Justice Brett Kavanaugh—Demagogue Donald’s Loyal Wingman on the High Court June 27, 2019
Remember what Justice Ruth Bader Ginsburg recently said? She correctly warned us that a lot of 5-4 U.S. Supreme Court opinions and other controversial decisions were going to be issued. And they sure have. On 6/17/2019, SCOTUS (the Supreme Court of the United States), in a 5-4 opinion, turned back a challenge by the VA GOP- led House of Delegates. That state chamber’s GOPers wanted to appeal a lower court decision that ruled 11 House of Delegates districts were unconstitutionally drawn on the grounds that Republicans had racially gerrymandered them. Because of that lower court ruling, an outside expert re-aligned 26 VA House districts. Currently, the GOP only controls the VA House by a 3-seat margin, 51-38, and the Old Dominion state Senate by a 1-seat edge, 20-19. In 11/2019, all VA state seats in both chambers are on the ballot. With this ruling and with these new fairer maps in place in 11/2019, Democrats will have a good chance to get a legislative trifecta, Governor and two state houses, that will then control VA’s post-2020 redistricting. According to Ginsburg’s opinion, since VA State Atty. General Mark Herring had agreed with the lower court’s ruling and would not appeal it, the State GOP House of Delegates lacked standing to appeal. She was joined by liberal Justices Sonia Sotomayor and Elena Kagan, and even conservative Justices Clarence Thomas and Neil Gorsuch. Justice Brett Kavanaugh, Anthony Kennedy’s replacement, joined the dissenting 4-member minority (CNN, deVogue, Nobles, and Cole, 6/17/19, intelligencer/2019, Kilgore, Wash. Post, Barnes & Vozzella, 6/17/19). Kavanaugh’s dissenting vote, IMHO, demonstrates his interest in keeping GOP dominance in redistricting even when it has been declared racially unconstitutional.
In a 6/20/2019 opinion, we see another side of Kavanaugh in action. In the so-called “Peace Cross” case, SCOTUS upheld the American Legion’s 1925 construction of a 40-foot cross on public land in Bladensburg, MD. That cross honors 49 local men killed in WWI. In this 7-2 opinion, Justice Kavanaugh joined Justice Samuel Alito’s majority opinion. Alito wrote that although the cross is “undoubtedly a Christian symbol, that fact should not blind us to everything else that the Bladensburg cross has come to represent,” including “honoring all veterans.” In dissent, Justice Ginsburg, joined by Justice Sonia Sotomayor, stated that “just as a Star of David is not suitable to honor Christians who died serving their country, so a cross is not suitable to honor those of other faiths who died defending their nation. Soldiers of all faiths ‘are united by their love of country, but they are not united by the cross (cnn.com, de Vogue & Stracqualursi, 6/20/19).’” Kavanaugh joined Alito’s opinion in full, but wanted to stress that he had “great respect” for Jewish war veterans who argued that the cross on public land sends “a message of exclusion.” He added that he “recognized their (Jewish veterans’) sense of alienation.” Kavanaugh stated that while he voted to uphold this MD cross, he called all “citizens equally American, no matter what religion they are, or if they have no religion at all (cnn.com, de Vogue & Stracqualursi).” Get it? Vote against separation of church and state, but give mere lip service and platitudes to people who feel excluded.
True, Justice Kavanaugh authored a good 7-2 opinion. In that case, a black MS death row inmate, Curtis Flowers, was allowed a new trial because of blatant unconstitutional racial discrimination by his MS prosecutor. That prosecutor, in going after Flowers in six trials, struck 41 out of 42 black prospective jurors and in the sixth trial engaged in dramatically disparate questioning of African-American jurors. However, the Flowers opinion is no indication that Kavanaugh has morphed into a judicial liberal. Only heartless Clarence Thomas and Neil Gorsuch saw no evidence of purposeful racial discrimination quite clear in the record. And Kavanaugh is not striking new ground. He is only reaffirming precedent going back to 1986 in Batson v. Kentucky. The Batson case prohibits prosecutors and defense attorneys from using jury challenges to strike potential jurors because of race (See cnn.com, deVogue & Stracqualursi, 6/21/19, huffpost.com, Blumberg & Fong, 6/21/19). The rest of Justice Kavanaugh’s record still makes right-wing conservatives very happy that they went all out for his nomination and confirmation.
Although Justice Kavanaugh upheld the Batson v. KY 1986 case barring racial discrimination in jury selection in his 6/21/2019 Flowers opinion, he is not that big a believer in stare decisis or letting precedent stand. In a 5-4 decision by the conservative SCOTUS majority on that same date, he joined fellow Justices Roberts, Thomas, Alito, and Gorsuch in arguing that precedent can be overruled if it has “come in for repeated criticism from Justices of the Court and many respected commentators (cnn.com, de Vogue, 6/21/19).” In that case, involving plaintiff Rose Mary Knick (Knick v. Township of Scott, Pennsylvania, Et Al.), SCOTUS overruled its 1985 Williamson County case. In Williamson County, SCOTUS had stated that a plaintiff could not sue in federal court when a taking of his/her land occurs until the state was given a chance to pay the property owner just compensation. By overruling Williamson County in the Knick opinion, Chief Justice Roberts, Kavanaugh, and the other conservatives allowed an individual to sue in federal court as soon as the taking occurs (cnn.com, de Vogue). In dissent, liberal Justice Elena Kagan charged that the Knick case “smashes a hundred-plus years of legal rulings to smithereens (See cnn.com, de Vogue, 6/21/19).” Kagan, like Justices Ginsburg and Stephen Breyer, is more than worried what such cavalier treatment of precedent by the conservative 5-4 majority will mean for the 1973 Roe v. Wade abortion case and other controversial opinions SCOTUS has previously issued (See cnn.com, de Vogue, 6/21/19).
