My brother and I (credit mostly to him) wrote an op-ed when Justice Kennedy retired. That was before the commencement of the ongoing Brett Kavanaugh horror show and doesn’t address many of the issues currently on my own and everyone else’s minds — issues of sexual assault, perjury, temperament, and entitlement. The preposterous notion that some vast leftwing conspiracy (conspicuously ineffective) is behaving the way the Trumpist Republicans behave (because Trump has never accused anyone of any outrage he himself hasn’t beat them to, and the party follows like a shadow at his heels.) The insanity of Lindsey Graham — to anyone old enough to remember how he comported himself during the Clinton impeachment, his current performance of outrage has been particularly nauseating.
But to the issue of the politicization of the court, it remains relevant and I’m going to post it here, along with two introductory additions.
The first is this crucial speech made early in the Kavanaugh hearings by Senator Whitehouse. https://www.youtube.com/watch?v=_XxHjM3lMDs Please watch.
The second is these infuriating recent remarks by Justice Kennedy to a group students in Sacramento: “Perhaps we didn’t do too good a job teaching the importance of preserving democracy by an enlightened civic discourse,” he said. “In the first part of this century we’re seeing the death and decline of democracy.” This from the man who, with absolute and resolute civility, has done more than most to destroy the democratic system. More about that below.
A Handy, Dandy Supreme Court Cheat Sheet
by Karen Fowler and Michael Burke
For court watchers, the arrival of June used to be significant. After months of reading the tea leaves of who asked what questions and what points of law seemed to apply, the verdicts came in. There was, from time to time, genuine jurisprudence, interesting and unexpected arguments. There was suspense. Justice Kennedy has sometimes been the source of uncertainty; he could surprise us. But, more often, he went with the conservative majority.
That majority has offered some very strange rulings over the last twenty years. Among these are:
Citizens United (2010): the most consequential case about campaign expenditures in decades. In his majority opinion, Justice Kennedy wrote:
We now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. …The fact that speakers [i.e., donors] may have influence over or access to elected officials does not mean that these officials are corrupt. … The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.
Obviously Justice Kennedy wished to allow unlimited campaign expenditures, but this is nonsense. Everyone understands that if donors influence elected officials through their donations, it is corruption.
Shelby v Holder: the 2013 decision that eviscerated the 1965 Voting Rights Act (VRA). The VRA identified states with a troubled history in the area of voting rights. It subjected those states to “preclearance”, a procedure under which any change in voting rights laws must first be approved by the Justice Department. Chief Justice Roberts, writing for the majority, noted (correctly) that current data showed that discrimination in the area of voting rights was less prevalent than in the 1960’s when the VRA was passed. He does not appear to comprehend that this happy fact is largely a consequence of the preclearance provisions. Instead, he concludes, absurdly, that preclearance is no longer needed. As a matter of logic, the Notorious RBG, in her dissent, demolished the Roberts opinion with an umbrella:
Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.
Immediately upon publication of the Supreme Court’s decision, Texas and North Carolina approved new voter suppression laws. Additional states have since followed suit. The fairness celebrated by Chief Justice Roberts is slipping away as fast as states can legislate.
Here are two puzzlers from the just concluded term: the Masterpiece Cakeshop decision in Colorado and Trump v. Hawaii (the Muslim ban). The essence of the issue in the Masterpiece case is the question of whether a person can break the law for reasons of religious conviction. Colorado law prohibits discrimination on the basis of sexual orientation, so, make no mistake, in refusing to bake a wedding cake because the couple was gay, the baker broke the law. The central charge for courts is to enforce the law. So how did the conservative majority manage to countenance an illegal act?
Justice Kennedy, writing for the majority, constructed the most bizarre legal argument imaginable. He detected “religious animus” on the part of a couple of members of the Colorado Civil Rights Commission, which had previously ruled against the Masterpiece baker. [His religious animus meter must be more finely tuned than ours]. The mere presence of this animus provided sufficient reason for Justice Kennedy to overrule the lower courts. This reasoning is stunning. Even if such animus exists, how does it impact the central question of the case: can an individual break the law for reasons of religious conviction? Religious animus expressed by someone other than the baker is irrelevant to that question.
