Roberts swings with the liberals on Covid safety and church gatherings

I say it all the time: The Supreme Court doesn’t exist to rule in favor of what we like, or against what we dislike, only to determine the constitutionality of laws under fire. Chief Justice Roberts doesn’t always get this right, but last night he did, in upholding state restrictions on churches during the Covid pandemic. The four liberal justices joined his ruling.

This reminds me of Roberts’ swing-vote with the liberals back in National Federation of Independent Business vs. Sebelius (2012), in which he recognized that Obamacare was a constitutional exercise of Congress’ taxing power. For Obamacare is certainly a tax: it’s an amendment to the Internal Revenue Code; it’s calculated based on a percentage of adjusted gross income or a fixed amount, whichever is larger; it raises revenue; it serves the general welfare, and is not a criminal penalty in disguise. It fits the definition of a tax to a tee. Even if you oppose Obamacare (I’m not wild about it myself, and Roberts was never a fan), the point is that Obamacare is not unconstitutional. That’s what matters in a Supreme Court ruling.

Last night in South Bay United Pentecostal Church v. Newsom (2020), Roberts explained (with relative ease) why a state’s social restrictions during pandemic are not unconstitutional. The California church have accused its state governor of violating its religious freedom, by a policy that limits attendance at houses of worship to 25 percent of building capacity or a maximum of 100 attendees, whichever is lower. The church members have been claiming that because the policy allows certain secular businesses, like grocery stores, to operate under looser guidelines, it discriminates against churches in favor of commercial establishments, thus violating the First Amendment.

Roberts pointed out that while California does limit church attendance, it also applies similar or even harsher restrictions to lectures, concerts, movie showings, spectator sports, and theatrical performances. So the question is, are churches more like grocery stores or concerts? And according to Roberts, that’s a question for lawmakers, not justices. When and how restrictions are lifted is a question that the Constitution leaves to state officials, whose decisions shouldn’t be second-guessed by judges who lack the background to assess the health risks of local areas.

And frankly it doesn’t take much sense to see that churches are more like concerts. People gather closely in churches and concerts, and in large groups, for extended periods of time. Grocery stores carry essential food and people can social-distance. Brett Kavanagh didn’t address this point in his dissent, taking it (rather absurdly) for granted that churches are more like grocery stores.

It’s encouraging when justices swing against their own tribe. In itself it means nothing, but it often indicates that at the very least they aren’t ruling as ideologues. Roberts has swung with the liberals on a few occasions — not always rightly in my view, but most of the time. Neil Gorsuch is even better in this regard. He joined the wrong ruling in this case, but he’s usually the best judicial thinker on the court.

Spotlight on Justice Neil Gorsuch

Justice Neil Gorsuch is becoming my favorite justice on the Supreme Court. When he took the oath of office, we all cringed. This was the first Trump appointee to the highest office in the land, and would surely be a boon for the causes of bigotry and crony capitalism. In fact he has proven to be one of the best judicial thinkers on the court, if not the best, and as likely to vote with the liberal justices as his fellow conservatives. Trump’s role model is Andrew Jackson; I wonder how Trump feels about his precious hand-picked justice who has allied himself with the liberals in many cases — two of them in favor of Native American Indians.

I went back through all the SCOTUS rulings since Gorsuch joined the court, and singled out 24 of the most notable decisions, especially the controversial 5-4’s. Out of these 24, I agree with Gorsuch 16 times, or two-thirds. He’s not especially astute on labor law and worker’s rights, but on most matters he’s a sharp jurist. For that matter, in my view, the conservatives on whole come down on the right side about as often as the liberals.

I list the 24 rulings chronologically. The nine which are bolded in red I regard as especially important or noteworthy. Of those nine rulings, I agree with six.

Guilty Pleas (6-3). In Class v. United States (2/21/18), the majority held that a guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of the law that he violated. The decision was penned by Breyer, who argued that the plaintiff “does not in any way deny that he engaged in the conduct to which he admitted. Instead he seeks to raise a claim which would extinguish the government’s power to constitutionally prosecute the defendant if the claim were successful.” He was joined by Ginsburg, Sotomayor, Kagan, Roberts, and Gorsuch. Alito dissented, joined by Kennedy and Thomas. The four liberals and two conservatives (including Gorsuch) had it right. Admission of guilt and challenge to the rightfulness of the law are two separate issues.

Tax crimes (7-2). In Marinello v. United States (3/21/18), the majority ruled in favor of a business owner who didn’t file tax returns and destroyed some of his banking records. They found the Omnibus Obstruction Clause in the Tax Code to be too broad, since it makes it a crime to “obstruct or impede the due administration” of tax laws, without specifying what constitutes obstruction. The decision was penned by Breyer, who said that “to convict a defendant under the Omnibus Clause, the Government must prove the defendant was aware of a pending tax-related proceeding, such as a particular investigation or audit, or could reasonably foresee that such a proceeding would commence”. He was joined by Gorsuch, Roberts, Ginsburg, Kagan, Sotomayor, and Kennedy. Thomas dissented, saying that the majority, “has constructed an opening in the Omnibus Clause large enough that even the worst offenders can escape liability”. He was joined by Alito. The three conservatives (including Gorsuch) and four liberals were right here.

Defense Attorneys Conceding the Guilt of their Clients (6-3). In McCoy v. Louisiana (5/14/18), the majority ruled that a court violates a defendant’s Sixth Amendment rights when it allows defense counsel to admit guilt over the defendant’s express objections — even if counsel believes her strategy is necessary to avoid the death penalty. While criminal defendants have the constitutional right to represent themselves, they do not cede all control over their cases when they opt for the assistance of counsel. Ginsburg penned the decision, joined by Roberts, Kagan, Breyer, Sotomayor, and Kennedy. Alito dissented, arguing that McCoy’s lawyer merely conceded his clients’ guilt in killing his victims, but did not concede guilt of the charged crime of first-degree murder, which requires specific intent. The fact that his client killed the victims was so incontrovertible that the lawyer had no choice but to admit it, or his legal defense would have been feeble. He was joined by Thomas and Gorsuch. Here the four liberals and two conservatives prevailed over three conservatives, and probably rightly. Lawyers usually know best in these cases, but the person on trial should have the ultimate say in admission of guilt. Here’s a case where I disagree with Gorsuch.

Worker’s Rights (5-4). In Epic Systems Corp. v. Lewis (5/21/18), the majority upheld the validity of employment contracts in which employees give up their right to collective litigation against their employer. Backstory: Several years after leaving his job, Stephen Morris filed a class action against his employer in federal court for, among other claims, violations of the federal Fair Labor Standards Act. The suit contradicted the terms of his arbitration agreement: it was in court, and it combined the claims of several employees. Morris argued that since the individualized arbitration clause of the arbitration agreement violated his Section 7 rights of the NLRA, the district court should refuse to enforce the agreement. The Ninth Circuit agreed with him, holding that the arbitration agreement violated the National Labor Relations Acts (NLRA), and also because the Federal Arbitration Acts (FAA) “does not mandate the enforcement of contract terms that waive substantive federal rights”.
— The Supreme Court reversed this finding. Gorsuch penned the decision, first framing the issue as a straightforward matter of resolving a potential contradiction between two federal statutes: “It is this Court’s duty to interpret Congress’s statutes as a harmonious whole.” He then argued that the text and history of the FAA made clear that courts should presumptively enforce arbitration agreements, even those that called for individualized proceedings. Section 7 of the NRLA is silent about litigation. Other statutes are much clearer in their grant of collective litigation rights, and “it is anachronistic to construe Section 7 to confer class action rights”. Gorsuch was joined by Alito, Roberts, and Kennedy.
— Ginsburg dissented, arguing that the majority subordinated employee-protective labor legislation to the FAA. She placed the NLRA in historical context, as an attempt by Congress to correct power imbalances between employers and employees. Agreements to not litigate collectively are comparable to the “yellow-dog contracts” of old — employment agreements in which the employee promised not to participate in any union activities. Ginsburg then made an affirmative argument for a broad interpretation of Section 7 of the NLRA, and concluded that the right to collective action was protected by Section 7, and moreover that nothing in the text of the FAA “requires subordination of the NLRA’s protections”. Ginsburg was joined by Kagan, Sotomayor, and Breyer.
— So here the five conservatives trumped the four liberals, and not for the better. Gorsuch’s starting point was flawed: It is not the Supreme Court’s duty “to interpret Congress’s statutes as a harmonious whole”, as he claims, but to examine each statue on its own constitutional merits. Gorsuch is usually better than this.

Warrantless Automobile Searches (8-1). In Collins v. Virginia (5/29/18), the majority ruled that the Fourth Amendment’s automobile exception does not permit an officer’s warrantless search of a vehicle parked in the immediate surroundings of a home. Sotomayor penned the decision, joined by everyone, except for Alito. It should have been a 9-0 ruling.

Wedding cakes (7-2). In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (6/4/18), the majority upheld a private business owner’s right to refuse to design one of his products in a particular way.
— The well known backstory: A same-sex couple, Charlie Craig and David Mullins, asked a Colorado business, Masterpiece Cakeshop, to make a wedding cake for them. The owner, Jack C. Phillips, refused to make the cake, citing his religious objections to same-sex weddings. Craig and Mullins filed discrimination charges under Colorado’s Anti-Discrimination Act (CADA). The Colorado Civil Rights Commission issued a cease-and-desist order to Masterpiece Cakeshop, which the Colorado Court of Appeals upheld over Phillips’ allegations that both the order and CADA itself violated his First Amendment freedoms of expression and religious exercise. Phillips appealed to the Supreme Court.
— Another important backstory: In a different case, a homophobic Christian named William Jack asked a Colorado business, Azucar Bakery, to make a cake with anti-gay messages on them. Jack wanted two Bible verses written on his cakes: “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:2.” He also wanted the cake to include a portrayal of two grooms holding hands in front of a cross with a red “X “over them. The owner, Marjorie Silva, refused to make cakes like this, citing her objection to derogatory language and imagery. Jack filed discrimination charges, and in this case the Colorado Civil Rights Commission ruled in favor of the baker: The Commission claimed that Azucar Bakery did not discriminate against Jack because of his religious identity, but because his request included objectionable language and imagery. William Jack tried two other bakers, who also refused to make anti-gay cakes for him.
— With these two scenarios in mind: The Supreme Court majority ruled that The Colorado Civil Rights Commission violated Phillips’ free expression rights. Kennedy penned the decision, arguing that the Commission had acted hostile to the Phillips’ religious beliefs, and those violations alone required the Supreme Court to reverse the Colorado Court of Appeals’ decision. Kennedy was right, but he was copping out by leaving open the bigger question — of whether the baker would prevail on the merits of his case alone. Kennedy was joined by Roberts, Breyer, Alito, Kagan. Thomas concurred separately.
— Gorsuch also concurred separately, and he went further than Kennedy and the others, by taking the case on its merits, arguing that the Commission had erred more profoundly. It had failed to recognize that private business owners cannot be compelled to create a product that they object to on religious or moral grounds, which is indeed what the Commission had implicitly acnowledged in its own treatment of William Jack. The Commission, said Gorsuch, should have found in Phillips’ favor, just as it had found in favor for the three bakers who refused to accommodate William Jack. All four bakers were in the same situation. The bakers in the first case refused to sell a cake that denigrated same-sex marriage, just as the baker in the second case refused to sell a cake celebrating same-sex marriage. Most critically: The bakers in the first case were happy to sell to persons of Christian faith, just as the baker in the second case was happy to sell to gay people. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers. Gorsuch’s reasoning was entirely correct.
— Ginsburg dissented, joined by Sotomayor, arguing that William Jack had requested a cake with specific images, statements, and bible verses designed to express rejection of same-sex marriage. In contrast to Jack, Craig and Mullins simply requested a wedding cake. That’s not true: the wedding cake for Craig and Mullins would have obviously had writing and/or imagery signaling a gay wedding, and that’s the reason the baker objected to begin with. If it were just a cake with nothing at all to indicate it was a cake for a gay couple, the baker would have had no problem making it. The bottom line — and the line that only Gorsuch seemed willing to take a firm stand on — is simple: You cannot compel business owners to artistic design; you can only compel them to provide equal access to a commodity. The bakers in both cases — the ones who rejected William Jack’s request, and the one who rejected Craig and Mullins’ request — sold whatever products they made impartially, without any discrimination against anyone. Their doors were open to anyone, on a first come first serve basis, without prejudice. That’s what matters. Ginsburg’s dissent is one of the most feeble arguments she has ever penned.
— The five conservative and two liberal majority was right, but only one member of that seven (Gorsuch) addressed the substantive issue.

