in Lawrence v. Texas (2003) held that "equal protection" and "due process" protected gays and lesbians, even though those constitutional provisions certainly did not mean that "at the time."
• And so many others, such as Loving v. Virginia (1967) [invalidating laws that prohibited inter-racial marriage]; Griswold v. Connecticut (1965) [invalidating laws that prohibited birth control]; Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung (1964) [upholding civil rights laws that prohibit racial discrimination in privately owned lodging and restaurants]; West Virginia v. Barnette (1943) [upholding the right of religious-objecting Jehovah Witnesses not to salute the flag].

In every one of those landmark cases, and so many others, the Supreme Court rejected the Gorsuch-Scalia approach. Instead of confining constitutional provisions to what might have been their narrow, specific meanings "at the time" they were written and ratified, the Court gave life to the overriding, fundamental principles that those provisions reflected.

So the 14th Amendment's guarantee of "equal protection" in those cherished landmarks was not confined to "separate but equal" treatment for the newly freed black slaves. Instead, overruling Plessy v. Ferguson (1896) and breaking from the "backward-looking" "at the time" meaning of the 14th Amendment, the Court in Brown gave life to the overriding principle of equality under the law to put an end to legalized segregation of the races. Likewise, repudiating a long series of precedents that permitted disparate treatment of women, including some then-recent decisions, the Court in Reed expanded "equal protection" to invalidate gender as well as racial discrimination. And so forth.

Historically, the Gorsuch-Scalia brand of "backward-looking," "at the time," so-called "originalist-textualist" jurisprudence has always reared its head--yes, its ugly head--whenever the Supreme Court has advanced equal rights for minorities or women. Whether the Court was outlawing segregation, or protecting inter-racial marriages, or upholding the civil rights laws, or requiring that women have the same rights as men, or invalidating laws that discriminated on the basis of sexual orientation, the jurisprudence embraced by now-Justice Gorsuch has always been used to oppose those advances and to denounce them as illegitimate.

Yes, the repeated condemnation of all those cherished landmarks and so many others has been the same: "That's not what the constitutional provision meant at the time; that's not its original meaning." Fortunately for our country, that "originalist-textualist" approach has historically been rejected whenever the Court has understood that fundamental equality and fairness and decency were far more important constitutional principles than some avowed method of interpretation.

And it's not just the equal rights and privacy rights landmarks. The same is true for those landmarks that gave life to the rights of the accused. The Gorsuch-Scalia jurisprudence would have precluded those advances in criminal justice as well. We'll take a look at some of those in the next part of this series.

Gorsuch--Yes, Backward and Extreme (Part 1)

The Democrats in the Senate are right on this one. Judge Neil Gorsuch, President Trump's nominee for the Supreme Court, is indeed backward and extreme. Not necessarily him personally--I don't know him nor do I know others who do. But to be sure, his jurisprudence, as he himself has explained it and as he has applied it in deciding cases, is backward and extreme.

In fact, that is why he is supported so strongly by conservative Republicans, and other social conservatives. That is why he was placed on the list of recommended nominees from which Trump picked him. That list was produced by the Federalist Society and the Heritage Foundation, They are two very ideologically conservative organizations. They do their homework. They know his record.

Those strong supporters may not prefer the labels "backward" and "extreme." But no doubt, that is why they really like him.

Let's consider Gorsuch's own words.
Judges, he has said, should apply the law "focusing backward, not forward," in accordance with "what a reasonable reader at the time...would have understood the law to be."
And again, "judicial power" is "not a forward-looking but a backward-looking authority." In short, apply what the words originally meant.

Ah, no wonder social conservatives like him so much. Looking "backward," applying what constitutional provisions meant "at the time," as Gorsuch urges, just happens to produce decisional results that social conservatives would prefer. It's also no wonder why some of the most socially and politically conservative judges--and politicians and commentators who support them--embrace this so-called "originalism" and "textualism."

So, for example, consider the Constitution's "equal protection of the laws" guarantee. That provision has long been a major battleground between conservatives and liberals. It became part of the Constitution after the Civil War, with the ratification of the 14th Amendment in 1868.

Looking "backward," to what it meant "at the time," would certainly exclude equal rights for gays and lesbians. Certainly, in 1868, the ratification of the 14th Amendment was not meant to protect gays and lesbians. Applying the equal protection guarantee in a "backward""at the time" manner, as Gorsuch urges, would still permit laws that criminally punish private, consensual, same-sex intimacy between adults--let alone same-sex marriage. It would also permit laws that intentionally discriminate against gays and lesbians in employment, housing, restaurants, hotels, etc., etc.

That's right. The Constitution's equal protection guarantee says nothing about gays or lesbians or transgenders. And those persons were absolutely not--looking "backward"--what equal protection was about "at the time" in 1868.

Indeed, Judge Gorsuch's hero, the late Antonin Scalia--the foremost proponent of this so-called "originalist-textualist" approach that Gorsuch has ardently embraced--took exactly that position. The Supreme Court modern era decisions that have extended equal protection to gays and lesbians and same-sex couples were among the most hated and denounced by Scalia. What was Scalia's claimed reason? That the equal protection guarantee did not mean that in 1868. [Scalia on gay rights.]

But this looking "backward" and "at the time" approach goes well beyond allowing discriminatory treatment of gays and lesbians. How about women?

The equal protection guarantee was certainly not intended, in 1868, to insure equal rights for women. It would never have been ratified in 1868 if its purpose was to require that women be treated equally with men. That laws treating women differently and unequally were no longer valid. Looking "backward," equal protection of the laws for women was not what was meant "at the time." In fact, it was not until 100 years later that the Supreme Court finally did give equal protection that meaning and outlaw gender discrimination.

