The Continuing Erosion of Justice
The U.S. Supreme Court ended its 2022-2023 term with a handful of decisions that made a number of significant changes to established judicial precedents. Typically, the Court decides which cases it wishes to consider over the spring and summer and begins receiving written briefs and hearing oral arguments when it begins its new term in early October. It has become customary for the Court to issue its most controversial decisions at the end of each term which usually concludes in the last week in June or the first week in July. For example, it was on June 24, 2022 that the Court issued its decision in Dobbs v. Jackson Women’s Health Organization overturning its landmark 1973 decision in Roe v. Wade. Thus, it was not surprising that several of the decisions it rendered during June of this year were similarly noteworthy.
To fully appreciate the significance of these decisions, it is important to understand how our federal court system is structured and operates. Even more fundamental is the role that the court system is intended to play. Please indulge me.
Chief Justice Roberts is fond of saying that that federal judges simply call “balls and strikes.” This statement implies that the federal courts spend most of their time determining whether given actions presented to them come within or outside the laws enacted by the Congress and/or the rules and regulations promulgated by independent administrative agencies and the Departments within the Executive Branch of the federal government. In addition, they are occasionally called upon to determine whether or not those laws, rules and regulations are consistent with the U.S. Constitution.
The Chief Justice was a brilliant advocate, having won 25 of the 39 cases he argued before the Supreme Court before even becoming a member of the federal judiciary. Unfortunately, his description of the role played by our judicial system is simply an example of his oratory skills as it paints a very skewed picture of the intended purpose of the nation’s judiciary. Instead, our judicial system can be better be described as an “expansion joint” in the structure of our government, providing it with the flexibility to render justice in situations not expressly addressed by laws, rules and regulations or even prior court decisions. This was the role played by the British courts which served as the model for our court system and was unquestionably what the drafters of the Constitution had in mind.
This raises the philosophical question of what is “justice.” Wikipedia suggests the following insights which undoubtedly shaped the thinking underlying the creation of our judicial system:
“In the 17th century, philosophers such as John Locke said justice derives from natural law. Social contract theory, advocated by thinkers such as Jean-Jacques Rousseau said that justice derives from the mutual agreement of members of society to be governed in a political order. In the 19th century, utilitarian philosophers such as John Stuart Mill said that justice is served by what creates the best outcomes for the greatest number of people.”
It should also be appreciated that Article III of our Constitution which authorizes the establishment of the federal judiciary does not specify how the courts should go about rendering their decisions. Indeed, it does not relegate to the courts the power to strike down legislation enacted by the Congress and signed into law by the President. That power did not (and still doesn’t) exist in British common law and was simply assumed by the U.S. Supreme Court in its famous decision in the case of Marbury v. Madison. Thus, the six conservative justices now on the Supreme Court who profess to be guided by the judicial philosophy referred to as “originalism” cannot even cite the Constitution in support of their position that the courts possess the power to void laws, rules and regulations adopted by the legislative and executive branches of the government.
As I have previously explained “originalism” is a judicial interpretative doctrine devised in the 1980s (not the 1780s) as a means of limiting the power of the federal government. In short, it was the invention of Movement Conservatives to roll-back the changes put in motion by Franklin Roosevelt’s administration to enable the federal government to help all Americans achieve their maximum potential and thereby put an end to “trickle-down economics.” It does this by freezing the authority of the federal government to only do those things that were envisioned at the time our nation’s Constitution was drafted. It is this approach to judicial decisions that explains the more controversial decisions now being rendered by the Supreme Court.
Before a legal proceeding can even be entertained by any court within our federal court system, it must satisfy five threshold requirements:
• it must involve a “case or controversy” (i.e., it must represent an actual disputed issue);
• the issue in dispute must be within the court’s jurisdiction (e.g., a district court sitting in Texas cannot adjudicate a dispute arising in Connecticut);
• the plaintiff must have “judicial standing” (i.e. a recognizable legal interest in the matter to be adjudicated);
• the case must be initiated within the statutory time limit for asserting that genre of claims; and
• the matter must be ripe for adjudication (i.e. the harm claimed by the plaintiff must have already been sustained or necessarily will be sustained).
A case satisfying all of these requirements can then be considered by one of the 94 U.S. District Courts.