Retaliatory Arrests (8-1). In Lozman v. City of Riviera Beach, Florida (6/18/18), the majority ruled that the existence of probable cause for Fane Lozman’s arrest for disrupting a city council meeting does not bar his First Amendment retaliatory arrest claim. A retaliatory arrest claim is one where a plaintiff alleges that he was arrested not because he committed a crime but in retaliation for exercising his free speech rights — most often for publicly criticizing a government official or governmental decision. In this case, the stated reason for Lozman’s arrest was the suspicion that he was disturbing the peace. Lozman claimed that his arrest was retaliation for his criticisms of the council’s plans. The question the court had to decide was: If there was probable cause to suspect Lozman was committing a crime, is he still allowed to make a claim for retaliatory arrest? Kennedy penned the decision, answering in the affirmative, joined by everyone on the court (Gorsuch, Roberts, Alito, Ginsburg, Kagan, Sotomayor, and Bryer) except Thomas, who said in his singular dissent, “I would hold that plaintiffs bringing a First Amendment retaliatory-arrest claim must plead and prove an absence of probable cause.” This four conservative and four liberal ruling should have been 9-0.

Warrantless Searches in the Digital Age (5-4). Carpenter v. United States (6/22/18), was a blockbuster case about how the Fourth Amendment fits into a world of digital surveillance. Analog precedents pointed one way, while digital technologies pointed another. Up until this ruling, third-party doctrine held that any information shared with third parties (phone records, bank records) lost the expectation of privacy and Fourth Amendment protection. The hugest outrage was President Obama’s dragnet collection of internet, email, and phone metadata on every American citizen — an act which obliterated everyone’s privacy fortress. In this case, police obtained cell-site location information (CSLI) from private cell phone company providers about the whereabouts of Timothy Carpenter, who had been suspected of being involved in a series of cell phone store robberies; his personal cell-phone location data provided solid evidence that he was in the vicinity of the crimes. Though the police obtained a court order, Carpenter alleged that they needed a full probable cause warrant.
— The majority agreed with Carpenter, and Roberts penned the decision: “In light of the deeply revealing nature of CSLI, its depth, breath, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.” The information reveals private details of one’s life and violates a reasonable expectation of privacy. Roberts was joined by Ginsburg, Kagan, Sotomayor, and Breyer.
— Three of the dissenters (Thomas, Kennedy, and Alito) rejected the majority view absolutely. Thomas argued that it was time to reconsider the reasonable expectation of privacy theory and move back to a property-focused Fourth Amendment. Kennedy argued that “The court’s ruling puts needed, reasonable, accepted, lawful, and congressionally authorized criminal investigations at serious risk in serious cases, often when law enforcement seeks to prevent the threat of violent crimes.” Alito similarly said the Court had “unwittingly jeopardized the subpoena powers of law enforcement”. The fourth dissenter (Gorsuch) sided with the majority’s view that third-party doctrine was antiquated in the digital age, but suggested a positive law inspired approach to Fourth Amendment rules that would offer at least some leeway to law officials.
— So here Roberts joined the four liberals for an important Fourth Amendment victory. Carpenter signaled the end of the third-party doctrine as traditionally understood.

Terrorism (5-4). In Trump v. Hawaii (6/26/18), the majority ruled that President Trump lawfully exercised the broad discretion granted to him to suspend the entry of aliens from seven Muslim countries into the United States, countries construed to be jihadist hotspots. Roberts penned the decision, joined by Thomas, Alito, Kennedy, and Gorsuch. Breyer filed a dissenting opinion, joined by Kagan. Sotomayor also dissented, joined by Ginsburg. The five conservatives trumped the four liberals, and in my view rightly. The Supreme Court has no power to second-guess the president’s executive decisions, no matter how disagreeable, only to decide if the president’s decisions are constitutional or not. Aliens who have never set foot on U.S. soil have no constitutional rights, and nor should they. While the Constitution prohibits discrimination in the issuing of visas, it does not limit the president’s authority in any way to block the entry of nationals from certain places, just as several presidents have done before Trump. And while the Establishment Clause prohibits unduly favoring one religion over another, there were many majority-Muslim countries that were not subject to Trump’s ban. Trump’s moratorium was not a sweeping ban against any and all Muslims, but a target against certain countries for purpose of national security. Whether or not one agrees that Trump’s ban was necessary, the majority was correct that he has the right to enforce such bans as he sees fit. Presidents have wide discretion on questions of alien entry into the U.S., and that is as it should be.
Side note: I thought Trump’s ban was stupid for many reasons, not least because a place like Saudi Arabia wasn’t on the list of seven countries, even though it spends millions of dollars promoting jihadist warfare all over the world, and even though most of the 9/11 hijackers came from there. The list of seven countries was actually from a law signed by Barack Obama for the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015; Trump’s executive order simply lifted those countries from Obama’s template without any real thought behind it. Regardless of my feelings for the idiocy of these laws and bans, the majority was right: Trump’s ban was not in any way unconstitutional.

Union Agency Fees (5-4). In Janus v. American Federation of State, County, and Municipal Employees, Council 31 (6/27/18), the majority found that the extraction of agency fees from non-consenting public-sector employees violates the First Amendment. Abood v. Detroit Board of Education (1977), which concluded otherwise, is thus overruled. Alito penned the decision, joined by Thomas, Roberts, Kennedy, and Gorsuch. Kagan dissented, joined by Ginsburg, Sotomayor, and Breyer. The five conservatives trumped the four liberals. Wrongly, because the those who refuse to pay agency fees still reap union privileges. They are able to file grievances and expect the union to represent them, and they get all the pay increases and benefit bumps negotiated for them by the union. With Abood overturned, teachers and police must now lobby public employees to pay full union dues, even though those employees will get the same benefits from the union if they pay nothing at all. Abood had made clear that agency fees could not be used to pay for political activity; the fees could only pay for collective bargaining and other apolitical services the union provides, and which all employees benefit from. But Alito found that provision in Abood to be insufficient. “Merely separating out the political and apolitical parts of union fees is not sufficient to respect employees’ First Amendment rights. If non-union supportive employees are forced to pay agency fees to avoid a free-rider problem and ensure that unions have adequate funding to bargain for their members, then those employees are effectively being coerced into funding speech with which they disagree.” Speaking as someone who has worked in a union environment for years (and as a union president for seven years), I can say that Alito’s objection is nonsense.
— Kagan made a trenchant dissent: “There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this nation’s law— and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. The First Amendment was meant not to undermine but to protect democratic governance, including over the role of public-sector unions.”
Side-note: I regard the overturning of Abood v. Detroit as conceptually (if not as drastically) equivalent to the hypothetical overturning of Roe v. Wade. Both were landmark 70s rulings that established important precedents, and have been cited favorably in numerous rulings ever since. But in the minds of those who simply hate the decisions, Abood and Roe were each “poorly reasoned” and inconsistent with fundamental rights (free speech, to life). It is in fact Janus that goes down as one of the most poorly reasoned SCOTUS decisions of the past two years, and let’s hope there is no analogous overturning of Roe v. Wade in the future.

Indian Tax Exemptions (5-4). In Washington State Department of Licensing v. Cougar Den Inc. (3/19/19), the majority ruled that a fuel wholesaler owned by a member of the Yakama Indian Nation was exempt from paying state fuel taxes for using public highways because the Yakama Treaty of 1855 granted members of the Nation the right “to travel upon all public highways” and preempted its obligation to pay the tax. Breyer penned the decision, joined by Sotomayor and Kagan. Gorsuch concurred separately, joined by Ginsburg. Roberts dissented, arguing, “Under our precedents, a state law violates a treaty right only if the law imposes liability upon the Yakamas ‘for exercising the very right their ancestors intended to reserve.’ Tulee v. Washington (1942). Because Washington is taxing Cougar Den for possessing fuel, not for traveling on the highways, the State’s method of administering its fuel tax is consistent with the treaty.” He was joined by Thomas, Alito, and Kavanaugh. Gorsuch countered his fellow conservatives’ literal reading of the treaty by pointing out that the treaty was drafted by the United States in a language the Yakamas could not read, and the Yakamas had relinquished large amounts of territory in exchange for their treaty rights. Under these circumstances, Gorsuch argued, the treaty should be interpreted as the Yakama understood it. The end result is that Gorsuch and the four liberals trumped the other four conservatives in favor of the Indians, and I believe this was the right decision.

Detention of Criminal Aliens (5-4). In Nielsen v. Preap (3/19/19), the majority ruled that the sweeping provision of the Immigration and Naturalization Act — the mandatory detention provision — still applies to defendants, even if they are not detained immediately after being released from criminal custody. The mandatory detention law (1996) requires that criminal aliens (non-citizens) are detained for the duration of their deportation proceedings (without a hearing) because they have past criminal records, years or even decades ago. The result is that people who have never re-offended, rebuilt their lives with their families, and become productive members of their communities are subject to mandatory imprisonment as their deportation case winds its way through the immigration court system, with no hearing to determine if they need to be locked up in the first place. That’s too bad, according to the majority. Alito penned the decision, joined by Roberts, Thomas, Kavanagh, and Gorsuch. Breyer dissented, joined by Kagan, Ginsburg, and Sotomayor. The five conservatives trumped the four liberals. I agree with the majority. Even though I find aspects of the Act to be odious, the case isn’t about whether an alien may be removed from the United States on the basis of criminal offenses, nor whether or how long an alien may be detained during removal proceedings or before removal. It addresses the narrow question of whether the mandatory detention provision of the Immigration and Naturalization Act was being violated or not; and it clearly was not. Put simply: the courts lack jurisdiction to decide questions concerning the detention of non-citizens before final orders of removal have been entered.

State Executions (5-4). In Bucklew v. Precythe (4/1/19), the majority denied a death-row inmate’s request to be executed by nitrogen hypoxia. The backstory: Russell Bucklew had assaulted his former girlfriend, shot a man who tried to intervene and left him to bleed to death, kidnapped his ex, and raped her. Later he broke out of jail, broke into the ex’s home and attacked her mother with a hammer. He suffered from a rare disease called “cavernous hemangioma,” which produces blood-filled tumors around his body. The tumors are inoperable and fragile; if they break, they might flood his throat with blood. He cannot sleep lying flat, or else he will choke. For this reason, he appealed to the Supreme Court, arguing that Missouri’s execution procedures would likely cause him to choke to death on his own blood, and asked instead to be executed by nitrogen hypoxia. The majority ruled against him, with Gorsuch penning the decision as follows: “The Eighth Amendment has never been understood to guarantee a condemned inmate a painless death. That’s a luxury not guaranteed to many people, including most victims of capital crimes. What it does guarantee is a method of execution that is not cruel and unusual. And ever since the founding, people have understood that the only way to tell if a method is cruel is to compare it with other known and available alternatives, to see if the state is inflicting substantially more pain than necessary to carry out its lawful sentence. Even if execution by nitrogen hypoxia were a feasible and readily implemented alternative to the State’s chosen method, Mr. Bucklew has still failed to present any evidence suggesting that it would significantly reduce his risk of pain”. Gorsuch was joined by Roberts and Alito. Thomas and Kavanagh concurred separately. Breyer dissented, saying that “executing Bucklew by lethal injection risks subjecting him to constitutionally impermissible suffering, violating the clear command of the Eighth Amendment”. He was joined by Ginsburg and Kagan. Sotomayor dissented separately. The five conservatives trumped the four liberals, in my view rightly. While I think the liberals have good sensibilities, there is a constitutional difference between “painful” and “cruel and unusual”, and I believe the conservatives made the correct ruling based on that distinction.

