Tag Archives: federal courts

The Shadow Docket

When Senator Tim Scott gave the GOP’s rebuttal to President Biden’s address to Congress, one of his complaints was that the President hadn’t re-opened the nation’s schools. He evidently assumed that America’s widespread lack of civic knowledge would obscure the inconvenient fact that Presidents have no authority over public schools.

It’s called federalism, Senator. Look it up.

Speaking of civic knowledge, I have frequently cited a poll from a couple of years ago that found–among other, multiple deficits of civic knowledge–that only 26% of Americans could name the three branches of government. Although the survey didn’t ask the question, I’m reasonably certain that even fewer understand why the Founders opted for separation of powers–or why they wanted to insulate the judicial branch from the wrath of the electorate.

Both the legislative and executive branches are elected, and thus accountable to voters. (We’ll leave for another day’s discussion the gerrymandering and voter suppression tactics that have substantially eroded that accountability. We’re talking theory now.) The federal judiciary wasn’t just unelected, it was appointed subject to Senate confirmation–and once appointed, judges serve for a lifetime. The theory–the hope–was that judges would rule on the basis of their understanding of the Constitution, and would not need to worry about losing their job if that understanding was contrary to the desires of the public.

Right or wrong–and sometimes they would be wrong– those rulings would be based upon the judge’s honest and informed evaluation of the merits of the argument.

Thanks to politicians like Mitch McConnell, that ideal of dispassionate and informed rulings meted out by  judges insulated from partisan pressure has been breached, perhaps irreparably. The arguments about “term limits” for Justices, for adding Justices to the Supreme Court, and for other changes to the federal judiciary are responses to the blatant politicization that has eroded public confidence in and respect for the judicial system. (I’m not a fan of sports analogies, but I’ll suggest one: if an umpire is believed to be “in the pocket” of Team A, fans of Team B aren’t going to respect his calls.)

The ultimate “fix” for the current situation is unclear, but while lawyers, legal scholars and political figures squabble, we have increasing evidence that the current Supreme Court is ignoring precedent in favor of partisan ideology. A recent New York Times op-ed by a law professor from the University of Texas shone a light on the Court’s use of its little-understood “Shadow Docket.”

Late last Friday, the Supreme Court, by a 5-4 vote, issued an emergency injunction blocking California’s Covid-based restrictions on in-home gatherings on the ground that, insofar as they interfere with religious practice, they violate the First Amendment’s free exercise clause.

Reasonable minds will disagree on this new standard for free exercise claims. But a far more glaring problem with the court’s decision is that it wasn’t an appropriate moment to reach it.

Like so many of the justices’ more controversial rulings in the last few years, this one came on the court’s “shadow docket,” and in a context in which the Supreme Court’s own rules supposedly limit relief to cases in which the law is “indisputably clear.”

Whatever else might be said about it, this case, Tandon v. Newsom, didn’t meet that standard. Instead, the justices upended their own First Amendment jurisprudence in the religion sphere, making new law in a way their precedents at least used to say they couldn’t.

The term “shadow docket” was coined to describe that part of the justices’ job that involves summary orders addressing management of the Court’s caseload, rather than decisions on the merits of cases.

But recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond those issues, especially orders changing the effect of lower-court rulings while they are appealed. Indeed, Friday night’s injunction was at least the 20th time since the court’s term began last October that the justices have issued a shadow docket ruling altering the status quo. And the more substantive work that the justices carry out through such (usually) unsigned and unexplained orders, the more the “shadow docket” raises concerns about the transparency of the court’s decision making, if not the underlying legitimacy of its decisions.

In fact, the author tells us that this ruling was the seventh time since October that the justices have issued an emergency injunction — and that all of them have blocked Covid restrictions in blue states on religious exercise grounds.

If all three of those branches that few Americans can name are “accountable” to partisan passions–if there is no demonstrably impartial arbiter of constitutional disputes–America’s slide toward civil chaos will continue to gather speed.

 

Skinning That Cat

There’s an old adage to the effect that there is more than one way to skin a cat. I thought about that when I read a recent opinion column in the New York Times, focusing on Mitch McConnell’s packing of the federal bench with rightwing judges.

The article began by acknowledging that McConnell and Trump–enabled by their allies in the Senate– have packed the federal courts with more than 200 conservative judges over the last four years. Their remaking of the federal judiciary includes three Supreme Court justices, and is part and parcel of the rightwing effort to achieve what it could never manage to achieve through legislation– “including eliminating health care for millions and undermining what remains of the Voting Rights Act.”

