By Kevin Daley
The Supreme Court’s liberal minority forged winning alliances in unexpected rulings throughout the 2018-2019 term, suggesting the newly entrenched conservative majority is hardly a cohesive unit.
Each of the conservative justices crossed over to form a 5-4 majority with the liberal bloc at least once. A total of 10 decisions featured a five-justice majority with four liberals and one conservative. By contrast, the conservative justices joined together to form a five-member majority in seven cases.
That data point should not be overstated. The court’s personnel are more substantively conservative than they have been in decades, and the five Republican appointees delivered real victories for the Right in the past term. But the complex questions posed in many Supreme Court cases, in tandem with the interesting and meaningful differences among the conservative justices, make the right-leaning majority neither predictable nor monolithic.
“These ‘crossover’ decisions may not be products of some overarching ideology, but just how they saw the best understanding of the law in some tough and non-obvious cast,” said professor Eugene Kontorovich of George Mason University’s Antonin Scalia School of Law. “The votes of justices, especially Republican-nominated ones, are not simply a function of some partisan ideology. They actually look at the cases.”
‘Crossover sensation’ Neil Gorsuch
UCLA law professor Eugene Volokh styled Justice Neil Gorsuch the “crossover sensation” of the court’s 2017-2018 term. The justice played to type again this year, joining his liberal colleagues to form a 5-4 majority in four cases.
Gorsuch furnished a fifth vote for the liberal bloc on two criminal law issues, reflecting a libertarian streak in his jurisprudence.
“I think it is futile to try to divine patterns from a few votes, but I do think we see Justice Gorsuch wants to be very careful about when the government can exercise its coercive authority over people, and imprisonment is the most severe of such restrictions,” Kontorovich told the Daily Caller News Foundation. “Thus while conservatives are generally seen as ‘tough on crime,’ they are also skeptical of government action, and Gorsuch’s rulings can be seen as an example of this.”
A June ruling set Gorsuch against his fellow Trump appointee, Justice Brett Kavanaugh. At issue was a federal law that authorized additional penalties for criminal defendants who use guns to commit “crimes of violence.” Writing for the majority, Gorsuch said the law was unconstitutionally vague. Beginning in a 2015 case called Johnson v. U.S., the court has said terms in federal statutes like “crimes of violence” or “violent felonies” are too nebulous.
In dissent, Kavanaugh stressed that Congress enacted the disputed law amid the scourge of gun violence in the 1980s and warned that the court is following the Johnson line of cases off “a constitutional cliff.” With an eye toward real-world consequences, the dissent includes a list of offenders who could now escape conviction, like one man who used a Molotov cocktail to firebomb the Irish Ink Tattoo Shop in Las Cruces, New Mexico
The second case involved a law requiring judges to impose new sanctions on certain offenders who commit crimes on supervised release. Writing for a plurality of the court, Gorsuch sided with the offender, Andre Haymond, saying a jury — not a judge — should have decided Haymond’s case.
The two other decisions pertained to Indian tribal rights. In one dispute, Washington Department of Licensing v. Cougar Den, the court said Washington state could not tax fuel distributor Kip Ramsey for importing fuel over state highways because of an 1855 treaty with the Yakama Nation. Ramsey is a Yakama Indian.
In a concurring opinion for himself and Justice Ruth Bader Ginsburg, Gorsuch lamented that the case presented “an old and familiar story,” in which state governments attempted to retroactively change the terms of their treaties with indigenous tribes.
The second case was Herrera v. Wyoming. Wyoming authorities charged Clayvin Herrera, a member of the Crow tribe, with off-season hunting in Bighorn National Forest. Herrera countered that an 1868 treaty guaranteed Crow’s right to hunt on ancestral lands, including Bighorn.
Justice Sonia Sotomayor delivered a majority opinion that largely sided with Herrera, but left state authorities a narrow path for prosecuting Herrera going forward. Gorsuch joined Sotomayor’s majority opinion in full.
Native groups like the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF) submitted a letter to the Senate Judiciary Committee supporting Gorsuch’s confirmation to the Supreme Court.
“His opinions recognize tribes as sovereign governments, and address issues of significance to tribes, including state police incursion onto tribal lands, sovereign immunity, religious freedom, accounting for trust funds, exhaustion of tribal remedies, and Indian country criminal jurisdiction,” NCAI President Brian Cladoosby and NARF Director John Echohawk wrote in 2017.
“Judge Gorsuch appears to be both attentive to the details and respectful to the fundamental principles of tribal sovereignty and the federal trust responsibility,” the pair added.
Strategic maneuvering by Alito?
Justice Samuel Alito stunned in June when he provided a fifth vote with the liberal bloc — a first in his 13-year tenure. More surprising still was that the case involved an important constitutional rule called the non-delegation doctrine.