Unlike the U.S. Congress and the various state legislatures, courts are not supposed to effect major changes in the laws. That’s a legislative function. Courts are supposed to render justice in cases in which there is no established legal guidance or the application of the law is unclear. Even then, the courts, lacking a legislature’s ability to conduct research and perform a comprehensive study an issue, are forced to render their decisions on the basis of the particular facts in the case or cases presented to them. This has traditionally led them to proceed cautiously in shaping the law in an area not previously defined by legislation or prior judicial precedents. This has prompted court systems both here and abroad to render their decisions on the narrowest possible basis to resolve the matter before them lest their decision prove to be ill-suited in a future case involving slightly different facts. This same principle applies to judicial interpretations of rules and regulations adopted by administrative agencies which, under the Administrative Procedures Act, must follow strict and arduous procedures before issuing their regulatory pronouncements.
It is also important for the courts to maintain stability within the law so that the nation’s citizens will know how to conduct their daily activities. In an environment in which the law undergoes frequent and significant changes, people cannot act freely for fear that their actions might be deemed illegal. Similarly, businesses cannot plan their future activities causing economic activity to proceed at a very slow pace. In order to maintain stability and predictability within the law, courts strive to honor (and not deviate from) established legal precedents. This practice is generally referred to by the Latin expression, stare decisis (meaning “previously decided”); and Supreme Court nominees are invariably questioned about their willingness to comply with the stare decisis doctrine. This does not mean that prior legal precedents will always be followed as they may be discarded when they are deemed to be clearly erroneous of have been rendered obsolete by changing circumstances.
Similarly, the interpretation of legislation, regulations and constitutional mandates should be similarly made on the narrowest possible basis and should seek to apply the “plain meaning” of the language being interpreted and to otherwise carry out the intentions of those who drafted that language.Thus, it’s not unusual for courts to examine the legislative history of the laws and regulations they are called upon to interpret. Even in searching for the drafters’ intention, courts traditionally have sought to err on the side of trying to understand what the drafters were trying to accomplish and how that might lead to a useful interpretation that is relevant to current circumstances.
Virtually all cases considered by the U.S. Supreme Court are first heard by another court and are appealed up the court hierarchy to the Supreme Court. Each year the Court receives approximately 7,000 petitions (writs of certiorari) to hear cases of which it currently accepts less than 100 for consideration. Acceptance by the Court requires the affirmative votes of at least four of the Court’s justices which means that the Court’s three liberal justices are currently powerless in deciding which cases the Court will entertain. Those cases that are accepted have generally been previously considered by one or more of the thirteen U.S. Courts of Appeals or by the highest court in a state judicial system (such as the Supreme Court of the State of North Carolina).
It should be appreciated that the U.S. Supreme Court has been deciding fewer cases with each passing year while the average length of its opinions has increased. In 1966 when I began practicing law the Court decided 299 cases and its opinions filled four volumes of the Supreme Court Reports (approximately 50 decisions per volume). In 1990 the Court decided 144 cases and its opinions in those cases filled six volumes of the Supreme Court Reports (roughly 25 decisions per volume). In 2010 the Court rendered a total of 81 decisions which filled five volumes of Supreme Court Reports (roughly 16 decisions per volume) and in 2023 the Court only issued 58 decisions which filled three volumes of the Supreme Court Reports (roughly 20 decisions per volume).
In deciding which cases to consider, in addition to considering the threshold issues discussed above for consideration by all federal courts, the Supreme Court also takes into consideration the importance of the issue or issues involved in the case as well as the extent to which those issues have been explored by the lower courts. Ideally, the Court likes for the legal issues involved in selected cases to have been previously viewed in the context of multiple fact patterns so that its decisions can provide more useful guidance to the lower courts when they are called upon to adjudicate similar cases.
With these thoughts in mind, let us examine a handful of the decisions rendered by the Supreme Court in the final weeks of its 2022-2023 term. They include:
• Biden v. Nebraska and Department of Education v. Brown
ARGUED: 2/28/2023; DECIDED 6/30/2023
In a 6-3 decision written by Chief Justice John Roberts the Court ruled that the Secretary of Education lacked the authority “to rewrite” the HEROES Act passed by Congress during the Covid pandemic to the extent of canceling $430 billion of student loans.