Again, Gorsuch's hero, the "originalist-textualist" Scalia, openly insisted that constitutional equal protection did not apply to women. And why? Because that's not what it meant when it was ratified. [Scalia on women's rights.]

Then there's racial segregation.

Equal protection was certainly not intended to end racial segregation when added to the Constitution in 1868. It would never have been ratified if its purpose was to require that African-Americans be allowed to share the same schools, restaurants, hotels, spaces on the bus and railroads, etc., with white persons. At most, "separate but equal" was as far as equal protection was intended to go "at the time." Indeed, it was not until 1954 that the Supreme Court expanded the meaning of equal protection to abandon "separate but equal' and to outlaw segregation.

So, should the Supreme Court really have looked "backward" and applied the law according to what it meant "at the time"--really? And allowed racial segregation to continue? And should judges today look "backward" and restore the racial segregation that was allowed "at the time" the 14th Amendment was ratified in 1868?

Well, of course, almost all self-avowed "originalist-textualist" judges, politicians and commentators are far too embarrassed to endorse a return to racial segregation. They will attempt to rationalize how their approach would not necessarily support that result. But it does do just that. Just as that "originalist-textualist" approach would deny equal protection of the laws to women. And--as most "originalist-textualist" devotees still do acknowledge--would undo all the gay rights and same-sex rights decisions of the Supreme Court in recent years. That "originalist-textualist" approach, looking "backward," supports a return to allowing racial segregation because it was allowed "at the time."

Of course, the same could be said for so many other constitutional guarantees--e.g., the right to the assistance of counsel, search and seizure protections, free "speech," the right to private sexual choice (even between married couples), etc., etc. Looking "backward" to what they meant "at the time," these were not the rights we enjoy and cherish today as Americans. They were much narrower, much more limited, and didn't mean then what they mean now.

We'll look at some of them in the next post.

But for now, even without looking further, it should be clear that Judge Gorsuch's approach to the law is backward--the term he himself uses--and extreme.

Want Scalia-type Justices? Really? (Part 4: Punishment)

Here's wishing the newly inaugurated President lots of success in doing what's best for our country.

If Scalia's view of gay rights--"homosexual sodomy," as he insisted on putting it--was anachronistic and offensive, his positions on crime and punishment were downright medieval.

Yes, this may sound like over-the-top criticism. But even self-proclaimed Scalia admirers, at least most of them, would find the positions he advocated to be startling. Indeed, very few Scalia enthusiasts are likely aware of his actual record on legally acceptable punishment. They are almost certainly unaware of his extreme views on what constitutes "cruel and unusual."

Let's review Scalia's actual record. The positions he actually advocated. And again, let's consider whether the supposed Scalia fans--the newly inaugurated President, his prospective Supreme Court nominees, and the Senators who will vote on confirmation--are really fans of that, or would be willing to admit it.

Scalia insisted that excessive punishments, no matter how extremely excessive, were perfectly constitutional. In fact, he insisted that the Constitution's "cruel and unusual" prohibition only prohibited "flaying alive" and similarly barbaric punishments. Nothing else.

Yes, you read that correctly. (I wish I were kidding.)

Let's first look at Scalia's major judicial writing on "cruel and unusual punishments."

Harmelin v. Michigan (1991)
This case involved a state law that mandated life imprisonment, without the possibility of parole, for possession of a large quantity (6.5+ grams = ~1 1/2 pounds) of cocaine. By a 5-4 vote, the Court upheld the sentence.
Justice Scalia wrote the opinion for the Court's majority.

To be precise, however, only 6 paragraphs of Scalia's 36 page writing in Harmelin constituted the majority opinion. As for the rest of what Scalia wrote, only Justice Thomas signed on.

Of the remaining 7 Justices on the Court, 3 voted in a separate concurring opinion written by Justice Kennedy. They concludd that the life sentence for that drug crime was not too harsh. Together with Scalia and Thomas, that made a majority of 5 votes to uphold the sentence, for one reason or another. The remaining 4 Justices dissented. They argued that that the sentence was too harsh. In sum, 7 of the 9 Justices--the 3 who concurred in the result and the 4 who dissented--disagreed vehemently with all but a few paragraphs of Scalia's 36 page opinion.

Why? What was it that Scalia wrote in those 36 pages that 7 of the 9 Justices would not join?

Other than the 6 paragraphs that garnered a 5-4 majority, Scalia devoted his 36 page opinion to his view that harsh sentences, regardless of how excessive, did not violate the Constitution. Yes, the 8th Amendment explicitly prohibits "excessive bail" and "excessive fines." But as for "punishments," the 8th Amendment only prohibits what is "cruel and unusual." And in Scalia's view, even the most excessive punishments are not covered by "cruel and unusual."

Here are his own words:

[T]here is no cause to believe that the provision was meant to exclude the evil of a disproportionate punishment. [The opposite] argument has force only for those who believe that the Constitution prohibited everything that is intensely undesirable -- which is an obvious fallacy.
[My emphasis added. ("No cause" at all? And an "obvious" fallacy?)]

He further explained his rather stingy reading of the 8th Amendment's prohibition:

[A] disproportionate punishment can perhaps always be considered "cruel," but it will not always be (as the text also requires) "unusual."

He then argued that the Court's previous decision on the subject, which had held exactly the opposite of his view,

was simply wrong; the Eighth Amendment contains no proportionality guarantee.

[T]here is no proportionality requirement in the Eighth Amendment.
[My emphasis added.]

Along the way, in support of his position, Scalia cited with approval a decision that upheld a sentence of 40 years imprisonment for the possession and sale of marijuana. He also approvingly cited another decision that upheld a life sentence for a third minor offense--i.e., the fraudulent use of a credit card to obtain a mere $80 worth of purchases. Scalia even refused to concede that a life sentence imposed for a parking violation would be unconstitutional. Instead, he insisted that such extremely excessive punishments would be rare and that, even if they were adopted, the choice of the voters or legislators should be respected.

