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.