Justice Brett Kavanaugh 2.0 June 30, 2020
Another SCOTUS (Supreme Court of the United States) term, and another term in which Justice Brett Kavanaugh remains Demagogue Donald’s loyal judicial wingman. In his first two terms on the High Court bench, 2018-2019 and 2019-2020, Kavanaugh has fulfilled Donald and his rabid followers’ major reactionary wishes even better than Trump’s first pick, Justice Neil Gorsuch.
And speaking of Justice Gorsuch, on 6/15/2020, in a momentous and far-reaching 6-3 decision, Gorsuch authored one “y uu ge” legacy- making opinion. In Bostock v. Clayton County, Gorsuch declared that Title VII of the historic 1964 Civil Rights Act which prohibits discrimination on the basis of “race, color, religion, sex, and national origin,” protects LGBTQ (lesbian, gay, bisexual, transgender, and queer) employees from workplace discrimination nationwide. Until this opinion, only 21 states protected employers from firing LGBTQ workers, while states in the South and most of the Midwest lacked such anti-discrimination laws. In 2019, House Democrats passed the Equality Act to protect LGBTQ people from job discrimination. However, GOP Majority Leader Mitch “Grim Reaper” McConnell’s (R-KY) Senate killed this bill by refusing to take up this measure (See Savage, D., 6/15/20, Greenhouse, L., nytimes.com, 6/18/20). After the Supreme Court issued its 2015 Obergefell v. Hodges case that allowed same-sex couples to marry under the Constitution’s 14th Amendment, many same-sex couples cynically but correctly remarked that they could get married on one day and be fired the next. Gorsuch’s Bostock opinion corrects that grave injustice.
Gorsuch, who prides himself on being a “textualist” or a literal reader of plain statutory laws stated, “Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations (Savage, latimes.com, 6/15/20).” IMHO and that of many others, the Congress that wrote Title VII probably did not have LGBTQ people in mind when it prohibited discrimination on grounds of sex. It was, no doubt, thinking of barring discrimination against women. However, in Justice Gorsuch’s opinion, the past and future were irrelevant. In his words, “These cases involve no more than straightforward application of legal terms with plain and settled meanings. That those who wrote those terms into law might not have expected them to apply as the court was now applying them made no difference: The language they wrote is the language they wrote, and the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” As for the future, Justice Gorsuch said, “whether other policies might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these (Greenhouse, nytimes.com, 6/18/20).” Translation: the 5-member conservative SCOTUS might later find that lay teachers in religious schools or athletic coaches in such schools who are LGBTQ can’t work there when such anti-discrimination laws conflict with religious beliefs (See Greenhouse, nytimes.com). However, in most employment situations, LGBTQ people are now protected.
Gorsuch was joined by conservative Chief Justice (CJ) Roberts in his opinion along with liberals Ginsburg, Breyer, Sotomayor, and Kagan. CJ Roberts initially voted against allowing same-sex marriage under the Constitution. However, he joined in this statutory interpretation protecting this group in most employment discrimination cases. Roberts reveres the reputation of SCOTUS. He does not want it to become condemned by history as was the arch-reactionary 1930’s anti-New Deal Court or the pre-Civil War Dred Scott Taney Court. Gorsuch, of course, clerked for Supreme Ct. Justice Anthony Kennedy who wrote the ground-breaking Obergefell v. Hodges same-sex marriage case. However, although Justice Kavanaugh also clerked for Kennedy, he took a different path and joined hard-right dissenters Thomas and Alito. Kavanaugh, in a separate dissent from Alito and Thomas, further ignored all political realities. He argued that Congress should have enacted sexual orientation discrimination into law but has not yet done that (latimes.com, opinion, 6/16/20). Kavanaugh could care less that Mitch McConnell would never allow such a law to be enacted. He ignores the fact that unless a Democratic Senate abolishes the filibuster in the future, such a law will probably not get passed. A future GOP president could also veto such legislation to please the rabid “Red” social conservative base. In his dissent, Kavanaugh spoke in complimentary tones about how much “social and political progress” the LGBTQ community has achieved (no thanks to him) and the “powerful policy arguments they have advanced (cnn.com, de Vogue & Cole, 6/15/20).” These patronizing remarks, not backed up by his vote, remind me of what he said to Jewish war veterans in a 2019 decision. In that case, in which the SCOTUS majority allowed a cross to stand on public land in Maryland, Kavanaugh stated he had “great respect” for Jewish war veterans who felt this cross sent “a message of exclusion.” He “recognized their (Jewish veterans’) sense of alienation.” However, these views did not keep him for voting against separation of church and state (cnn.com, de Vogue & Stracqualursi, 6/20/19).