The non-delegation doctrine holds that Congress cannot outsource its legislative power to another branch of government. The Supreme Court has not struck down a federal law on non-delegation grounds since the 1930s. Yet many judicial conservatives preach a revival of the doctrine, believing that Congress has ceded much of its power to the executive branch in ways that are difficult to square with the Constitution.
It seemed a reawakening would to come pass in 2018. Convicted child rapist Herman Gundy challenged a provision of the Sex Offender Registration and Notification Act (SORNA) that gives the attorney general power to decide how registration requirements apply to sex offenders convicted before the law’s enactment. The justices agreed to decide whether that provision was an unconstitutional delegation.
The court heard arguments in Gundy’s case in October 2018. Months elapsed before a ruling finally emerged on June 20. A 5-3 majority ultimately said the contested SORNA provision was not a non-delegation violation. Kavanaugh had not been confirmed when arguments were heard, leaving the bench short of its full complement. That fact alone may have been decisive to the outcome of the case.
Some court-watchers suggested that Alito voted with the majority for largely strategic reasons. When the panel splits 4-4, the judgment of the lower court is automatically affirmed. Because Alito broke ranks to form a 5-3 majority, Gorsuch was able to release a sweeping dissent, which is arguably the most substantial piece of writing in his nascent Supreme Court career.
Perhaps most importantly, Chief Justice John Roberts joined Gorsuch’s opinion. Those outside the court’s closely held deliberative process cannot speak to Alito’s motive with certainty. The consequence of his vote, however, is that Gorsuch was able to release his thorough dissent, with Roberts on record in favor of enforcing the non-delegation doctrine. For conservatives waging a campaign against federal power in the courts, it seemed like a promising outcome.
John Roberts and “role morality”
Whatever promise the chief’s move in Gundy bore dissipated after one week, when the court released its decision in Kisor v. Wilkie.
The Kisor dispute involved a legal rule called Auer deference, which requires courts to defer to an agency’s interpretation of its own regulation, provided its reading is reasonable. The question in Kisor was whether the court should overturn Auer altogether. Judicial conservatives, for whom “deconstructing the administrative state” is a top priority, hoped Kisor would be an early victory in its long campaign against agency power.
Whether the Right achieved that goal in Kisor is a matter of debate. The chief justice joined Justice Elena Kagan’s opinion for the court, which cabined Auer deference but did not eliminate it altogether. Before invoking Auer, the court said judges must exhaust typical interpretative rules and ensure the rule emanates from an official source and that it is connected to the agency’s expertise, among other items.
All told, Kagan said the Kisor decision establishes a rule of deference that is “not quite so tame as some might hope, but not nearly so menacing as they might fear.”
In a separate opinion — which was technically a concurrence, but reads more like a dissent — Gorsuch inveighed against Auer deference, calling the court’s decision “more a stay of execution than a pardon.”
“The doctrine emerges maimed and enfeebled — in truth, zombified,” Gorsuch wrote.
At the level of generality, Roberts’s votes in Gundy and Kisor seem contradictory. Reinvigorating the non-delegation doctrine — that is, stopping vast transfers of power from Congress to the agencies — is far more consequential to the administrative state than policing how bureaucrats construe regulations. That the chief would support the former and not the latter is difficult to explain.
Harvard Law School professor Adrian Vermeule advanced one answer to that question. Writing after the Gundy decision, Vermeule cautioned that the chief’s concurring or dissenting votes are not proxies for future choices. Though Roberts may signal his sympathies when the stakes are low, his behavior is less certain when his vote is decisive to a major outcome.
“The role morality of chief justices, in this case Chief Justice Roberts, is that they tend on average to be concerned above all with preserving the Court’s institutional position and the larger stability of constitutional arrangements,” Vermeule wrote. “What they will say in a safe dissent or concurrence may be very different than what they will actually do. It by no means entails they will provide the fifth vote to do something very dramatic.”
That institution-conscious maneuvering colored commentary surrounding the challenge to the citizenship question on the 2020 census form. The decision was one of shifting majorities. Writing for the court with the support of the four conservatives, Roberts said the government has the constitutional and statutory authority to include a citizenship question. At the last step, however, Roberts parted ways with the conservatives, forming a 5-4 majority with the liberal bloc to rule that the government’s stated need for citizenship data was contrived.
In a term otherwise marked by the conservative majority’s bullishness on capital punishment, Roberts joined with Kagan and the liberals a third time in a case involving an aging death row inmate. Vernon Madison, a 67-year-old prisoner in Alabama, asked the courts for a reprieve from execution because he can no longer remember the crime for which he was sentenced to die. Dementia and multiple strokes have compromised Madison’s cognitive abilities.