Even though the HEROES Act authorized the Education Department to modify the terms of student loans financed by the government to limit hardships in repaying those loans, the Court cited the “major question doctrine” in blocking the Department’s plan to forgive a large amount of student loan indebtedness. That doctrine restricts administrative agencies from taking action which have a major impact unless they are expressly authorized by the Congress. Stated another way it assumes that if the Congress had contemplated such action it would have expressly authorized it. It must be appreciated that Congress frequently delegates broad authority to administrative agencies that require careful examination and specialized expertise. The delegation of legislative functions to administrative agencies to complement the work of the Congress has been a product of the last 100 years and became prominent during the administration of President Franklin Roosevelt.
The presumption that Congress does not intend to delegate its legislative powers solely based on the economic or political importance of an issue has only come into existence relatively recently. While such a presumption is not illogical, it is not a substitute for an examination into Congress’ legislative intent which is what the courts have traditionally done. It should also be noted that “the major question doctrine” itself is politically charged as the business community has long resisted government regulation and it is not a coincidence that the doctrine has been come into existence over the past 20 years as the Court has become dominated by justices nominated by Republican presidents (and occasionally wined and dined by major donors).
• Sackett v. Environmental Protection Agency
ARGUED: 10/3/2022; DECIDED: 5/25/2023
In this 5-4 decision, Justice Alito, writing for the majority, limited the ability of the Environmental Protection Agency to regulate “wetlands” under the Clean Water Act by holding that the legal definition of wetlands is limited to areas with a continuous surface connection to other waters.
This is yet another case in which the Court has substituted its own views for those of the Congress and the Environmental Protection Agency to determine the scope of authority which the Congress delegated to the EPA to maintain the safety of the nation’s water resources. This case involved a real estate developer who wished to build on land adjacent to a protected waterway. The EPA had deemed site of the intended development to be a part of a nearby protected wetland owing to underground connections between the wetlands and the waterway. The Supreme Court, without benefit of expert testimony as to how the development would affect the protected waterway, ruled that the proposed development site was not encompassed within the statutory language of “Waters of the United States” and therefore was not an area governed by the Clean Water Act. This decision significantly limits the power of the EPA to protect the nation’s waterways and has been criticized not only because the Court overturned roughly 60 years of judicial precedents, but also because the Court substituted its own opinion for that of the U.S. Congress and the regulatory agency which has long studied how bodies of water interact with each other.
• 303 Creative LLC v. Elenis
ARGUED: 12/5/2022; DECIDED 6/30/2023
In a 6-3 decision Justice Gorsuch, writing for the majority, ruled that the Freedom of Speech Clause of the First Amendment prohibits Colorado from forcing a website designer to create websites for a same-sex couple voicing messages which the designer believed attributed to her, ideas that violated her religious beliefs.
Religious freedom has been a topic of considerable interest to the Court’s current majority which in June 2018 held that a cakeshop owner cannot be compelled to serve a same-sex couple because doing so was in conflict with his “religious” belief that marriage must be limited to heterosexual couples. Thus, in a sense this decision does not seem to expand the law. What makes it different from the Court’s cakeshop decision is that the Court based this decision on the right of “free speech.” In that sense it used religious freedom as a means of limiting the states’ ability to regulate speech.
Still, even more significant is how and why this case even made its way to the Supreme Court. Stated another way, this case is an extraordinary example of judicial engineering. As noted above, one of the threshold requirements for any case to be heard by a federal court is that it involve a “case or controversy.” Lorie Smith, the plaintiff in this case, is a graphic artist residing in Colorado and the owner of 303 Creative LLC, a website design business. Although Ms. Smith had previously designed websites for businesses and individuals (including homosexuals), she alleged that she wished to expand her business to offer website design services for couples planning to get married. Citing her religious beliefs, she was not willing to design websites for same-sex couples. She therefore planned to make that restriction known while advertising this new service. In short, this was a totally hypothetical set of circumstances as Ms. Smith had no existing business designing wedding websites nor any same sex-couples seeking her services in doing so.
Normally, an individual setting out to violate a “public accommodations” statute prohibiting discrimination based upon race or sexual orientation would simply violate that law and claim as a defense that the legal prohibition was in conflict with the First Amendment’s protection of the individual’s religious belief. To get around the “case or controversy” requirement, however, Smith took a strange route. She asserted her case in the form of a “pre-enforcement challenge” to the Colorado statute claiming that she would be advertising that her wedding website services would be limited to heterosexual couples.