Class Action Lawsuits (5-4). In Lamps Plus, Inc. v. Varela (4/24/19), the majority ruled that courts may not infer from an ambiguous contract that a company has consented to arbitrate on a classwide basis. The backstory: Frank Varela tried to file a class action complaint against his employer, Lamps Plus, after the company released his personal information in response to a phishing scam. He filed the lawsuit alleging negligence, breach of contract, and invasion of privacy. Citing the contract of employment signed by Varela, Lamps Plus moved to compel bilateral arbitration, not agreeing to the class action. The Ninth Circuit ruled that the class arbitration could move forward because of the ambiguity of the contract. Lamps Plus appealed to the U.S. Supreme Court, and the majority found in the company’s favor. Roberts penned the decision, joined by Alito, Kavanagh, and Gorsuch. Thomas concurred separately. Ginsburg trenchantly dissented, arguing that “mandatory individual arbitration continues to thwart ‘effective access to justice’ for those encountering diverse violations of their legal rights”. The five conservatives trumped the four liberals, in my view wrongly, not least because the majority reached its holding without actually agreeing that the contract was ambiguous. So this is another case where I disagree with Gorsuch.

Private Lawsuits Tried in Other States (5-4). In Franchise Tax Board of California v. Hyatt (5/13/19), the majority overruled Nevada v. Hall (1979), which had for 40 years permitted a sovereign state to be haled into another state’s courts without its consent. States now retain their sovereign immunity from private suits brought in the courts of other states. Thomas penned the decision, arguing that “Nevada v. Hall is contrary to our constitutional design and the understanding of sovereign immunity shared by the states that ratified the Constitution.” He was joined by Alito, Roberts, Kavnagh, and Gorsuch. Breyer dissented, and was joined by Ginsburg, Sotomayor, and Kagan. Here the five conservatives trumped the four liberals. I can see this issue from both sides and don’t really have a strong opinion here. States rights are tricky, and I can be pro- or anti- depending on the issue.

Indian Treaty Rights (5-4). In Herrera v. Wyoming (5/20/19), the majority ruled (a) that statehood does not imply termination of reserved hunting rights for Indians, and (b) that establishment of a national forest does not render an area occupied. The backstory: In 1868, the Crow Tribe had entered into a Treaty with the United States, ceding most of its aboriginal territory but retaining a portion for the establishment of the Crow Reservation and retaining hunting rights in the ceded territory. In Ward v. Race Horse (1896), the Supreme Court held that hunting rights were repealed by the act of admitting a state into the union. Relying on Race Horse, the Tenth Circuit in 1995 had held that the Crow Tribe’s reserved hunting rights were repealed by the act admitting Wyoming to the union in 1890 or, alternatively, because the establishment of the Bighorn National Forest in 1897 meant the forest was now occupied. In 2015, Herrera, a Crow member, challenged his prosecution by Wyoming officials for hunting elk in the Bighorn National Forest. The Supreme Court majority reversed the Wyoming Supreme Court and ruled in the Indians’ favor. Sotomayor penned the decision, joined by Ginsburg, Breyer, Kagan and Gorsuch. Alito aggressively dissented, joined by Roberts, Kavanagh, and Thomas. Here Gorsuch joined the four liberals in favor of Indian treaties, and I would have voted this way too.

Private Corporations Which Host Public/Governmental Forums (5-4). In Manhattan Community Access Corp. v. Halleck (6/17/19), the majority ruled that Manhattan Community Access, a private corporation operating public access channels, is not a state/governmental actor subject to the First Amendment; and thus the corporation was within its rights to suspend contributors from using the station’s public services and facilities. (The Second Circuit Court had disagreed, saying that MCAC, while a private corporation, nevertheless hosted public-access channels which are a public forum for First Amendment purposes.) Kavanagh penned the decision, joined by Roberts, Thomas, Alito, and Gorsuch. Sotomayor dissented, joined by Ginsburg, Breyer, and Kagan. In this important decision, the five conservatives trumped the four liberals. It’s an important decision, because it bears on questions of huge corporations like Facebook and Youtube when they police the world and ban users (like Alex Jones) for offensive material; or when they ban users, or delete comments or videos, even on the public/governmental pages they are hosting. Facebook, for example, hosts many public library pages. As governmental employees, the librarians cannot censor hate speech comments on their FB pages. But according to this Supreme Court ruling, the Facebook execs are within their rights to step in and do so if they wish. Much as I hate to say it, the conservative majority got it right. I personally hate it when corporations like Facebook and Youtube try to police their functional equivalent of a digital town hall. (Facebook exercises more control over the public discourse in the U.S. today than any government ever dreamed of having.) But the fact is that they are not legally a town hall. They are private corporations, and it’s ultimately “their house and their rules”. The liberal justices had their hearts in the right place but their heads in the cloud. Had this decision gone the liberal way, it would have set a bad precedent in blurring the separation of private and governmental spheres. It would have tied the hands of business owners from making decisions they should be allowed to make.

Separation of Powers (5-3). In Gundy v. United States (6/20/19), the majority ruled that the attorney general does not have the power to write his own criminal code. The precise question: could the attorney general both declare that a pre-SORNA sex offender was required to register under SORNA (Sex Offender Registration and Notification Act) and then prosecute him for having failed to register? This placed the power to make a law and the power to enforce it in the same hands, which is a classic violation of the separation of powers, and a clear delegation of legislative authority. The majority ruled yes, that Congress did not unconstitutionally delegate its legislative power to the attorney general. Kagan penned the decision, joined by Ginsburg, Breyer, and Sotomayor; Alito concurred separately. Gorsuch dissented, arguing thus: “It would be easy enough to let this case go. After all, sex offenders are one of the most disfavored groups in our society. But the rule that prevents Congress from giving the executive carte blanche to write laws for sex offenders is the same rule that protects everyone else.” He was joined by Roberts and Thomas. (Kavanagh took no part in the decision because he had joined the court after oral argument.) So here Alito joined the liberals, for a “liberal” ruling. I believe the conservative minority under Gorsuch was right. Like Gorsuch, I can’t think of any case in which the Supreme Court ever allowed the chief prosecutor of the United States to write the criminal law for those he’s going to prosecute.

Property Rights (5-4). In Knick v. Township of Scott (6/21/19), the majority ruled that property rights are as important as other rights in the Constitution, and federal courts may not turn away takings cases. The backstory: government agents had forced Rose Knick to allow public access to a suspected grave-site on her farmland, and she sued over the unconstitutional property taking. But a federal court refused to hear her federal claim, and so she asked the Supreme Court to overturn this precedent so that property rights are on equal footing with other rights such as due process and free speech. She prevailed. Roberts penned the decision, joined by Kavanagh, Alito, and Gorsuch; Thomas concurred separately. Kagan dissented, joined by Ginsburg, Sotomayor, and Breyer. In this case, the five conservatives trumped the four liberals. Rightly so, in my view. Property rights are certainly constitutionally important, and their cases should be heard.

Free Speech: Vulgar and Scandalous Trademarks (6-3). In Iancu v. Brunetti (6/24/19), the majority struck down a law banning vulgar or scandalous trademarks. Applying that rule, the government had denied a trademark for the name “FUCT,” concluding that it was phonetically equivalent to the past tense or past participle of “fuck”. Kagan penned the decision, arguing that the trademark law’s restriction violates the First Amendment because “it disfavors certain ideas”. She was joined by Ginsburg, Thomas, Alito, Kavanagh, and Gorsuch. Roberts dissented, saying that while the First Amendment protects freedom of speech, “it does not require the government to give aid and comfort to those using obscene, vulgar, and profane modes of expression”. He was joined by Sotomayor and Breyer. In this very interesting case, two liberals and four conservatives upheld the First Amendment, while one conservative and two liberals did not. This weight of opinion lends credence to the claim that the stronger threats to free speech come more from the left than the right. Obviously the majority was right.

Guns in Crimes of Violence (5-4). In United States v. Davis (6/24/19), the majority ruled that the law which provides enhanced penalties for using a firearm during a “crime of violence” is unconstitutionally vague. Gorsuch penned the decision, joined by Ginsburg, Breyer, Sotomeyer, and Kagan. Kavanagh dissented, joined by Thomas, Alito, and Roberts. So Gorsuch joined the liberals, over against the other four conservatives. Here we have the rather shocking result of liberals going light on violent gun crime (making for a rather “conservative” ruling) and most of the conservatives advocating harsher measures against gun owners (making for a rather “liberal” ruling). The unexpected decision can perhaps be explained, at least partly, on account of the fact that the Trump administration was gunning hard for the defendants, in which case the liberals may have been less interested in going light on violent gun crime, and more interested in “sticking it to Trump”. Likewise, the conservative dissenters could have been pandering to Trump. Gorsuch is the only one who looked really objective here. Nonetheless, this is another case in which I disagree with Gorsuch. I would have dissented here. The use of guns in crimes of violence warrants stiff penalties.

Child Pornography (5-4). In United States v. Haymond (6/26/19), the majority overturned the lower court’s denial of a trial by jury to a man convicted a second time of carrying child pornography. Gorsuch penned the decision, joined by Ginsburg, Sotomayor, and Kagan; Breyer concurred separately. Alito dissented, joined by Roberts, Thomas and Kavanaugh. So here Gorsuch joined the liberals, for a “liberal” victory. I would have ruled the same way. A new crime demands a new trial, no matter how despicable the offense.

Gerrymandering (5-4). In Rucho v. Common Cause (6/27/19), the majority ruled that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Roberts penned the decision, joined by Thomas, Alito, Kavanagh, and Gorsuch. Kagan dissented, arguing trenchantly: “The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.” She was joined by Breyer, Ginsburg, and Sotomayor. In this decision, the five conservatives trumped the four liberals, and very wrongly in my opinion. This is certainly a constitutional question, as Kagan wrote; the conservatives just didn’t want to get their hands dirty. So this is the eighth case on this list in which I disagree with Gorsuch. This ruling and Janus (union agency fees) are the two rulings I can say I not only disagree with, but I’m honestly disgusted by.

Warrantless Blood Tests (5-4). In Mitchell v. Wisconsin (6/27/19), the majority ruled that when a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant. Alito penned the decision, joined by Roberts, Breyer, and Kavanagh; Thomas concurred separately. Sotomayor dissented, joined by Ginsburg and Kagan, and Gorsuch filed a separate dissent. So here Breyer joined the conservative majority, and Gorsuch joined the liberal dissent. I would have dissented too. Involuntary blood tests require warrants, pure and simple.

SCOTUS: Not nearly as predictable as we expected

If one thing is becoming clear, it is that the Supreme Court isn’t nearly as predictable as we thought it would be after the Trump appointments of Gorsuch and Kavanagh. An article in USA Today actually sees the liberal faction as the greater tribal threat. As a liberal myself I take the point:

“In sum, if lockstep voting and a results-driven court concern us, it isn’t the conservatives we should be worried about. While senators, journalists and academics love decrying the Roberts Five, it’s the (Ruth Bader) Ginsburg Four that represent a bloc geared toward progressive policy outcomes. To be sure, a reinvigorated conservative grouping may yet come to dominate the court — especially if Trump fills another seat — but it hasn’t happened yet.”

I went backwards and considered the most recent SCOTUS rulings (since Kavanagh joined the court last year) to see explicitly how the opinions break down. The results are interesting to say the least. It’s noteworthy that the conservative Gorsuch aligned with the four liberals on no less than five occasions for a 5-4 ruling: Washington State Department of Licensing v. Cougar Den Inc., Herrera v. Wyoming, United States v. Davis, United States v. Haymond, and Mitchell v. Wisconsin.

