May 17, 2019--The Surprising Supremes

The struggle between the Trump White House and the Democrats in the House of Representatives is heating up. 

Congress is attempting to do its constitutionally mandated oversight work. They want access, for example, to the full Mueller report; they are also subpoenaing Trump's tax records; and they want to gather direct testimony from Mueller and, along the way, to have Donald Jr. testify about Russian interference in the 2016 election.

Trump is stonewalling everything, claiming executive privilege.

None of this will be resolved as it usually is by negotiations. There is too much bad blood for that and Trump knows how devastating it would be for him if the truth were exposed. 

It will then for certain take months or years for these disputes to be adjudicated by the Supreme Court.

Meanwhile, at the state level, Alabama just passed legislation to eliminate abortions under virtually all circumstances. Including if a women becomes pregnant as the result of rape or insist. This piece of legislation was not designed to be implemented but rather was carefully crafted to reach the Supreme Court and give the now conservative court the opportunity to consider overturning Roe v. Wade and thereby making abortion illegal in all 50 states.

Conservatives feel that with a majority of the nine members of the current court named by Republican presidents (Thomas by George H.W. Bush; Roberts and Alito by George W. Bush; and Gorsuch and Kavanaugh by Trump) Roe v. Wade is threatened as are affirmative action and all forms of support for voting rights. 

But maybe for conservatives it is too soon to celebrate.  

It is by no means certain that Roe and other examples of progressive Supreme Court decisions are doomed. They are seriously threatened, but it is not yet clear they will be overturned. 

Recall that Chief Justice Roberts joined the four liberal justices to uphold Obamacare. I speculated at the time and subsequently that Roberts, perhaps feeling everything that is decided on his watch will be attributed to the "Roberts'" Court, perhaps concerned about how he would be regarded by historians, he abandoned his up-to-then predictable conservative voting record and joined the four liberals to sustain a program that provides medical coverage for 20 million Americans. He did not want to see the Affordable Care Act shredded while he was serving as Chief Justice. He therefore contorted himself and found a way to support it.

But here's the real surprise--the voting pattern of the most recent member of the court: Brett Kavanaugh.

Recall, he is the justice who was accused of sexual harassment and confessed during his conformation hearing that he had a drinking problem. He testified rapturously about how he "loves beer." So much so that he repeated it half a dozen times. 

Did anyone after this and looking at his judicial record think he would even one time vote with the liberal block?

Well, he has been. In fact, he has voted with the liberals more often than any other justice.

In recent months, for example, he voted with Ginsberg and Sotomayor on the death penalty and criminal defendants' rights. In both instances not agreeing with Trump's other appointee, Neil Gorsuch and the other conservatives.

It is premature to speculate how he might vote when it comes to disputes about Trump's claims about executive power. 

There have been more than a few surprises when it comes to justices voting contrary to what one would have expected. There were numerous times when Franklin Roosevelt appointees voted against New Deal legislation and Byron (Whizzer) White, named by Kennedy, turned out to be more a conservative than a liberal. And then there was David Souter, protected by lifetime tenure, who was appointed by George H.W. Bush but turned out, once on the court, to be dependably liberal.

So, keep an eye on Kavanaugh. Along with Roberts he may turn out to be unpredictable. He too may have an eye on history.

March 5, 2019--Best Advice Ever

Chief Justice John Roberts was invited to give the commencement address at his son's middle school graduation.

I came upon what he said when working my way through Greg Lukianoff's and Jonathan Haidt's The Coddling of the American Mind: How Good Intentions and Bad ideas Are Setting Up A Generation for Failure.

The title of the book is self-explanatory as is what the Chief Justice had to say. For me it's about the best advice anyone ever offered to teenagers. 

Here is some of what he had to say--

Now around the country today at colleges, high schools, and middle schools, commencement speakers are standing before impatient graduates. And they are almost always saying the same things. 

They will say that today is a commencement exercise. ‘It is a beginning, not an end. You should look forward.’ And I think that is true enough, however, I think if you’re going to look forward to figure out where you’re going, it’s good to know where you’ve been and to look back as well. And I think if you look back to your first afternoon here at Cardigan, perhaps you will recall that you were lonely. Perhaps you will recall that you were a little scared, a little anxious. And now look at you. You are surrounded by friends that you call brothers, and you are confident in facing the next step in your education. 

It is worth trying to think why that is so. And when you do, I think you may appreciate that it was because of the support of your classmates in the classroom, on the athletic field and in the dorms. And as far as the confidence goes, I think you will appreciate that it is not because you succeeded at everything you did, but because with the help of your friends, you were not afraid to fail. And if you did fail, you got up and tried again. And if you failed again, you got up and tried again. And if you failed again, it might be time to think about doing something else. But it was not just success, but not being afraid to fail that brought you to this point. 

Now the commencement speakers will typically also wish you good luck and extend good wishes to you. I will not do that, and I’ll tell you why. 

From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time so that you don’t take friends for granted. 

I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either. And when you lose, as you will from time to time, I hope every now and then, your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship. I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion. 

Whether I wish these things or not, they’re going to happen. And whether you benefit from them or not will depend upon your ability to see the message in your misfortunes.