The authors of the essay remind readers that we are not entirely helpless in the face of this ideological takeover; they advocate taking a page from the conservatives and forging “a new form of progressive federalism.” 

First, state elected officials must be ready to respond quickly to, or act in advance of, rulings from the Supreme Court. If, for example, the Affordable Care Act is weakened or struck down, Democratic state legislatures should have bills drafted to introduce that day to protect people who will lose coverage. And officials must act now to protect and expand access to reproductive health care — especially for poor women and women of color — given the clear threat to Roe v. Wade.

Are excessively business-friendly federal courts making it easier for companies to pollute? Harder for government agencies to address racism? Progressive states can pass policies “to patch holes ripped open” by those courts.

if the Supreme Court further constrains the Consumer Financial Protection Bureau, states can go after corporations for violations of state securities and consumer protection statutes. If the court adopts cramped readings of federal environmental statutes, state regulators must use their tools to go after the country’s largest polluters. And if the court continues to undermine federal bribery laws, state attorneys general can bring corrupt politicians to justice under state criminal law.

What about states like Indiana, deep red and highly unlikely to follow that prescription? In those states, progressive advocacy groups and lawyers outside government can bring lawsuits to enforce rights protected by state constitutions. When I was Executive Director of Indiana’s ACLU, our affiliate brought such suits, and several were successful. And in the early days of the gay rights movement, organizations like Lambda Legal and the ACLU achieved state-by-state victories that ultimately helped change a nationally homophobic legal environment.

Recently, Nevada became the first state in the country to officially protect same-sex marriage in its Constitution. As the essay reminds us, several states have refused to allow their police take part in the federal government’s immigration crackdown. States

can rely on conservative decisions that promote state independence from the heavy hand of Washington. The very jurisprudential tools that make it harder for Washington to achieve progressive aims can empower states to do so instead.

Ironically, the same federalism that facilitated slavery and Jim Crow under the veil of “states’ rights” can be turned to progressive ends.

It’s slower and will take more work, but there’s more than one way to skin that cat.

 

Denialism And The Courts

Mitch McConnell has made no bones about his highest priority–capturing the judiciary for his version of “conservatism,” and–at this. juncture, with continued control of the Senate in considerable doubt–super-charging the confirmation of nominee Amy Coney Barrett to the Supreme Court.

The likely confirmation of Barrett (who reminds me of one of the Stepford Wives), a perfect replica of a 1950’s “lady” but “new and improved” with a law degree, has been the focus of much speculation. Her ascension to the court would accomplish the dearest wish of the GOP base– a lopsided 6-3 Court majority for their brand of conservatism. A recent article from New York Magazine is representative.Titled “Trump’s New Supreme Court is Coming for the Next Dozen Elections,” the article points to the likely consequences for electoral politics:

When Judge Amy Coney Barrett sits for questions before the Senate Judiciary Committee in mid-October, no doubt Democrats will pepper her with questions about whether she would recuse herself in any Trump v.Biden election lawsuit to come before the Supreme Court. Although that’s an important question to ask, perhaps the bigger question is what it wouldmean in the long run for voting and election cases to have a sixth conservative justice on the Supreme Court.

In short, a Barrett confirmation would make it more likely we will see a significant undermining of the already weakened Voting Rights Act — the Court said on Friday it will hear a case involving the law. A 6-3 conservative Court might allow unlimited undisclosed money in political campaigns; give more latitude to states to suppress votes, especially those of minorities; protect partisan gerrymandering from reform efforts; and strengthen the representation of rural white areas, which would favor Republicans.

Other predicted consequences include striking down the Affordable Care Act and–of course–overruling Roe v. Wade.

There is a measure of uncertainty about the extent to which COVID will complicate McConnell’s super-charged timeline. (I don’t wish hospitalization or death  on anyone, but given the irresponsibility of the President and GOP, I don’t think it’s wrong to hope for a couple of weeks of extreme discomfort and an inability to participate in deliberations/votes.) Lindsey Graham, who heads the committee has refused to take a COVID test despite several incidents of exposure–presumably to avoid having to isolate and thus delay the hearings.

