A Judiciary Meant For Better Things

The United States Supreme Court

It was a jarring last week of the Supreme Court’s 2017 term. On Monday, the Court reversed lower court findings that Texas’s legislature had racially gerrymandered its state legislative districts. On Tuesday, the Court struck down California regulations intended to regulate the disinformation that so-called “crisis pregnancy centers” give to women seeking an abortion and upheld President Trump’s travel ban as a facially neutral immigration regulation rather than the blatant religious discrimination it plainly was. And on Wednesday, Justice Alito finally found five votes for his six-year-long campaign against public sector unions, as the Court effectively enshrined “right to work” legislation into the constitution, applicable to all fifty states. Each of these decisions was by a 5-4 vote, with Justice Gorsuch in the majority, contentedly in the background supporting decisions of his longer-tenured colleagues. Each decision, in its own way, ignored settled precedent, exposed blatant contradictions with the majority’s prior views, and set back democracy and civil rights decades.

But it was Justice Anthony Kennedy’s retirement later that Wednesday that proved to be the gut punch that underscored just how deeply damaging the 2014 and 2016 elections were. In 2014, the GOP essentially ran a campaign against Ebola-infected ISIS terrorists crossing into Texas through the southern border, and then used the Senate majority they built from that disingenuous messaging to block President Obama from placing a reasonable, consensus jurist on the Supreme Court. And in 2016, a minority of voters, elevated through the electoral college, allowed an authoritarian demagogue to fill that seat and any others that might arise. For all his unorthodoxies, President Trump surely knows that fidelity to the Federalist Society is his most important political consideration. As a result, Justice Kennedy’s withdrawal from public life surely means the medium-term end of a Supreme Court able to project the best ideals of our founding fathers. Continue reading

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The Rosenstein Conundrum

Rod Rosenstein

A comedy skit performed during a recent podcast episode of Slate’s Trumpcast pinpointed one of the most disorienting features of the Trump era for those who oppose it. Comedians Steve Waltien, Kate James, and Asher Perlman held a mock meeting of liberals to reevaluate their political and social opinions given the topsy-turvy happenings of our national moment (among their new verdicts: Rex Tillerson good, Kombucha bad). Beyond the laugh-lines, it’s a deeply resonant concept for those moved by the endless contortions and contradictions of our president. It calls to mind the Mother Jones report from last month that liberal feminist women were congregating at Stormy Daniels strip shows. Life can be confusing when your mantra is “the enemy of my enemy is my friend.”

Perhaps no one embodies this push and pull like Deputy Attorney General Rod Rosenstein. He’s a Trump political appointee. But he’s a career Justice Department lawyer with a reputation for integrity. Yet, he authored a deeply disingenuous memo that served as the pretext for James Comey’s firing. But he appointed a Special Counsel to investigate Russia’s election interference and coordination with the Trump campaign. Yet, he has acquiesced in Trump’s efforts to discredit the Russia investigation by releasing misleading FBI agents’ text messages. But he spoke out defiantly against congressional Republicans attempting to derail that investigation. Yet, he gave in to GOP demands to disclose highly confidential investigation materials. Hey liberals, where do we stand on Rosenstein again?

Now, there’s a greater conundrum at the center of the Rosenstein riddle coming to a head in the coming months. The deputy attorney general appears to be the only Trump-appointee insulating the Special Counsel investigation from the president’s meddlesome hands. Yet, that very supervision is becoming one of the Mueller investigation’s greatest threats. Continue reading