December 26, 2018--Swing Vote

Occasionally, one of my predictions comes true. For example, my suggesting in early October that with swing man Anthony Kennedy no longer on the Supreme Court Chief Justice John Roberts would assume that role.

I noted that Supreme Courts are referred to by historians after whomever is the Chief. Thus there is the Warren Court and the Rehnquist Court and the Berger Court or, for that matter, the John Marshall Court.

Knowing this, I wondered, with Trump appointing far-right judges, how the current Chief Justice, John Roberts, was feeling about his name being associated with a court that has descended into full-bore partisanship. 

It appears that he is now thinking that unless he becomes the swing vote, replacing Kennedy, the Roberts Court will forever after be dominated by ideological lightweights such as Clarence Thomas, Neil Gorsuch and Brett Kavanaugh. And though he does not appoint his colleagues, he will still be perceived as responsible for their actions.

Does Roberts want to go down in history rafted up with this crew?

Apparently not, which is good news to progressives and America as the Supreme Court is likely over the next year to be called on to decide if a sitting president (Trump) can be indicted or if the Mueller Report, when it is completed, can be withheld from public view by Trump's small-minded Justice Department.

The latest evidence that Roberts has become the court's swing man was his vote last week to join the four liberal-leaning justices in rejecting an appeal from the Trump administration that would, if approved, have overturned many decades of asylum policy. To severely restrict the rules by which fleeing refuges can seek the protection of the United States. 

Earlier, he again joined the liberals in overruling a lower court decision that would have restricted federal funding for Planned Parenthood. Thomas and his comrades cried foul. But there was Roberts guided by the Constitution, not partisan reflex.

In even bigger picture terms Roberts' behavior and leadership is of great consequence because, if it persists, it will mean that at least one of the three branches of our otherwise dysfunctional government might again begin to function as envisaged by the Founders and thus will be guided by the Constitution they bequeathed to us.

Then there is the open spat that has been festering since 2015 between Trump and Roberts. All initiated by Trump's intemperate criticism of what he claimed to be the ideological bias of federal judges.

During the election campaign Trump frequently spoke out against what he asserted were liberal federal judges who acted as political partisans. Those in the 9th circuit, for example.

Two days before Thanksgiving Trump attacked an "Obama judge" for ruling against him on immigration. In an unusual public rebuke Rogers shot back, claiming that there are no "Obama judges, Bush Judges, or Clinton judges." Just independent ones.

Actually, there are highly partisan federal judges who are guided more by their beliefs than by precedent or the Constitution. Conservatives as well as liberals. Supreme Court justice Anton Scalia is a powerful example of the former. 

But Roberts is articulating his aspirations for the judiciary and is modeling independent-minded behavior that he hopes will become the standard. He should be commended for that.

October 9, 2018--Swing Time At the Supreme Court

Adam Liptak, who covers the Supreme Court for the New York Times, in a postmortem after the confirmation of Brett Kavanaugh, wrote that with the departure of Justice Anthony Kennedy, the court is now left without a swing vote. Expect, he says, very conservative decisions, among others, about abortion (severely restrict or end them), affirmative action (sack it), redistricting (what states are doing is OK), and voting rights (not to worry too much about them).

While I'm not so sure Kennedy did all that much swinging, it is true that on subjects such as gay rights he usually voted with the liberal minority. Mainly, though, he joined conservatives on the court in a series of 5-4 decisions about presidential power, corporate reach, and the funding of political campaigns.

There may be, though, another way to think about this. Even with Kavanaugh seated, instead of a predictable suite of conservative 5-4 decisions, we may find a surprising number, sill 5-4s, tipped in a surprisingly liberal direction. 

We could see more moderate and even occasional progressive judgements then anticipated with someone other than Kennedy or, God help us, Kavanaugh agreeing with the four-member liberal wing of the court.

I see the strong possibility that Chief Justice John Roberts may turn out to be an occasional swing vote, especially when issues are of such magnitude that he does not want his court to be perceived as acting too regressively or with too much partisanship.

Case in point, the Affordable Care Act (Obamacare) where Roberts struggled to find a way, a rationale that would work for him and allow him to vote to uphold it. Which he did. (Swingman Kennedy voted with the other three conservative judges and argued vigorously to get Roberts to join them.)

Stretching the language of the actual Obamacare legislation, he saw the individual mandate of the ACA to be funded by a tax and not by either subsides or penalties. And, thus, constitutional. A stretch but revealing--he was so eager to find the ACA upholdable that he became inventive when it came to finding a way to sustain it.

Why might that be? Judicial rationalization trumping ideology and even belief?

Because it's his court. Robert's court. Forever in history, whatever the court does or does not do, finds constitutional or lacking in precedent will be attributable to the Robert's Court.

It wasn't the Scalia Court, nor was it the Thomas Court, or for that matter the Ginsberg Court. It's the Robert's Court as it was the Warren Court, the Burger Court, or the Rehnquist Court.

History-minded, as all chief justices are, Roberts may not want his court to be known ever after as heartless and insensitive to the lives of Americans and our institutions. For him to be perceived that way.

I may be indulging in wishful thinking. But, then again, let's wait and see. Stranger things have happened with the Supreme Court.