Supreme Shift: Ginsburg to Barrett (Part 1)

The magnitude of the shift was certainly not matched by a magnitude of serious deliberation.

Olivier Douliery/AFP

Justice Ruth Bader Ginsburg died on September 18th. President Trump nominated Judge Amy Coney Barrett to fill the resulting vacancy a mere eight days later. One and a half weeks later, on October 5th, Senator Lindsey Graham scheduled a four day confirmation hearing. It began the next week.

Democrats decried the hypocrisy of the Republicans who had refused to hold a hearing during an election year when President Obama nominated Judge Merrick Garland. The Democrats also sounded alarms about the likely ramifications of an ideologically conservative Barrett replacing liberal Ginsburg. Republicans, not surprisingly, insisted that there was no such hypocrisy. They also lauded Barrett's avowed judicial restraint in decision-making, while insisting that her asserted embrace of originalism and textualism had nothing to do with any perceived ideological bent. After four days, the pre-ordained result seemed nothing but pre-ordained.

Whatever the partisan wrangling and dissembling may otherwise suggest--about the Barrett nomination and Barrett herself--there are some simple realities. Ruth Bader Ginsburg was selected by Democratic President Bill Clinton. She was heralded for her successful litigation on behalf of equal rights for women, and her record on the Court over 27 years was unmistakably liberal across the wide swath of issues from abortion rights to affirmative action to gender equality to immigration to LGBTQ rights to racial justice to the rights of the accused, etc.

By contrast, Amy Coney Barrett was selected by Republican Donald Trump. Her nomination was urged by supporters because of her ideological leanings that are distinctly contrary to those of Ginsburg, and for her judicial record which, albeit brief, reflects a polar opposite jurisprudence. In short, by all accounts, she is very ideologically conservative.

So let's take a look at the change that's in store--a change for the Court with a Justice Barrett who presumably would behave consistently with her record as Judge Barrett.

Here's what the ideological line-up of the Justices looked like in the immediately past term, with Ginsburg still on the Court:

(click to enlarge)

When considering those issues where there is a clear divide between liberals and conservatives, there is a clear breakdown of the Justices. As depicted above, the liberal or "left" wing of the Court has included Justices Sonya Sotomayor and Ruth Bader Ginsburg, as well as Stephen Breyer and Elena Kagan whose records have been slightly--and just slightly--more ideologically mixed. On the Court's conservative or "right" wing are Justices Clarence Thomas and Samuel Alito, followed closely by Neil Gorsuch and, somewhat less ideologically consistent, Brett Kavanaugh. More ideologically mixed, yet still conservative--especially when contrasted with the Court's liberals--is the Chief Justice, John Roberts.

But what about the terms "liberal" and "conservative"--how exactly are those terms being used? Well, not at all as synonymous with so-called judicial "activism" versus "restraint," loose versus strict interpretation, adherence to precedents and deference to the elected branches versus the opposite. No, none of that. Those dichotomies tell us precious little about judges being ideologically "liberal" or "conservative."

Rather, just think about liberal Democratic politicians and their supporters contrasted with conservative Republican politicians and theirs. Think about those issues where those two camps generally and usually vehemently divide. Think separation of church and state, gun rights, LGBTQ rights, affirmative action, abortion rights and other women's rights, voting rights, immigration, the death penalty, environmental regulations, worker rights versus business, campaign finance, and, of course, Trump. When considering those "hot button" issues and how the Justices vote on them, there are clear patterns. That's what's depicted in the line-up, and that's how we popularly and pretty accurately characterize the Justices.

So it's certainly no surprise that on those issues just listed, as well as other similarly "hot button" matters, Justices Sotomayor and Ginsburg rarely, if ever, voted on the same side as Justices Thomas and Alito. Indeed, all four liberal Justices were almost always on the opposite side of Thomas and Alito. Moreover, it was uncommon for any of the the four liberals to be on the same side as any of the four most conservative Justices. And among the Court's conservatives, only the Chief Justice--at least during the past two terms--sided with the liberals on a somewhat regular, if not usual, basis.

So, the line-up has been 4 liberals and 5 conservatives on the Court--again, with the Chief Justice's voting record being more moderate or centrist than the other conservatives, at least within the Court's ideological spectrum. Let's look at that line-up once more before looking at the change that's in store if Judge Barrett is confirmed. 

(click to enlarge)

Now, let's remove Ginsburg from the depiction and add Barrett:

(click to enlarge)

Based upon the politically conservative groups that urged the nomination of Judge Amy Coney Barrett, the promises President Trump has made about the kind of judges and Justices he would nominate, the support Barrett has been receiving from politically conservative Republican Senators, her academic writings and lectures, her record as a federal appellate judge--based on all of that evidence, there is every reason to believe that a Justice Barrett would be positioned firmly within the politically conservative wing of the Court. That is, there is every reason to believe that she would be voting with the politically conservative Justices on the politically conservative side of the liberal versus conservative, "hot button" issues.

Based on the previously listed evidence, it is safe to assume that her ideological bent is no less conservative than that of Trump's first two nominees, Gorsuch and Kavanaugh. Indeed, she might well be even more ideologically aligned with most conservative among the conservative Justices--i.e., Thomas and Alito.

At the least, her appointment to the Court would alter the previous 5 to 4 politically conservative majority on the Court--or the arguable 4 to 4 ideological balance with Chief Justice Roberts as the "'swing" vote. That would change to a 6 to 3 conservative majority--or arguably a 5-4 conservative majority with Roberts splitting his votes between the Court's two ideological wings. Putting the change more starkly, Judge Barrett's addition to the Court, filling the Ginsburg vacancy, would mean twice as many politically conservative Justices on the Court as liberals. Even more stark? The politically conservative Justices would still constitute a majority without Roberts' vote. The liberals on the Court would need two of the politically conservative Justices to vote their way to ever reach a majority.

To be sure, it is within the realm of possibility that Judge Barrett might experience an ideological and jurisprudential conversion over her tenure on the Court. It has certainly happened to others. Republican appointees have sometimes transitioned to staunch jurisprudential liberals. Nixon appointee Harry Blackmun, Ford appointee John Paul Stevens, and Bush (41) appointee David Souter come readily to mind. And Reagan appointees Sandra Day O'Connor and Anthony Kennedy, even if never quite liberals, both became "swing votes" during their tenures, joining their liberal colleagues on some major social issues.

Absent such a dramatic ideological transformation, however, Judge Barrett's addition to the Court will result in a dramatic ideological transformation of the Court itself. Amy Coney Barrett replacing Ruth Bader Ginsburg? That is dramatic. 

One more note before concluding. Imagine for a moment that remote chance that the Barrett nomination were to fail. What would the Court look like if a President Biden, rather than President Trump, were to fill the Ginsburg vacancy? Take a look:

(click to enlarge)

A Biden appointee to fill the Ginsburg vacancy would not change the ideological line-up of the Court from what it has been. Presumably, Biden would nominate a political liberal, someone in the mold of a Ginsburg or Sotomayor--or Breyer or Kagan. His nominee would certainly not be in the politically conservative mold of a Thomas or Alito or Gorsuch or Kavanaugh--or even Roberts. But such a nominee, if successfully appointed and then aligned with the other liberal Justices, would merely keep the Court's ideological line-up as it was before: 5 politically conservative Justices to 4 liberals, or 4 to 4 with the Chief Justice as the swing vote.