And there are only seven cases in which all five conservatives trump the four liberals: Nielsen v. Preap., Bucklew v. Precythe, Lamps Plus, Inc. v. Varela, Franchise Tax Board of California v. Hyatt, Manhattan Community Access Corp. v. Halleck, Knick v. Township of Scott, and Rucho v. Common Cause. I actually agree with the conservative majority in four of them (Nielsen, Bucklew, Manhattan, Knick), was neutral about one (Hyatt), and disagreed with them only in two (Lamps Plus, Rucho).

Like his predecessor Scalia, Gorsuch is proving himself to be the best conservative justice on the court (and at this moment in time, he’s my favorite), and the conservative justices on whole are not doing so badly.

Retrospective: The Supreme Court and Terror Suspects (Conservative Scalia, Liberal Scalia)

Vector illustration of a man in jailOf the countless Scalia write-ups this past week, the one from the Washington Post, for me, captures his legacy to a tee. It’s by the politically liberal Tara Kole who clerked for Scalia:

“If there was a true surprise during my year clerking for Scalia, it was how little reference he made to political outcomes. What he cared about was the law, and where the words on the page took him. More than any one opinion, this will be his lasting contribution to legal thought. Whatever our beliefs, he forced lawyers and scholars to engage on his terms — textual analysis and original meaning. He forced us all to acknowledge that words cannot mean anything we want them to mean; that we have to impose a degree of discipline on our thinking. A discipline I value to this day.

“In one case I worked on writing a dissent — the position held by a minority of the court — with which I fundamentally disagreed on a moral level, but found, as I wrote, that I was drawn to Scalia’s reasoning; his emphasis on precedent, strict textual construction and judicial restraint. Scalia’s arguments conveyed a clarity not found in the majority’s opinion, which relied on legal and verbal gymnastics in order to reach the desired outcome.”

Perhaps no set of cases better illustrates the duality of being outside Scalia’s political compass while respecting his judicial reasoning, than the four rulings between 2004-2008 dealing with detained terror suspects. Guantanamo has been a stain on the American image, a black hole where executive powers could do as they wished with impunity. Unfortunately, I don’t like the sometimes shifty (even shitty) reasoning used by our liberal justices in bending over backwards to give presumed enemy combatants access to federal courts. Treating foreign terrorists like American car thieves, and granting them civilian lawyers, classified intelligence, and all the attendant rights of a normal jury trial isn’t the best idea. It’s why executive powers set up alternate military tribunal systems in the first place — and this is what Scalia stressed in his dissents, in addition to precedents of law. Let’s go through the four cases.

Rasul vs. Bush (2004): Conservative Scalia

In the first case, the liberal majority granted foreign detainees unprecedented access to U.S. federal courts. The Bush administration had chosen Guantanamo as a site for terrorism-related prisoners because it assumed it would be considered outside the jurisdiction of the courts. Bush’s lawyers had relied on Johnson v. Eisentrager (1950), for the premise that foreigners captured and kept outside of the country (as for Germans in WWII) did not have access to U.S. courts. Justice Stevens, writing for the majority of six, objected to this precedent on grounds of an obscure ruling in Braden v. 30th Judicial Circuit Court (1973), in which the Supreme Court held:

“The writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody. The language requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ ‘within its jurisdiction’ requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court’s territorial jurisdiction.

In other words, territorial jurisdiction is derived from the location of the custodian — those responsible for the indictment — rather than the custody. This decision effectively overturned Ahrens v. Clark (1948), which denied the federal courts jurisdiction to issue a writ of habeas corpus if the person detained is not within the territorial jurisdiction of the court when the petition is filed.

Stevens then attempted to conform his interpretation to the court’s general position on extraterritoriality. He said that Rasul wasn’t extraterritorial: since Guantanamo Bay was a military base under control of the U.S., it was a locus of territory of the U.S. In the opinion of many legalists, that’s a rather shifty and convenient rationale.

Scalia wrote the dissent (followed by Rehnquist and Thomas), arguing that the majority had sprung a trap on the executive branch, subjecting Guantanamo Bay to the oversight of federal courts even though it never before was thought to be within their jurisdiction. In so doing, the Court subjected detention policy and practice — traditionally an executive function during wartime — to a cumbersome and problematic review by the judicial system.

Hamdi v. Rumsfeld (2004): Liberal Scalia

On the same day of the Rasul decision, Scalia went the other direction in favor of due process for detainees. Not only did he oppose executive overreach in Hamdi, he did so in a manner far more liberal than the majority.

The detainee in question was a U.S. citizen. Yaser Hamdi was born in Louisiana and grew up in Saudi Arabia, and captured by Taliban fighters on an Afghan battlefield in 2001. He was detained by the U.S. military as an “enemy combatant” and eventually transferred to Charleston, South Carolina for his detention, where he was held indefinitely. Administrative lawyers urged the Court not to second guess a military judgment to imprison someone as an “enemy combatant”, but the Court would have none of it, and the decision was a landslide 8-1. (Justice Thomas was the lone justice who sided with the executive branch against Hamdi, on grounds of security interest and in defense of the President’s broad war-making powers.)

Justice O’Connor, writing for a majority of six (Rehnquist, Breyer, and Kennedy; also Souter and Ginsburg, though they disputed some minor points) allowed detention of U.S. citizens suspected of terrorism, but only after a fair hearing. She added several conditions to the administration’s ability to detain a U.S. citizen. He/she must be told the factual basis for charge and be allowed to rebut it, though because of the burden of ongoing military conflict on the Executive, normal procedures (placing a burden of proof on the government, ban of hearsay, etc.) need not apply. Justices need not be involved, but the defendant has the right to at least an “impartial decision maker” as well as counsel.

That majority opinion wasn’t liberal enough for Scalia, for whom the detention of U.S. citizens was constitutionally wrong on a basic level. Either Hamdi had to be tried under normal criminal law, or he had to be let go. There could be no middle ground. Stevens (Scalia’s foe in Rasul) joined him in this uncompromising restriction of executive power. According to Scalia, the Court’s only job is to determine whether or not the arrest is constitutional or not, and then order the person’s release or proper arrest — not to invent a new process for detention. Scalia scorned O’Connor’s “Fix-It” strategy (rightly, I think), as it assumes a capricious legislative role. Sketching out minimum requirements, as good-intentioned as O’Connor’s solution is, becomes a potential for tyranny over citizens who pose no such threat. Due process should proceed as it does for any other citizen.

Hamdan v. Rumsfeld (2006): Furious Scalia

Many experts consider this case to be the most significant legal battle in the presidential war on terror. It resulted in a dramatic showdown between the liberal majority and the Bush-Cheney executives, not to mention between that same majority and the outraged conservative dissenters. Scalia was in blistering form, and Clarence Thomas was so incensed that he delivered his own dissent from the bench (something he had not done in over six years).

Salim Ahmed Hamdan was Osama bin Laden’s chauffeur and bodyguard, captured during the invasion of Afghanistan in 2001 and eventually sent to Guantanamo, where he requested a writ of habeas corpus. But in response to Rasul (which as we saw gave the judicial branch jurisdiction in Guantanamo), Congress had passed law in December 2005, called the Detainee Treatment Act, which legally stripped the judicial branch to hear petitions for habeas corpus from any Guantanamo detainee. The Court decided to hear Hamdan’s case anyway, on grounds that the Act had been passed after Hamdan filed his request, and not before. (A slippery move with flimsy justification.)

The actual case of Hamdan focused on the question of (1) whether or not Congress had authorized Bush to create military tribunals (the government claimed that congressional authorization was given in the Authorization for the Use of Military Force (AUMF)) and (2) whether or not Geneva Convention standards were being followed so as to guarantee the defendant certain rights, like attending proceedings and be able to appeal a determination to an independent court (the government claimed that the Geneva Conventions don’t apply to enemy combatants). The decision was 5-3. (Justice Roberts recused himself since he had sat on the lower court which ruled against Hamdan.)

Stevens wrote for the majority:

  • Bush’s plan to prosecute Guantanamo detainees in special tribunals, rather than in regular courts, needed authorization from Congress and had not been independently justified by military necessity. The tribunal plan thus violated the Geneva Conventions and exceeded the president’s constitutional authority. The resolution passed by Congress shortly after 9/11 authorized the use of military force, but did not cover Bush’s blueprint for the tribunals.
  • The military commission system ordered by Bush in November 2001 failed to provide for a “regularly constituted court”, as required by Article 3 of the Geneva Conventions, and in any case, its procedures fell short of those required under the Conventions and the Uniform Code of Military Justice for use by court-martial. Common Article 3 banned cruel treatment and torture of detainees, and concerning tribunals, it prohibited the “passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”.
  • The Detainee Treatment Act passed in December 2005, while legally stripping the courts of the right to hear habeas corpus petitions, did not apply to cases like Hamdan’s which were already filed in the courts. The drafting history of the DTA suggests that changes in law cannot be applied retroactively.

Scalia was furious — visibly angry by the trickery used to get around the Detainee Treatment Act, and his voice kept rising as he read his dissent.

  • Draft history does not determine a statute’s meaning; the final result does. Bruner v. The United States (1952) and other cases clearly mandate that a statute which excludes jurisdiction (like the Detainee Treatment Act of 2005) takes immediate effect in all cases, including pending ones, unless it has clear language stating otherwise. The liberal majority had flouted these glaring precedents in order to smuggle in a case they simply wanted to hear to thwart the Bush-Cheney administration.
  • The Court assumes a legislative role by creating a right of habeas corpus for alien enemies who are not within the territorial jurisdiction of the United States. While the Constitution guarantees the right of habeas corpus to U.S. citizens, and also to those detained within the United States, it certainly does not extend it to alien enemies who are detained outside the United States.
  • Bush’s military tribunals were not inadequate (a point expanded on by Justice Thomas, below), and the majority was wrong not to defer to Bush. The president was responsible for seeking out and punishing those behind 9/11, and the executive branch was in its right to establish a special category of prisoners captured in an area of battle and held outside the U.S. border.

It’s worth noting Thomas’ separate dissent, for he too was outraged, and for the first time in six years he read his opinion from the bench.

  • Concurring with everything Scalia said.
  • Most reprehensibly, the majority distorted the text of both the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions in order to restrict the power of the president to establish military commissions when he deems necessary. Article 36 of the UCMJ authorizes the president to establish procedures for military commissions in a manner he considers practicable. “Far from constraining the president’s authority,” wrote Thomas, “Article 36 recognizes the president’s prerogative to depart from the procedures applicable in criminal cases whenever he alone does not deem such procedures practicable.”
  • The majority decision is an act of judicial imperialism, because it second-guesses a decision by the president in an area where he should be given deference, especially as he was acting — contrary to the claims of the majority — with the clear consent of Congress. According to Thomas, “military and foreign policy judgments are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.” It was thus outside the scope of the Court to hear this case, let alone to come to a decision which undermines the national security decisions of the Commander in Chief as authorized by Congress.

In my mind, the back-and-forth over the degree to which Congress oversees the executive, and which Geneva standards hold precedence over others, ties in large measure to the ongoing question of the legitimacy of Bush’s war on terror. In the wake of 9/11, Bush wasn’t able to get Congress to declare an act of war on Afghanistan and Al-Qaeda, but rather a War Powers Resolution, which is at the same time more restrictive, in terms of subjecting the executive even more to the legislative, and more open-ended, in that it gives the executive a blank check to widen its scope and use its “limited” military force against any state suspected to be remotely involved in the 9/11 attacks. (Bush did get Congressional approval for an act of war against Iraq a year later in 2002, but the accusation that Saddam harbored Al-Qaeda operatives was only a minor justification for that war, which really about the problems of Saddam’s dictatorship.)

I don’t have the competence to weigh the arguments of the Supreme Court majority against the dissenters, except perhaps on the point of whether or not Hamdan’s case should have been heard to begin with (I think not), which is a technicality. I will say that I smell fumes of judicial overreach. The year 2006 was a charged one, with everyone concerned about Bush and Cheney’s “dirty trends” in matters ranging from rendition torture, domestic wiretapping, and a general perception that the White House had hit the level of Watergate in Nixon’s time. Those concerns were valid, and I certainly shared them too, but whether or not the liberal justices were exercising sound or appropriate jurisprudence in reaction is still hotly debated.

