Just how far-right is the U.S. Supreme Court?

 

After U.S. Supreme Court justices Samuel Alito and Amy Coney Barrett baldy claimed before partisan audiences that their allowing the Texas abortion law to continue unimpeded—despite the fact it clearly is at odds with Roe v. Wade—was not evidence of partisan politics, but from careful judicial review, I was curious about how they justified this apparent hypocrisy. On the Supreme Court’s website there are PDF files of their rulings, and I decided to take a look at some of them. What I found was that while many clearly showed right-wing bias, others were seemingly non-controversial, and a few had some interesting “dissents.” Elena Kagan, I discovered, sometimes breaks with her liberal colleagues to side with the conservatives. Brett Kavanaugh sometimes issues forth crass and flippant commentary, and on one occasion Clarence Thomas actually sided with the liberal dissenters.

A case in a February, Federal Republic of Germany v. Phillip, involved the claim by the heirs of Jewish art dealers who reportedly were forced by the Nazis to sell medieval relics at one-third their price, and are currently held in a Berlin museum. The heirs sought compensation from the German government, which refused. They then sought redress in the U.S. courts, but Germany moved to dismiss the case, citing the Foreign Sovereign Immunities Act. The court decided that the “domestic takings” law remained in effect, which allows a “sovereign” country to “take” the property of their own residents; the heirs claim that since they were not German citizens, they themselves were not subject to that restriction, was held as not “valid."

In Salinas v. United States Railroad Retirement Board, petitioner Manfredo Salinas sought disability benefits allowed by the Railroad Retirement Act. Salinas had three applications denied, before being approved in 2013. Salinas sought a reevaluation of his third application made in 2006, which he claimed had not considered certain medical records, in order to reconsider the date and amount of the disability benefit. The conservative Fifth Circuit Court of Appeals denied his petition, claiming it had no jurisdiction because his effort to reopen the case was not done in a “timely” manner. The Court reversed the Fifth Circuit’s ruling, which had suggested that an arbitrary “count your blessings” refusal to reopen the case was not sufficient reasoning, and the case was subject to judicial review—although this only meant that Salinas’ case shouldn’t have been dismissed out-of-hand.

In Brownback v. King, a man named John King sued the federal government under the Federal Tort Claims Act for the behavior of two federal agents, whose actions he claimed harmed him in a “violent” encounter. In district court, the FTCA claim was dismissed because it said the agents had “qualified immunity,” and further, it lacked “subject-matter jurisdiction,” a claimed that was rejected by the Sixth Circuit Court of Appeals. The court reversed that decision.

In Pereida v. Wilkinson Acting Attorney General, Clemente Pereida, who lived in the U.S. for 25 years, sought to reverse a removal order by immigration authorities based on Nebraska’s “crime of moral turpitude” statute. The right-wing majority ruled that just because there was some doubt that the alleged crime he committed was one of “moral turpitude” should not “redound” in his favor, and as an “alien” the burden of proof was on him, not the state or immigration authorities. The three dissenting liberal judges chastised the majority for showing no interest in discovering whether the immigration authorities based their decision on an arbitrary claim of “moral turpitude” that was in fact applicable to an alleged crime committed many years ago, which according to official documents only claimed that Perieda had pleaded guilty to a crime that was unspecified. The dissenters also argued that the majorities’ ruling would make immigration decisions more capricious and less predictable if based on questionable facts. Immigration laws passed by Congress, contrary to what the majority ruled, makes clear that “uncertainty” redounds in the claimant's favor.

In United States Fish and Wildlife Service v. Sierra Club, in 2011 the EPA proposed a rule change involving “cooling intake structures” used by industry that could trap and kill aquatic animals, including those covered by the Endangered Species Act. The EPA was required to consult with the FWS and find a solution to such eventualities, which could include removal of the structures. In 2013, the EPA draft rule made changes that environmentalists warned would have a detrimental effect on wildlife, and a new draft rule was composed and approved in 2014. The Sierra Club put in a records request for documents concerning the “biological opinion” behind the 2013 draft rule.

The EPA declined to provide these documents concerning potentially ignoring the danger to wildlife, claiming that they were “drafts of drafts,” and thus were protected by “privilege.” The Ninth Circuit Court ruled that the draft of the 2013 rule was intended to be law until complaints were made about it. The conservatives, joined by Kagan, made the absurd claim that even if the “draft” of an opinion did make it into the final rule, such documents were still “privileged.” They argued that disclosing such drafts would have a “chilling effect” on “open discussion.” The dissenters pointed out that what was “chilling” would be for the public not knowing how potentially harmful rules were decided.

Uzuegbunam v. Preczewski involved former students at Georgia Gwinnett College, who claimed to be evangelical Christians who were banned from distributing religious literature or engaging in religious preaching first from outside of a designated area for those purposes, and then inside of one with a permit if any student made a complaint—which is what occurred when a student filed a such complaint with campus police. The petitioner, Uzuegbunam, was told of the complaint, and that he was barred from making any more religious speeches on campus. However, the school ultimately decided to rescind the rule banning “offensive” speech. But the students who say they were harmed still demanded “nominal” compensation from the school, and question was whether they had standing.