In short, with Trump's pick--a dramatic ideological shift to the right. With a Biden pick--status quo ante; no liberal tilt.

In the next post, we'll consider Barrett's record as a federal appellate judge on the 7th Circuit.

It's Roberts' (somewhat less right-wing) Court (Part 3)

As this is being prepared, the 5-4 Court--Roberts voting with the liberals--invalidated the Louisiana abortion restrictions. More on that and on that continuing pattern below.

Source:Reuters/Leah Mills

We've previously looked at Chief Justice Roberts' breaking with his conservative colleagues and aligning with the Court's liberals to help form majorities in politically charged cases dealing with Obamacare and immigrantion (see Part 1), and LGBTQ rights and the death penalty (see Part 2). The point is not that I applaud his doing so (although I do, and wish he did so more regularly). The point is that he has been doing so and, whatever else political liberals may think of him, it simply cannot be denied that on some major issues he has prevented the Court from veering off too far to the right.

Let's finish this series by recalling a few other decisions reflecting the same pattern. Perhaps these cases, like those we've previously discussed, evince a Chief Justice concerned primarily about the legitimacy of his Court, i.e., rebuffing criticisms that it is just another institution polarized along partisan lines. Perhaps it's Roberts holding his Court together by giving the benefit of the doubt to the Court's liberals--at least every once in a while in close cases where he could honestly support either side. Perhaps it's the Chief Justice upholding the integrity of the Court's authority by supporting precedents against which he had originally dissented (as he just now did again in the Louisiana abortion case). Or perhaps it's actually the Chief Justice changing his mind after some time for reconsideration.

Again, whatever the reason--and likely there are different reasons in different cases--the emerging pattern is clear. Roberts has given political liberals, both on and off the Court, some significant victories

(Of course this has not escaped the President's notice--and ire.)


Okay, enough with preliminaries. Let's get to the last few cases we'll look at in this series that illustrate the pattern that may well be the most salient characteristic of this otherwise quite politically conservative Court.

Church and State. Late last month, the Chief Justice joined his liberal colleagues in refusing to lift the COVID-crisis restrictions on church attendance that had been imposed by California's governor. Roberts' 4 conservative colleagues all dissented. Justice Kavanaugh, in an opinion joined by Justices Thomas and Gorsuch, argued that the numerical limitations on gatherings and the requirement for social distancing unconstitutionally discriminated against religious exercise. This was so, according to Kavanaugh, because other similarly situated  activities did not face such restrictions. [Alito's dissenting vote was simply noted.]

Although the Court's decision was merely an order, Roberts' authored an opinion explaining why the majority got it right. The standard for granting emergency relief is that the constitutional merits are already "indisputably clear." Roberts deemed it "quite improbable" that the religious objectors could show that. Two basic reasons. First, despite the dissenters' claim, "only dissimilar activities...in which people neither congregate in large groups nor remain in close proximity for extended periods" are treated more leniently than churches. Second, the need for restrictions "during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement," which the Constitution "principally entrusts" to the "especially broad" latitude of the states' political officials. And such matters of public health and safety should usually "not be subject to second-guessing" by the federal judiciary.

In short, the Chief Justice disagreed with his conservative colleagues that the religious objectors had demonstrated that they were being treated disparately or too harshly. South Bay United Pentecostal Church v. Newsom, 2020.

Three years earlier, in another church-state case, Roberts held the middle ground to which some of his conservative colleagues and some of his liberal colleagues objected--naturally for different reasons. Writing the opinion for the Court, the Chief Justice explained that the ineligibility of religious organizations from a state program that subsidized the safety improvement of school playgrounds violated free exercise--i.e., the disqualification discriminated on the basis of religion, despite the purely secular purpose of the program's assistance.

Although Justices Kennedy and Alito joined Roberts' opinion in full, Thomas and Gorsuch objected that the ruling was too limited--i.e., it should not have been limited to playground safety, nor to secular versus religious uses.

While Justice Kagan fully joined Roberts' opinion, Breyer wrote a separate concurence to emphasize that the program in question, as well as the Court's ruling, was limited to a public service--here "the health and safety of children." The remaining liberals, Justice Sotomayor joined by Ginsburg, dissented on the ground that directly funding a religious organization violated the constitution's non-establishment mandate.

Here, as we have seen elsewhere, the Chief Justice struck a balance. He crafted a ruling that was narrow enough to secure a majority, despite differences or even dissents from some of his more ideologically-driven colleagues--conservative or liberal. Trinity Lutheran Church of Columbia, Inc. v. Comer, (2017).

Right to Choose/Abortion Rights. Four years ago, in Whole Woman’s Health v. Hellerstedt, the Court ruled that a Texas law, that limited which physicians and facilities could provide abortion servoces, imposed an unconstitutional "undue burden" on a woman's right to choose. Chief Justice Roberts dissented, along with his conservative colleagues, Justices Thomas and Alito. [Justice Scalia had recently passed away and his vacancy had not yet been filled.]

Since that decision, Justice Gorsuch was appointed to fill Scalia's seat, and Justice Kavanaugh was appointed to replace Justice Kennedy who had retired in the interim. With Kennedy now missing from the 5 Justices who comprised the majority in Whole Woman’s Health, the Court was confronted this term with another case term involving similar abortion retrictions. This time the state was Louisiana, but the restrictions, the prospective consequences, and the outcome were similar. Only physicians with privileges at a nearby hospital could perform abortions. The restrictions would drastically reduce the availability of abortion services. The restrictions were ostensibly to protect the health of women. The restrictions, according to expert analysis, actually had minimal health-related benefits. And the Court again found such restrictions to be an unconstitutional burden on a women's right to choose.

The big difference? This time the Chief Justice sided with the liberals to give them the bare 5-4 majority. In a separate concurrence, Roberts insisted that he still believed that Whole Woman’s Health was wrongly decided. But, in a 16 page opinion in which he reviewed the reasons for stare decisis and the Court's abortion rights precedents to date, the Chief Justice set forth a jurisprudence that has become a distinctive part of his opinion and voting patterns: "The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike." [My emphasis.] Then, he concluded by applying that formula to his vote in this case: "The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law"--despite his disagreement then. June Medical Services L. L. C. v. Russo, 2020.
[Notably, Roberts signaled his thinking about this case when, in February 2019, he joined the liberals to form the same 5-4 majority to grant an order stopping the Louisiana law from taking effect while litigation was pending.]

One last one. This is one of my very favorites. I've written about it previously on New York Court Watcher.

Technological Searches. In the last few decades, the Court has seriously diluted constitutional search and seizure protections. It has done so, for example,

• by adding exceptions to the warrant requirement (e.g., warrantless searches and seizures incident to minor traffic infractions);
• by adding exceptions to the rule excluding unconstitutionally obtained evidence (e.g., the "good faith" exception);
• by diluting what is required for probable cause (i.e., the "totality of the circumstances" test);
• by diluting the 1967 landmark Katz decision which protected legitimate expectations of privacy (e.g., denying legitimacy to a host of privacy expectations);
• by (mis)using that landmark's formula in order to rule that searches are not "searches" for constitutional purposes (e.g., police searches from a hovering helicopter);
• by employing doctrines such as "third party" (i.e., if anyone else has access to information about you, then government needs no warrant or probable cause to access it);
• and "public access" (i.e., if members of the public can see you in a public place, then government can surveil you without a warrant or probable cause);
• and "tresspass" (i.e., equating search and seizure rights to property rights whereby a physical tresspass is necessary to constitute a violation);
• by limiting search and seizure protections to those specific items enumerated in the 4th Amendment.