Again, 7 of the other Justices refused to join those sections of Scalia's opinion in Harmelin and would only sign onto a different 6 paragraphs of what he wrote. Justice Thomas was alone in agreeing with Scalia's entire 36 pages.

So, one might ask, what, according to Scalia, does the 8th Amendment prohibit? He did discuss that in exhausting detail in that 36 page opinion. The "cruel and unusual" prohibition, in his view, prohibited "only certain modes of punishment." He repeated that several times: "the clause only outlawed certain modes of punishment."

So what exactly are those "certain modes" that are prohibited by the Constitution? Scalia explained what he meant by quoting some early 19th century commentators. Those commentators had written that the "cruel and unusual" prohibition

'would not tolerate the use of the rack or the stake, or any of those horrid modes of torture, devised by human ingenuity for the gratification of fiendish passion.'
[And]
'various barbarous and cruel punishments inflicted under the laws of some other countries...furnish sufficient reasons for this express prohibition. Breaking on the wheel, flaying alive, rending assunder with horses, various species of horrible tortures inflicted in the inquisition, maiming, mutilating and scourging to death, are wholly alien to the spirit of our humane general constitution.'
[My emphasis added.]

One might well agree with those commentators. The "cruel and unusual" prohibition would certainly seem, at the very least, to prohibit such punishments. But according to Scalia in Harmelin, such "'horrid modes" were the only punishments that were prohibited by the 8th Amendment. Not to be misunderstood, Scalia proceeded to dismiss the views expressed by other commentators of the same time period, as well as in judicial decisions, that "cruel and unusual" referred to more than that. Those contrary views, according to him, were either wrong or irrelevant.

Now, someone might suggest that Scalia was overstating his position. Maybe he was only emphasizing his real point that the Constitution does not prohibit punishments just because they are excessive. Well, no. Scalia later made clear that he meant exactly what he wrote in Harmelin. For example, there was the lethal injection case 17 years later.

Baze v. Rees (2008)
In this case, a 7-2 majority of the Court upheld the lethal injection procedure used by Kentucky and other states. Writing for the Court, Chief Justice Roberts explained that punishment would be unconstitutionally "cruel and unusual" if it presented an "objectively intolerable risk" of "severe pain," and if that pain could be "significantly reduce[d]" by a "feasible, readily implemented" alternative. In short, the Constitution is violated if there is no "legitimate penological justification for adhering" to that currently used painful punishment.

Justices Scalia and Thomas agreed that the lethal injection at issue was valid. But they refused to join the Chief Justice's opinion. They emphatically rejected his formulation for "cruel and unusual."

Scalia, and Scalia alone, joined Thomas's separate concurring opinion to express their shared view about the 8th Amendment. The "cruel and unusual" prohibition only prohibits punishments with

the defining characteristic of burning at the stake, disemboweling, drawing and quartering, beheading, and the like...[that] were designed to inflict torture as a way of enhancing a death sentence; [that] were intended to produce a penalty worse than death.
[My emphasis added.]

That's right. Just like Scalia had written in Harmelin, the Constitution only prohibits punishments like  "maiming, mutilating" and "drawing and quartering, beheading, and the like." Today, with Scalia gone, Thomas is the only Justice remaining who embraces that extremely constricted view of "cruel and unusual punishments."

Do the avowed Scalia admirers, including the supposed Scalia-types that are being touted as prospective Supreme Court nominees, share that extremely cramped view of the 8th Amendment? Are they even aware that Scalia had such a view?

Would they--the new President, the Senators, and the nominees--be willing to admit and defend that view at Supreme Court confirmation hearings? Excessive punishments, even extremely excessive ones--fine? Painful punishments, even unnecessarily painful, except for disemboweling and the like--fine? I guess we shall soon see.

Before concluding, mention should be made of another one of Scalia's views, expressed in Atkins v. Virginia (2002), about executing the severely mentally disabled. By a 6-3 vote, the Court held in that case that the death penalty imposed on a defendant who had a 59 IQ was unconstitutional. Scalia disagreed. He joined the dissenting opinion of Chief Justice Rehnquist disagreeing with the Court's decision. But Scalia also wrote a separate opinion himself to add his own protest that

mental retardation does not render the offender morally blameless [and]
that society’s moral outrage sometimes demands execution of retarded offenders.

Then there's the related matter of torture. Scalia repeatedly insisted that government's torturing of an inmate, a prisoner, or a detainee does not violate the Constitution. His reasoning? The Constitution only prohibits "cruel and unusual punishment." So unless torture is an explicit part of a judicially imposed criminal sentence, it is not per se "punishment" and thus, according to Scalia, it is not constitutionally prohibited. (Once more, not kidding.)
(See e.g., Antonin Scalia's Case for Torture, The Atlantic [2014]; Justice Scalia on the Record, 60 Minutes' Lesley Stahl Interview [2008].)

Then there's the execution of someone who is innocent. Scalia actually dissented when the Court ordered a federal trial judge to consider a substantial claim of innocence by a murder defendant who might have been wrongfully convicted and sentenced to death. (In re Davis [2009].) Scalia-- in an opinion joined only by Thomas-objected to the Court's ruling. Why? This is what he wrote:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.

That position was nothing new or out of the ordinary for Scalia. It was actually just a repetition of a view  he had advocated for a long time. So, for example, 16 years earlier, in Herrera v. Collins (1993), he wrote a separate concurring opinion to express his view that:

There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

Well, we could go on. But hopefully the point is well made. Scalia had some....uh...very curious, even frightening, views about punishment and what the Constitution permitted. Do his self-proclaimed admirers really admire those views? Really agree with them? Are they even aware of his views? Well, that is Scalia's actual record.

