The Supremes and Unanimity

 The Supremes and Unanimity

In my class I talked about a letter writing campaign to influence a Supreme Court decision and said that Diana Ross was confused why she was getting all these letters addressed to the Supremes. It bombed. Not a single student had heard of Diana Ross and the Supremes.

The folks clamoring for the Fed’s Open Market Committee to show diversity of thought by not being unanimous in its voting must be reveling in the diversity at the Supreme Court. Although there have been a bunch of 9-0 decisions this term it seems that there have been a lot of 6-3 and 7-2 decisions as well. Clearly some of the decisions appear to rest more on political rather than judicial temperament. How else to explain the 6-3 vote on banning gender mutilation surgery of minors or the 6-3 vote for allowing parents to opt out of LGBTQ indoctrination of children in public schools? Shouldn’t those have been 9-0?

The court also ruled that “universal injunctions likely exceed the equitable authority that Congress has given to the Federal courts.” Of course that vote was also 6-3. Sotomayor is beside herself contending that “no right is safe in the new legal regime” the court created in limiting the power of federal judges to use nationwide injunctions to block “plainly unlawful policies.” But does she seriously think that that is true? She also said that her conservative colleagues had threatened “the very essence of public education” by allowing parents to opt their children out of classroom instruction that they claim violates their religious beliefs. She said “next to go could be teaching on evolution, the work of female scientist Marie Curie, or the history of vaccines.” To be kind, if Sotomayor really thinks this, then she should not be on the court. She has said “There are days that I’ve come to my office after an announcement of a case and closed my door and cried. There have been those days and there are likely to be more.” Maybe conservatives should send her boxes of Kleenex. 

Justice Jackson has also been unhappy and has accused her colleagues of favoring the wealthy over the poor – an astounding comment from a justice of the Supreme Court. She said regarding one decision on the California electric vehicle mandate, “This case gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this Court than ordinary citizens.” The vote was 7-2 so does this means she is including her liberal colleague Kagan in this admonishment? The court also ruled, 6-3, that South Carolina can legally block Planned Parenthood facilities from receiving Medicaid funding. Here Jackson wrote the dissent, joined by Sotomayor and Kagan. The court also ruled in favor of the vaping industry in a case involving the FDA. The vote was 7-2. Guess who were the 2?

Justice Scalia occasionally chided Sotomayor for her lack of scholarship. Now in a rare public rebuke, Justice Barrett has said of Justice Jackson with regard to the universal injunction decision “We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.” Here is what Jackson wrote in her concurring dissent “It is not difficult to predict how this all ends. Eventually, executive power will become completely uncontainable, and our beloved constitutional Republic will be no more.” Remember the comity that Scalia had with Bader Ginsburg? I guess Barett and Jackson are not going to go to lunch together.

Generally the Trump administration has won some and lost some, winning more than it has lost. Naturally when one of the less liberal justices, notably Roberts or Coney Barrett votes against Trump, the right gets in full roar calling them all sorts of names. My advice is “shut up.” Show me where their decisions have been contrary to their judicial philosophy. Even Thomas and Alito have not always voted in tandem. Is the pious right going to call them “wobbly” too? Consider the ruling that let the funding of the Consumer Financial Protection Bureau stand. Conservatives hate the CFPB whose funding is free from congressional oversight being completely funded by the Fed. The court voted 7-2 with Justice Thomas of all people not only voting with the liberals but writing the majority opinion. Justices Alito and Gorsuch dissented saying that the CFPB’s funding scheme “blatantly attempts to circumvent the Constitution.” Also Gorsuch and Alito were the only dissents in another case as well. I bet that 99.9 percent of the MAGAs disagreed with Thomas but nary a peep about his not being steadfastly pure in their eyes.

Despite all the split votes, the court issued four unanimous decisions in one day. Actually unanimous decisions were not all that rare with 42 percent decided that way. But those decisions do not make news. Consider that the court ruled unanimously that American victims of terrorism in Israel could seek legal redress against the Palestinian Authority and the Palestine Liberation Organization in U.S. courts. 

The Wall Street Journal did the tabulations and find that Justice Kagan was in the majority 71 percent of the time. Sotomayor despite all her moaning was in the majority 62 percent, tied ironically with Justices Thomas and Alito. Chief Justice Roberts was the most in the majority followed by Justice Kavanaugh and Barrett. Surprisingly only 9 percent of the cases were decided 6-3 with the three liberals dissenting. There were 6 percent decided with Thomas, Alito and Gorsuch dissenting. Unless you think that all decisions should be unanimous or that all should be 5-4, it’s hard not to like this court. With the notable exceptions of Sotomayor and occasionally Jackson, the justices appear to be consistent in the application of their understanding and interpretation of the constitution rather than espousing their personal political views.

Actually I think the most important judicial action is not on the court’s docket. Many have been yelling “constitutional crisis” due to Trump’s actions even though Trump, unlike Biden, has yet to defy a Supreme Court ruling. But what happens when a lower court defies a Supreme Court decision? Precisely that happened when the Court issued a stay on an April 18 injunction in the case D.V.D. vs Department of Homeland Security. The lower court judge then issued an order after the Supreme Court stay acting as though the court had not thrown out his initial injunction. The Department of Homeland Security immediately said “The district court’s ruling of last night is a lawless act of defiance that, once again, disrupts sensitive diplomatic relations and slams the brakes on the executive’s lawful efforts to effectuate third-country removals.” DHS condemned the lower court’s “unprecedented defiance” of the Supreme Court’s authority. What happens next if the lower court chooses to continue to ignore the Supreme Court’s authority? Could the Supreme Court enjoin the lower court? Would the lower court judge be arrested and removed from the bench? Would the only recourse be impeachment by the congress? Then would the democrats support the impeachment? This would be a real, not and imagined constitutional crisis. This could get interesting.

Note: A lawyer friend of mine texted me”I’d like to tell those 3 to “Get outa my life, why don’cha Babe? But they all keep hanging on.” I texted back that the last line was also true “Ain’t nothing I can do about it.”