Well, two years ago, Chief Justice Roberts joined the liberals and, in the 5-4 majority opinion he assigned to himself, he avoided or simply dispensed with some of those foregoing dilutions--to the considerable consternation of his more law and order minded colleagues. Roberts wrote that a warrant supported by probable cause is required for law enforcement to access cellphone location data about a suspect from a cellphone company. No, the fact that some entity, the company itself, already had access to the information (i.e., the third party doctrine) didn't allow the government to have warrantless access. No, the fact that the data did not belong to the individual, but to the company (i.e., the property rights/tresspass doctrine), didn't mean that the individual was without some entitlement to privacy from the government. No, the fact that the individual's movements and location in public might be observed by members of the public (i.e., public access doctrine), didn't mean that he had no legitimate expectation of privacy from government surveilance. Etc.

Yes, acknowledged Roberts, the Court's opinion six years earlier in U.S. v. Jones, authored by Justice Scalia, did assert that the warrantless monitoring of a suspect's movements and location was unconstitutional because the police had "tresspassed" on his property--i.e., by attaching a GPS device to his vehicle without his consent. But, the Chief Justice pointed out that a majority of the Justices in Jones had actually reaffairmed the Katz "legitimate expectation of privacy" doctrine. There was Justice Alito and the 3 liberals who joined his concurring opinion, stridently rejecting Scalia's tresspass analysis in favor of Katz; and Justice Sotomayor who authored a separate concurrence, joining Scalia but also reaffirming Katz.

As Roberts explained in declining to apply some of the previously adopted doctrines, "few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements." He went further: "Apart from disconnecting the phone from the network, there is no way to avoid leaving behind a trail of location data. As a result, in no meaningful sense does the user voluntarily 'assume[] the risk' of turning over a comprehensive dossier of his physical movements."

The concerns expressed by the Chief Justice in his majority opinion sounded much more like those of the liberal Justices who had previously dissented while the Court was diluting search and seizure protections. And Roberts' conservative collegues in this case understood that and objected to his aligning with the liberals in refusing to apply those law and order doctrines. Carpenter v. U.S., 2018.
[For more on the Carpenter decision, see The Supreme's Cell Location Data Decision: Right, Revealing, and a Real Milestone, June 26, 2018.]

There are other cases--an increasing number of them at that--where Chief Justice Roberts has indeed established a distinct pattern of parting with his usual ideological allies on the Court and siding with the liberals to form a majority on some major, highly-charged issues. That point, I believe, has been well made, and continuing further is not only uneccessary but perhaps fatiguing. So we shall end here.

Of course, decisions handed down by the Court in the next few days, as the current term comes to a close, may well make all of the foregoing seem like wishful thinking based on a a few isolated exceptions. But the pattern is there, it is clear, and there no particular reason to think that it won't continue.

It's Roberts' (somewhat less right-wing) Court (Part 2)

Source: AP/Dave Tulis/Larry Downing

In Part 1, we saw how Chief Justice Roberts joined decisions that saved so-called Obamacare and that protected immigrants. In those cases, he often authored the majority opinion himself, allying himself with his liberal colleagues to render decisions that triggered unconcealed outrage on the part of all or most of his conservative colleagues in dissent.

We witnessed exactly that last week in the DACA case (Department of Homeland Security v. Regents of the University of California, 2020) which was discussed in the previous post. Let's now turn to last week's other momentous decision, as well as an earlier related one that is, perhaps, even more revealing about the role and direction of Roberts as the primus inter pares.

LGBTQ Rights.  In a long-awaited decision--it took over 8 months from oral arguments on October 8, 2019--the Court ruled last week that the prohibition against "sex" discrimination in the Civil Rights Act of 1964 protects gay and transgender employees. The Chief Justice joined his 4 liberal colleagues, as well as one of the Trump-appointed conservative Justices, Neil Gorsuch, to whom he assigned the writing of the majority opinion.
Over the dissents of the 3 remaining Republican appointees [Thomas, Alito, and Kavanaugh], the Roberts-assigned/Gorsuch-penned majority opinion agreed with the fired employees that discrimination on the basis of "sex" necessarily covered discrimination against gays and transgenders. The crux of the argument [distilled from what I found to be a mostly insufferable 33 pages] was that the term "sex," as a matter of sheer linguistics and logic, does apply to gays and transgenders, even if that application was not within the underlying legislative intent of the law.
The 3 remaining conservatives wrote 134 combined pages of dissent. Justice Samuel Alito's seething 107-page opinion, joined by Justice Clarence Thomas, as well as the separate dissent of Justice Brett Kavanaugh, evinced frustration triggered not only by the Court's decision, but no doubt also by the loss of another Roberts vote to the liberals--this time, together with Gorsuch's vote as well. Bostock v. Clayton County, 2020.

[I feel compelled to add that, regardless of my unqualified agreement with the Court's result, I find much of the majority opinion unnecessary, unpersuasive, and perilous. The same decision could have been reached by simply sticking to the inexorable logic of what sex discrimination necessarily includes. (E.g., if a woman prefers men, that's ok. But if a man does, that's not? The only difference is the different sex of the person who prefers men.)
Beyond that, a far better majority opinion, in my view, would have embraced the overarching principle in prohibiting sex discrimination. Sex and sex-related characteristics are utterly irrelevant for most purposes. For like reason, most disparate treatment on those bases is born of bigotry or some other form of ignorance, rather than some justified reason--which is precisely what discrimination means.
On the other hand, Gorsuch’s "it’s clear from the original understanding of the plain terms of the statute" argument (I’m paraphrasing) can be expected to be used in the future to support reactionary results. The 6 votes his opinion received will surely be used as a strong endorsement of his insistent originalism—i.e., the “ordinary public meaning” of the terms of the law “at the time of the enactment" (his language)—about which he waxed and waned ad nauseam. This will be thrown back at the liberals--all of whom joined his opinion without a whisper of discomfort--when he and the other conservatives (including those in dissent in this case) use it in future cases to undercut past progress and block attempts to move the law forward.
I wish at least one of the liberal Justices had authored a separate concurrence making clear that they weren’t endorsing Gorsuch’s originalist interpretive approach. The need to do so should have been especially clear in light of Alito's dissenting opinion. Regarding what "sex discrimination" was understood to mean "at the time of enactment," Alito's dissent had the much stronger argument. Just consider this: would the law's prohibition of "sex discrimination" have been passed--"at the time of enactment" in 1964--if legislators were told that those terms protected gays and transgenders as well as women? Now ask the same question about progressive interpretations of countless other statutory and constitutional provisions. The liberals should at least have expressed their reservations about the originalism touted by Gorsuch.
Others have raised similar concerns. See e.g., Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion. https://abovethelaw.com/2020/06/neil-gorsuch-lays-landmines-throughout-lgbtq-discrimination-opinion/]