Although the federal courts do occasionally entertain lawsuits that seek rulings as to whether the plaintiff’s proposed actions will violate a legal prohibition, such cases are generally only heard where an adverse decision would have such serious ramifications that the plaintiff would not even consider proceeding in the absence of judicial guidance. This was hardly such a situation as any fines or sanctions imposed upon Ms. Smith under the Colorado statute would have been infinitesimal when compared to the costs of initiation a legal action. Moreover, the State of Colorado may have deemed any such statutory violation to be unworthy of prosecution. Such mere possibilities of legal prosecution are generally deemed insufficiently serious or imminent to justify a “pre-enforcement challenge” and are routinely dismissed as not being “ripe” for adjudication.
You may now be wondering why this seemingly hypothetical religious discrimination case was even heard by the District Court and why the U.S. Supreme Court elected to hear an appeal relating to it, especially since the record in the case was largely devoid of facts and there was no conflict regarding this matter among the various Courts of Appeals (a customary requisite for Supreme Court review). The short answer is that the suit had been engineered to be handled in that fashion. It was promoted (and likely funded) by the Alliance Defending Freedom (or ADF) which represents itself as “the world’s largest legal organization committed to protecting religious freedom, free speech and the sanctity of life . . .” Among its proudest achievements was engineering the repeal of Roe v. Wade. Fortunately for the ADF, Ms. Smith was willing to allow herself to be used as the subject of this exercise in judicial legislation (which apparently has caused her to be besieged by scores of hateful communications) and the conservative majority on the Supreme Court was willing to set aside its usual manner of handling hypothetical controversies and oblige the ADF with a far-reaching decision. Apparently, when it comes to questions of religious freedom, there is no case too insignificant for the Court’s majority to ignore.
• Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina
ARGUED: 10/31/2022; DECIDED: 6/29/23
The decision, as per Chief Justice Roberts, held that affirmative action can no longer be used (even in a limited way) in college admissions to achieve student body diversity because such admissions programs cannot be reconciled with the "guarantees of the [Constitution’s] Equal Protection Clause.”
This is yet another case specifically engineered for the Supreme Court in a somewhat disingenuous effort to overturn over five decades of cases supporting affirmative action in college admissions policies. This case, was promoted by Students For Fair Admissions (or SFFA), a not-for-profit entity founded by conservative legal strategist Edward Blum. According to Wikipedia, Blum “also founded the Project on Fair Representation, with a goal to end racial classifications in education, voting procedures, legislative redistricting, and employment. Blum participated in cases such as Bush v. Vera, Shelby County v. Holder, and Fisher v. University of Texas.”
What seems mystifying about this case is that it asserts that Harvard’s (and UNC”s) admissions policies discriminate againstAsian-Americans. In reality the percentage of Asian-Americans admitted to Harvard (27.9%) far exceeds the percentage of Asian-Americans living in the U.S.(6%). This raises the question of why didn’t SFFA simply allege that affirmative action policies unfairly limit the admission of white individuals whose interests it has championed in the past. The answer seems to be that the applications of rejected white applicants and admitted African-American applicants are not significantly different to justify a judicial attack on affirmative action policies. As it turns out Asian-American applicants as a whole have stellar academic and extra-curricular achievements making it much easier to establish that they are being adversely impacted by affirmative action college admissions policies.
What seems clear is that SFFA is not particularly interested in advocating for the admission of more Asian-American students (who are already well over-represented), but rather in limiting the number of non-Caucasians (principally African-Americans) that are admitted. Indeed, this is the first high-profile case SFFA has brought on behalf of individuals who were not white. The true test of SFFA motives will become even clearer when the Court is asked to consider whether policies of Harvard and other colleges that skew their admissions in favor of “legacy” applicants (who are overwhelmingly white) similarly violate the Equal Protection Clause.
• Moore v. Harper
ARGUED: 12/7/2022; DECIDED: 6/27/2023
In a 6-3 opinion from Chief Justice John Roberts, the Court's majority rejected the “independent state legislature” theory that asserts that the U.S. Constitution’s Election Clause grants exclusive powers to state legislatures to regulate federal elections within their states. Instead, the majority held that the North Carolina Constitution's Elections Clause does not vest exclusive and independent authority in state legislature to set the rules regarding federal elections.