Moving on to the Muslim ban. Everyone knows this is a Muslim Ban. President Trump knows it’s a Muslim ban. His ardent supporters know it’s a Muslim ban; that’s why they support it. His opponents know it’s a Muslim ban; that’s why their opposition has been so vigorous. Muslims, in the United States, in the Middle East, in Europe, know it’s a Muslim ban. This is Trump’s third attempt, in essence the same as his first two tries, which were both found wanting by multiple courts. So here’s the court’s conundrum. They want to support Trump’s Muslim ban, but they know a Muslim ban is unconstitutional. The solution is simplicity itself. Chief Justice Roberts, writing for the majority, simply declares that the Muslim ban is not a Muslim ban because, quoting from his opinion, “the text says nothing about religion.” This assertion is at odds with common sense. It also runs afoul of the well known Duck Rule: if it looks like a duck and swims like a duck and quacks like a duck, it’s a duck. But the assertion allows Chief Justice Roberts to reach his desired conclusion.
Now consider these two cases together. In the Masterpiece case, barely detectable (if there at all) religious animus drives the conclusion in favor of the baker. In the Muslim ban, Trump’s repeated and shouted religious animus toward Muslims is dismissed. These two decisions, offered by the same justices only a couple of weeks apart, cannot be squared with each other. What reading of the Constitution reconciles these two? Perhaps the court is reaching its rulings by some means other than the consideration of the law and the Constitution.
With this in mind, we offer, for the post-Justice Kennedy world:
The Handy, Dandy Supreme Court Cheat Sheet
Given a Supreme Court case, identify the litigants. Then apply this Cheat Sheet.
• if the case is between the Federal government and a state government, the
state government wins
• if the case is between an individual and the government, the government
• if the case is between an individual and a business or a corporation, the
• if the case is between the government and a business or corporation,
the business/corporation wins
[Note: these principles can be summarized as follows: people always lose, businesses and corporations always win, and governments fall in the middle]
In certain cases, though, these basic principles will be reversed by overriding factors.
• if the case involves members of a minority group (racial minorities, minorities identified by sexual orientation, immigrants, women**), the minority group loses*
• if the case involves the environment, the environment loses
• if the case involves a close race for the presidency, the vote count stops and the Democrat loses.
• if the case involves a Christian, the Christian wins
• if the case involves a fetus, the fetus wins
* In addition to the obvious cases, this rule also applies to cases involving gerrymandering and voter suppression laws
** Technically, women are not in the minority, but they are treated as such by the male political establishment
This Cheat Sheet resolves the contradictions between the Masterpiece Cakeshop and Muslim ban decisions. The Muslim ban involves a minority (Muslims), so they had to lose. The gay couple in the Masterpiece case faced a double whammy. As a gay couple, they were members of a minority group, so they had to lose. And the other litigant was a Christian – so he had to win. There was no way for this case to be decided otherwise. With the Cheat Sheet, these decisions are now consistent with each other.
In his confirmation hearings, Chief Justice Roberts likened himself to a baseball umpire, neutral about the outcome of the game, and simply calling balls and strikes. Chief Justice Roberts pledged to “call ‘em as I see ‘em”. The above Cheat Sheet clarifies his strike zone. It explains what many of us feel are very strange balls and strikes.
Look at the legal principles the conservative majority has given us, now enshrined in the law as precedent:
• obvious corruption is not corruption (Citizens United, McDonnell v. United States)
• rich people get more free speech than poor people (Citizens United)
• corporations are people (Citizens United)
• everyone must follow the law, except Christians (Hobby Lobby, Masterpiece Cakeshop)
• a Muslim ban is not a Muslim ban (Trump v. Hawaii)
Over the last twenty years, the Cheat Sheet accounts for the positions of the four conservatives in nearly all important cases. As the most-of-the-time conservative majority morphs into the all-of-the-time conservative majority, we can expect that this Cheat Sheet will be an increasingly reliable predictor. No need to wait for June! No need to learn about the law, no need to consider the arguments, no need to understand the Constitution, no need to think about the actual real-world implications of any possible decision. In fact, no need to argue the cases at all. As soon as we identify the litigants, we can know the outcome.