An earlier decision of the Court, three years before Bostock, was arguably more revealing about Roberts' view of his role as Chief Justice (as well as of Gorsuch's view of LGBTQ rights). Roberts' position in that earlier case took many by surprise because he had dissented two years before in Obergefell v. Hodges (2015).  In Obergefell, Roberts, together with the other Republican appointees-- except for Justice Anthony Kennedy--had rejected the notion that the Constitution guarantees same-sex couples the right to marry. But in 2017, Roberts broke with the Court's conservatives and, aligning with the Obergefell majority, helped reaffirm that landmark decision.
In a per curiam opinion, with the Chief Justice in the 6-3 majority, the Court invalidated an Arkansas rule that treated same-sex and opposite-sex spouses differently on their children's birth certificates. While the male spouses of biological mothers were entitled to be identified, female spouses were not. Repeatedly quoting from the Obergefell majority opinion--against which the Chief Justice had originally dissented--Roberts, together with his 4 liberal colleagues and Justice Kennedy, summarily granted review, reversed the state's supreme court, and struck the Arkansas practice on the ground that "the Constitution entitles same-sex couples to civil marriage 'on the same terms and conditions as opposite-sex couples.'”
Justice Gorsuch, this time writing a dissent, which was joined by Thomas and Alito, argued that, although the Obergefell decision held that "a State must recognize same-sex marriages," it said "nothing" about "a birth registration regime based on biology." In response, the Roberts-joined per curiam majority noted that opposite-sex spouses identified on Arkansas birth certificates need not be biological parents. Applying another line excerpted from Obergefell, the Chief Justice and his more liberal colleagues concluded that Arkansas has "denied married same-sex couples access to the 'constellation of benefits that the Stat[e] ha[s] linked to marriage.'” Pavan v. Smith, 2017.

Roberts had thus apparently decided that his role as Chief Justice included adhering to the Court's recent progressive landmark and opposing attempts to undermine it--regardless of his original position on the matter.

Death Penalty/Intellectual Disability. A similar pattern is evident in positions taken by Roberts in some recent death penalty cases. He had dissented in Moore v. Texas when that case came before the Court in 2017. The Court's majority ruled that the state court's judgment that the death row inmate was mentally competent to be executed "had no grounding in prevailing medical practice." Accordingly, the case was remanded for a determination "informed by the medical community’s diagnostic framework." Roberts dissented on the ground that the "independent basis for [the state court's] judgment" was adequate.
When the case returned to the Supreme Court two years later, the majority once again disapproved the state court's determination that the inmate was competent. This time, however, the Chief Justice broke with the conservative dissenters [Thomas, Alito, and Gorsuch] and joined the majority [which notably included Justice Kavanaugh]. Despite Roberts' own previous dissent, he acknowledged that the Texas determination "did not pass muster under this Court’s analysis last time" and, because "[i]t still doesn’t," he joined the majority's opinion to again reverse the state court's judgment. Moore v. Texas, 2019.

The Chief Justice joined his liberal colleagues in several other related death penalty cases in 2019. A few weeks prior to the Court's decision in Moore, Roberts signaled his break with his conservative colleagues in White v. Kentucky. In that early 2019 decision, he joined the majority's order [over the dissent of Thomas, Alito, and Gorsuch] to grant review and simultaneously, without argument, reverse a judgment of the state's supreme court--on the basis of the Court's earlier 2017 Moore decision.
Similarly, in Madison v. Alabama, also decided in early 2019, Roberts again broke with his conservative colleagues [Thomas, Alito, and Gorsuch]. In that case, he sided with the liberals to vacate the judgment of the state court that had approved an execution. He joined Justice Elena Kagan's majority opinion that the Constitution prohibits executing a person who is unable to understand why he's being punished, regardless of the particular intellectual disability he suffers, dementia or psychosis.
One more. In Murphy v. Collier, decided several weeks thereafter, the Chief Justice again sided with his liberal colleagues to halt to another execution. Over Justice Alito's dissenting opinion, which was joined by Thomas and Gorsuch, the Roberts-joined majority summarily enjoined Texas from carrying out the execution, at least until it first granted the inmate's request to be accompanied into the chamber by a Buddhist chaplain.

To be sure, Chief Justice Roberts' positions in the cases thus far discussed do not mean that he has transformed into an ideological liberal. But they do demonstrate a pattern of willingness to break with his more natural political allies on the Court and, moreover, to do so on some of the most highly charged issues of the day.
We'll look at a few more of these in the next and final post in this series.

It's Roberts' (somewhat less right-wing) Court (Part 1)

Source: Reuters//Jonathan Ernst

Sure, let's not go overboard. Despite some recent decisions welcomed by political liberals, the Supreme Court has hardly turned liberal.

Indeed, most decisions of the past year--let alone of the last few decades--have been those favored by political conservatives. Whether in civil rights and liberties, the rights of the accused, employment and labor law, war and foreign affairs, and other crucial areas that define the nation's principles, the Court has largely rendered rulings that conservative Republican politicians would reach if up for a vote in their elected representative chambers.

         BUT...

Neither can it be denied that the Court has issued some major politically-liberal decisions. And the difference often has been Chief Justice Roberts. He is the one who, more than any of the other conservative Republican appointees, has deviated from the Court's typical partisan divide.

There were some indications, even before the retirement of "swing vote" Justice Anthony Kennedy, of Roberts disrupting the holy political alliances among the Justices. ("Holy," because some members of the Court, such as the late Justice Antonin Scalia, would react to Roberts breaking with the conservatives as though it were blasphemy, heresy, or some other mortal religious transgression.) But the Chief Justice's breaking with the other conservatives has in the past few years become a foreseeable--if not expected--phenomenon of Court dynamics.

A quick survey of some major decisions in which Roberts voted on the politically liberal side of a hot-button issue should leave little doubt. Oftentimes, the Chief Justice authored the majority opinion himself--meaning that he often assigned the Court's opinion to himself in these high profile cases. And oftentimes, his vote was the deciding one in giving his liberal colleagues a victory over his usual conservative allies. Here's a sample:

Obamacare. Perhaps Roberts' best known break with the conservatives was his saving of Obamacare: his dispositive opinion for the 5-4 majority--himself and the Court's 4 liberals--upholding the constitutionality of the Affordable Care Act's "individual mandate." He did so, over the bitter opposition of the other 4 Republican appointees [Scalia, Kennedy, Thomas, and Alito], by characterizing the enforcement mechanism as a tax imposed within Congress's power, rather than an otherwise invalid penalty. National Federation of Independent Business v. Sebelius, 2012.

Three years later, Roberts again saved a major aspect of Obamacare: his 6-3 majority opinion--joined by all 4 liberals and Justice Kennedy [with Scalia, Thomas, and Alito dissenting]--upholding federal tax subsidies for all lower-income Obamacare insureds, even if their state declined to set up an insurance exchange. King v. Burwell, 2015.