Boumediene v. Bush (2008): Exasperated Scalia

This final case went to the core of the Constitution. The question was no longer who had jurisdiction where (as in Rasul), or whether Congress had authorized the military commissions or to what degree they explicitly had to, or to what standards tribunals must conform (as in Hamdan). The question was the vital one: Does the Constitution itself guarantee a right of habeas corpus to non-citizens of the United States, including non-citizens who are suspected of being enemy combatants?

The court’s answer — in a 5-4 liberal majority, penned by Justice Kennedy — was yes. Foreign enemy combatants at Guantanamo have the absolute right to pursue habeas challenges to their detention in U.S. courts. The Court ruled that Congressional laws like the Detainee Treatment Act (DTA) of 2005, and the Military Commissions Act (MCA) of 2006, were unconstitutional. Habeas corpus rights are fundamental to all people, even non-citizens. Congress can suspend habeas corpus in times of rebellion or invasion, but according to the Court, the Guantanamo situation does not apply.

Scalia of course dissented (joined by Roberts, Alito, and Thomas), arguing that no basis existed for judicial intervention beyond what provisions like the DTA and MCA allow, and that for the first time in history the Supreme Court was conferring constitutional rights to non-Americans:

“What drives today’s decision is neither the Constitutional meaning of habeas corpus, nor the principle of our precedents, but rather an inflated notion of judicial supremacy.”

Thanks to this ruling, he went on, he fate of enemy prisoners will now ultimately lie with the branch of government (the judiciary) that knows least about the national security concerns that the subject entails. Military attorneys will have to release evidence against enemy combatants to the terrorists’ own lawyers. U.S. troops serving in Iraq and Afghanistan could be called as witnesses. Detainees will have a legal right to access classified information. The Court’s decision sets military commanders the impossible task of proving to a civilian court that evidence supports the confinement of each and every enemy prisoner.

What I find fascinating about Boumediene v. Bush is that “Bush” seems to have driven the liberal majority’s decision more than “Boumediene”. If the justices were really concerned with (supposed) constitutional rights of non-citizens, then it’s hard to explain why they suddenly denied review of all Guantanamo cases after Obama got elected in 2008. During the Obama administration, the Supreme Court did nothing to enforce its rulings. The circuit courts continued to deny relief for Guantanamo detainees (whether rightly or wrongly) — for instance in the 2012 case involving prisoners who had been at the Bay for over ten years without any trial at all — but the Court has refused to reinforce its earlier decisions. It’s clear to me that the rulings between 2004-2008 were more about liberal crusades against the Bush-Cheney administration. Things were hardly different at Guantanamo under Obama… but then he was a “liberal” Democratic president.

“Humble” Scalia

No one thinks of him as humble — he habitually scorned those who disagreed with him — but Scalia certainly saw his legal role as a humble one. Adam Klein at Lawfare writes:

“As Scalia put it in Hamdi, it is not the Court’s place in American government to ‘Make Everything Come Out Right,’ but ‘merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions.’ The judge is not the great lawgiver but a humble parser of texts adopted by others. This may sound uninspiring, but it is in fact a great tribute to democracy. For it means that the people and their elected representatives, not unelected judges, are the protagonists in our national life.”

Right-wingers said that Scalia would put American lives at risk for defending suspects like Hamdi. Leftists faulted him for not supporting suspects like Hamdan. Scalia was less interested in outcomes, and more in process, which to me has always been the most important trait in a legal justice.

Retrospective: Texas v. Johnson (“Burn, Baby, Burn”)

ABURNLiberals are today’s enemies of the First Amendment, but it wasn’t always so. Back when I was growing up in the ’80s, conservatives were the problem. To get a sense of how liberals were back then, contrast the way 10,000 Maniacs lead-singer Natalie Merchant told Cat Stevens to fuck off when he censured Salman Rushdie for lambasting Islam in The Satanic Verses. Today she would be called an Islamophobe, but she was so disgusted that her band removed their cover of Cat Stevens’ “Peace Train” from all future copies of their album. She disowned Stevens for his censuring of Rushdie — and good for her. That’s the kind of disdain liberals used to have for enemies of free expression. Not today. Today the Cat Stevenses are heroes, and the Natalie Merchants a dying breed. Look at the way Katy Perry responded when Muslims petitioned her to remove the image of an Allah pendant from one of her music videos. She caved in right away out of “respect”. Natalie Merchant, where art thou?

Liberals were proper heroes when I was growing up in the ’80s, and nothing brought this home more strongly that the Supreme Court case of Texas v. Johnson. It was the landmark decision which preserved our right to burn the American flag. The decision was 5-4 upholding the First Amendment, but it was surprising it didn’t go the other way. There were only three liberal “Natalie Merchants” on the court — William Brennan, Thurgood Marshall, Harry Blackmun — alongside the possibility of Anthony Kennedy as a swing vote. That’s only four. No one could have predicted that Antonin Scalia, the arch-conservative of the court, would come down squarely on the side of those who desecrate the American flag. Not only did he join the liberals, he did so unreservedly, unlike Kennedy who supported them reluctantly in a separate concurrence.

My retrospective of Texas v. Johnson is two things. First a reminder of the importance of our First Amendment. It wasn’t designed to protect what we want to hear. Those things don’t need protection. It exists precisely to protect what offends us. Offense is the whole point of free expression. The liberal Supreme Court underdogs of the ’80s, like Natalie Merchant, got this. Second, this retrospective honors Antonin Scalia, who died last weekend. He was anything but a liberal, and there is much about him I despised. But he was on the right page when our fundamental liberties were at stake. We owe him a debt of gratitude for allying with the leftists in Texas v. Johnson. Unlike his conservative colleagues, he took the First Amendment seriously and for granted. If not for this so-called “fascist” — if Reagan had appointed any other justice in his place — we would probably not have the right today to burn the American flag.

Here’s the fourfold breakdown among the nine justices (reached in June 1989), followed by the transcript of oral arguments that led to this divisiveness. In the transcript, I put all of Scalia’s statements in bold.

The majority opinion (4): “Burn, baby, burn.” William Brennan, Thurgood Marshall, Harry Blackmun, Antonin Scalia. According to these justices — the three liberals and the arch-conservative — flag-burning is expressive conduct which is clearly protected by the First Amendment. Acknowledging that “the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word,” it may not “proscribe particular conduct because it has expressive elements.” It was a straightforward decision, and Scalia was one of the most aggressive in defending it.

The reserved concurrence (1): “Offensive people must be defended.” Anthony Kennedy. He supported the four justices, but with a separate explanation expressing clear contempt for those who burn the flag. “The hard fact,” he wrote, “is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result. The flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.” Unlike Kennedy, Scalia didn’t distance himself like this from the liberals.

The dissent (3): “The flag is too sacred.” William Rehnquist, Sandra O’Connor, Byron White. According to the chief justice and two others, the American flag has a “unique status” that justifies a law against burning it. Because millions of Americans regard it “with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have,” the First Amendment does not apply. Some things are too sacred.

The obscurantist dissent (1): “Punish the conduct, not the opinions.” John Stevens. All too aware of how lame Rehnquist’s argument was, Stevens wrote a separate dissent. (He was a liberal with confused and inconsistent ideas about free speech: he could never decide how he really felt about obscenity laws, and as a patriotic World-War II veteran he was personally angered by flag-burning.) Like Rehnquist, he invoked the flag’s mythic status: the flag is so important, he wrote, that “its value as a symbol cannot even be measured”. But he turned the offense on conduct rather than opinions (which, against Rehnquist, the First Amendment must surely protect).  The case against flag-burners, wrote Stevens, “has nothing to do with disagreeable ideas. It involves disagreeable conduct that diminishes the value of an important national asset”. Flag-burners are breaking the law for the way they express their opinion, not the opinion itself. That’s a bewildering argument, but it does show the lengths people will go to obscure what they’re really objecting to — free expression that simply “goes too far” against one’s sacred cow.


Transcript of Texas v. Johnson, Oral Arguments, Tuesday, March 21, 1989
Kathi Drew, Dallas County Assistant District Attorney
William Kunstler, New York Defense Attorney for Gregory Johnson

CHIEF JUSTICE WILLIAM REHNQUIST: Ms. Drew, you may proceed whenever you’re ready.

KATHI DREW: Thank you, Mr. Chief Justice, and may it please the Court: The issue before this Court is whether the public burning of an American flag which occurred as part of a demonstration with political overtones is entitled to First Amendment protection. The flag was burning in front of Dallas City Hall at the culmination of a demonstration march through downtown Dallas in the midst of a crowd of demonstrators and on lookers. The flag burner, who was identified as Mr. Johnson, was convicted under a Texas statute which prohibits desecration of the national flag. His punishment was assessed at one year in the county jail plus a $2,000 fine. The conviction was affirmed on direct appeal by the Intermediate Court of Appeals. Mr. Johnson then filed petition for discretionary review to the Texas Court of Criminal Appeals. That is the highest court in the state of Texas which hears criminal cases. The court granted his petition, reversed his conviction, and ordered the information dismissed.

The Court of Criminal Appeals held that the Texas statute was unconstitutional as applied to Mr. Johnson, since he was a political protester. Judge Campbell of that court found that flag burning constituted symbolic speech within the test enunciated by this court in Spence versus Washington. That court also found that Texas’ asserted interests in regulating the act of flag burning were insufficient to outweigh a protestor’s First Amendment rights to expression. For purposes of this argument today and with the Court’s indulgence, the state will assume the symbolic speech standard and proceed directly to the question of Texas’ compelling interest in regulating this type of conduct. Throughout the course of the appellate history in this case Texas has advanced two compelling state interests. One is the preservation of the flag as a symbol of nationhood and national unity. The second is the preservation of a breach of the peace.

CHIEF JUSTICE REHNQUIST: Prevention of breach of the peace?

KATHI DREW: Yes, Your Honor, prevention as opposed to punishment for a breach of the peace. I would like to address first the nationhood interest. We believe that preservation of the flag as a symbol of nationhood and national unity is a compelling and valid state interest. We feel very certain that Congress has the power to both adopt a national symbol and to take steps to prevent the destruction of that symbol, to protect the symbol.

JUSTICE ANTONIN SCALIA: Now, why did the defendant’s actions here destroy the symbol? His actions would have been useless unless the flag was a very good symbol for what he intended to show contempt for. His action does not make it any less a symbol.

KATHI DREW: Your Honor, we believe that if a symbol over a period of time is ignored or abused that it can, in fact, lose its symbolic effect.

JUSTICE SCALIA: I think not at all. I think when somebody does that to the flag, the flag becomes even more a symbol of the country. I mean, it seems to me you’re running quite a different argument, not that he’s destroying its symbolic character, but that he is showing disrespect for it, that you not just want a symbol, but you want a venerated symbol, and you don’t make that argument because then you’re getting into a sort of content preference. But I don’t see how you can argue that he’s making it any less of a symbol than it was.

KATHI DREW: Your Honor, I’m forced to disagree with you. Because I believe that every desecration of the flag carried out in the manner that he did here — and certainly I don’t think there can be any question that Mr. Johnson is a hard-core violator of this statute — if his actions in this case under the facts of this case do not constitute flag desecration, then I really am not quite certain what would constitute flag desecration.

JUSTICE SCALIA: They desecrate the flag indeed, but do they destroy the symbol? Do they make it any less symbolic of the country? That’s the argument I thought you were running — that we have a right to have a national symbol. And if you let the people desecrate the flag, you don’t have a national symbol. I don’t see how that follows. We may not have a respected national symbol, but that’s a different argument. Now, if you want to run that argument that we have the right to insist upon respect for the flag, that’s a different argument.

KATHI DREW: Texas is not suggesting that we can insist on respect. We are suggesting that we have the right to preserve the physical integrity of the flag so that it may serve as a symbol because its symbolic effect is diluted by certain flagrant public acts of flag desecration.