Malign Motivations at the Supreme Court

We are now just weeks away from the end of the Supreme Court term and with it a resolution of Trump v. Hawaii. That’s the case that will determine whether President Trump’s executive order banning travel from five predominately Muslim countries will stand (restrictions on travel from North Korea and Venezuela, also part of the ban, are not part of the case). As we previously discussed, the case’s constitutional claims target Trump’s nearly three-year record of vehemently anti-Muslim rhetoric, but the justices were nearly uniformly hesitant to address the president’s bigotry head-on. Consequently, much of the commentary thus far has speculated that a 5-4 majority will uphold the ban. That prediction seems reasonable, if not entirely safe, given the skeptical, even disinterested line of questioning from Chief Justice Roberts and Justice Kennedy regarding “the statements.” Meanwhile, the Court seems poised to dismiss the challengers’ arguments on statutory grounds that the administration discriminated based on nationality and did not actually act to prevent threats detrimental to the United States. Federal immigration law’s broad grant of power and the Court’s traditional deference on matters of national security to the executive seem likely to win the day.

Yet, if the Court upholds the administration’s travel ban, it will have to dispose of the challengers’ constitutional claim that the executive order was motivated by religious discrimination. Perhaps the Court will duck behind the administration’s claim that the challengers lack standing to sustain a constitutional attack. The government has argued that the challengers—U.S. states and their citizens whose family members have been denied entrance to the country due to Executive Proclamation No. 9645—cannot bring constitutional claims on behalf of the affected foreign nationals. That is, the Government contends that Muslims denied entry must bring these claims themselves. While Justice Gorsuch and Chief Justice Roberts appeared intrigued by this jurisdictional attack, they also seemed satisfied by the challengers’ counsel’s response.

If that’s correct, then the Court will have to address the allegation that this travel ban was motivated by religious bigotry head-on. And in doing so, the Court will have to grapple with the string of damning hate that has poured forth from Trump’s mouth and fingers since he announced his campaign for the presidency in June 2015. The initial consensus was that the “gettable” conservative justices—Robert and Kennedy—showed little appetite for parsing the president’s campaign statements and using them to conclude that his order’s roots rest in rank bigotry. While that remains a fair assumption, the conclusion is all the more striking in light of an opinion handed down this week engaging in careful review of public officials’ religious commentary. And it further underscores the flimsy defense of the president floated by another member of the Court’s conservative block at oral argument that unfortunately may prove decisive. Continue reading

Facebook Can’t “Like” This

Facebook’s lawyers are busy these days. On the heels of stories from the Observer and New York Times last month exposing how consulting firm Cambridge Analytica harvested the profile data of more than 50 million Facebook users, plaintiffs firms have jumped into the fray with four lawsuits against Facebook and its officers. And no wonder; the lurid details involved appear to have the makings of both a best-selling thriller and a legal nightmare for the tech giant. By posing as an academic researcher, Aleksandr Kogan, a Russian-American professor at the University of Cambridge, obtained millions of users’ detailed profile data without their consent but with Facebook’s knowledge. Kogan then funneled that information to Cambridge Analytica, a firm owned by the billionaire Mercer family, which used it to build psychological profiles of voters in aid of Donald Trump’s 2016 presidential campaign.

The resulting legal filings have alleged wide-ranging misconduct on Facebook’s part.  Continue reading

Report From The Court: The Justices Try To Take Trump Out Of Trump v. Hawaii

Protestors in front of the Supreme Court

The mood inside the Supreme Court today was grim. Not because the stakes were particularly weighty, though they were, or because the Court is bitterly divided, thought it certainly appeared to be, but because of the reason everyone was assembled on the Court’s last day for its most newsworthy case. On another day, in another context, review of an executive order restricting certain classes of aliens from entry into the United States might have warranted far less attention than the expedited briefing and accelerated hearing Trump v. Hawaii received.  This country’s immigration laws grant the president significant discretion over immigration, and the Court’s precedents have long warned against judicial intrusion into matters of national security. Yet, as the justices knew but only obliquely alluded to, the case was as much about the president himself as the order he signed. Continue reading

Check Your Attorney-Client Privilege

“Attorney-client privilege is dead!” recently lamented our president, a man long concerned about the procedural safeguards and civil liberties of marginalized criminal defendants. The responder-in-chief was referring, of course, to the no doubt startling news that his consigliere, fixer, business associate, marital rape defender, poll questioner, cigar smoking exhibitioner, and money launderer Michael Cohen’s files had been seized by the U.S. Attorney’s Office in Manhattan on a referral from the office of Special Counsel Robert Mueller. Continue reading

The Efficient Skies Are Not So Friendly

The view from an airplane.