Immigration. Like Obamacare, there are, of course, the immigration issues that have been among the most contentious and divisive along party lines. And like Obamacare, the Chief Justice saved DACA [the Deferred Action for Childhood Arrival program] from partisan attempts at elimination. In his majority opinion, this past week, for himself and the Court's 4 liberals--once again raising the ire of the other conservative Republican Justices [Thomas, Alito, Gorsuch, and Kavanaugh]--he declared the Trump administration's attempt to scrap DACA "arbitrary and capricious."
Moreover, Roberts made clear his determination that the administration's proffered reasons were dishonest, labeling them "post-hoc rationalizations" and "convenient litigation arguments." Department of Homeland Security v. Regents of the University of California, 2020.

A pair of related decisions should be included here: one dealing with state immigration policy; the other dealing with immigrants and, again, the Trump administration's dishonesty.

The immigration case, eight years prior to the DACA decision, involved an Arizona law allowing the arrest of any person, without a warrant, who the police suspected was an unauthorized immigrant "removable" from the United States. The Chief Justice joined a 5-3 decision--together with 3 liberals [Justice Kagan did not participate] and Justice Kennedy, who authored the opinion--invalidating the Arizona law for interfering with federal immigration policy. The remaining Republican appointees [Scalia, Thomas, and Alito] each wrote dissenting opinions emphasizing states' rights and denying any conflict with federal law. Arizona v. U.S., 2012.

The Citizenship Question--and Dishonesty Before the Court.  The other case related to the DACA decision was the one last year involving the Trump administration's attempt to insert a citizenship question on census forms. The Chief Justice's vote was decisive in thwarting this transparent attempt to undercount the population of states such as New York and California--home to large numbers of immigrants who would be discouraged from completing such a form.
In his 5-4 majority opinion, Roberts, joined by the Court's 4 liberals--and again denounced by the other Republican appointees [Thomas, Alito, Gorsuch, and Kavanaugh]--blocked this initiative of the administration, just as he did the attempted repeal of DACA, because the administration's beneficent rationale for doing so was a lie. That's my word, not his. But,  his words were no less pointed.
As Roberts himself put it, there was "a significant mismatch between the decision the Secretary [of Commerce] made and the rationale he provided." For emphasis, the Chief Justice repeated that "the evidence tells a story that does not match the explanation the Secretary gave." And just in case any doubt remained, he said the same thing a third way: the "rationale—the sole stated reason—seems to have been contrived."
Roberts concluded by leaving no doubt about his contempt for the administration's dishonesty. "We are presented," he wrote, "with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decisionmaking process." And therefore, the Court--meaning at least the Chief Justice with the 4 liberals--"cannot ignore the disconnect between the decision made and the explanation given." Department of Commerce v. New York, 2019.

Ok, let's start with those cases. Only a few, but major and very revealing.

We'll continue our look at the Chief Justice's and his Court's "somewhat less than right-wing" record next time with LGBTQ rights, search and seizure, the death penalty, and then a few other issues.

Trump's Justices: Gorsuch to Date (Part 3)

Pandemic restrictions, transitioning to remote teaching, exams, grading, other projects, preoccupation with breaking news, etc. Now back at last.

In the first post in this series, we took a look at Justice Niel Gorsuch's voting record immediately following his appointment in the final few months of the 2016-17 term. As shown in that post, Gorsuch voted for the politically conservative side of every politically charged issue in cases involving the death penalty (pro), campaign finance restrictions (con), gun rights (pro), gay rights (con), workers' rights (con), separation of church and state (con), President Trump's travel ban (pro), and similar politically divisive matters.

Yes, there were legitimate (or semi-legitimate) arguments that supported each side in these cases. A reasonable, good-faith judge might have voted either way. But Gorsuch always chose arguments that supported the politically conservative side. Never the other side. In short, connect the dots! Moreover, Gorsuch's 100% politically conservative record was more than double the 41% conservative decisional record of the Court as a whole.

Juxtaposing his record with that of the other conservatives on the Court, as well as of the Court as a whole, in that spring of 2017 looks like this (click to enlarge).


Then, in the second post in this series, we saw that Gorsuch continued to amass a very politically conservative record throughout the 2017-18 term, his first full term on the Court. As noted in that post, in cases involving highly charged matters, Gorsuch voted for the politically conservative side virtually every time: Trump's travel ban (again, pro), immigrant rights (con), abortion rights (con), gay rights (con), union representation (con), worker rights (con), voting rights (con), ending gerrymandering (con), search and seizure protections (con), and international human rights (con). Again, connect the dots.

And again, let's juxtapose Gorsuch's voting with that of the other conservatives on the Court, as well as of the Court as a whole. His record for the first full term on the Court, the 2017-18 term, looks like this (click to enlarge).


Now, let's take a look at Gorsuch's record for the last completed term, 2018-19, his second full year on the Court. Among the cases involving those "hot-button" or politically charged issues, these were his positions:

• American Legion v. Amer. Humanist Assn. (2019) [re: the 40 Foot Cross maintained by Maryland state government]--the majority approved the cross; Gorsuch's separate concurring opinion would have lowered the separation of church and state even more by disallowing concerned groups even to complain.

• Dept. of Commerce v. New York (2019) [re: the Trump administration's proposed citizenship question on the census form]--the majority, in an opinion by the Chief Justice, disallowed the question because the administration's claimed justification was a lie; Gorsuch joined the dissenters' argument that the administration did have some legitimate reasons.

• June Med. Servs. v. Gee (2019) [re: the Louisiana abortion services restriction law]--the majority summarily blocked the law from going into effect; he joined the dissenters to approve the law until it actually resulted in unduly burdening the right to choose.

• Rucho v. Common Cause (2019) [re: partisan gerrymandering]--he voted with the majority which held that the Court should do nothing about it.

• Bucklew v. Precythe (2019) [re: lethal injection]--he authored the majority opinion to approve the use of a method of execution on an inmate, despite the inmate's particular's medical condition that would make that method excruciating.

• Moore v. Texas (2019) [re: intellectual disability of a death row inmate]--in this and several similar cases, the majority (which included Chief Justice Roberts and Justice Kavanaugh) halted the execution because the state applied outdated mental health standards which the Court had previously invalidated; he joined the dissent in each case to nevertheless allow the executions.

• Murphy v. Collier (2019) [re: the Buddhist chaplain case]--the majority (which again included Roberts and Kavanaugh) halted an execution until the state honored the inmate's request to be visited by a chaplain of his faith; he joined the dissent to excuse the state and allow the execution to go forward.

• Garza v. Idaho (2019) [re: ineffective counsel]--the majority (once more including Roberts and Kavanaugh) ruled that the defense counsel's failure to file an appeal violated the defendant's right to effective counsel; he joined the dissent arguing that the defendant's waiver of appeal upon his guilty plea disposed of the question.

• Flowers v. Mississippi (2019) [re: race-based juror discharges]--the majority (which this time included Roberts, Alito, and Kavanaugh who authored the opinion) condemned as unconstitutional the “relentless” use of peremptory challenges by the prosecution to strike all black jurors, throughout 6 trials and retrials; he joined the dissent which declined to condemn the pattern.

Well, speaking of patterns, Gorsuch's voting pattern should be quite evident. Whether it's church and state, abortion rights, the death penalty, race-related questions, the Trump administration's initiatives, and other politically charged issues, Gorsuch voted like a conservative Republican partisan. And he did so even more than some other conservatives on the Court.

