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.”
