Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘Brett Kavanaugh’

Schumer backtracks on SCOTUS diatribe, but not far enough

On Wednesday, at a rally on the Supreme Court steps, Senate Minority Leader Chuck Schumer (D-N.Y.) cut loose with a truly amazing diatribe against Justices Neil Gorsuch and Brett Kavanaugh, declaring that the two would “pay the price” and “won’t know what hit you if you go forward with these awful decisions.” Schumer’s menacing if vague comments drew prompt disapproval from a broad range of legal figures, such as the heads of the American Bar Association and New York City Bar Association as well as Democratic SCOTUS shortlister Neal Katyal and Harvard’s Larry Tribe. Chief Justice John Roberts weighed in with a rare public rebuke: “threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous.”

Schumer proceeded to dig in and even blast Roberts personally for the criticism. By Thursday, he was ready to concede grudgingly that he “should not have used the words I used. They didn’t come out the way I intended to,” while still staying on the offensive in every other respect and accusing his adversaries of “manufacturing” the uproar.

I’ve got a new post at Ricochet reviewing the controversy, including its much-echoed “what about…?” dimension:

Defenders of Schumer assailed the chief justice for not having weighed on some other inappropriate Trump sallies, including his ill-grounded speculation recently (never filed as an actual motion) that Justices Ruth Ginsburg and Sonia Sotomayor should recuse themselves from Trump matters, and his aspersions on the judge in the Roger Stone case. Those are part of a frequent and blatant Trump habit of trash-talking judges, both as a candidate (calling the judge in the Trump University case “Mexican” and “a hater”) and as President (“so-called judge” among numerous others). Some — I’m one — would say that this is among Trump’s very worst and most damaging patterns of behavior.

But as cooler heads noted, including Ruth Marcus of the Washington Post, the chief justice is not a playground proctor who can step in to write up every demerit; he needs to save his efforts for the instances that are most dangerous, as he in fact has done.

The wider picture, it might be noted, is one in which nasty swipes at judges have been routinized for years, from a range of public figures and also from former President Barack Obama, both in his 2010 State of the Union speech and also repeatedly during the court review of ObamaCare. Still, none of these have gone as far to suggest personal threat as did Schumer — not even the extraordinarily inappropriate amicus brief filed by Sens. Sheldon Whitehouse and four other Senate Democrats last August, assailing the Court’s legitimacy and warning that “restructuring” at the hands of political branches lies ahead if it does not mend its ways.

I conclude that Schumer needs to go back and apologize, seriously this time. And it’s time for all who’ve fallen short of defending judicial independence — Republicans and Democrats alike — to do so. [cross-posted from Cato at Liberty]

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Bloc voting and individual independence at the Supreme Court

From colleague Ilya Shapiro, writing in USA Today: “There were 67 decisions after argument in the term that ended in June. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times, while the five Republican appointees held tight 37 times. And of the 20 cases where the court split 5-4, only seven had the ‘expected’ ideological divide of conservatives over liberals. By the end of the term, each conservative justice had joined the liberals as the deciding vote at least once.”

Meanwhile, those who decry supposed bloc control of Court outcomes are missing a story staring them in the face, namely that not in many decades have a single president’s appointees diverged as sharply from each other as have President Trump’s, with Neil Gorsuch typically taking a more libertarian line and Brett Kavanaugh more centrist as well as more deferential to government power. According to SCOTUS scholar Adam Feldman, “Kavanaugh agreed equally often with Justices Stephen Breyer, Elena Kagan and Neil Gorsuch, at 70 percent apiece.”