Take a look (click to enlarge):

Gorsuch's 89% politically conservative voting record for the 2018-19 term contrasts dramatically with the 50% decisional record of the Court as a whole. And remember, this is a Court where a majority of the Justices are political conservatives--who worked in politically conservative Republican administrations before being appointed by Republican presidents. It is compared to just such a politically conservative Court that Gorsuch's record is so extreme!

Indeed, Gorsuch's record for the 2018-19 term is not only significantly more politically conservative than that of conservative Chief Justice Roberts, 89% to 58%. But his record is notably more politically conservative than that of the second Trump appointee to the Court, Brett Kavanaugh.

The difference between the two Trump appointees, 89% politically conservative for Gorsuch, 74% for Kavanaugh, is underscored by the sorts of politically charged issues on which they disagreed. Take a look at some of them (click to enlarge):

Church and state, racial discrimination, the death penalty, an accused's right to effective counsel--these are among the critical areas of constitutional law in which Gorsuch took the more politically conservative side of the issue than did Kavanaugh.

To be sure, there are many many other areas of constitutional law, as well as non-constitutional but still highly charged political issues, about which we do not yet have Supreme Court decisions in which both Gorsuch and Kavanaugh participated. There are some of those in cases to be handed down by the Court within the next few weeks. That will give us more evidence of the individual and the comparative ideological leanings of the two Trump appointees. Stay tuned!

Some Late 2019 Commentary: Gorsuch, Kavanaugh, Indicting Trump, Cuomo's Court

To begin the New Year, here are a few appearances late last year on radio, TV, and podcast, commenting on a variety of constitutional and judicial matters of national and state interest.

In the coming posts, we'll tend to some other overdue matters.
Meanwhile, wishing all a very happy, healthy 2020!

December30, 2019: Cuomo’s reshaping of the Court of Appeals

In his nine years in the Governor’s Office, Andrew Cuomo has reshaped the state’s highest court. Vin Bonventre, Justice Robert H. Jackson Distinguished Professor of Law at Albany Law School and Editor of the New York Court Watcher blog, shared his insights on the changing dynamic at the Court of Appeals.

 http://www.wcny.org/december-30-2019-cuomos-reshaping-of-the-court-of-appeals/

November 25, 2019: Can New York—or any other state—indict a sitting president?

As the impeachment hearings continue in Washington, New York has been at the center of President Donald Trump’s legal woes. From Federal cases concerning his family charity to investigations of business dealings with banks by State Attorney General Leticia James, the majority of his legal battles are being fought hundreds of miles from Washington—in the Empire State.

On this episode of New York Now, host Ray Suarez sits down with two Constitutional law scholars—Paul Finkelman of Gratz College and Vincent Bonventre of Albany Law School—to discuss what the future may hold for the president’s legal troubles, and what role New York state might play in that future.

https://nynow.wmht.org/blogs/politics/can-new-yorkor-any-other-stateindict-a-sitting-president/

October 7, 2019: Judicial Records of Gorsuch & Kavanaugh, Supreme Court Preview

New York State Bar Assn Podcast: Miranda Warnings

Albany Law Professor Vincent Bonventre returns to discuss the judicial records of Associate Justices Neil Gorsuch and Brett Kavanaugh and the tribal voting nature of the current Supreme Court.

Professor Bonventre then gives us a primer on what types of cases he expects the Supreme Court to hear this Fall, including some hot button issues like abortion, gerrymandering, the death penalty, and immigration.

Make sure you stay tuned to the end as Professor Bonventre continues his tradition of singing a few lines from one of his favorite crooners, Bobby Vinton.

Miranda Warnings is hosted by NYSBA's 118th President David Miranda

https://www.nysba.org/Podcast/MirandaWarnings/Judicial_Records_of_Gorsuch___Kavanaugh,_Supreme_Court_Preview/

Nov. 15, 2019: Discussing President Trump's Tax Returns and the Legal Process

By Nick Reisman 

President Donald Trump has kept his tax returns private, breaking with tradition that candidates for president release them. But now, a subpoena to an accounting firm with the taxes could lead to them being released to New York prosecutors.

Albany Law Professor Vin Bonventre says the question over whether the president can be prosecuted in a criminal case is unclear.    

"Anybody tells you they're certain one way or the other is just speaking nonsense. There isn't anything in the constitution that suggests one way or other the president can be prosecuted or can't be prosecuted while in office," Bonventre said.

In similar cases, like when the court forced President Nixon to turn over recorded conversations in the Oval Office, those help provide a guide.  

"Can we really allow all 50 states to be interfering with the president doing his duties? That may be too much," Bonventre said.

Governor Cuomo this month suggested President Trump changed his residency from New York to Florida to avoid having his taxes released.  

"My hypothesis is Mr. Trump changed his residence for legal purposes," Cuomo said.  

But Bonventre says that's unlikely.  

"That shouldn't have anything to do with it. If one person commits a crime in one state and then goes to another state, that doesn't immunize them from prosecution," Bonventre said.

The president's legal team has said he is immune from prosecution while he is in office.

https://spectrumlocalnews.com/nys/capital-region/news/2019/11/15/discussing-president-trump-s-tax-returns-and-the-legal-process?cid=share_email

Trump's Justices: Gorsuch to Date (Part 2)

In the previous post, we saw how studies of Neil Gorsuch's judicial record prior to his nomination by President Trump for the Supreme Court showed him to be among the most politically conservative members of the federal judiciary. We also saw how his record immediately following his appointment, the last couple of months of the Supreme Court's 2016-17 term—the spring of 2017—reflected the very same strong politically conservative leanings.

In fact, together with Justice Clarence Thomas, his record on politically charged issues was the most politically conservative on the Court. Indeed, 100% politically conservative voting in cases involving the death penalty, campaign finance restrictions, gun rights, gay rights, workers' rights, church and state, President Trump's travel ban, and similar politically divisive matters. Significantly, Gorsuch's 100% politically conservative voting record contrasted sharply with the 41% conservative decisional record of the Court as a whole. (See Trump's Justices (Part 1): Gorsuch to Date.)

Now what about Gorsuch's voting record for the next two terms on the Court—2017-18 and last term, 2018-19? Specifically, how did his voting record compare to that of the Court's other strongly politically conservative members, Justices Thomas and Samuel Alito, and to the Court as a whole? Let's take a look at the very next term, Gorsuch's first full one on the Court, the 2017-18 term (click to enlarge):

The politically charged issues confronted by the Court during the 2017-18—and voted on by Gorsuch—included Trump's travel ban (again), immigrant rights, abortion rights, gay rights, union representation, worker rights, voting rights, gerrymandering, search and seizure protections, and international human rights. In virtually every case, Gorsuch voted for the politically conservative position.

In fact, in some cases, Gorsuch took a position that was even more politically conservative than the already conservative majority or dissenting opinions. For example, in the Masterpiece Cakeshop case, where the bakery refused to create a cake for a same-sex marriage celebration, the majority of the Court ruled for the bakery on very narrow grounds. It held that the Colorado civil rights commission's decision, that the bakery was guilty of sexual orientation discrimination, was tainted by the commission members' explicit hostility to the baker's religion--comparing it to Nazi hatred of the Jews. In short, the Court majority ruled that the baker did not receive a fair hearing. But not that businesses were free to violate state anti-discrimination laws, even for religious reasons.