On the very same day that SCOTUS came down with its landmark LGBTQ employment discrimination case, the High Court refused to take up a long list of cases that put restrictions on the use of firearms, including whether they could be carried in public nationwide. Other issues that pro-gun rights groups like the NRA (National Rifle Association) wanted to challenge included bans on assault weapons, high-capacity magazines, and handgun sales. Justices Thomas and Kavanaugh dissented from the decision not to hear a NJ case testing the right to carry guns in public. In their words, “In several jurisdictions throughout the country, law-abiding citizens have been barred from exercising their fundamental right to bear arms because they cannot show that they have a ‘justifiable need’ or ‘good reason’ for doing so. One would think that such an onerous burden on a fundamental right would warrant this court’s review (usatoday.com, Wolf, R., 6/15/20).” From the get-go, Kavanaugh been pushing to go after gun restriction legislation.
NY City had initially enacted gun restrictions barring the transportation of legally owned guns taken outside its city limits. SCOTUS took up this case. NY City rescinded this law while the case was pending before the High Court, because it feared SCOTUS might extend gun rights. In 4/2020, SCOTUS declared that case moot. Three of the court’s conservative Justices dissented from that procedural ruling. Kavanaugh then made clear his own desire to engage in Second Amendment, right to bear arms, cases. At that time, Kavanaugh said, “The court should address that issue soon, perhaps in one of several Second Amendment cases with petitions for certiorari now pending before the court (usatoday.com, Wolf).” Since its 2008 and 2010 rulings striking down gun restrictions in D.C. and Chicago, SCOTUS has refused to hear dozens of cases challenging lesser limits on firearms. During that time, lower courts have resolved more than 1,000 Second Amendment cases upholding many gun-control measures (usatoday.com, Wolf, 6/15/20). Ideologue Kavanaugh is heedless of the outcry that expanding Second Amendment gun use rights might cause when the overwhelming majority of Americans back reasonable firearms restrictions.
In addition to the LGBTQ case and the refusal to presently take up gun restrictions, on 16/18/2020, SCOTUS handed Demagogue Donald another “bigly” defeat in an area that is his prime obsession— immigration restrictions. SCOTUS ruled that the Trump administration may not immediately proceed with its plan to end the DACA program that protects about 700,000 young immigrants from deportation. DACA (Deferred Action for Childhood Arrivals), was a program enacted by President Obama in 2012. DACA is available to any undocumented immigrant who came to the U.S. under age 16, has lived here since 6/2007, was enrolled in high school or graduated, and has not been convicted of certain offenses. The DACA individuals also have to pose no national security or public security threats. People who met the DACA requirements became eligible for renewable two-year grants of “deferred actions” from deportation. They were also eligible for work authorization and social security numbers, but have to provide the federal government with certain identifying information (cnn.com, de Vogue & Cole, 6/18/20, nytimes.com, Liptak & Shear, 6/18/20, nytimes.com, Shear, 6/18/20). In 9/2017, Trump announced he would wind down the DACA program. Trump’s single reason for doing this was that “creating or maintaining the program (DACA) was beyond the legal power of any president (Liptak & Shear, nytimes.com, 6/18/20).” In response to litigation, lower federal courts stepped in and issued injunctions against Trump’s DACA repeal. Those courts said the administration had acted arbitrarily when phasing out the program in violation of the law, and had used thin justification for its actions (cnn.com, de Vogue & Cole, 6/18/20).
In its 5-4 opinion authored by CJ Roberts who joined liberals Ginsburg, Breyer, Sotomayor, and Kagan, SCOTUS agreed with the lower federal courts. In CJ Roberts’ words, “We do not decide whether DACA or its recission are sound policies. The wisdom of those decisions ‘is none of our concern.’ We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action (cnn.com, de Vogue & Cole, 6/18/20).” Justice Kavanaugh joined dissenters Thomas, Alito, and Gorsuch. Thomas called the decision “an effort to avoid a politically controversial but legally correct decision (cnn.com de Vogue & Cole).” CJ Roberts’ decision presently allows DACA to continue. However, it also allows Trump to try again with a better explanation grounded in policy to rescind DACA. However, this may, according to Cornell Law Professor Stephen Yale-Loehr, take months or years (cnn.com, de Vogue & Cole). Hopefully, in that time, Democrat Biden will be elected President and the issue will be moot. Keeping the House “Blue” and flipping the Senate “Blue” may also allow congressional action on permanent DACA relief.