CHIEF JUSTICE REHNQUIST: Well, in the sense you’re arguing a minimal form of respect for the flag, aren’t you? Not that you have to take your hat off or salute when it goes by. Now, the state can’t require you, but at least can it consist that you not destroy it?

KATHI DREW: Yes, Your Honor. To the extent that we are asking for any respect for the flag, we are asking for respect for its physical integrity. Certainly we do not demand that any individual view it with any discernable emotion whatsoever, only that its physical integrity be respected. And I think that that is a very minimal basis to ask from any individual. And that is really all Texas is suggesting with this is that we have got to preserve the symbol by preserving the flag itself because there really is no other way to do it. There is nothing that would accomplish this particular purpose if you cannot protect the physical integrity of the flag.

JUSTICE ANTHONY KENNEDY: Well, over the years, over the centuries, the cross has been respected. I recognize one’s a religious symbol, the other’s a national one, but there’s no legislation that has appeared necessary to protect, say, the cross.

KATHI DREW: That’s true, Your Honor.

JUSTICE KENNEDY: So, it may be that you can protect symbols by public respect and by measures other than the imposition of the criminal law.

KATHI DREW: Your Honor, I don’t believe, though, that a cross has quite the same character that the American flag does because there are many crosses as probably people in this nation who would not view a a symbol. And this particular statute, Your Honor, would not go to that sort of a symbol. This particular statute, I believe, in this respect recognizes that the flag is a national property, that it belongs to all people, that all people are entitled to view it symbolically in whatever way that they wish. Some people may give it great respect. Others may not. That’s not what we’re regulating here. We are simply trying to preserve the flag as a symbol for all people. The issue–

JUSTICE KENNEDY: Well, you begin by saying that it’s a symbol and by acknowledging, at least in this part of your argument, that what the defendant did was speech, is that correct?

KATHI DREW: We are assuming that standard for purposes today.

JUSTICE KENNEDY: All right. At this point, what is the juridical category you’re asking us to adopt in order to say we can punish this kind of speech? Just an exception for flags? It’s just a flag exception of the First Amendment?

KATHI DREW: To a certain extent, we have made that argument in our brief. With respect to the symbolic speech standard, we believe that there are compelling state interests that will in a balancing posture override this individual’s symbolic speech rights, and that preserving the flag as a symbol, because it is such a national property, is one of those.

JUSTICE KENNEDY: What are the others?

KATHI DREW: The other state interest advanced Your Honor, is a prevention of a breach of the peacce.

JUSTICE KENNEDY: That’s the other state interest.

KATHI DREW: Yes, Your Honor.

JUSTICE KENNEDY: But I assume under this statute, of course, it’s not just one flag, it’s 51.

KATHI DREW: 51 flags or all 50 state flags but the national flag? I’m confused by your question. I apologize.

JUSTICE KENNEDY: Well, this statute prohibits the desecration of a state flag as well.

KATHI DREW: Yes, it does.

JUSTICE KENNEDY: Of the Texas state flag?


JUSTICE KENNEDY: And I assume if we upheld the statute in every other state it would have the same right?

KATHI DREW: Yes, Your Honor.

JUSTICE KENNEDY: So, your category for one flag is now expanded to 51.

KATHI DREW: The statute does say a national flag. That is correct. And we do believe Texas certainly has to protect its own flag. And I think that a similar interest would be for sister states. So, the statute says a state or national flag.

JUSTICE SANDRA DAY O’CONNOR: Could Texas prohibit the burning of copies of the Constitution, state or federal?

KATHI DREW: Not to my knowledge, Your Honor.

JUSTICE O’CONNOR: That wouldn’t be the same interest in the symbolism of that?

KATHI DREW: No, Your Honor, it would not be the same interest I don’t believe.

JUSTICE SCALIA: Why not? Why is that? I was going to ask about the state flower. [Laughter]

KATHI DREW: There is legislation, Your Honor, which does establish the blue bonnet as the state flower.

JUSTICE SCALIA: I thought so.

KATHI DREW: It does not seek to protect it.

JUSTICE SCALIA: Well, how do you pick out what to protect? I mean, if I had to pick between the Constitution and the flag, I might well go with the Constitution. I don’t know.

KATHI DREW: Your Honor, I think Texas in this area has made a judgment that certain items, and the statute itself is not limited to just the flag. The portion that is in question here is limited to the flag. But it has made a judgment that certain items are entitled to more protection.

JUSTICE SCALIA: I understand that. But we up to now have never allowed such an item to be declared a national symbol and to be usable symbolically only in one direction, which is essentially what you’re arguing. You can honor it all you like, but you can’t dishonor it as a sign of disrespect for the country.

KATHI DREW: No, Your Honor. We’re not arguing that at all.


KATHI DREW: Not at all. We are in no way arguing that one cannot dishonor the flag or that one cannot demonstrate disrespect for the flag. Individuals have that right. What we are arguing is that you may not publicly desecrate a flag regardless of the motivation for your action.

JUSTICE SCALIA: Well, one hardly desecrates it in order to honor it. I mean, you only desecrate it in order to show your disagreement with what it stands for, isn’t that right? So, it is sort of a one-way statute.

KATHI DREW: I don’t think that it is exactly, Your Honor, because I think that there are other forms of conduct which are… equally prohibit… well, let me put it this way. The same conduct is prohibited, regardless of the motive of the actor. If this–

JUSTICE SCALIA: But his motive will never be to honor the country. It will always be to criticize the country.

KATHI DREW: Not necessarily.

JUSTICE SCALIA: Will you give me an example where somebody desecrates the flag in order to show that he agrees with the policies of the United States? [Laughter]

KATHI DREW: I think it is possible…


KATHI DREW: An individual could choose to burn a flag as an honor for all the individuals who died in Vietnam. This is their most prized possession. They’re going to take it in front of Dallas City Hall in the midst of a hundred people in the middle of the afternoon, they’re going to soak it with lighter fluid, and they’re going to ignite it, and they are doing this to honor the Americans who died in Vietnam.

JUSTICE JOHN PAUL STEVENS: They’ll probably violate a federal statute while they’re doing that, too.

KATHI DREW: Yes, Your Honor, there is a federal statute that does regulate flag desecration. This man was not prosecuted under it. He was prosecuted under the Texas statute.

JUSTICE SCALIA: Your statute would cover that example that you just gave?

KATHI DREW: Yes, it would, Your Honor, because it does not go to the motive of the actor. If a vandal takes a flag — same scenario — in front of Dallas City Hall, a hundred people, middle of the afternoon, soaks it with lighter fluid, sets it on fire, they are still liable under this statute. They have desecrated the flag, but they have no intent to dishonor the country. They have no intent to dishonor the flag.

JUSTICE O’CONNOR: Well, actually, Ms. Drew…


JUSTICE O’CONNOR: I thought this statute only applied if the desecration were done in a way that the actor knows will offend one or more other people likely to discover it.

KATHI DREW: That is correct, Your Honor.

JUSTICE O’CONNOR: There is that little added requirement, is there not?

KATHI DREW: Yes, Your Honor, that is correct.

JUSTICE O’CONNOR: And do you think that that added requirement survives analysis under this court’s cases in Street and Grayned versus City of Rockford and so forth?

KATHI DREW: Yes, Your Honor, I believe it does.


KATHI DREW: Because I believe the import of that statute. Now, the statutory language there is that it goes to the manner in which the act is effectuated. It goes to the way in which the act is performed, that it has to be in a way that the actor knows will seriously offend. Serious offense does not have to be caused under this statute.

JUSTICE O’CONNOR: Well, I thought that the court had held that it’s firmly settled under the Constitution, that the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of the hearers.

KATHI DREW: That’s correct, Your Honor.

JUSTICE O’CONNOR: And this statute seems to try to achieve exactly that.

KATHI DREW: I don’t believe that it does, Your Honor, because I believe that the pivotal point is in a way how the conduct is effectuated, how is it done, not what an individual may be trying to say, not how onlookers perceive the action, not how the crowd reacts, but how is it done. If you take your flag into your basement in the dead of night, soak it with lighter fluid and ignite it, you probably have not violated this statute, because the Texas statute is restricted to certain limited forms of flag desecration.

JUSTICE HARRY A. BLACKMUN: Ms. Drew, it’s probably of no consequence, but is there anything in the record as to whether this flag was stolen?

KATHI DREW: Yes, Your Honor, as a matter of fact there is. One of the officers who was observing the march testified that in front of the Mercantile Bank Building he saw several of the protesters bend a flag pole and remove an American flag. They then handed this flag to Mr. Johnson, who wadded it up and stuck it under his T-shirt. The march then proceeded. The officer testified that when they got to City Hall, he saw Mr. Johnson remove the flag from under his shirt. He tried to light it with a cigarette lighter. It would not light. Someone from the crowd then handed him the can of lighter fluid. He soaked it, ignited it, the flag burned.

JUSTICE BLACKMUN: But you would be making the same argument if he owned the flag?

KATHI DREW: Yes, Your Honor, we would be. I do not believe that there is a shred of evidence in this record to support the fact that this was his privately owned flag. I believe just the opposite is very clearly reflected.

JUSTICE STEVENS: Was he prosecuted for stealing the flag?

KATHI DREW: No, Your Honor, he was not.

JUSTICE STEVENS: I wonder why.

KATHI DREW: I believe, Your Honor, problems were of proof there in that no one that saw him actually take it. In fact, the testimony was that others it and then gave it to him. And I believe that it was felt that there so many proof problems that a prosecution was speculative under those facts. There also might have been some problem placing a monetary value on the flag for with purposes of prosecution, which is necessary under the statute.

JUSTICE BLACKMUN: Isn’t the real way of opposing this kind of action by this man to have a large crowd out waving other flags in opposition to his posture rather than putting him in jail?

KATHI DREW: I’m sorry, Your Honor. I’m not… I’m I didn’t get all of your question.

JUSTICE BLACKMUN: Well, if you were out in front of the building today, there are pseudo-demonstrators of one kind or another, and I’m merely saying that wouldn’t it be better policy to rather than have a criminal statute like this to have 500 people out waving flags and hooting him down, so to speak?

KATHI DREW: Your Honor, I believe that legislatures act in category equal manners, and that–

JUSTICE BLACKMUN: Legislatures act the way they do, all right, no question. You have to be up here defending them.

KATHI DREW: It is within their judgment to penalize behavior that they feel is offensive to society.

JUSTICE KENNEDY: But you gave that answer before. You said the legislature has made the judgment. But you’re asking us to define and to articulate a constitutional category. And from what I can see, the constitutional category is that we simply say the flag is different.

KATHI DREW: That is one possibility that we have advanced to this court. That’s certainly true, Your Honor. We have also suggested, though, that another route is available to assume the symbolic speech standard and to take a look at what the state’s interests are in protecting and in prescribing this type of behavior.

JUSTICE O’CONNOR: Do you suppose Patrick Henry and any of the founding fathers over showed disrespect to the Union Jack?

KATHI DREW: Quite possibly, Your Honor.

JUSTICE SCALIA: You think they had in mind then in drafting the First Amendment that it should be a prosecutable offense?

KATHI DREW: Of course, Your Honor, one has no way of knowing whether it would be or not.

JUSTICE SCALIA: I think your response is that they were willing to go to jail, just as they were when they signed the declaration. They were hoping they wouldn’t get caught. [Laughter]

KATHI DREW: Yes, Your Honor. I believe the classic line is “We hang together or separately”.

JUSTICE STEVENS: You said that this flag may be possibly different from other symbols. You don’t argue that there’s something unique about this flag?

KATHI DREW: Of course there is, Your Honor.

JUSTICE STEVENS: Do you think you have an equally strong case for the flag of the State of Texas or the state flower? Do you think they’re the same case?

JUSTICE SCALIA: Well, Texas may be, we’ll say. [Laughter]

KATHI DREW: Texas, absolutely, Your Honor. [Laughter]

JUSTICE STEVENS: Are you serious in that answer?