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July 31 roundup

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Supreme Court roundup

  • Cato batted 12-4 in Supreme Court term that saw Kavanaugh agreeing nearly as often with Kagan as with Gorsuch [Ilya Shapiro; another roundup of the recently concluded term from Jonathan Adler]
  • Not only is Alan Dershowitz wrong about Supreme Court review of impeachment, he’s wrong in a way that practically invites constitutional crisis [Keith Whittington]
  • High court declines certiorari in challenge to Wisconsin butter grading law [Ilya Shapiro and Matt Larosiere, Mark Arnold, Husch Blackwell with update, earlier here and here]
  • “The John Marshall Legacy: A Conversation with Richard Brookhiser” [Law and Liberty audio on new biography; Federalist Society panel with Brookhiser, Hon. Kyle Duncan, Hon. Kevin Newsom, and David Rifkin, moderated by Hon. William Pryor]
  • I’m quoted on Gundy v. U.S., the improper-delegation case: “While the Court majority did not agree this time, the line-up suggests breakthrough imminent” [Nicole Russell, Washington Examiner] From some quarters on the Left, rage at the Supreme Court that got away [Ilya Shapiro at P.J. O’Rourke online magazine American Consequences]
  • “Supreme Court Returns Constitutional Patent Case to Sender” [Gregory Dolin, Cato] on Return Mail v. U.S. Postal Service, earlier on dangers when federal agencies litigate before federal agency tribunals]

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“Supreme Court Nixes Sentencing Law as Unconstitutionally Vague”

Crossing to join his four liberal colleagues, Justice Neil Gorsuch wrote the opinion in yesterday’s Davis v. U.S., finding unconstitutionally vague a federal sentence-enhancement provision prescribing “harsher penalties for those who use guns ‘in connection with certain other federal crimes.'” [Jack Rodgers, Courthouse News] His opinion begins:

In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

It was the third rights-of-the-accused case this term in which Gorsuch took the liberal side, and put him at odds once again with Justice Brett Kavanaugh. In his dissent yesterday, after crediting tougher federal laws with at least partial responsibility for the drop in crime since the 1980s, Kavanaugh noted that the sentence enhancement has been applied without seeming difficulty in thousands of cases of violent offenses since its enactment:

The Constitution’s separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers….

The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality.

While both were appointed by President Trump, Gorsuch and Kavanaugh have been anything but in lockstep.

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Supreme Court roundup

  • Will the liberal wing’s success at piecing together 5-4 majorities survive Justice Kennedy’s departure? [Kimberly Strawbridge Robinson, Bloomberg] Fundamental restructuring of Supreme Court becomes a popular campaign issue with Democrats, and the dangers in that [Ilya Shapiro, Washington Examiner] More: Gorsuch, Kavanaugh differ often, we can see clearly now [Jonathan Adler and update]
  • Federalist Society video on stare decisis with Roger Pilon, and related by Pilon on constitutional stare decisis;
  • The high court decides relatively few admiralty/maritime cases but has heard more than one of them this term; one artist’s whimsical illustration [@CourtArtist on Twitter]
  • In writing opinions, “the justices should be careful about naming politicians, especially when they name in order to make a point about the political process.” [Josh Blackman, The Atlantic]
  • A constitutional right to religious exemptions from otherwise applicable laws? Eugene Volokh still backs Scalia’s logic on that, but it’s looking as if Court’s conservative wing may not. Cleanup in the Lemon aisle: Michael McConnell on Maryland Peace Cross case [Volokh Conspiracy]
  • New resource: database of all Supreme Court nomination hearing transcripts that are yet available (with Kavanaugh’s still to come) [Shoshana Weissmann and Anthony Marcum, R Street]