The likelihood of Barrett’s confirmation has generated serious discussion about a Biden Administration adding Justices to the Supreme Court. Although the media has labeled that possibility “court packing,” law and courts scholars have discussed adding Justices and similar reforms (having federal appellate judges “rotate” onto the Court for specific periods or cases, term limits for Justices, etc.) for years–long before Trump’s assault on judicial independence. For that matter, the Judicial Conference has noted the need for additional judges  in a statement to the Senate Judiciary Committee.

“The effects of increasing caseloads without a corresponding increase in judges are profound,” wrote Judge Brian Miller of the United States District Court for the Eastern District of Arkansas on behalf of the Judicial Conference of the United States. He continued:

Delays increase expenses for civil litigants and may increase the length of time criminal defendants are held pending trial. Substantial delays lead to lack of respect for the Judiciary and the judicial process. The problem is so severe that potential litigants may be avoiding federal court altogether.

Whatever actually happens, I want to make a point I’ve not seen discussed: the arguably incorrect labelling of Justices like Alito and Thomas, and nominees like Barrett–not to mention some of the Neanderthals McConnell has placed on lower courts–as “Conservative.”

Conservatives want to preserve values that they believe are necessary to the social order; they are consequently cautious about change or innovation. People of good will can and do debate which values meet that definition and why, and “caution” about change is not the same thing as “adamant opposition.’ (If you are interested in seeing what actual, responsible conservatism looks like, visit the site of the Niskanen Center.)

The people McConnell’s GOP has placed on our courts aren’t conservative in the time-honored meaning of that term. If anything, they’re radical. To appropriate a phrase used by historian Stephanie Coons, they want to return to “the way we never were,” a fondly-remembered, wholly fictionalized White Christian America in which the “little woman” dutifully attended her husband, LGBTQ people were in the closet back behind the coats, and dark-skinned folks “knew their place.”

We are in a period of paradigm shift, and a substantial portion of our fellow citizens are–as the saying goes–standing athwart history yelling stop.

To call those people “conservatives” is unfair to the genuine article.

 

 

These Are The People Running Our Country..

This is truly terrifying.

Ed Brayton at Dispatches from the Culture Wars reports on one of those “best people” Trump promised us. This time it’s a communications person in the Department of Health and Human Services.

As a fringe right-wing political commentator, Ximena Barreto claimed that “African-Americans are way more racist than white people,” labeled Islam “a fucking cult” that has “no place” in the United States, pushed the false Pizzagate conspiracy theory, and attacked the “retarded” 2017 Women’s March. In December, she became a deputy communications director at the Department of Health and Human Services (HHS)…

Brayton buttresses this description with specifics of the time, place and rhetoric employed. Click through to see the rest, but here’s a taste:

During her November 30, 2016, Periscope, Barreto said that Islam advocates for “killing other people and abusing women; that’s not a religion, that’s a fucking cult. Like, I’m serious. Like, that’s not religion.” She also said during a June 12 video that Islam is “just a cult. All the practices are cult-like, all that they do.”

During a December 4, 2016, Periscope video, she wondered aloud whether there are members of the Muslim Brotherhood in the U.S. government — a common conspiracy theory among anti-Muslim right-wing media. After someone asked if there’s a Muslim Brotherhood plan in the United States, she replied: “Well, how many of them are in the government already, you know? Like in Congress?”

In a May 25 post on the now-defunct website Borderland Alternative Media, she suggested that practicing Islam should not be allowed in the United States.

Even if her appalling bigotries weren’t disqualifying, her obvious ignorance should have been.
As disquieting as it is to know that these are the sorts of people being hired by our federal government agencies, the fact that so many judicial nominees are only marginally better is far more terrifying. Employees can be replaced; judges are lifetime.
Even the extremely conservative Neil Gorsuch answered that question without equivocation during his confirmation hearing last March. Gorsuch called Brown a “seminal decision that got the original understanding of the 14th Amendment right.” He added that Plessy was a “dark, dark stain” on the Supreme Court’s history.

For 10 minutes in December, the public was agog at the spectacle of Sen. John Kennedy of Louisiana, in his grits ’n’ biscuits twang, shredding a Trump judicial pickto ribbons over his lack of courtroom experience. Kennedy’s evisceration of federal district court nominee Matthew Spencer Petersen was a good show, as shows go, serving to highlight the ways in which some of Trump’s judicial selections were unprepared, entitled, and rushed through the vetting process. Petersen withdrew his nominationnot long after video of his abject performance went viral. The White House also pulled backtwo nominees: Jeff Mateer, who has referred to transgender children as a part of “Satan’s plan,” and36-year-old Brett Talley, who has never tried a case and once defended the “original KKK.”