Next in this series, we'll take a look at yet another aspect of Scalia's actual record.

Want Scalia-type Justices? Really? (Part 3: Discrimination Against Gays & Lesbians)

Let's continue considering "Scalia-type Justices--Really?"

But first, wishing all a happy and healthy 2017. I'm back from Christmas break--in Scottsdale, which I love almost as much as upstate New York--and have finished grading exams. So it's back to addressing some important issues facing the nation and this state in NYCW.

We've been considering whether self-proclaimed Scalia admirers really know and admire his actual record. In the last post, we asked whether they really know and admire his actual record on equal protection for women--he regularly voted against it, he approved older decisions that ruled against it, and he stated publicly that he didn't believe the Constitution required it.

Do self-proclaimed Scalia admirers really want President-elect Trump to appoint Justices who agree with that? That is Scalia's record. Not someone's personal view or conjecture about it.

Now let's continue.

Photo: Atlantic Wire

If Scalia's record was one of contempt for the notion of equal constitutional rights for women, it was one of outright hostility towards gay rights and any constitutional protection for gays and lesbians. (One could well extrapolate to his likely positions on LGBT rights generally, but let's stick here to the record of his that we do have.)

Scalia never supported equal protection or due process rights for gays and lesbians. More than that, he explicitly did support and approve animosity and discrimination against them.

Let's review each of the relevant cases in which Scalia participated. First, here are those cases in which he wrote an opinion:

Romer v. Evans (1996)
This case involved a Colorado law that prohibited any local law that sought to protect gays and lesbians from discrimination. The Supreme Court ruled that the state law was unconstitutional. By singling out a group to be denied legal protection, the law violated the constitutional guarantee of equal protection.
Scalia dissented.
In Scalia's view, the state law was an appropriate disapproval of homosexuality. In his own words, the law was a "constitutionally permissible" and "eminently reasonable" effort by the state's citizens--who are "entitled to be hostile toward homosexual conduct"--to deny protection "to those with a self-avowed tendency or desire to engage in the conduct." [My emphasis added.]

Lawrence v. Texas (2003)
In this landmark gay rights case, the Court ruled that laws that made same-sex intimacy a crime were unconstitutional.The case specifically involved a Texas law that criminalized "deviate sexual intercourse," defined in part as sexual activity "with another individual of the same sex." The Court held that there was no legitimate government purpose that justified prohibiting and punishing the personal intimacy targeted by the law.
Scalia dissented.
In Scalia's view, it was perfectly permissible to make "homosexual sex" a crime. According to him, the law was a legitimate expression that such conduct is "immoral and unacceptable." He protested that "homosexual sodomy is not a fundamental right" and, therefore, that it could legitimately be made a crime just like "fornication, bigamy, adultery, adult incest, bestiality, and obscenity." [My emphasis added.]

U.S. v. Windsor (2013)
In this case, the Court invalidated that part of the so-called Defense of Marriage Act (federal DOMA) that denied federal marriage benefits to legally married same-sex couples. The Court explained that a "bare congressional desire" to treat "a politically unpopular group" differently was not a legitimate justification for denying them benefits that are available to other legally married couples.
Scalia dissented.
In Scalia's view, DOMA was a valid defense of traditional marriage. He again complained, and claimed, that the majority had "declared a constitutional right to homosexual sodomy." Likewise, he again insisted that the Constitution "let['s] the People decide" whether or not to "enforce traditional moral and sexual norms." [My emphasis added.]

Obergefell v. Hodges (2015)
In yet another landmark gay rights case, the Court ruled that the right to marry may not be denied to same-sex couples. The Court explained that the right to marry is fundamental, that personal choices concerning marriage are part of constitutionally protected liberty, and that there is no legally relevant difference between same- and opposite-sex couples with respect to these matters.
Scalia dissented.
Scalia ridiculed the majority's "extravagant praise of liberty" that "robs the People" of  their right to pass the laws they choose. As with equal rights for women, he insisted that the issue of same-sex marriage was settled "[w]hen the Fourteenth Amendment was ratified in 1868." Although that amendment guarantees equal protection and liberty against state laws, Scalia argued that "every State limited marriage to one man and one woman" when the amendment was ratified, and because "no one doubted the constitutionality of doing so" at that time, "[t]hat resolves these cases." [My emphasis added.]

Two additional major gay rights cases deserve mention. Scalia did not author an opinion in these cases, but he did cast a vote:

Boy Scouts v. Dale (2000)
In this case, the Court held that New Jersey's anti-discrimination law--which among other classifications included sexual orientation--could not be applied to the Boy Scouts. According to the majority's opinion, the Boy Scouts' choice to exclude gays from leadership positions was an exercise of their constitutional "freedom of expressive association."
The dissenting Justices, on the other hand, argued that "eliminating discrimination is a compelling state interest" that justified enforcement of the state's law.
Not surprisingly, Scalia approved the disparate treatment of gays. He joined the majority and sided with the Boy Scouts against the state's prohibition of sexual orientation discrimination.

Christian Legal Society v. Martinez (2010)
This case involved a California state college that refused to recognize and fund a student organization that excluded all gay and lesbian students from membership. The Court upheld the college's non-discrimination policy, which it applied to all student groups, that membership must be open to all students.
The dissenting Justices, on the other hand, argued that the student group was rightfully exercising its constitutional freedom to express its view about sexual morality.
Again, not surprisingly, Scalia voted with the dissenters and, thus, as in every other case, he opposed the position for equal treatment of gays and lesbians.

Yes, in every one of these cases there were arguments and interests presented on both sides. In every case, there were precedential, historical, interpretive, and other policy and legally relevant support proffered for both sides. Indeed, that's the very reason such cases get to the Supreme Court. But in every case, no matter what the arguments or interests, Scalia adopted those against the rights of gays and lesbians.