A 2007 case called Panetti holds that inmates must have a “rational understanding” of why they are being executed. Roberts and the liberals concluded that Panetti might cover demented inmates, since dementia can “prevent a person from sustaining a rational understanding of why the state wants to execute him.”
The opinion does not foreclose the possibility that Madison will be executed.
Kagan stressed that memory loss alone is not an absolute bar to execution. She said an inmate can have a rational understanding of why the state intends to punish him even if he does not recall the underlying crime, in much the same way that a person can develop an intimate understanding of the Civil War, even if one had no experience of it.
On remand, the lower courts will determine how severe Madison’s dementia is and whether it prohibits him from understanding why he will be executed.
Clarence Thomas delivers for consumers, federalism
Justice Clarence Thomas surprised in late May when he sided with class action plaintiffs in a consumer rights lawsuit against Home Depot. Though the decision saw the court’s most conservative justice produce a “liberal” result, the opinion reflects Thomas’s hyper-focus on the text of legal statutes and perhaps his deep respect for state courts.
The lawsuit involves an alleged deceptive trade practices scheme. North Carolina resident George Jackson alleges that Home Depot and Carolina Water Systems (CWS) approached him about purchasing a water filtration system in July 2014. A sales agent allegedly used a phony field test to “improperly infer that the tap water contains pollution, harmful chemicals, and other cancer-causing carcinogens.”
Believing his drinking water had been compromised, Jackson agreed to purchase a water treatment system for $9,000. The retail price for similar units is $1,500. Though Jackson could not afford the product, Home Depot provided financing through Citibank at 0% interest for the first two years.
After 12 months, Jackson’s interest rate jumped to 25.99%, leaving him $12,000 in debt. Citibank filed a debt-collection action against Jackson in state court in June 2016.
Jackson brought counter-claims against Citibank, Home Depot and CWS under North Carolina consumer protections laws with the support of other plaintiffs duped by the alleged scam. Citibank abandoned its case against Jackson, while Home Depot tried to move the dispute to the federal courts. The question before the Supreme Court was whether Home Depot could do so.
A federal law called the Class Action Fairness Act (CAFA) lets “any defendant” remove certain class actions to federal court. But in this case, Jackson was the defendant — it was Citibank that sued him to collect the $12,000 debt. Jackson said that meant Home Depot could not bring the dispute to a federal judge.
Even if Jackson is technically the defendant, Home Depot said it is functionally the defendant. Jackson entered a claim against Home Depot, the company emphasized, not the other way around. What’s more, CAFA’s goal broadly speaking is to allow removal of large, interstate class actions to federal court. By the company’s telling, a ruling for Jackson would therefore undermine CAFA’s purpose.
Thomas and the four liberals sided with Jackson in a crisp, 11-page opinion, explaining that CAFA did not alter which parties are eligible to remove class actions to federal court.
“Although the term ‘any’ ordinarily carries an ‘expansive meaning,’ the context here demonstrates that Congress did not expand the types of parties eligible to remove a class action,” Thomas wrote.
Labor lawyer F. Paul Bland connected the outcome to a federalist streak in Thomas’s jurisprudence, telling Slate that the justice “respects state law in state courts, even if he doesn’t particularly agree with their policies.”
Kavanaugh clears way for Apple antitrust push
A plaintiffs class of iPhone users brought an antitrust lawsuit against Apple alleging the company has monopolized the market for software applications in its digital App Store.
App Store sales represent about one-third of Apple’s growing services division, which includes other tools like Apple Pay. Since antitrust plaintiffs are entitled to triple damages, the company could pay out an award running billions of dollars.
The plaintiffs trained their criticism on the commission — as high as 30% — Apple collects from developers who sell apps in the App Store. That commission results in inflated prices that are passed on to consumers, the plaintiffs said.
The tech giant countered that “pass on” lawsuits are prohibited under Supreme Court precedent. A 1977 case held that only “direct purchasers” can bring antitrust lawsuits, not parties farther down the distribution chain. Apple maintained that it merely curates a digital space where users can buy apps from developers, making the company little more than an intermediary.
The merits of the controversy were not before the Supreme Court. Rather, the justices had to decide whether the lawsuit should go forward despite the 1977 case. With Kavanaugh and the four liberals in the majority, the court said “yes.”
One justification for the 1977 decision is that different parties up and down a distribution chain cannot claim damages for a single overcharge. Kavanaugh said that would not happen here.
“The consumers seek damages based on the difference between the price they paid and the competitive price,” Kavanaugh wrote. “The app developers would seek lost profits that they could have earned in a competitive retail market. [The 1977 case] does not bar either category of suit.”
Kavanaugh’s decision has troubling implications for Amazon, which similarly charges third parties for access to its platform.
The Supreme Court has adjourned for the summer. The justices will begin hearing cases again in October.
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