There was an outpouring of justifiable outrage at last week’s United Airlines debacle, when private security guards acting on behalf of the airline forcibly dragged an otherwise compliant passenger from his seat on a flight from Chicago to Louisville because of the airline’s self-created, over-booked flight. The event was a veritable YouTube Rorschach Test upon which the viewing public could project its perceptions of social dysfunction. The sordid episode held meaning on any number of fronts­— privatization, corporate privilege, police brutality, and systemic racism among them (the mistreated passenger, Dr. David Dao, is Asian-American). Yet for all the hand-wringing and finger-wagging, the very practice of airline overbooking that caused this mess went unchallenged. A spate of utilitarian articles defended United’s policy, taking issue only with its manner of enforcement. They argued that United failed only by refusing to offer its passengers more money to woo voluntary compliance. But the issue with United’s policy is one of values not mechanics. Airline overbooking replaces respect with the corrupting amorality of efficient breach. Continue reading

If It’s Already Broke…

Donald Trump’s selection of Judge Neil Gorsuch to fill the current Supreme Court vacancy has left Democrats in a difficult position. On one hand, Judge Gorsuch is a qualified and conventional nominee on the conservative end of mainstream legal thought. Under a traditional understanding of the Senate’s constitutional role of providing “advice and consent,” qualified nominees without extreme ideological records should receive a prompt hearing and handy confirmation. Obstruction of Judge Gorsuch under these standards would upend the smooth functioning of the judiciary and politicize the Court, thus undermining public faith in a bedrock American institution.

On the other hand, these aren’t traditional circumstances. Continue reading

Presidency is About Much More Than the Future of the Supreme Court

This story was originally published in The Hill on August 29, 2016.

After mostly ignoring the Supreme Court for the past four years, we are once again engaged in the quadrennial exercise of pretending its members are the most important issue in the presidential election. Desperate to rationalize their increasingly unprincipled support for the Republican nominee, conservatives have taken a leading role in spreading the idea that nothing is more important than the Supreme Court. This is nonsense. While certainly significant, the Court only touches on a narrow band of matters among all those within the public sphere (and only a small slice of possible issues, at that). The United States Presidency—the most powerful position in the country, indeed in the world—is not all about appointing justices to the Supreme Court. Continue reading

Abortion Procedures

The United States Supreme Court from afar.The Supreme Court’s decision last week in Whole Woman’s Health v. Hellerstedt was, at first glance, about what you might expect. In striking down Texas’s admitting privileges and surgical-center requirements for abortion provider facilities as placing an “undue burden” on the constitutional right to abortion, the majority opinion tacked closely to the principles of Roe v. Wade and the prevailing legal standard of Planned Parenthood of Southeastern Pennsylvania v. Casey. Those cases held that a woman has a general constitutional right to a pre-viability abortion, subject to reasonable regulation by the states that does not place a “substantial obstacle” in the way of her exercising that right. The Hellerstedt majority’s major innovation was the unremarkable conclusion that Casey “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer…the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.” The lineup, too, was relatively unsurprising. Justice Stephen Breyer wrote the majority opinion, joined by four justices who had voted to protect abortion rights in the past, and the three dissenters were justices who previously endorsed abortion restrictions. True, Justice Anthony Kennedy’s conclusion was somewhat in doubt and ultimately determinative—he has previously voted on either side depending on the abortion regulation at issue. But given the truly drastic effect of the laws at issue on the availability of abortion providers in Texas and other states, it was hard to square Kennedy’s prior support for the undue burden standard with a nod in their favor.

Upon closer review, however, there was something rather striking about the written opinions in Hellerstedt. Continue reading