On 6/24/2019, in the U.S. v. Davis case, SCOTUS, by a 5-4 vote struck down part of a 1980’s era crime law for vagueness. That statute added longer prison terms, in this case, 25 extra years in prison, for offenders who carried a gun during a “crime of violence.” Conservative Trump appointee Justice Gorsuch joined the four liberals, Ginsburg, Breyer, Sotomayor, and Kagan. Speaking for the Court, Gorsuch said the Justices should not uphold “vague” laws that do not “give ordinary people fair warning about what the law demands of them.” Kavanaugh, in dissent with Chief Justice Roberts, Thomas, and Alito, called the Davis ruling “a serious mistake.” Kavanaugh stated it would “likely mean that thousands of inmates who committed violent gun crime will be released far earlier than Congress specified.” Kavanaugh argued that the 1980’s federal crime laws “contributed” to the decline of violent crime in the U.S. With his Davis dissent, Kavanaugh is proving himself to be a traditional law-and-order conservative in the footsteps of Richard Nixon and former Chief Justice Rehnquist (See latimes.com, Savage, 6/24/19).
Justice Kavanaugh is no friend of the “Auer deference doctrine.” In 6/2016, Kavanaugh predicted that the 1997 SCOTUS Auer v. Robbins opinion “would someday be overruled.” The Auer case holds that courts should defer to agencies’ interpretations of their own rules if those rules are ambiguous (law360.com, cnbc.com, Higgins, 6/26/19).” The “Auer deference doctrine” upholds the ability of federal agencies to make and interpret existing regulations. Without this regulatory power, radical libertarians, far-right GOPers, and their allies would be able to destroy labor, anti-discrimination, health, and environmental laws, striking a severe blow against the modern administrative state (See thinkprogrss.com, Millhiser, 6/6/18, the dailybeast.com, Michaelson, 6/26/19 ). However, in the Kisor v. Wilkie case in which overturning the “Auer doctrine” was at issue, conservative Chief Justice Roberts joined the four other liberals in an opinion authored by Justice Kagan. Kagan, with Roberts’ key vote, relied heavily on the legal principle of “stare decisis” which puts a high bar on attempts to reverse the court’s past rulings. She also stated that “Auer deference retains an important role in construing agency regulations (cnbc.com, Higgins).” Kavanaugh, in this case involving the Department of Veterans Affairs interpretation of its own regulations, stated that “formally rejecting Auer would have been a more direct approach (cnbc.com, Higgins, 6/26/19).” Kavanaugh wrote, “Umpires in games at Wrigley Field do not defer to the Cubs manager’s in-game interpretation of Wrigley’s ground rules. So too here (thedailybeast.com, 6/26/19).” Get it? Interpretation of governmental regulations, read overthrowing agency views and our modern administrative law, is SCOTUS’ business. With Roberts’ vote, progressives and moderates temporarily dodged one big lethal anti-government bullet.
On 6/27/2019, two SCOTUS blockbuster cases were issued. In a 5-4 decision, SCOTUS allowed extreme political gerrymandering to continue. Chief Justice Roberts joined his fellow conservatives, including Justice Kavanaugh, in concluding that partisan gerrymandering, not gerrymandering hurting racial minorities, as in the VA case I initially discussed, presented “political questions beyond the reach of this court.” Roberts added that “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.” Roberts indicated that states were already actively addressing this issue on “a number of fronts (deVogue, cnn.com, 6/27/1).” Message here: the only real way to change political gerrymandering is to support ballot initiatives to reform redistricting as was done in CA and AZ, elect Democratic governors, and elect fair-minded state Supreme Ct. justices (See dailykos.com, Nir, 6/27/19). To do this, we must always vote in EVERY election.
However, in a surprising 5-4 decision, Chief Justice Roberts joined the four liberal Justices blocking a citizenship question from being added to the 2020 census. Kavanaugh joined his three fellow ultra-conservatives on this issue. Trump and his Commerce Dept. Sec. Wilbur Ross, who has responsibility for the census, wanted to add a question asking whether a person is a citizen, a question not on census forms since 1950. Trump’s argument was that this question would enforce the 1965 Voting Rights Act protecting minorities, something his gang could care less about (See nytimes.com, Liptak, 6/27/19). Had this question been added, government experts predicted that at least 6.5 million people, mainly immigrants, would not have responded and Democratic representation could have been severely reduced. Roberts indicated that he would take into account outside information related to why this question was added. After oral argument was heard, it turned out that Sec. Ross had discussed this matter with anti- immigration hard-liners Stephen Bannon and former KS Sec. of State Kris Kobach. It also turned out that the computer files of the late Thomas Hofeller, a GOP redistricting strategist, suggested the Trump administration was using this question to draw voting districts by counting only eligible voters rather than all residents, the current practice. The Trump strategy, in Hofeller’s written words, “would be advantageous to Republicans and non-Hispanic whites (nytimes.com, Liptak, 6/27/19).”
It looks like Chief Justice (CJ) Roberts has now become the centrist swing SCOTUS conservative replacing Anthony Kennedy in this role. Brett Kavanaugh, however, looks like he has fulfilled just about everything conservatives had hoped he would do when Trump nominated him. One of the key GOP Senators who helped push his nomination through was Maine “moderate” (NOT) GOP Senator Susan Collins. In my next blogpost, I will discuss the political challenges Sen. Collins faces in Campaign 2020.
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