That decision of the Court was inadequate for Gorsuch. He authored a separate concurring opinion making the claim that the bakery did not actually engage in any discrimination at all—unlawful or otherwise. Gorsuch's rationale? The bakery would not create a same-sex cake for any couple, whether same-sex or opposite-sex. So the bakery was treating everyone the same. Not kidding!

(You know, like the old anti-miscegenation laws did not really discriminate against anyone. Everyone—black or white or Asian—was required to marry within their own race. So those laws treated everyone the same. Gorsuch's argument was reminiscent of that nonsense.)

Let's finish this post by taking a look at the ideological voting spectrum of the entire Court. Here it is (click to enlarge):

As the graph shows, Gorsuch's voting record was not only the most politically conservative on the Court, other than that of Justice Thomas, but it was also significantly more so than that of Chief Justice Roberts and the decisional record of the Court as a whole.

To be sure, the voting records of the Court's four liberal Justices, were at least as politically liberal as Gorsuch's record was politically conservative. But in nearly one-third of the cases, the Court as a whole joined the liberals, In a full one-quarter of those cases, the Chief Justice did. Gorsuch virtually never did—in fact, it was only one case. [I.e., Sessions v. Dimaya, involving the meaning of "crime of violence" as a basis for deporting immigrants.]

So once again, Justice Gorsuch's voting record on the Court—this time for the 2017-18 term—mirrors the studies based on his pre-appointment record as a federal appellate judge. In the next post, we'll look at Gorsuch's record in the next and most recent term, 2018-19.

Trump's Justices (Part 1): Gorsuch to Date

President Trump's first appointee, Neil Gorsuch, took his seat on the Supreme Court in the spring of 2017. By that time, judicial scholars--both political scientists and law professors--had studied his record on the federal appeals court from which he was elevated.

Based on his voting patterns as an appellate judge, Gorsuch's position among the other federal judges on the ideological spectrum had been mapped. Similarly, once he was nominated, his ideological place on the Supreme Court was predicted.

A 2016 study, sponsored by the University of Chicago, compiled and compared voting data on federal judges. A graph based on that data was published in the New York Times the following year when Gorsuch was nominated. It placed his record on the far right, politically conservative side of the federal judiciary. Here's that graph (click to enlarge):

Another study by a team of judicial scholars, led by Lee Epstein and published shortly following Trump's election, inserted Gorsuch among the sitting Justices on the Supreme Court's own ideological spectrum. Gorsuch was placed among the Court's most politically conservative members--between Justices Clarence Thomas and Samuel Alito. Indeed, he was determined to be even more politically conservative than the Justice he replaced, Antonin Scalia. Here's that graph (click to enlarge):

Source: Lee Epstein et al., President-Elect Trump
 and his Possible Justices (2016)

In yet another study, this one completed the following year, Gorsuch's appellate record again placed him among the Court's most politically conservative Justices. In fact, this study estimated that his policy preferences would position him at the far end of the Court's right wing. Here are those graphed findings (click to enlarge):

Source: Ryan Black, et al., Estimating the Policy
Preferences of Judge Neil M. Gorsuch (2017)

It was thus widely expected, among those who closely study such things, that Gorsuch would be a very politically conservative Justice. Not a judicial restraintist. Not a stickler for stare decisis. Not one who defers to the other branches or to the states. Not a strict constructionist. Not a faithful adherent of previously settled constitutional principles. Not a philosophical conservative in a classic libertarian sense. But a conservative in the common contemporary political sense.

In short, how would conservative Republican politicians be expected to vote on the controversial issues of the day? And how closely would Justice Neil Gorsuch's voting align with conservative politicians on those issues?

Right from the start, in his first few months on the Court--from the time of his appointment in April of 2017 to the end of the 2016-17 term that spring--Gorsuch did cast votes on many such issues. The death penalty, campaign finance restrictions, gun rights, gay rights, workers' rights, church and state, President Trump's travel ban, and other politically charged issues among them.

What kind of record did he compile at the very start of his Supreme Court career? How did his record compare to that of other conservatives on the Court in that spring of 2017? Well, take a look (click to enlarge):

Justice Gorsuch's voting record, in his very first weeks on the Court, was at least as politically conservative as the judicial studies had predicted. From his appointment in April 2017, thru the end of the Court's term in the closing days of June, he compiled a voting record which, together with that of Justice Thomas, was the most conservative of the Justices.

On every one of those previously mentioned issues confronted by the Court in those final weeks of the 2016-17 term, the Justices were divided and Gorsuch, like his colleagues, chose sides. And on every one of those issues, he chose the politically conservative position--or the most politically conservative position when there was more than one.

So, for example, on the death penalty issue, he supported the execution. On campaign finance restrictions, he was against them. Gun rights, supported them. Gay rights, against them. Workers' rights, against them. Church and state, argued for lowering the wall of separation even more than the Court majority and other conservative Justices. Trump's travel ban, argued for upholding it to an even greater extent than the Court majority and other conservative Justices.

Indeed, as displayed in the graph, he took the politically conservative side--including the most politically conservative position among his colleagues--on those and every other politically charged issue that came before the Court in that spring of 2017 immediately upon his appointment.

And note well how starkly Gorsuch's politically conservative record on those politically charged issues contrasts with the record of the Court as a whole--100% politically conservative versus 41%. When the Justices divided between politically conservative and liberal sides, Gorsuch supported the conservative position. Even when the Court majority rendered a politically conservative decision, Gorsuch would sometimes argue for an even more politically conservative resolution.

In the next post, we'll take a closer look at some of this, including how Justice Gorsuch's voting record compared to that of all of his colleagues--not just the most conservative ones. And we'll look at his voting record in the following two full terms that he's been on the Court, 2017-18 and the term that just finished, 2018-19.

NY's Court of Appeals in the Era of Trump

New York's highest court must step up.

The reactionary direction in so many areas of national policy and, perhaps most especially, the effect that the two newest appointees to the Supreme Court will have on federal constitutional and statutory protections, require heightened vigilance by state high courts.

As the final arbiters of their individual state's own constitution and laws, state courts have the authority, opportunity, and obligation to independently insure that fundamental civil rights and liberties are enforced, regardless of what the federal high court does under federal law. As has often been true throughout its history, the New York Court of Appeals should take a--if not the--leadership role.

Seventy-five years ago, Chief Judge Irving Lehman made clear the role and responsibility of New York's high court:

Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States.

In that case, People v. Barber (1943), the Court of Appeals refused to adopt the Supreme Court's narrow view of free speech and religious liberty and, instead, did not hesitate to protect both as a matter of New York's own constitution law. Significantly, the federal Supreme Court--a mere four months later--followed the Court of Appeals' lead and overruled its prior rights-denying decision. (Murdock v. Pennsylvania [1943], overruling Jones v. Opelika [1942].)

Today's NY Court of Appeals

That sort of leadership and influence by state courts and, in particular, by the New York Court of Appeals is needed today.