These nominees are not jokes, and they are not cartoonish bumblers. They are highly effective and respected thinkers with agendas not unlike that of Trump’s Supreme Court nominee Neil Gorsuch. They will create a judicial branch that is hostile to women’s rights, workers’ rights, voting rights, LGBTQ protections, and the environment. And they will do so capably and under the radar. We giggle at the Trump judges at our peril.
I’m not giggling. I’m drinking.

Polluting The Judiciary

Assuming a sufficient turnout of Democrats, Independents and Republicans horrified by Trump, much of the daily damage being inflicted by this administration can be rectified.

But some very real damage cannot be undone, and the evisceration of the role played by the federal courts in checking unconstitutional behavior by government is one of the most consequential.

We’ll be stuck for a generation with judges like Kyle Duncan–one of the many ideologues and bigots being nominated and confirmed to the federal bench.  

Lambda Legal has sent out an alert about Duncan:

Kyle Duncan, a lawyer who has built his career around pursuing extreme positions that target members of the LGBTQ community, has been nominated by Donald Trump for a lifetime appointment to the U.S. Court of Appeals for the Fifth Circuit.

A brief Google search confirms Lambda Legal’s warning. Duncan is best known as the lead lawyer in the infamous Hobby Lobby case, in which he argued successfully that closely-held corporations should be able to deny their employees insurance coverage for birth control.

A Louisiana news organization called the Bayou Brief described his career:

“(He) is staunchly and vociferously pro-life… (and he) is staunchly and vociferously pro-religious liberty,” Sen. John N. Kennedy, a Louisiana Republican, told colleagues. “I like that about him.”

When a lesbian mother was stripped of her parental rights after moving from Georgia, which recognized her rights, to Alabama, which did not, he argued to the United States Supreme Court in defense of Alabama, claiming, among other things, that the mother’s harms were “overstated.In a per curium decision, he lost that case as well.

Just this year, he unsuccessfully attempted to convince the United States Supreme Court to uphold a North Carolina law that was specifically intended to make it more difficult for African-Americans to vote.

He has won some cases too, though. He successfully convinced a split United States Supreme Court that a district attorney- in this case, former Orleans DA Harry Connick, Sr.- cannot be held liable for certain violations committed by their prosecutors, even if those actions result in a man spending 18 years behind bars on a wrongful conviction.

It is clear from the reporting about Duncan that he is a skilled lawyer, albeit on behalf of what I consider “the dark side,” so I found it interesting–and baffling–that Duncan and his supporters on the religious right found it necessary to beef up his resume by mischaracterizing one of his former positions. The claim was that he had been  “Solicitor General” of Louisiana.

Carrie Severino of the Judicial Crisis Network repeated the same claim in a short column published in The National Review. “Kyle served four years as Louisiana’s first Solicitor General,” she wrote (emphasis added), “performing so well that he has since been called back to represent the state repeatedly as special counsel.” (Severino’s organization spent a small fortune promoting Duncan, even releasing a television ad on his behalf).

Among many others, Breitbart and the Heritage Foundation also described Duncan as the state’s very first Solicitor General.

There is no such office under Louisiana law.

“Captain Crunch has more of a real job than anyone claiming to be Solicitor General of Louisiana,” a lawyer with extensive experience in state government told The Bayou Brief, on the condition of anonymity, “because at least Captain Crunch is on a cereal box.”

While this transparent puffery suggests a lack of integrity–or at the very least, the sort of meticulous attention to accuracy that good lawyers possess–that’s the least of the problems we should all have when a committed culture warrior is elevated to the federal bench.

Lawyers advocating for their clients, or for their favored interpretation of the law or the constitution are entitled to be zealous (albeit not zealots). We expect judges to approach their jobs with a very different, far more disinterested “judicial temperament.”

If Senate Republicans cared about their obligation to the Constitution and their duty to “advise and consent,” ideologues like Duncan would not be confirmed. But the Senate GOP–described by former George W. Bush speechwriter David Frum as “lickspittles”–has abandoned even the pretense of independence or statecraft.

We the People are about to lose objective courts of law for a generation.