When a state chose to prohibit local laws that protected gays and lesbians from discrimination, Scalia insisted that the Court should defer to the state's prerogative. But when states chose to actually prohibit such discrimination, he disregarded the supposed need to defer and sided against those state policies.

Regarding laws that criminalized same-sex intimacy and a law that denied government benefits to legally married same-sex-couples, he insisted that "homosexual sodomy" was not a constitutional right. But when confronted with anti-discrimination laws protecting gays and lesbians, he found fundamental rights to exclude them from the Boy Scouts and to exclude them from student organizations.

The inconsistencies in Scalia's legal positions abound. But there is one consistency that only deliberate blindness would fail to see. Scalia was utterly hostile to the protection of gays and lesbians from discrimination. In Scalia's view, such discrimination was perfectly reasonable and constitutionally justified.

To Scalia, the Constitution's guarantee of "equal protection" was to be read as "equal protection except for gays and lesbians, and [as we saw in the last post] except for women."

Once again: Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with Scalia on that? And one more question: Would you really be willing to say so when asked at a Senate confirmation hearing? I guess we shall see.


In the next post, we'll take a look at Scalia's positions on cruel and unusual punishment.

Want Scalia-type Justices? Really? (Part 2: Equal Rights for Women)

In the introductory post, I mentioned several areas of the law in which many of the self-proclaimed admirers of the late Justice Scalia are likely unfamiliar with his actual record, would likely be less admiring if they knew it, or, at the least, would likely express disagreement if they were confronted with it. This applies to both President-elect Trump and to those supposed "Scalia-types" on his list of possibilities for the Supreme Court. Among those areas of the law--and Scalia's record--let's begin with equal protection for women.

Surely, there are some absolute essentials we can all--hopefully--agree upon. Some bare basics of a free and just society. At the very very least, we should be able to agree that our judges believe in certain fundamental principles, that they are committed to them, and that they adhere to them in rendering decisions.

Equal treatment, for example. "Equal protection of the laws" is how the Constitution puts it, and guarantees it. At the very least, our judges should believe in that, be committed to that, and adhere to that.

To be sure, in specific cases, on specific issues, there are good faith disagreements as to what equal treatment entails. But--again hopefully--we can all agree that deliberate, harmful, anachronistic, discriminatory treatment of people based on irrelevant considerations should not be tolerated. Judges rendering decisions under the law should not tolerate it. Judges who, instead, actually endorse or embrace such discrimination are unworthy of their positions and, most certainly, ought not to sit on the nation's highest court.

So when the President-elect says that he admired Justice Scalia and will appoint Justices to the Supreme Court like him, and when other self-proclaimed Scalia admirers cheer, we ought to see what they are admiring and cheering about. Or whether they don't actually know what they are admiring and cheering.

Photo: Bill Pugliano
Getty Images

For instance, Scalia's record on discrimination. As with other issues mentioned in the introductory post, we will examine his actual record on discrimination. Then the question to be asked is, do his self-proclaimed admirers really admire that? Do they really want Justices who agree with Scalia on that? Justices who will vote like Scalia did on that ? Really?

Let's try equal protection for women. Not even issues as controversial as abortion rights. But basic protection of women from discrimination against them because they are women.

Scalia believed that women are not entitled to equal protection under the Constitution. That's right. Not entitled to equal protection. This isn't conjecture. He actually said so. He actually voted and wrote that way. That was his actual record both off and on the Court. Admirers of Scalia, do you really admire that? Really want Justices like that?

Here's what Scalia said a few years before he passed away, in an interview co-hosted by the California Lawyer and the University of California's Hastings College of Law:
Question: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination...So does that mean that we’ve gone off in error?
Scalia: Yes, yes. Sorry, to tell you that...Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.

Scalia admirers, you really want Supreme Court Justices who agree with that? And potential Trump nominees, you really agree with that?

[Following considerable critical reaction to those unequivocal assertions of his, Scalia then equivocated. In an interview in New York magazine 2 years later: "No, you can’t treat women differently, give them higher criminal sentences. Of course not...The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, 'What is discrimination?' If there’s a reasonable basis for not ­letting women do something."]

Lest Scalia's remarks in the California Lawyer interview be discounted as not what he really meant, he argued the same thing on numerous occasions. For example, there was Scalia's dissenting opinion in U.S. v. Virginia (1996). The Supreme Court ruled in that case that it was unconstitutional discrimination for women to be denied admission to the Virginia Military Institute. Scalia disagreed--the only Justice to do so, Republican or Democrat, conservative or liberal.

His disagreement? The majority was not "preserv[ing] our society's values regarding…equal protection." To be sure he was being clear, he cited older Supreme Court decisions that reflected the "values" that he believed should be "preserved." He cited favorably an older decision that upheld laws keeping women off jury rolls (Hoyt v. Florida [1961]), and another one that upheld laws prohibiting women from tending bar (Goesaert v. Cleary [1948]). The Court, in his view, should continue with such rulings.

Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with that?

Then there was his dissenting opinion in J.E.B. v. Alabama (1994). The Supreme Court in that case ruled that it was unconstitutional--a violation of equal protection--for the government's attorney to intentionally exclude potential jurors on the basis of their sex. Scalia disagreed with the majority that there was any problem with gender-based selection of jurors. Indeed, he belittled the majority for its "inspiring demonstration of how sternly we disapprove the male chauvinist attitudes of our predecessors," and for "pay[ing] conspicuous obeisance to the equality of the sexes."

Scalia-admirers, do you really want Justices who would approve "male chauvinist attitudes of our predecessors" in the law, and who would disapprove the constitutional "equality of the sexes?" Potential Trump nominees, do you really agree with Scalia on that?