Twenty years later, in People v. Donovan (1963), involving the self-incrimination privilege and the right to counsel, then-Judge Stanley Fuld reminded the government of the Court of Appeals' independent tradition and function in our federal system of dual sovereignty:

[W]e find it unnecessary to consider whether or not the Supreme Court of the United States would [rule the police conduct to be] a violation of the defendant's rights under the Federal Constitution....[T]o quote from our opinion in Waterman (9 N Y 2d, at p. 565), [the violation in this case] "contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime."

Indeed, New York's high court relied solely on New York's own constitutional protections and precedents in that case and in so many others where, in the words of Chief Judge Charles Breitel, it reaffirmed its commitment to "extend[ing] constitutional protections...under the State Constitution beyond those afforded by the Federal Constitution." People v. Hobson (1976).

That sort of willingness to be bold and independent by state courts and, in particular, by the New York Court of Appeals is needed today.

Then, throughout the tenure of Lawrence Cooke, both as Judge and eventually Chief Judge, the Court of Appeals refused to "pay[] mere lip service to the principle of due process" (People v. Isaacson [1978]). It led the country in the rigorous enforcement of constitutional protections in both civil and criminal cases as a matter of New York state law, independent of the Supreme Court's rulings under corresponding federal law. (E.g., People v. Isaacson [1978], "traditional notions of justice and fair play;" Sharrock v. Dell Buick [1978], civil due process requirements of notice and opportunity to be heard; People v. Skinner [1980], right to counsel.)

That sort of steadfast guardianship and rigorous enforcement of constitutional principles by state courts and, in particular, by the New York Court of Appeals is needed today.

Not long thereafter, when the Court seemed at risk of losing its moorings, then-Judge Judith Kaye felt compelled to remind some of her colleagues of the propriety and obligation of a state high court to render independent judgment:

[A]t some point the decisions we make must come down to judgments as to whether a particular protection is adequate or sufficient, even as to whether constitutional protections we have enjoyed in this State have in fact been diluted by subsequent decisions of a more recent Supreme Court....A state court decision that rejects Supreme Court precedent, and opts for greater safeguards as a matter of state law, does indeed establish higher constitutional standards locally. [But even] the Supreme Court as well as its individual Justices have reminded state courts not merely of their right but also of their responsibility to interpret their own constitutions.[R]ejecting Supreme Court precedents [reflects] both the role of the Supreme Court in setting minimal standards that bind courts throughout the nation, and the role of the state courts in upholding their own constitutions. (People v. Scott, concurring opinion [1992].)

Fortunately, and in large measure owing to Judith Kaye's influence and veritable tutoring on judicial federalism, the Court of Appeals exercised its independent judgment and avoided merely following lockstep with whatever the Supreme Court decided under federal law, however questionable.

Understanding and embracing the axiomatic principles of federalism, including the independent role of state courts--as emphatically restated by Judith Kaye--is needed today by state courts and, in particular, by the New York Court of Appeals.

Nevertheless, in the later years of Kaye's tenure as Chief Judge, the Court of Appeals failed to heed those principles and did lose its moorings for a spell. Consequently, during that period the Court produced some very unworthy decisions. Among them was one of the Court of Appeals most regrettable rulings in the modern era, Hernandez v. Robles (2006), rejecting the right to marry for same-sex couples.

As Chief Judge Kaye wrote in her passionate dissent, the majority's refusal to recognize marriage equality was an embarrassing break with the Court's tradition of leadership in safeguarding fundamental rights:

This State has a proud tradition of affording equal rights to all New Yorkers. Sadly, the Court today retreats from that proud tradition....
It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.
I am confident that future generations will look back on today's decision as an unfortunate misstep.

 And, of course, Chief Judge Kaye was right. The Court's reluctance to safeguard constitutional rights to the fullest under New York law was, at the very very least, "an unfortunate misstep." Indeed, it has proven to be a quite shameful ruling. It placed the Court among the nation's most backward, callous, and timid tribunals. And it required New York's governor and legislature to protect equal rights because the Court had failed to do so.

That sort of timidity and underenforcement of the most fundamental constitutional mandates of equal treatment and due process, by a state court and by the New York Court of Appeals in particular, must be avoided today.

A few years hence, with Chief Judge Jonathan Lippman at the helm, the Court's national stature as a leader among state high courts rebounded. (Indeed, several chief justices of state courts around the country actually volunteered that to me during the time.)

The Court of Appeals once again began boldly to protect basic rights as a matter of state law, independent of how the federal Supreme Court might decide the same issues. So, for example, in People v Weaver (2009), the Court declared that the technological surveillance in question was a search requiring probable cause and a warrant. Whether federal Supreme Court doctrine--as embraced by the dissenters--would have dictated a different result was beside the point.

Writing for the majority, the Chief Judge made clear that a potentially contrary federal Supreme Court ruling was irrelevant:

What we articulate today may or may not ultimately be a separate standard. If it is, we believe the disparity would be justified. The alternative would be to countenance an enormous unsupervised intrusion by the police agencies of government upon personal privacy and, in this modern age where criminal investigation will increasingly be conducted by sophisticated technological means, the consequent marginalization of the State Constitution and judiciary in matters crucial to safeguarding the privacy of our citizens.

Notably, three years later in U.S. v. Jones (2012), the Supreme Court--despite its narrow, rigidly, and regressively textualistic opinion by Justice Scalia--reached the same result as did the Court of Appeals. Significantly, a majority of the Justices, in separate concurring opinions, actually adopted the very same privacy analysis articulated by Chief Judge Lippman.

The sort of confident fidelity to a state court's independent role in protecting fundamental rights, as reflected in the Court of Appeals' decision in Weaver, is needed today.

The current Court of Appeals--with all its members having been appointed in recent years--is still a young court, with little institutional memory, and is seemingly still finding its way. At the least, it has not yet made its mark. It has yet to establish itself as an heir of the earlier courts, of carrying forth the historic tradition of the Court of Appeals as a force for vigorously protecting constitutional rights and liberties and fundamental fairness, and of doing so entirely independent of what the federal Supreme Court has done or might do.

Other state high courts around the country--the supreme courts of Iowa, Massachusetts, Oregon, Vermont, and Washington being among them--have been in the forefront of producing landmark rulings as a matter of independent state law. The Court of Appeals was conspicuously and uncharacteristically absent from any such list during a recent period. As previously mentioned, however, the Court subsequently regained considerable national stature while Lippman was Chief Judge.

New York Court of Appeals

It still remains to be seen where the Court of Appeals, with Chief Judge Janet DiFiore presiding, will eventually land. It remains to be seen how faithful this current Court will be to the historic tradition of bold, independent vigilance in the protection of constitutional rights and fundamental fairness. Indeed, that tradition has of late been manifesting itself primarily in the dissenting opinions--in the dissents penned by Judges decrying the majority's indifference to some injustice left unredressed.
(See the previous discussion in Dissents, Disappointments, and Open Questions, Part 1 and Part 2.)

In this era of Trump and of the federal Supreme Court he is remaking, the fundamental role and obligation of state courts and, in particular, of the New York Court of Appeals could not be more compelling. That role and obligation is to be ever mindful of the dual sovereignty of our federal system of government, and to stand as a bulwark in the protection of civil rights and liberties and basic justice, independent of regressive federal law and jurisprudence.

This is no time for timidity or indifference or passive acquiescence to injustice on the altar of some interpretive method. The Court of Appeals must step up.