Tuesday, July 11, 2017

The Supremes' declarations of independence

IN HIS September 2005 Senate confirmation hearing, John Roberts told senators that, if confirmed to join the nation’s highest court, he would “remember that it's my job to call balls and strikes and not to pitch or bat.”

As the head umpire of the team of judicial referees we call the Supreme Court of the United States, Chief Justice John G. Roberts Jr. has been in a unique position to do just that — weighing in on matters whose import in the national life is nothing short of existential, making decisions with his (now, finally) eight colleagues that are, often enough, nothing short of unpredictable.

That unpredictability is sometimes the most predictable thing about SCOTUS decisions, as a look at the current, almost-ended term will show. The Supremes’ meme isn’t always what we think it is. This term has shown that, regardless of the ideological reflexiveness commonly assumed about the Supreme Court's members, they’re prone to handing down surprises from the bench, rulings that confound those who confuse Supreme Court justices with other people — like politicians.

This fact doesn’t stop presidents from making nomination choices for the high court in as predictable, and political, a way as you could ask for. Donald Trump has been no different.

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When Neil M. Gorsuch — Trump’s first pick for the court — was Senate-confirmed as an associate justice in April, it aroused waves of shock and fear in the nation’s progressive community, who conjured Chicken Little scenarios in which the sky of American jurisprudence would always be falling — on them, courtesy of the narcissistic First Hairpiece from New York and the strict-constructionist 10th Circuit Court judge from Denver.

Fast forward three months, and the high court hasn’t turned into the retributive right-wing playground many had feared. Recent pre-Gorsuch decisions by the court suggest just the opposite.

Despite the convenience of labels, and the equal convenience of our current political polarities, reports of the death of SCOTUS’ judicial independence have been greatly exaggerated, and not just recently. That fact could have a major impact on, and be a major complicator of, Trump’s judicial master plan.

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CONSIDER THE recent past at the high court: In October, not long after the first Monday in October that marks the start of the every Supreme Court term, the court ruled unanimously in Bosse v. Oklahoma that the death sentence for Shaun Michael Bosse, convicted of murdering his girlfriend and her two children, was reversed, his case to be reviewed by a lower court because the victim’s family members recommended a punishment to the jury. No ideological divide there, despite conservatives’ general appeal for death sentences.

On March 21, the court, 6-2, ruled that Elijah Manuel, an African American man, could sue the city of Joliet, Ill., for unlawful detention after he was arrested in 2011 by white police officers and held for seven weeks on suspicion of possessing illegal drugs, which turned out to be no more than vitamins. Most of the court’s conservatives agreed with this stand against prosecutors and in favor of a black male plaintiff.

The court’s breaks with the presumptions of social and political orthodoxy go back way before last October. Years before. We saw the court’s willingness to cross partisan lines of party politics in June 2012, when Chief Justice John Roberts (a Reagan-era Republican) cast the deciding vote to uphold President Obama’s signature and centerpiece, the Affordable Care Act — Obamacare — and ushered in a torrent of divergent opinions about his true political leanings. Roberts similarly upheld Obamacare from the bench again in June 2015.

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In April 2014, Justices Clarence Thomas and Antonin Scalia, kindred ideological spirits, were on the opposite sides of Prado Navarette et al. v. California, a SCOTUS decision that ruled that an anonymous tipster’s call to 911 to file a report was a valid reason for the California Highway Patrol officers to stop a driver for suspected drunken driving.

Thomas wrote the majority opinion for the court’s customary conservatives — Chief Justice Roberts and Justices Anthony Kennedy and Samuel A. Alito Jr. — plus the usually liberal Breyer.

Meanwhile, Scalia, ordinarily a rock-ribbed ideological conservative, dissented along with the court’s reliable progressives — Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Scalia wrote that the court’s majority in the case had given law enforcement a “freedom-destroying” authority. “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference.”

Scalia wrote: “After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.”

Also in 2014, in Schuette v. Coalition to Defend Affirmative Action, a case upholding Michigan’s voter-approved law banning the consideration of race when making decisions on university admissions, Justice Stephen Breyer (usually part of the liberal clique) sided with conservatives in the 6-2 ruling.

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SINCE GORSUCH was confirmed in April, he’s largely settled into an amen corner with Justice Clarence Thomas as a champion of ultraconservative views. Gorsuch has rendered his first opinions, blasting outta the blocks on cases, supporting gun ownership rights, pushing back on the Obama-era latitude of rights of same-sex couples, and weighing in (on the Trump administration’s side) over the Muslim travel ban.

A cascade of rulings is expected between now and later in July, when the court ends this term. Gorsuch will certainly make his feelings known in most or all of them. But the more than occasional unpredictability of the court, with both recent and historical rulings as evidence, is well established. He won’t change that; he may well confirm it all over again.

When new presidents make appointments to the Supreme Court, there’s much attention paid to a presumed left/right divide and where in that divide the prospective new justice is expected to be. It’s zero-sum-game thinking, subject to head-slapping surprises and strange judicial bedfellows. We’ve seen plenty of both since the first Monday of last October.

The new president* needs to get used to that for the high court’s terms to come.

In the wake of Roberts’ June 2015 Obamacare ruling, Curt Levey of the Committee for Justice, a conservative judges’ advocacy group, told Politico that “Republican presidents need to be careful about appointing conservatives.” Levey’s right; it’s anyone’s guess how presidents in the future, or the one we’ve got now, are prepared to handle the matters of another kind of law.

The law of unintended consequences.

Image credits: SCOTUS: official portrait. Scalia: Official SCOTUS photo. Roberts: Win McNamee/Associated Press. Neil Gorsuch and Trump: Alex Wong/Getty Images.

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