There are abundant illustrations in Scalia's record of the same contempt for women's equality under the Constitution. He didn't believe in it. That's just fact. That's his actual record.

Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with that?

Next, Scalia's record on the treatment of gays and lesbians--and presumably his views on the entire range of LGBT issues. He was even more hostile!

Want Scalia-type Justices? Really?

Donald Trump

We've heard from President-elect Trump about how much he admired Justice Antonin Scalia. Since early in his campaign, he has repeated that he wants to appoint Justices like Scalia. Trump supporters, both in and out of government, have reacted with great enthusiasm.

To be sure, some actually know about Scalia's record. The Heritage Foundation and the Federalist Society presumably do. They are the two conservative organizations Trump has credited as sources for his list of potential nominees. And Trump has committed himself to choose from that list: "This list is definitive and I will choose only from it." (DONALD J. TRUMP FINALIZES LIST OF POTENTIAL SUPREME COURT JUSTICE PICKS, SEPTEMBER 23, 2016.)

Antonin Scalia

But how many of Trump's supporters and of the self-proclaimed Scalia admirers actually know much about Scalia's record? How much does Trump himself actually know? Perhaps even more critically, how much do those Senators, who now celebrate Trump's promise to appoint Scalia-like Justices, actually know? And how will they react if and when they are confronted by Scalia's actual record?

Beyond that, how will the supposed Scalia-admiring Trump nominee(s) themselves respond if and when confronted with Scalia's actual record? What about the public, if and when they learn about Scalia's actual record? How much will the supposed Scalia-admiring nominee(s) and Senators equivocate on their admiration if and when confronted by Scalia's actual record--especially if and when the prospect of a Scalia-like Justice becomes less popular among the public?

I'm referring to the body of his judicial work. His views on the most pressing constitutional issues of the day. The results he vigorously advocated. Those he fiercely condemned. His actual record.

His actual record, for example:
On freedom of religion. (A 2nd class constitutional right because of his--how else can I say it-- dishonest majority opinion involving a minority religion; ask any religious liberty scholar.)
Or search and seizure. (Not just stop and frisk, but government surveillance generally.)
Or cruel and unusual punishment. (Not just the death penalty, but barbaric, unnecessarily painful punishments.)
Or women's rights. (Not just abortion rights, but entitlement to equal protection.)
Or gay and lesbian rights. (Not just same-sex marriage, but any protection from discrimination.)
Etc., etc.
(We'll discuss each of these in the next post.)

Recall when the supporters of President Reagan's Supreme Court nominee Robert Bork were confronted with his actual record--his writings both on and off the bench. Bork's formerly strong support among the public, Reagan, and the Senate dissipated. Ultimately, of course, his nomination was defeated. A conservative jurist might well be appealing. But not one whose record, like Bork's, seemed to be--or was made to seem--downright reactionary.
(On a personal note, I got to know Judge Bork a bit the year I spent in Washington as a Supreme Court Fellow. I liked him very much and was sad to see him humiliated in defeat. I was not a fan of his record, but I was a fan of his.)

At least as much as Bork's, Scalia's record was downright reactionary. Call it originalist or textualist or traditionalist or constitutionalist or whatever adjective one might choose. Good, bad, or indifferent, it was reactionary.

Scalia wanted to take constitutional law back to 1787 when the Constitution was adopted, to 1792 when the Bill of Rights was approved, and 1868 when the 14th Amendment (inter alia , equal protection) was ratified. Perhaps he adopted this posture out of a sincere fidelity to his avowed view of the judicial role. Perhaps it was a convenient means to support the results he preferred to begin with. Whatever the truth of that, the positions he advocated on many of the most important constitutional issues of our time were downright reactionary.

But more to the point here, if and when the Senators and the public are confronted with Scalia's actual record--the reactionary results he preferred and positions he advocated--his supposed admirers may be less admiring and the supposed supporters of Scalia-like Justices less supportive. Yes, his positions on religious liberty, women's rights, search and seizure, cruel and unusual punishment, etc. His actual record with which the supposed Scalia-like Trump's nominee(s) and the supposed Scalia-admiring Senators should be confronted.

We'll take a survey of some of those positions advocated by Scalia--his actual record--in the next post.

(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 2) Court Elders: The Septuagenarian Justices

[Hope everyone had a wonderful Thanksgiving.

Have to mention that I had my 1st Flagel (= flat bagel) at my brother and sister-in-law's. LOVED it!. It's not quite eggplant parm or turkey, but it's awfully good!]

In the last post, we took a look at recent retirees. Three of them. Justices O'Connor, Souter, and Stevens. We then identified the 4 septuagenarians currently on the Court. We looked at 2 of them: Justices Ginsburg and Scalia.

We considered their ages-- now and at the end of re-elected President Obama's next term--the ideological leanings evident from their voting records, and some indications of their readiness or not to retire in the next 4 years. [See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012.]

Let's now continue with the other 2 Justices who are in their 70's: Kennedy and Breyer.

Anthony Kennedy Conservative, but liberal on some issues.

(click to enlarge)

Justice Kennedy would not seem to be a good bet for retiring too soon.

As all Court watchers are well aware, Justice Kennedy is a generally conservative Justice. But he's not nearly as one-sidedly so as Scalia or Thomas. And being less-rigidly ideological, he is the frequent swing-vote on the Court. In other words, his vote often decides the cases.

Now that surely makes him one of the most powerful people in American government today. He is, perhaps, second only to the President himself. Certainly that is true on constitutional and other legal matters. Likewise on political matters that raise constitutional and other legal issues.

As such, in the most consequential cases before the Court, it is his vote that is most often the most solicited. Both by litigants and by the other Justices.

Court Elders: The Septuagenarian Justices (Part 1)

[Back from surgery. All went well, thank you.