Will Donald try again on this signature issue of his? Bet on it. He went ballistic on SCOTUS’ DACA decision. He called the opinion “shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives (cnn.com, de Vogue& Cole).” Trump’s anti-DACA attitude, however, is not in line with public opinion. Sixty-one percent of the public wants to keep DACA v. 39% who want it ended. Eighty-five percent of Democrats and 61% of Independents want to save DACA. Only GOPers, by a 70% margin, want to end DACA. Still, 30% of Republicans want to keep it (nytimes.com, Liptak & Parlapiano , 6/15/20). One hundred and forty-three business associations filed a brief in the High Court supporting DACA (cnn.com, de Vogue & Cole). On 6/15/2020, three days before its DACA decision, SCOTUS dealt with another immigration matter. It refused to hear Trump’s challenge to a CA “sanctuary” law. That state law would prohibit local law enforcement officials from aiding federal agents in taking custody of immigrants as they are released from jail. Only Thomas and Alito voted to hear the Trump administration appeal. Even Kavanaugh and Gorsuch saved their opposition for the DACA case (See latimes.com, Savage, 6/15/20).
Just because SCOTUS handed down a good DACA decision by the narrowest of margins, do not in any way think that the High Court is immigrant friendly and won’t often support Trump’s anti-immigrant views. On 6/25/2020, in a 7-2 vote, SCOTUS, in the Department of Homeland Security v. Thuraissigiam, held that immigrants whose request for asylum were summarily denied in bare-bones proceedings may not contest this denial in federal court via the writ of habeas corpus. Sri Lankan Mr. Thuraissigiam, a member of that country’s Tamil ethnic minority, was apprehended about 25 miles north of the Mexican border in CA. He sought asylum in the U.S. saying that he had been savagely beaten in Sri Lanka by men who had blindfolded and abducted him, consistent with documented instances of abuses directed against Sri Lankan Tamils. The asylum officer believed him but rejected his asylum request because Thuraissigiam could not identify the assailants or definitively establish their motives. A trial judge rejected his habeas corpus petition, because his streamlined asylum petition denies habeas corpus under a 1996 law for people caught near the border. The Ninth Circuit Federal Ct. of Appeals ruled this 1996 law unconstitutional because it violated the Constitution’s clause against suspending the writ of habeas corpus except in an extreme minority of cases (Liptak, nytimes.com, 6/25/20).
In an opinion written by Justice Alito and signed by all the five conservative Justices, including Kavanaugh, SCOTUS reversed the 9th Circuit and upheld the 1996 law. Alito wrote that habeas relief in this case falls “outside the scope of the Constitution when it was adopted,” original intent talk. He stated that Mr. Thuraissigiam was using this case “to remain lawfully in the U.S. (cnn.com, de Vogue, 6/25/20).” The federal government’s lawyer stated that if SCOTUS had upheld the 9th Circuit, a “flood of habeas petitions would have occurred.” The ACLU lawyer for Mr. Thuraissigiam said that such habeas petitions were extremely rare. Since the 9th Circuit had allowed them, only 30 of more than 9,000 immigrants denied asylum had filed habeas petitions (nytimes.com, Liptak, 6/25/20). However, IMHO, for Alito, Kavanaugh, et al, these 30 constituted a “y uu ge” flood. In dissent, Justice Sotomayor argued that such a decision could permit Congress to constitutionally eliminate all procedural protections for non-citizens the government deems unlawfully admitted and “summarily deport them no matter how many decades they have lived here and how settled and integrated they are (cnn.com, de Vogue, 6/25/20).” This ruling will keep courthouse doors closed to asylum seekers in expedited removal processes who say they can’t return home because they have a credible fear of torture or death (cnn.com, de Vogue, 6/25/20).
Justice Kavanaugh has certainly pleased 10,000% Demagogue Donald and his rabid supporters. He, most importantly, convinced gullible Senator Susan Collins (R-ME) that he would respect and not overrule precedent, especially when abortion was involved, aka, the doctrine of stare decisis or “let the cases or precedents stand.” According to Sen. Collins, Kavanaugh privately told her that “precedent is not merely a practice and tradition, but is rooted in Article III (the judiciary section) of our Constitution itself (See theatlantic.com).” Collins, remember, was the key Senator who pushed Kavanaugh’s confirmation over the “finish line.” Well, Sen. Collins was hornswoggled.
On 6/29/2020, abortion opponents received a surprising setback. On that date, SCOTUS struck down as unconstitutional a 2014 Louisiana law that had it been affirmed would have closed all but one of that state’s abortion clinics. In a 5-4 opinion CJ Roberts joined liberal Justices Breyer, Ginsburg, Sotomayor, and Kagan. This opinion, June Medical Services v. Russo, authored by Breyer, struck down the LA law that required doctors performing abortions to have admitting privileges at nearby hospitals. Opponents of this LA law stated that abortion providers could not easily get hospital admitting privileges. Some hospitals in LA required excessive paper work to do this. Others were fearful of looking as if they were taking a side in this hot button political area, if they gave abortion providers admitting privileges. Some LA hospitals required impossible-to-meet standards such as including such doctors to admit a minimum number of patients every year in order to keep their privileges (huffpost.com, O’Connor & Golgowski, 6/29/20, nytimes.com, Liptak, 6/29/20, cnn.com, de Vogue & Cole, latimes.com, Savage, 6/29/20).