The right-wing of court appears to have gone further, questioning whether even “nominal” compensation was enough to “compensate” for the school’s initial harm against the students’ “constitutional rights” of free speech, ignoring the Constitution’s separation of church and state dogma, and college campuses are state institutions, not houses of worship. The court’s right-wing, as enunciated by Thomas, makes the claim that “nominal” compensation is merely a “default” judgment until the “injured” party has time to concoct a reasoning based on the “complete violation of his constitutional rights,” apparently his or her right  to preach on campus in a public forum to those who do not want to hear it.  Chief Justice John Roberts, interestingly, dissented, stating the case was “moot” because the petitioners were no longer students at the school, that the policy no longer existed, and they had not proven they were “harmed.” The federal courts, Roberts stated, could not grant relief on those grounds.

Roxanne Torres v. Janice Madrid is one of those cases that involves law officers creating a “crime.”  Two New Mexico State Police officers in Albuquerque arrived at an apartment complex with intention to execute an arrest warrant for a woman who was “suspected” of being involved in “drug trafficking, murder and other violent crimes.” Torres and a friend were seen talking near a car. Despite the fact that the officers, Richard Williamson and Janice Madrid, had determined that she was not the suspect, they approached Torres anyways after her friend left. Torres was apparently experiencing the effects of “withdrawal” from meth, and when she went into her car to drive away she apparently did not notice that the officers were trying to get her attention. Torres claimed that she only saw a gun from a man who was trying to open her car door, and drove away. As she did so, the officers fired a total of 13 bullets at the car, hitting her twice in the back.

Torres pulled into a parking lot some distance away, told a bystander she had escaped a carjacking, and then got out of the car and attempted to commandeer an idling car nearby; after she was detained, she was flown by helicopter to a hospital, where she was officially arrested. Torres claimed that her Fourth Amendment rights against illegal searches and seizures was violated, and the officers used excessive force. Two subsequent courts found for the officers. Interestingly, the majority ruling here discussed whether shooting bullets at a person constituted “restraint” with the intent to arrest if a person claims not to know who was shooting at them. As with some of these cases, no actual “decision” was made that had any bearing on constitutional questions; the court merely ruled that the lower courts must take more consideration into the implications of the Fourth Amendment and examine the “reasonableness” of the officers’ actions, and if warranted consider any damages Torres may seek.

Tandon v. Gavin Newsom was another “religious” case, where the petitioner, Ritesh Tandon, claimed that Newsom’s COVID-19 restrictions, even if applied neutrally, had to allow religious services a “higher bar” to apply the restrictions. It ruled that the Ninth Circuit had “erroneously” not applied an injunction stopping the restrictions from going into effect while it looked into this, which of course is hypocritical since the right-wing of the court did the same thing with the Texas abortion law. Perhaps not surprisingly, Tandon was a Republican who lost an election bid in a landslide, and was blaming the restrictions on preventing him from getting his “message” out; the court found, of course, that he was “entitled” to relief.

In Jones v. Mississippi, Brett Jones was convicted of the murder of his grandfather after the two had gotten into a “heated” argument and physical altercation in the kitchen after the grandfather found the presence of Jones’ girlfriend in his bedroom. During the fight, Jones found a knife and stabbed his grandfather multiple times. After he was convicted, the judge sentenced him to life without parole. The problem with the case was that Jones was 15 at the time, and he was claiming now that the sentence violated the Constitution’s “cruel and unusual” punishment clause, and did not take into consideration the potential for rehabilitation. The court majority found that precedent did not oblige a judge to consider the “incorrigibleness” of a defendant under the age of 18, but just to take his or her age into “account” before sentencing.

One of the bizarre aspects of this case is that the court ruled that it could only find for the petitioner if the sentencing judge did not have “discretion” in sentencing, and here it ruled that the judge did have such “discretion” and thus based his sentence on his “discretion.” The three liberal justices dissented, of course. They charged the court’s right-wing of deliberately misconstruing precedent which “expressly rejects the notion that sentencing discretion alone suffices.” The Eight Amendment is violated “for a child whose crime reflects unfortunate, yet transient immaturity.”

In TransUnion v. Sergio Ramirez, in an opinion written by Kavanaugh, who rather flippantly asserts, “no harm, no standing.” Ramirez was among more than 8,000 persons in a class action lawsuit against the credit reporting agency TransUnion for placing inaccurate information on their credit reports. The court admitted that 1,853 class members had “demonstrated concrete reputational harm” and thus have “standing.” The problem for the rest is that their inaccurate reports had not yet been seen by third parties, thus the flippant claim of “no harm, no standing,” and thus those class members are not entitled to sue for damages. The court admitted that the lead plaintiff, Ramirez, did have “standing” since his credit report falsely flagged him as being on a “terrorist list,” which was discovered when he was applying for credit while purchasing a car.

But the majority ruled that the Ninth Circuit ruled in “error” that all plaintiffs who had false information on their credit reports had “standing.” It was in this case that Thomas joined the three liberals in dissent, even authoring the dissent to which the others joined. TransUnion clearly violated the Fair Credit Reporting Act that “entitled consumers to accuracy in their credit files, and to receive a summary of their rights. Yet despite Congress’ judgment that such misdeeds deserve redress, the majority decides that TransUnion’s actions are so insignificant that the Constitution prohibits consumers from vindicating their rights in federal court. The Constitution does no such thing.”

Of course there was the Texas case involving the Affordable Care Act, which petitioners were ruled to have no "standing" because they could not prove "harm." What seems clear with this court is that it takes a particularly hardline on religious “freedom,” usually, but not always, takes the side of law enforcement, has a definite anti-immigrant rights bias, has little sympathy for consumer rights and seems to lean toward government secrecy. Only on issues that don’t really cross ideological lines have any measure of “unanimity.”