Political SCOTUS?

Evangelisto Ramos was tried for second degree murder in Louisiana in 2016. After a two-day trial the jury voted 10-2 to convict him.

In 48 states (and in federal court), this would have resulted in a “hung jury” and a mistrial. Unfortunately for Mr. Ramos, he was tried in Louisiana, which (along with Oregon), permits non-unanimous verdicts, so he was convicted and sentenced to life in prison.

The question before the Court was whether the conviction was constitutional.

On this point—the point which Evangelisto Ramos was most interested in—the Court decided (6-3)1 that his conviction was not constitutional.


Here’s the scorecard:Ramos


Justice Gorsuch, who needed four Justices to join him, managed to make a 5-4 majority out of Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh for most of his nine-part opinion. Gorsuch and Kavanaugh, of course were appointed by President Trump. Ginsburg and Breyer were Clinton appointees. Sotomayor was appointed by President Obama.

That means that Gorsuch could not attract the votes of the Chief Justice Roberts or Justice Alito (both George W. Bush appointees) or Justice Kagan (an Obama appointee) for any of his opinion, and that Justice Kavanaugh (Trump) couldn’t agree with him on three parts, and Justice Sotomayor (Obama) could not agree on one part. Justice Thomas (President George H.W. Bush) thought the conviction was unconstitutional, but for a more-or-less completely different reason, so he did not agree with Gorsuch on anything that he wrote, just the decision he made.

Who says that Supreme Court justices vote politically?


1The only other part of the 87 pages of opinions that were published today that garnered this kind of majority was that Chief Justice Roberts, and Justices Thomas, Alito, Sotomayor, Kagan and Kavanaugh agreed that whatever Justice Gorsuch thought he meant by part IV.A. of his opinion could not possibly be right.

NOTE: The greyed-out sections of the chart represent the parts that are not legally binding—73 out of 87 pages!

P.S. One headline “Supreme Court rules criminal jury verdicts must be unanimous, overturning decades-old precedent,” rather misses the point. Ramos overturns a lone case which stuck out of 500 years of precedent and which was of doubtful coherence—a 4-person plurality opinion combined with an odd 1-person opinion by Justice Powell—that “decided” that Louisiana could sort of get away with it, though Gorsuch writes that “no Member of the Court today defends either [the opinion of the four or the opinion of the one] as rightly decided.”

Simon Tam

Simon Tam 2I attended a great event (at the Chester Bedell Inn of Court) last night with Simon Tam (@SimonTheTam) of The Slants (“The Band Who Must Not Be Named”)*, who described his odyssey to the Supreme Court** and why reclaiming an ethnic slur could be so critical to young Asian-Americans.

Excellent speaker, moving story, important take away.

*http://www.theslants.com/
**Matal v. Tam, 137 S. Ct. 1744 (2017) [link]; see page at SCOTUSblog [link].

slanted

 


I am also looking forward to reading his new book: Slanted: How an Asian American Troublemaker Took on the Supreme Court (2019). I’ll have a brief review up soon.

It’s nice when your opponents praise you…

More support for Neil gorsuchGorsuch, from someone who served as Acting Solicitor General under President Obama:

Right about now, the public could use some reassurance that no matter how chaotic our politics become, the members of the Supreme Court will uphold the oath they must take: to “administer justice without respect to persons, and do equal right to the poor and to the rich.” I am confident Neil Gorsuch will live up to that promise.

Neal K. Katyal, “Why Liberals should back Neil Gorsuch,” New York Times (Jan. 31, 2017) [link].

Judges and partisans

ScreenShot164This is certainly on point:

It has long been frustrating to me that the only criterion by which Americans — almost without exception — evaluate judges is: Did he or she make decisions that produce results I’d like to see? Virtually no one asks whether the judge has rightly interpreted existing law, which is of course what the judge is formally required to do. Americans — again, almost without exception — want judges to be politicians and advocates. The idea that a judge should strive to interpret existing law regardless of whether it does or doesn’t promote politically desirable ends never crosses anyone’s mind, and if by some strange chance it did, the person whose mind was so crossed would reject the proposal indignantly. Americans in this respect resemble toddlers and their own President: they evaluate everything in terms of whether it helps or hinders them in getting what they want.