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November 14 roundup

  • Police show up to enforce gun confiscation order against Maryland man under new “red flag” law, he brandishes weapon, they shoot him dead [Leah Crawley and Ashley Barnett, Fox Baltimore; Colin Campbell, Baltimore Sun]
  • Claim: “The Kavanaugh debacle cost the Democrats the Senate” [Marc Thiessen] If I cheer for Neomi Rao is it going to hurt her confirmation chances? [Jesus Rodriguez, Politico on nomination of OIRA head for Kavanaugh seat on D.C. Circuit]
  • “Please conduct yourself accordingly”: Matthew Whitaker letter to man who complained about World Patent Marketing, on whose advisory board Whitaker sat [Mike Masnick, TechDirt]
  • Upholding FCPA prison term, Third Circuit rejects businessman’s argument that bribery deal helped pull population out of poverty in remote part of Siberia [Matt Miller, PennLive]
  • Sidetracking a decision on the cy pres merits? Supreme Court calls for supplemental briefing on whether named plaintiffs in Frank v. Gaos “have suffered an ‘injury’ sufficient to create standing under the Court’s doctrine” [Ronald Mann/ SCOTUSBlog, Will Baude, earlier here, here, etc.]
  • “Fun fact in an opinion today from the Federal Circuit: the Patent Office employs 14 examiners full time solely to examine patent applications filed by a single, prolific inventor.” [Andrew Trask, Gilbert Hyatt v. USPTO]

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18,000 Facebook shares later: a tale of legal misinformation

How efficient is social media in spreading viral-junk misinformation about the law? Well, the following post about Tuesday’s two-page Supreme Court ruling in Brakebill v. Jaeger, a case about voting procedures in North Dakota, has gotten more than 18,000 shares as of this morning:

screen capture of Facebook post
Let’s take a look at its errors, or at least the first four biggies:

1. Brakebill was not Justice Kavanaugh’s first ruling. If you so much as glance at the Court’s opinion, it’s hard to miss its second sentence: “JUSTICE KAVANAUGH took no part in the consideration or decision of this application.”

2. There is no indication that the vote was 5 to 4. Liberal Justices Sonia Sotomayor and Stephen Breyer did not join the dissent.*

3. Justice Ginsburg’s dissent contains no language even remotely like that put within quotation marks here. Her tone is technical rather than indignant, and she does not challenge anyone’s motives as illegitimate.

4. The Court did not issue a decision upholding the laws. It was a denial of an application to vacate a stay, not a ruling on the merits.

And we haven’t even gotten to the merits! Three and a half days after posting, its author has not seen fit to correct any of his errors.

Here’s a rule of thumb about social media: the more anger, the less accuracy. More on viral junk and thinking before you share here.

* A reader on Twitter points out that in the absence of a signed majority opinion, we can’t know for sure that the vote against vacating the stay necessarily came out 6-2; we know only that if there were other Justices who wanted to vacate the stay, they declined to join the Ginsburg-Kagan dissent. I’ve corrected the text above accordingly.

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Brett Kavanaugh confirmed by Senate, sworn in as Justice

The vote was 50-48, along party lines except for one Republican and one Democrat. Sen. Susan Collins (R-Maine) explained her vote in a widely noted speech [video and transcript]

Commentary: Politico symposium with Ilya Shapiro, Ilya Somin, and others; David French (pro) and Benjamin Wittes (con) views of confirmation; point-counterpoint on Kavanaugh’s final hearing testimony from David Post (critical of nominee), Eugene Volokh response, David Post rejoinder. Those intent on defeating Kavanaugh pushed too far and he pushed back, galvanizing conservatives, writes John Podhoretz [Commentary] And a completely different view of judicial temperament [Noah Feldman on cantankerous Court personalities]

Motivated reasoning? Yes, a lot of that going around [Ilya Somin on “the extremely high correlation between what people think of the allegations and whether they believe Kavanaugh should be confirmed aside from them.”] “On the Fallibility of Memory and the Importance of Evidence” [Tyler Watkins, Quillette] “It’s important to listen to those who come forward—and also to those accused.” [Emily Yoffe, The Atlantic]

P.S. And not to forget that the bulk of Kavanaugh’s confirmation hearing discussed issues of jurisprudence; Randy Barnett sums up discussions of originalism, colloquy with Senator Kennedy, unenumerated rights and more, on stare decisis and following precedents, and on the Fourth Amendment.

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