The LA law that SCOTUS struck down was basically a rerun of a Texas law SCOTUS rejected four years before in a 5-3 vote taken after conservative Justice Scalia’s 2016 death. This time, the main difference was a change in SCOTUS personnel. Justice Anthony Kennedy, who wrote the TX decision, had retired. He had been replaced by Trump nominee conservative Brett Kavanaugh and the late Justice Scalia’s seat had been filled by conservative Trump nominee Gorsuch. In the 5-3 TX opinion, CJ Roberts had dissented. However, in the 2020 LA case, CJ Roberts in a 16-page concurring opinion, joined the liberal camp. CJ Roberts cited precedent as the reason for rejecting LA’s similar law. In Roberts’ words, “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed under the Texas law, for the same reasons. Therefore, Louisiana’s law cannot stand under our precedent (Savage, latimes.com, 6/29/20).” Roberts stated in his opinion that he would abide by the 1992 SCOTUS ruling, Planned Parenthood v. Casey. That decision said the states may not put “a substantial obstacle” in front of women seeking abortions (latimes.com, 6/29/20, Savage). Get it? Roberts, not Kavanaugh believes in stare decisis. Kavanaugh’s talk with Sen. Collins was just hot air and aimed solely to get him confirmed.
CJ Roberts is no liberal. He sometimes votes with the 4 liberal justices because, as previously noted, he does not want SCOTUS to be the object of ridicule. He knows that gutting Obamacare, DACA, or LGBTQ protections would create a firestorm in American society that would destroy conservative values that he is aiming for in the long run. He struck down a LA anti-abortion law that was identical to a TX one previously thrown out on stare decisis grounds, but is open to allowing new restrictions on abortion, if properly drafted and argued by conservatives (See nytimes.com, editorial, 6/29/20). Yes, he is a swing vote, a swing vote only when compared to rigid Sam Alito, ideological Brett Kavanaugh, and I “want to repeal Roe and just about every other progressive ruling” Clarence Thomas. On certain issues dear to conservatives, including demolishing the wall between separation of church and state brick by brick, Roberts joins his hard-right brethren. This issue flies under the radar for most people. On 6/30/2020, in a 5-4 decision, CJ Roberts joined the right-wing camp in ruling in a Montana case that states may not exclude religious schools from programs that provide scholarships to students attending private schools. In CJ Roberts’ words, “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious (nytimes.com, Liptak, 6/30/20).” This ruling is a big victory for Trump and his supporters and will encourage other states to push for similar programs (cnn.com, de Vogue & Cole, 6/30/20).
A final note. In Campaign 2016, 21% of the voters considered the issue of Supreme Ct. appointments the most important factor in their votes. Of those, 56% voted for Donald who had promised to appoint judges to the SCOTUS bench from a list of jurists prepared by the hard-right Federalist Society. Only 41% of those voters who cared about the Supreme Ct. voted for Hillary. Hillary, unfortunately, did not heavily emphasize the future of SCOTUS in her campaign. Too many progressives were “unenthusiastic” about Obama’s selection of Federal Circuit Judge Merrick Garland whose appointment was proudly blocked by Sen. Majority Leader Mitch “Grim Reaper” McConnell (R-KY). They wrongly assumed that when Hillary won, she would replace “too middle of the road” Garland with a more progressive nominee (See vox.com, Coaston, 6/29/18). Campaign 2020 Democratic nominee Joe Biden must push SCOTUS appointments as a key issue for Democrats (See nytimes.com, Flegenheimer, 6/29/20). And, of course, liberal Justices Ginsburg and Breyer are 87 and 81 respectively and Ginsburg has had several bouts with cancer (See Reza, TheGreenPapers.com). They would probably not outlast a Trump second term. ME Democratic Senate candidate Sara Gideon is rightfully attacking Sen. Susan Collins for foolishly supporting Kavanaugh over his alleged views on abortion. Other Democratic candidates in states where GOP Senators are vulnerable must do the same to recapture the Senate. Even worse is the fact that Sen. GOP leader McConnell has made sure that 200 federal judges, including lower District and Circuit Court nominees with right wing backgrounds, have been confirmed by his GOP Senate. Few cases are ever heard by SCOTUS, so these lower court appointments are crucial in deciding most issues (cnn.com, Cole & Barrett, 6/24/20). In Campaign 2020, we must not repeat the mistake of ignoring SCOTUS and lower court appointments and come out in droves plus on this issue. It’s all about SCOTUS and the lower federal courts. No more Brett Kavanaughs!