KATHI DREW: Yes, I am.

JUSTICE  STEVENS: That the Texas flower… you could make the same kind of argument as for this flag?

KATHI DREW: No, I don’t think you could make the same kind of argument for the Texas flower. I truly do not.

JUSTICE STEVENS: But you haven’t really made an argument that there’s anything unique about this symbol.

KATHI DREW: Well, Your Honor, I disagree. I think in our brief we have detailed several arguments of what is unique about the symbol. I think it’s very clear that the flag is the manifestation, the visible manifestation of over 200 years of history in this nation, and that it has remained virtually unchanged in design. The 13 stripes represent the original 13 colonies, and every state is represented on the field of blue by a star. It is very unique. It is immediately recognizable to almost anyone who would see it.

JUSTICE THURGOOD MARSHALL: Well, suppose somebody burns an American flag with 48 stars on it.

KATHI DREW: I believe that is reachable under this statute, Your Honor.

JUSTICE MARSHALL: You believe what?

KATHI ALYCE DREW: I do believe that that could be reached under this statute. That is clearly a past flag. Many people probably still own and display 48-star flags.

JUSTICE MARSHALL: It would be just the same?

KATHI DREW: Yes, Your Honor, I believe that it would be.

JUSTICE SCALIA: But 47 wouldn’t work because there was never a 47-star flag…?

KATHI DREW: That would depend, Your Honor, on–

JUSTICE SCALIA: So, all you have to do is take one star out of the flag, and it’s okay. [Laughter]

KATHI DREW: That would depend, I believe, Your Honor, on how flag is defined. There are certain definitions that are given. Congress itself has defined what it means by the flag of the United States. And, as part and parcel of that definition, there is language that says “The stars and stripes in any number which to an individual who looks at it without deliberation, may be a flag. ” The flag behind you looks to me to be a flag, but I cannot count 50 stars on it.

JUSTICE SCALIA: So you’re saying 47 would be okay.

KATHI DREW: If there were any question, I would think that it would be appropriate for a jury to resolve that question, Your Honor.

I’d like to turn very briefly, if I may, to the breach of the peace interest. We do feel that preventing a breach of the peace is a legitimate state interest. And, indeed, the Texas Court of Criminal Appeals recognized that preventing a breach of the peace is a legitimate state interest. Again, the Texas legislature has made a judgment in this area that public desecration is likely to lead to violence, that it can lead to violence. And I think the record in this case is abundantly clear that it is merely fortuitous, it is our good luck that a breach of the peace did not occur as a result of this particular flag desecration. The appropriate test to be utilized in this area has not been decided by this court. There are two lines of cases. One is that public desecration of a flag is inherently inflammatory. Another is that immanence must be shown. And I believe that this record is very clear that Texas could regulate under either theory. And, again, the goal is a prevention of a breach of the peace, not a punishment for a breach of the peace. And in analyzing this particular statute, the Texas Court of Criminal Appeals utilized a much higher standard than any court has ever used before. They went to an actual breach of the peace and they said well, there was no actual breach of the peace. That’s true. Individuals who were seriously offended by this conduct were not moved to violence. If they were, they exercised restraint. But I don’t believe that that is dispositive of the state’s interest and because its interest is different, the standard is different.And I believe that the Court of Criminal Appeals suggestions in this regard are a bit too narrow; that if you have to show an actual breach of the peace, your purpose in a flag desecration statute is obviated. Some other statute would serve that interest, but not a flag desecration standard because its purpose is prevention.

JUSTICE SCALIA: If that theory alone is enough to support the statute, I suppose you could have such statutes for the Stars of David and crosses and Salman Rushdie’s book — whatever might incite people.

KATHI DREW: Your Honor, again, there are other sections of this statute where other items are protected, specifically public monuments, places of burial and worship. I don’t believe that anyone could suggest that one may paint swastikas on the Alamo in San Antonio. That is desecration of the Alamo. Legislatures made it up–

JUSTICE KENNEDY: But that’s because it’s public property.


JUSTICE KENNEDY: And unless you want to say that the flag is somehow public property of us all and ignore traditional distinctions of property, then your example just doesn’t work.

KATHI DREW: Your Honor, I believe that it does. I believe it does. The amici brief filed on behalf of Mr. Johnson in this case by the American Civil Liberties Union confesses that there is no First Amendment interest in protecting desecrations of either public monuments or places of worship or burial because they are… and this is a direct quote from Footnote 7, page 18 of their brief… “Someone else’s cherished property”. I think the flag is this nation’s cherished property, that every individual has a certain interest. The government may maintain a residual interest, but so do the people. And you protect the flag because it is such an important symbol of national unity.

JUSTICE SCALIA: If we say so, it becomes so. But it certainly isn’t self-evident that… I never thought that the flag I owned is your flag. [Laughter]

KATHI DREW: Many justices of this court have held that the flag is a national property. Unless the Court has additional questions, I will close.


Mr. Kunstler, you may proceed.

WILLIAM KUNSTLER: Mr. Chief Justice, may it please the Court: Some of the steam has been taken out of me by some of the questions and some of the responses and the concession by the state. But I would like to suggest briefly to state that this particular act that we’re concerned with here, this 42.09(a)(3) of the Texas statute singles out communicative impact for punishment. Now, Ms. Drew has avoided that by now. And virtually the state now apparently concedes that you can write out of a statute what Justice O’Connor referred to, the question of whether the actor knows or means that what he’s doing will seriously offend one or more persons likely to observe or destroy or discover his particular act. That’s out of the statute, apparently, according to the argument because in the reply brief and today she has said essentially what is in the reply brief. Like Gertrude Stein, “A rose is a rose”, they now say “A flag burning is a flag burning. ” And they read out of the statute under which he was convicted and which went to the jury and the charge on the question of seriously offend, that’s all out as far as Ms. Drew is concerned.

But it’s not out as far as this court is concerned. That’s what the conviction was about, that’s what the argument to the jury was about, that’s what the charge was about. They all mention that. That’s what the witnesses, Stover, Tucker, and Walker, testified to, that they were seriously offended. So, this depends on communicative impact for punishment. They’ve conceded it’s pure speech. They raise no question arguendo, even, essentially that it is not speech, and concede that.

JUSTICE SCALIA: Mr. Kunstler, I think you’re stretching her argument. I don’t think she said that. I think she said that there has to be a fence, but it doesn’t have to be the intention to communicate that offense. It doesn’t have to be intended offense.


JUSTICE SCALIA: If you’re doing it to honor the flag in your crazy, mistaken fashion, but it would obviously offend anyone else, then you would violate the statute. So, I think she still insists that it be likely to offend somebody, but you don’t have to intend to communicate a dishonor or offense to the flag.

WILLIAM KUNSTLER: I can understand that rationale, but in reading the reply brief, it said in essence we virtually take that out of the statute. We rewrite the statute now, and we say essentially a flag burning is a flag burning, and that offense goes out of it, offense whether communicated later or not communicated later, whether it occurs or it doesn’t occur, I thought that’s what the reply brief did. Now, maybe I do misstate her argument slightly, but I don’t think I mistake the reply brief — because I got the impression that “A flag burning is a flag burning. ”

Now, I remember, Justice Scalia, in reading your dissent in Community for Creative Nonviolence that you said essentially, “A law directed at the communicative nature of conduct must like a law directed at speech itself be justified by the substantial showing of need that the First Amendment requires. ” I subscribe to that wholeheartedly. In fact, you went on and you reviewed all of the cases that you thought were applicable there, Stromberg, Brown, Tinker and Spence, and you made the following statement: “Every prescription of expressive conduct in those cases was aimed at the communicative effect of the conduct. ” And that’s what they had here. That’s what the jury got, that’s what the testimony was, and that’s what the statute says.

We subscribe to that in our argument, and I think Justice O’Connor when she wrote Boos she said essentially, this justification is only on the content of the speech and the direct impact that speech has on its listeners. And in Cohen I think Justice White in his concurrence said that statute made the communicative aspect of the proscribed conduct a crucial element of the violation. That’s the contemptuous treatment statute, and that’s what we have here. Everything depends on the communication that is made by the actor which may be communicated to the people on the street. But in the statute, Justice Scalia, it goes even further, “likely to observe or discover”, which could be in the newspapers the next day, for example, as well as being an onlooker.

So, I think that given the concession that the statute is pure speech, given the past decisions of this Court on what should happen to a statute that makes communicative impact, the criterion of the punishment that this statute fails that test, it certainly doesn’t come under O’Brien because here the government’s interest is directly related to expression. I think what you have here is a statute that depends solely and exclusively on communicative impact on the audience, whether they’re there or they read it in the newspaper or they see it on the screen in the evening. It all goes to that. And when you use the word desecrate, you don’t mean really in essence praising the flag. Desecrate has a meaning — to divest of a sacred character or office, to divert from a sacred purpose, to violate the sanctity of, to profane, the opposite of consecrate. Now, with reference to the compelling state interest, I listened to the argument of flower to star against B.J.F. before here, and I don’t want to hurt Mr. Rahdert’s argument in this argument, knowing nothing about the case except what I heard today, but I thought that the protection of a rape victim was a compelling state interest. I agreed with Justice O’Connor’s comments on that. That is a compelling interest, certainly. Here you have no compelling state interest that is worth consideration.

With reference to the nationhood and national unity, which Ms. Drew raised and which is filled in the brief, both the reply brief and the main brief of the state, I thought Barnette set that to rest. I thought that when Justice Jackson said that if there is any fixed star in our Constitutional constellation, it is that no official high or petty can prescribe what shall be orthodox in politics, nationalism–

CHIEF JUSTICE REHNQUIST: Well, the facts of West Virginia v. Barnette were quite different from this. There the students were required to salute the flag.

WILLIAM KUNSTLER: And here, Chief Justice, people are required not to do something.


WILLIAM KUNSTLER: And I think that’s a comparable situation. We order you. We can’t order you to salute the flag. We can’t order you to do all these obeisances with relation to the flag. Can we order you not to do something to show something about the flag?

CHIEF JUSTICE REHNQUIST: Well, to me they’re quite different. You could say that if you can’t do one, you can’t do the other. But it seems to me one could quite easily say you can’t do one but you can do the other.

WILLIAM KUNSTLER: Well, you know, I understand that, but I think that you get into Street, I thought, which also relied on Barnette. There he did exactly what we’re talking about here. He burnt the flag in the street over the question of James Meredith being shot in Mississippi in 1966.

CHIEF JUSTICE REHNQUIST: And what was the holding of the court in Street?

WILLIAM KUNSTLER: Well, in Street essentially the court indicated that you couldn’t tell whether it was speech or whether it was flag burning and, therefore, the court reversed in the Street case. But in so deciding in relying on Barnette, the court said, essentially I thought, that it was an illegitimate interest in Street to compel respect by prohibiting criticism of the flag, including flag burning. So, we have a little difference of opinion on the facts. I know the facts are somewhat different except a flag was burned in the street by Mr. Street in a political protest over a shooting in Mississippi of a civil rights figure. But I think the analogy is the same. Can you say you can’t force them to salute the flag or pledge allegiance to the flag, but can you then say we can force them not to show other means of disrespect for the flag, other means of protest over the flag by saying you can’t burn the flag? I think they’re the same, in all due deference.


WILLIAM KUNSTLER: I don’t know if I’ve convinced you, but–

CHIEF JUSTICE REHNQUIST: Well, you may have convinced others. But for example, the “Live Free or Die” case. Do you remember that?

WILLIAM KUNSTLER: I certainly do.

CHIEF JUSTICE REHNQUIST: It was from from New Hampshire, and where we said that New Hampshire can’t require you to carry around on your license plate the expression “Live free or die”. But certainly New Hampshire could have prohibited making some statements on your license plate.

WILLIAM KUNSTLER: But I think in Wooley, as I recall it, they painted out. They did an affirmative act and painted out the “Live free or die” motto. The Jehovah’s Witnesses didn’t believe in that, so they painted it out. They did enact and then the question was was that act violating some criminal code.