At issue in this case was whether a Congressional districting map adopted by the North Carolina legislature enabling Republicans to win ten of the states 14 federal election districts was consistent with the provisions of the North Carolina Constitution when Republicans and Democrats represented 47.7% and 52.3%, respectively, of the state’s registered voters. The Court decided that the North Carolina Supreme Court was correct in ruling that the state’s legislature was bound to act in accordance with the state’s constitution. This case appears to have been correctly decided even though three justices would have enshrined the “independent state legislature” doctrine as a fixture of federal law. It would thus appear that a contrary result was more than two of the Court’s Republican-appointed justices were willing to countenance even though the Court had already ruled that Equal Protection Clause of the U.S. Constitution would not require the same result.
While the Court’s decision does not completely put to rest the “independent state legislature doctrine” as states may still delete from their constitutions clauses requiring fairly drawn election districts. Still it reveals that the Chief Justice was obviously fearful of rendering another blockbuster decision that would generate a liberal backlash at the polls.
• Merrill v. Milligan
ARGUED: 10/4/2022; DECIDED: 6/8/2023
In a 5-4 opinion from Chief Justice John Roberts, the Court affirmed the District Court’s determination that plaintiffs demonstrated a reasonable likelihood of success on their claim that Alabama’s 2021 redistricting plan violated Section 2 of the Voting Rights Act which bans racial discrimination in voting policies.
This case arising out of the State of Alabama is yet another case challenging the gerrymandering of Congressional election districts. Unlike the North Carolina case (just discussed), the Alabama election districting map was being challenged on the basis of racial discrimination in violation of Section 2 of the Voting Rights Act. The election districting map adopted by the Alabama legislature was designed to facilitate the election of white candidates in six of the state’s seven Congressional districts even though African-Americans represented roughly 25% of the state’s registered voters. On January 24, 2022 that map was rejected by the U.S. District Court for the Northern District of Alabama which enjoined its use. The State of Alabama immediately moved to stay the District Court’s injunction and the District Court promptly denied that motion.
At this point you must be wondering why I have chosen to discuss this case since it merely reaffirms what has been settled law for almost 60 years; namely that gerrymandering election districts to achieve racial discrimination violates the Voting Right Act of 1965. The problem is that the preceding paragraph does not tell the entire story. The procedural history of this case is unusual as it involved an “emergency appeal” from the District Court directly to the U.S. Supreme Court. That took place on the very next day after the District Court had denied the State’s motion to stay the injunction barring the use of the gerrymandered election map. On February 7, 2022 the Supreme Court, citing Purcell v. Gonzalez, ruled that it was too late for the state to create a new map for the November 2022 election (still over eight months hence) and issued an order to staying the District Court’s injunction pending its full hearing of the matter. As noted above, that hearing took place in October 2022 and the Supreme Court on June 8, 2023 rightly, but belatedly, decided to lift its stay and remand the case to the District Court which gave the State of Alabama roughly two weeks to produce a new electoral map with two districts with a majority of African-American voters.
Compounding this problem, the Supreme Court did the same thing for highly-gerrymandered electoral district maps in the states of Louisiana, Georgia, Ohio and Wisconsin. In large measure these actions made it possible for Republicans to gain control of the House of Representatives in the 2022 election which they currently controls by a mere five seats. This is reminiscent of the 3-card Monte game played by the Court in keeping Trump’s tax returns out of the public’s view until well after the 2020 election (see, “A Follow-Up Letter”). Query: Does this sound like a court that just “calls balls and strikes” or a court that plays politics and well deserves the 30% drop in its public support which it has suffered over the last 12 months?
This is not a frivolous question as our democratic system of government relies on the public’s confidence that our court system is dispensing justice and is not simply carrying out the agenda of a political party or a cabal of wealthy individuals. This brings us to the current controversy over the questionable behavior of some of the Supreme Court’s justices. It’s not just that at least three of the justices currently serving on the Court have accepted sizable gratuities from wealthy individuals with interests in matter coming before the Court, they have neither recused themselves from participating in those decisions nor even reported their receipt of those benefits. It is indeed troubling that, unlike judges sitting on other federal courts, Supreme Court justices have no applicable code of ethical standards other than the duty to report their receipt of gifts from individuals with interest in matter that come before the Court.