This devaluation of interpretation amounts to a dismissal of the task of understanding: everything that matters is already understood, so the person who would strive to understand is not only useless, but an impediment to the realization of my political vision. To the partisan, the absence of partisanship is always a sin, and perhaps the gravest of sins.

Alan Jacobs, “Judging Judges,” Snakes and Ladders (Jan 31, 2017) [link].

To be clear . . .

ScreenShot142I did not realize that “No, I don’t” would strike a nerve like that. I may have had more political conversations in the last four days than in the prior four months.

The people who disagreed said two things that bear response, because they are right:

1. “You can’t restrict yourself to voting only for people with whom you agree 100%.” This is absolutely true. Most of the votes I have cast in my life have been for people I agreed with only in part. But isn’t there a limit to this? I have come to think that there is and that some candidates do not meet the minimum.*

2. “The next President is going two be able to appoint two Supreme Court justices, and that is going to affect the country for the next 25 years, not just the next four.” This is, if anything, too weak. President Obama is going to nominate Justice Scalia’s replacement, and the next President may well nominate replacements for the three remaining Justices who are over 75 years old. That is a huge turnover in the Court, and it is very important. Before 2020, the Court may well consist of Justices Roberts, Thomas, Alito, Sotomayer, Kagan and four people we have not heard of. Nevertheless, I think we are going to have to trust God, not the candidate, for these selections.**

In the end, that is my real point.

The Republican Party has entirely lost control of its process and the Democratic Party seems never to have guessed that a 74-year old Senator might not make a 68-year old former First Lady, Senator, and Secretary of State look energetic and youthful.

But God has not lost control of anything at all.

 

*Should I say “my minimum” to be completely clear? I am not telling anyone “You cannot vote for Donald Trump,” or “You cannot vote for Hillary Clinton.” Maybe they sufficiently reflect your values and your sense of right and wrong. I am saying “I cannot vote for either, and there is no spiritual duty to vote pragmatically.”

**Of course, many Presidents have found that it is hard to guess how their Supreme Court appointments will turn out. Eisenhower was supposed to have said that his two biggest mistakes were sitting on the Supreme Court — Earl Warren and William Brennan.  These things are not entirely within human control.

The conscience of the Court

Critics of Justice Scalia often accused him of inconsistency. And insofar as he was a methodological originalist he sometimes was inconsistent. But I think the heart of his jurisprudence was disciplinary originalism, and with his death the most powerful embodiment of that vital principle was lost. I do not think we shall look upon his like again. And that means that our Supreme Court will continue to make the kinds of decisions it has been making for decades, but will have no one on its bench to remind it of what it’s really doing. Antonin Scalia was the conscience of SCOTUS, and I don’t see how it’s going to get another one.

Alan Jacobs, “Scalia and Disciplnary Originalism,” The American Conservative (Mar. 7, 2016) [link].

Jacobs makes the point that if we want the Constitution to mean anything at all in our conversation, we have to allow it “to speak” to us.  There is a followup at [link].

More worth reading

If you do not have the energy to sit down with the opinions in Obergefell v. Hodges yet (and you will need to try, people), here’s some “warmup” reading:

Amy Howe, In historic decision, Court strikes down state bans on same-sex marriage: In Plain English, SCOTUSblog (Jun. 26, 2015, 1:07 PM) (http://www.scotusblog.com/2015/06/in-historic-decision-court-strikes-down-state-bans-on-same-sex-marriage-in-plain-english/).

Emily Belz, Supreme Court: Marriage is between ‘two persons’, World (06/26/2015) (http://www.worldmag.com/2015/06/supreme_court_legalizes_same_sex_marriage).

Mark Galli, Six Things to Do after the Supreme Court Decision on Gay Marriage: Now is not the Time to Sulk, Christianity Today (June 26, 2015) (http://www.christianitytoday.com/ct/2015/june-web-only/6-things-to-do-after-supreme-court-gay-marriage-decision.html?utm_source=ctweekly-html&utm_medium=Newsletter&utm_term=15817700&utm_content=364591641&utm_campaign=2013).

Marvin Olasky, From Bible-blocker justices to the Daniel option, World (June 26, 2015) (http://www.worldmag.com/2015/06/from_bible_blocker_justices_to_the_daniel_option).