And thanks to all the wonderful folks at Albany Med.]

With the re-election of President Obama [Disclosure: I'm unabashedly elated.], thoughts turn to the Supreme Court.

For Court watchers, as well as just about anyone else who follows politics and government, the question of possible Justice retirements and replacements comes to the fore. Four of the Justices are in their 70's. Three will be 80 or older 4 years from now, at the end of the Obama presidency.

(click to enlarge)

Those septuagenarians are Justices Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy, and Stephen Breyer.

Now let's get one thing straight. This is not a death watch. (Others have engaged in that--explicitly.) Nor is this an illness watch. No. My fervent wish is that all the members of the Court would live long and healthy for double their current ages and beyond. So, No.

But this is about the reality and history of retirements. Leaving the Court for a host of different reasons. And at different ages.

Supreme Court: Short List to Replace Stevens (Part 6: Sidney Thomas)

Haiti

[Again, just to be clear: No, I'm not there. Just keeping it in mind. And while I'm at it, Chile, Indonesia, New Orleans, and wherever there is suffering that demands assistance and reminding.]
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[First, a Correction/Clarification. As a good friend reminded me after reading the previous post on Jennifer Granholm--specifically regarding my singling out Justice Thurgood Marshall as a civil rights attorney-- Justice Ruth Bader Ginsburg was, of course, a noted civil rights attorney prior to her judicial career as well, especially for women's rights. It should be added that she was also a law professor for many years. But (and I really have no "buts" when it comes to that extraordinary person, woman, lawyer, Justice), she was already an established member of the judiciary by the time she was appointed to the Supreme Court. Justice Thurgood Marshall, by contrast, had only been a federal judge for a few years--after nearly 30 years as a civil rights lawyer extraordinaire--before being elevated to the Supreme Court. That was my intended point.]

Sidney R. Thomas

He's white, a guy, born and educated in Montana, a Protestant, and apparently straight.

In other words, he's not a minority or a woman--you know, the only people President Obama cares about, or so some think.

He's not a New Yorker or even an Easterner--there are already 3 New Yorkers on the Court (Scalia, Ginsburg & Sotomayor, and even Roberts who was born in Buffalo), and only 1 Westerner (Kennedy).

He was not educated at one of those Northeastern Ivy League law schools, and especially not at Harvard or Yale--every Justice, except retiring Justice Stevens, graduated from Harvard or Yale or, in the case of Justice Ginsburg, from Columbia after studying her 1st 2 years of law school at Harvard.

He's not another Catholic or Jew--6 Justices are Catholic (Roberts, Scalia, Kennedy, Thomas, Alito, & Sotomayor), 2 are Jews (Ginsburg & Breyer), and only retiring Justice Stevens is Protestant.

He's not gay, or so it would appear he's not inasmuch as he's married with 2 children and no one seems to be claiming otherwise. In any event, he's not a gay or lesbian activist with a same-sex marriage agenda that would scare the bejesus out of some Senators and almost certainly spark a filabuster.

So there's plenty about Judge Thomas that would commend him to those Senators (and their constituents) who are Obama's (and liberals') reflexive opponents. A Judge Thomas nomination removes many of the specters that most frightens or galls many conservative Senators (and, again, their constituents) about a liberal, minority president getting a second nomination to the Supreme Court.

A few other things. Thomas practiced law for nearly 20 years after he graduated from law school--and he did so in Montana, not in some big Eastern-establishment law firm in New York or Washington. He was appointed by President Clinton to the 9th Circuit in 1996, so he's had federal appellate judicial experience for 14 years--he's not a rookie to judging.

But there's one trait of Judge Thomas that undoubtedly towers over, or trumps, everything else. For Obama and his most ardent supporters it is a huge and essential positive for the next Justice. For Obama's opponents in the Senate and the conservative commentariat, as well for much of the electorate, it's almost certainly a deal killer and the trigger for a heated, bitter, and prolonged confirmation battle.

Judge Thomas is a liberal. More than that, and he has a long, liberal paper trail.

Thomas has been prolific as a federal appeals Judge, and his opinions would be used against him in confirmation hearings and in public relations warfare. Some conservative commentators are already geared up for a fight if he is nominated. He is, according to them, a Judge on the radical left wing of a radical left court--i.e., the most liberal of the federal appeals courts, and the one that the (conservative) Supreme Court reverses much more than it does any other court.

Of course this has little to do with "objective," "neutral" merit. Certainly nothing to do with how smart Thomas is, or how well educated, or how competent as a lawyer or judge, or how well he can write opinions, or how much he understands about the nature of judging and the role of judges and courts (especially the role of the Supreme Court in our federal republic), or how honest and fair and ethical and otherwise honorable he is.

But it certainly does have a great deal to do with how he sees the world, how he sees the role of government and the liberties and equal treatment of people in a free society, how vigorous or passive he believes the Supreme Court should be, and how he will vote.

Yes, there's lots of lip-service from both Democrats and Republicans that how a nominee will vote does not or should not matter in the confirmation process, just so long as the nominee is qualified. But that is largely nonsense. It's nonsense to suggest that it doesn't matter. It's nonsense to say it shouldn't matter. It does and it should.

We're not talking about a traffic judge. (And even there it matters!) We're not talking about some low-level bureaucrat. We're talking about a Justice on a Court that is the final arbiter of the most critical issues of life and liberty in a free society. How the Justices vote matters. How a nominee would vote matters. And how a nominee would vote matters even more when the Court is split 5-4 on so many of the most crucial questions for the country.

In short, Obama's and the liberals' opposition would be crazy NOT to care about how an Obama nominee would vote if confirmed. And they WILL care very much about a nominee like Thomas. He would not be an easy confirmation. He would face vigorous, concerted, sustained opposition. For that reason, it doesn't seem very likely that he'll get Obama's nod.