CHIEF JUSTICE REHNQUIST: And the court said no, you can’t prohibit that sort of thing, but the reasoning of the Court was that you can’t require someone to make an affirmation. To me that’s West Virginia versus Barnette. But, if someone applies for a New Hampshire license plate that has a lot of foul language on it, very likely that limited thing can be proscribed.

WILLIAM KUNSTLER: I know. That I would agree with you on that, but I think that to get away from Wooley against Maynard would be a mistake here. That’s putting something on the license plate that is profane or whatever. But in Wooley, as I understood it, the act that they, Jehovah’s Witnesses did, was to paint out. They burnt the flag in essence. They painted out. I don’t think we’re going to reach eye to eye on this. [Laughter] I have that distinct feeling.

Now, with reference to punishment for communicating ideas about the flag, it’s wrong to punish people for having a different idea about the flag, and I agree with Justice Scalia that flag burning of a single flag in front of the new City Hall in Dallas doesn’t lessen the value as a symbol.

With reference to breach of the peace, none of the flag cases that you have before you have involved a breach of the peace. The only one I found where there was any violence was what Judge Tuttle found in the Monroe case, where they burned an American flag in front of the federal building and someone burned an Iranian flag. When the Iranian flag was burned, there was one act of violence, but not when the American flag was burned. And Judge Tuttle pointed out that there was no clear and present danger.

One cannot equate serious offense with incitement to breach the peace. And I think that any breach of the peace argument here falls on its face.

I would just like to end my argument. I think this is a fundamental First Amendment case, that the First Amendment to the written Constitution is in jeopardy by statutes like this. And I wanted to essentially close with two remarks. One Justice Jackson said in Barnette:

“Those who begin coercive elimination of dissent soon find themselves eliminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. The First Amendment was designed to avoid these ends by avoiding these beginnings.”

And I think that’s an important statement over the years from Justice Jackson. And then, in just a recent article in the New York Times called “In Chicago a Holy War Over the Flag,” J. Anthony Lukas said:

“Whatever pain freedom of expression may inflict, it is a principle on which we can give no ground.”

And I understand that this flag has serious important meanings. The Chief has mentioned many times that it is not just pieces of material, blue and white and red. That has real meaning to real people out there. But that does not mean that it may have different meanings to other people out there and that they may not under the First Amendment show their feelings by what Texas calls desecration of a venerated object. I think it’s a most important case. I sense that it goes to the heart of the First Amendment, to hear things or to see things that we hate test the First Amendment more than seeing or hearing things that we like. It wasn’t designed for things we like. They never needed a First Amendment.

Thank you very much.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Kunstler. The case is submitted.

The Rainbow Dissent

b1_rainbow_gavel_ah_s877x500The 5-4 majority opinion in Obergefell vs. Hodges was grounded in the idea of liberty through due process of law.

What surprises me is how the dissent turned out. I thought that Chief Justice Roberts would swing; that Scalia would have the most reasonable dissent; that Alito would be a tool; and that Thomas would display his usual know-nothing jurisprudence. Only Alito was true to form. Thomas actually had a reasonable (though flawed) opinion, while Roberts not only didn’t swing but made a fool and hypocrite of himself. Let’s look at the dissenters in turn, from best to worst.

thomasClarence Thomas. Thomas argued that the majority is misapplying the 14th Amendment’s Due-Process Clause — which safeguards life, liberty, and property — because, he says, liberty only includes the protection of individual rights against government interference, not the conferral of government benefits:

“Even assuming that the ‘liberty’ in the Due Process Clause encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”

He cites evidence indicating that the liberty protected by the clause has been understood in this very limited way, and he is largely correct. But legal critics have noted his two glaring oversights. First, he ignores the 14th Amendment’s even more important Equal Protection Clause, which says that no state shall deny to any person within its jurisdiction “the equal protection of the laws”. The issue is simple: state laws that recognize only opposite-sex marriage unconstitutionally discriminate on the basis of gender and/or sexual orientation, and whenever state laws do discriminate like this (on the basis of of race, gender, and/or sexual orientation) that is usually held to be unconstitutional, irrespective of whether the laws in question grant positive benefits or not. State governments can choose whether or not to provide public education, but it’s unconstitutional for them to be selective in their decision; they can’t provide education only to whites, or only to men.

Second, Thomas isn’t even entirely right on the Due Process Clause, because he ignores the contractual nature of marriage, which is key. The right to freedom of contract has long been understood as a liberty protected by the constitution. Freedom includes the right to voluntarily enter into an agreement that restricts one’s future options in exchange for benefits. Employment contracts and marriage contracts are all forms of liberty. Obviously — and when I say “obviously”, I do mean from a constitutional perspective — a person who is barred from entering into a contractual agreement is less free than the one who can. Marriage is not, as Thomas implies, “just” a matter of getting benefits per se; it’s a matter of entering into a private-party contract.

In my mind, both the Due Process Clause and Equal Protection Clause of the 14th Amendment make same-sex marriage bans unconstitutional. On top of this, there is judicial precedent for striking down marriage bans on the basis of liberty and equity. Loving vs. Virginia invalidated bans on interracial unions in 1967, and Turner vs. Safley did the same for prisoners in 1987. The majority opinion in Obergefell vs. Hodges followed this stream of jurisprudence. It was constitutionally sound.

scaliaAntonin Scalia. That leaves us with the three others, who had little to show for themselves. I had thought Scalia would make the best case for the dissent based on his preliminary remarks last month. His concern had been for the right of religious pastors to conduct marriage according to their creed. Gay marriage should be decided by states, he said, because that allows states to make exceptions — for example, that gays can be married, but ministers who don’t believe in gay marriage cannot be forced to marry them. If, on the other hand, the supreme court ruled gay marriage as a constitutional right, ministers wouldn’t be able to opt out.

That was a reasonable argument, but quickly shot down by his colleagues. Unwilling pastors, rabbis, priests, etc. are protected by the First Amendment. They cannot be forced to officiate at marriages they object to. There are rabbis who refuse to conduct marriages between Jews and non-Jews — even though we have a constitutional prohibition against religious discrimination — and those rabbis get all the powers and privileges of the state. Scalia’s objection amounted to a phantom menace, and it’s no surprise he didn’t revisit the issue in his dissent.

So he was left with the lame objection that the majority is using the 14th Amendment in a way that was never intended by its writers:

“When the 14th Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. The majority have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.”

All that does is beg the question and fail to acknowledge the majority’s points of the Due Process and Equal Protection Clauses.

alitoSamuel Alito. Alito opined that gay marriage isn’t protected by the Due Process Clause because the concept of liberty applies only to those principles that are rooted in U.S. tradition. The concept of gay marriage is too new:

“For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.”

But the majority gives good reasons why that right is fundamental, as we saw above.

Alito also decried a conception of marriage that isn’t focused on procreation. States, he says, have formalized and promoted marriage in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. But classic family values are irrelevant here.

John G. Roberts portraitJohn Roberts. Roberts showed signs of swinging in the preliminaries but ultimately copped out:

“Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.”

Or in other words, as he later quipped, “This is a court, not a legislature.” That statement is laughable given the decision he penned only one day before. In King vs. Burwell he saved Obamacare by rewriting one of its statutes — a clear overreach of judiciary prerogative if there ever was one. Obergefell vs. Hodges doesn’t require the overreach. It requires an engagement with the Due Process and Equal Protection Clauses, and the precedents set by previous supreme court decisions. Roberts’ sidestepping of these issues made him a callow hypocrite.

The Chief Justice Got His Cases Backwards

john-robertsOur chief justice has been interesting to watch. His swing-vote with the liberals in National Federation of Independent Business vs. Sebelius (2012) earned him my respect, and not simply because I support Obamacare. The Supreme Court doesn’t exist to rule in favor of what we like, or against what we dislike, only to determine the constitutionality of laws under fire.

Roberts correctly recognized that Obamacare was a constitutional exercise of Congress’ taxing power. And we should be clear about this, since many people continue to dispute the issue: Obamacare is certainly a tax: it’s an amendment to the Internal Revenue Code; it’s calculated based on a percentage of adjusted gross income or a fixed amount, whichever is larger; it raises revenue; it serves the general welfare, and is not a criminal penalty in disguise. To object that the health care mandate was not written as a tax but as a penalty, and that the bill’s authors and administration denied that Obamacare was a tax, doesn’t settle the issue in advance. The authors were wrong in their denial.

Intentions disproven by results are empty. If I intend to write a sonnet, but I write a limerick, the end result is a limerick, and my intentions bloody failed. The end result of Obamacare was the absolute functional equivalent of a tax. If Roberts read something into the text of the law that wasn’t originally meant, he saw what was clearly there irrespective of that, and that’s why the 2012 case to uphold Obamacare was constitutionally solid.

What made that decision even more impressive is that Roberts is conservative-leaning and not wild about Obamacare. He went against his personal biases in upholding the mandate, thereby showing the kind of integrity that I believe should be emulated more often on the supreme court.

That was then. Flash-forward to the supreme court decision issued last Thursday, King vs. Burwell, in which Obamacare was saved a second time, in the 36 states that don’t participate in insurance exchanges that provide eligibility for tax credits. The language of the statute provides eligibility for such credits only to people with state-operated exchanges (14 states provide this), but Roberts claimed that the disputed clause is ambiguous and so should be interpreted in a more lenient manner — and by himself.

The Wall Street Journal criticizes Roberts as follows:

“The black-letter language of ObamaCare limits insurance subsidies to ‘an exchange established by the State.’ But the Democrats who wrote the bill in 2010 never imagined that 36 states would refuse to participate. So the White House through the IRS wrote a regulation that also opened the subsidy spigots to exchanges established by the federal government.

Chief Justice Roberts has now become a co-conspirator in this executive law-making. With the verve of a legislator, he has effectively amended the statute to read ‘established by the State — or by the way the Federal Government.’ His opinion — joined by the four liberal Justices and Anthony Kennedy — is all the more startling because it goes beyond normal deference to regulators.

Chief Justice Roberts concedes that the challengers’ arguments ‘about the plain meaning’ of the law ‘are strong.’ But then he writes that Congress in its 2010 haste bypassed ‘the traditional legislative process’ and thus ‘the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.’ So because ObamaCare is a bad law, the Court must interpret it differently from other laws.”

I don’t like having to agree with this, but I do. Roberts assumed executive and legislative roles in order to deal with a tension between a statutory text and the statute’s structure and purpose. But in such cases, the rule of law is clear: the government takes priority. According to the Chevron doctrine, when a statute is ambiguous, courts should defer to the interpretation of the implementing agency. Roberts didn’t do that; he arrogated the role to himself.

I can sympathize with the reason for his judiciary arrogance. He and the liberal justices were obviously trying to save Obamacare in a quick and dirty way so that we wouldn’t be left with a mess in 36 states. Millions of people could have lost their health insurance subsidies. I’m personally happy that they have been rescued, but I’m not impressed with how it was done.

What makes the chief justice look twice as bad is his dissent only one day later in Obergefell vs. Hodges. On Friday he sided with the three conservative justices against gay marriage precisely on grounds that “the supreme court is not a legislature”. That’s Pot Roberts calling out Kettle Liberals — and the kettle isn’t as black as he thinks. The question of gay marriage involves the logical extension of constitutional rights, liberties protected by the Fourteenth Amendment’s Due Process Clause, and basic discrimination issues related to the Equal Protection Clause. The supreme court has long held that the right to marry is protected by the constitution — as in Loving vs. Virginia (which invalidated bans on interracial unions) and Turner vs. Safley (which held that prisoners could not be denied the right to marry).

Roberts got his cases backwards. By rights, he should have dissented in Thursday’s Obamacare decision, and said yes on Friday to the constitutionality of gay marriage. I don’t really like complaining about Thursday’s decision when I’m pleased by the end result, but the interpretive role of the supreme court is a critical one, and unlike his earlier decision in 2012, Roberts now seems to have well exceeded his judiciary role. It sets a bad precedent.