But just in case he does, or just to see why he would face such opposition, let's take a quick look at some of his opinions. In fact, let's just look at a few of his recent dissenting opinions--you know (and are probably tired of hearing) that these are the most revealing of the opinions a judge writes. These reveal what's important enough to go public with one's disagreement with colleagues who constitute the majority of one's court.

As for Thomas, he's written plenty of them. Since his appointment 14 years ago, he has written about 100 dissents. By contrast, for example, Judge Merrick Garland, who is also being considered by Obama, has authored only 15 since he was appointed 13 years ago. Judge Diane Wood, also apparently on the short list, has been a very active dissenter on the conservative 7th Circuit where she sits. But even her output, a little more than 50 dissenting opinions in 15 years, is half of Thomas's. (The possible nominations of Judges Garland and Wood were profiled in previous posts on New York Court Watcher: Supreme Court: Short List to Replace Stevens (Part 2: Diane Wood), April 24, 2010; Supreme Court: Short List to Replace Stevens (Part 4: Merrick Garland [1]), May 3, 2010;Supreme Court: Short List to Replace Stevens (Part 4a: Merrick Garland [2]) , May 4, 2010.)

So let's check out some of Thomas's dissents. For lack of a better, less cherry-picked selection, let's just look at his last 5 dissents.

In Bull v. City & County of San Francisco (2010), the appeals court upheld a policy to strip search all arrestees who were being jailed, as well as any prisoner who had contact with an outside visitor. Thomas dissented on the ground that the policy applied to all arrestees regardless of the nature of the crime or whether there was any reason to suspect danger or criminal evidence.

In Pugh v. Astrue (2010), the appeals court affirmed the trial court's denial of a claim for social security disability benefits. Thomas dissented, arguing that the trial court should have reviewed the claim and not merely rubber stamped the administrative agency's decision to deny benefits.

In Norwood v. Vance (2010), the appeals court approved the decision of prison officials to disallow any outdoor exercising during lockdowns which extended for most of 2 years. Thomas dissented, arguing that his court should have upheld the trial court's ruling, based on a jury verdict, that the action of the prison officials was unjustified.

In U.S. v. Mitchell (2009), the appeals court upheld a drug conviction despite a juror at trial who might have been biased because her close relative was killed by a drug dealer. Thomas dissented, arguing that the trial judge should not have seated the juror who said that her judgment might be affected, and that the judge's error required an automatic reversal of the conviction.

In Martinez-Madera v. Holder (2009), the appeals court upheld an order to deport an alien who was convicted of attempted murder, despite the fact that his stepfather was a U.S. citizen. Thomas dissented, arguing that the defendant had been raised by his stepfather since the age of 6 months, had been treated as the stepfather's son for over 40 years in this country, and was thus entitled to be treated as the son of the citizen stepfather--which would preclude deportation.

Now, just a few more dissents in recent years. These I am cherry-picking as among those which Thomas would surely be grilled about were he to be nominated.

In Jacobs v. Clark County Sch. Dist. ((2007), Thomas argued in dissent that a mandatory school uniform policy violated the students' constitutionally protected free speech.

In U.S. v. Comprehensive Drug Testing, Inc. (2008), Thomas argued in dissent that the government had engaged in an unconstitutional search when it looked for the drug testing records of 11 major league baseball players in computer files, as authorized by a warrant, but then found the records of numerous other players in the course of that search.

In Shahverdy v. Mukasey (2008) [and several other cases], the appeals court affirmed the order of the Board of Immigration Appeals which denied an alien's request for asylum because it did not believe the alien's claim that she would be subject to persecution in her home country. Thomas [in this case and the others] dissented on the ground that the alien's claims were wrongfully discounted.

In U.S. v. Kelley (2007), a search of the defendant's home computer, conducted pursuant to a warrant, uncovered child pornography. The appeals court upheld the search, but Thomas dissented, arguing that the warrant was not supported by probable cause to believe that Thomas actually had any child pornography on his computer.

In U.S. v. Cortez-Rocha (2005), the appeals court upheld a border agents' search of the defendant's spare tire which uncovered marijuana. Thomas dissented on the ground that there was no justification for the search.

In Jespersen v. Harrah's Operating Co. (2006), the appeals court held that it was not sex discrimination for a Nevada casino to require its female bartenders to wear make up. Thomas dissented, arguing that the casino's policy conformed to outdated and impermissible sex stereotypes.

OK, that's enough. The patterns are clear. In both criminal and civil cases, Judge Thomas is what's known in common parlance as a liberal. Quite liberal.

Now that might not be offensive to everyone. [ Disclosure: It certainly is not to me. Whether or not I agree with all of Thomas's opinions--and I do not--I do prefer judges who err on the side of being liberal, i.e., on the side of civil rights and liberties and social justice and generally being progressive, than those whose impulses are the opposite.] It will actually be very welcome to most Obama supporters and other liberals. But it WILL be cause for dismay and fierce opposition from others if Thomas is nominated for the Supreme Court.

Just think again about those few opinions we just identified. Just think about what was involved. Prisoners. Drugs. Aliens. School discipline. Child pornography. Traditional view of the sexes. On all of those matters, Thomas was on the less popular side of the issue. In fact, the very unpopular side of most of those issues. The side of the issues that many will have serious and even thoughtful disagreements with. But more than that, the side of the issues that can be exploited and demagogued by Obama's political opposition.

It would be a nasty and divisive nomination fight. And one that I would not bet on Obama and Thomas to win. Obama and his advisers surely know that. For that reason, I think that a Thomas nomination is a very long shot.

Well, the word is that a nomination is very shortly forthcoming. We shall see and, naturally, we shall then blog!