In 2018, after the turbulent Senate confirmation of Justice Brett M. Kavanaugh ended, I wrote an article "What Will Justice Kavanaugh Bring" (see: /p /e7877c40cb33). The article selected cases in which the justices aligned themselves strictly between liberals and conservatives in the previous three court sessions, with Justice Anthony M. Kennedy’s key vote leading to the victory of the liberals, and criticized Justice Kavanaugh’s replacement of Justice Kennedy. The justices made some predictions on which issues the U.S. Supreme Court will reverse its decisions later. I have been a little nervous since the article was published, not knowing how wrong I could be.
Let me explain the background again: It is generally believed that according to the ideological divide between conservatism and liberalism, Chief Justice John G. Roberts, Justice Clarence Thomas, Alito Alito Justices Alito and Neil M. Gorsuch are conservatives; Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sotomayor Justice Sonia Sotomayor and Justice Elena Kagan are liberal; while Kennedy, who retired in 2018, is relatively moderate, so when encountering some cases involving sharp conflicts between the judicial philosophies of both parties, the verdict often depends on Justice Kennedy’s tendency. Justice Kavanaugh is a true conservative, so much so that he was vigorously boycotted by the Democratic Party during the Senate review. Public opinion generally expects that he will bring about changes in favor of conservatives after entering the Supreme Court. With curiosity about this change, let’s examine what happened in Justice Kavanaugh’s first court session (October 2018 to June 2019).
Among the 73 cases in this court session, only 8 judgments were made by 8 justices. The absentees were all Justice Kavanaugh, probably because the new justice missed the previous one. hearing stage; the remaining 65 cases were unanimously decided by nine justices. Among these 65 cases, there were 18 cases where the verdict was 5 to 4 votes; in 14 cases where the two sides lined up along the conservative-liberal divide, the two sides tied 7-7, which was roughly the same as the previous situation, indicating that The arrival of Justice Kavanaugh did not significantly disrupt the original balance. Why this is so, let me explain it later.
If Justice Kennedy had not retired, it is difficult to estimate which side he would have voted for in the seven cases in which the conservatives won; but based on his past record, it is judged that he will hold the opposite opinion to his successor in some cases. The position is reasonable. Let’s take a look at the status of these seven cases in order of release time:
NIELSEN, SECRETARY OF HOMELAND SECURITY, ET AL. v. PREAP ET AL.
This case combines two similar cases from the Ninth Circuit Court of Appeals. The case involves the issue of illegal immigration that has attracted widespread attention since President Trump took office.
Under federal law, aliens detained on deportable grounds may be paroled through a bail hearing until the question of whether they need to be deported is resolved; at the same time, according to another law passed by Congress in 1996, A special rule stipulating that aliens who have been released from prison for certain dangerous crimes or have ties to terrorism must be immediately arrested by the Immigration Service in prison without a hearing and held until deportation The issue is settled. The defendants, who were detained by immigration authorities after spending years in prison, at least one of whom was arrested in 2013 after being released from prison in 2006, argued that because they were not arrested by immigration authorities immediately upon release from prison, they were not arrested. Foreigners who need to be detained under special rules have the right to hold a bail hearing. The Ninth Circuit Court of Appeals upheld their claim.
The Supreme Court reversed the decision of the Ninth Circuit Court of Appeals and remanded the case for a new trial. Justice Alito read out a court opinion jointly written by several conservative justices, Kavanaugh and Thomas each wrote a joint opinion, and Breyer submitted a dissenting opinion on behalf of four liberal justices.
The court opinion conducted a large amount of semantic analysis of relevant legal provisions (even as detailed as the use of a definite article) and analysis of legal application and concluded that: the power granted to the government by federal law does not depend on the The Ninth Circuit Court of Appeals improperly interpreted the law when the defendant was not promptly arrested after being released from prison. It is worth noting that Justice Kavanaugh stated in his concurring opinion: The only issue in this case is narrow, which is to interpret the law as stipulating that the executive branch has a mandatory obligation to arrest a specific person who cannot immediately arrest a specific person due to various reasons such as resource constraints. This obligation will not be lost by arresting the person concerned. There is no constitutional issue here.
Justice Breyer's dissent first pointed out that the focus of this case is whether aliens who have been released from prison for years or even decades are among those who are not legally eligible for parole through bail hearings.
He then also conducted a semantic analysis of the legal provisions paragraph by paragraph, and cited some cases and laws to oppose the majority opinion. The most powerful counter-evidence is another provision of the federal bill that requires that if immediate arrest cannot be made due to resource constraints, the maximum delay in arrest cannot exceed one year; if the majority opinion is true, this provision is unnecessary . At the end of the opinion, he refuted Justice Carfano's views by name, arguing that the interpretation of specific statutes must be carried out in the context of the basic legal values ????of the United States. It is the original commitment of the United States not to deprive of liberty without due process of law, so this case is not a Narrow legal interpretation issues.
BUCKLEW v. PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT OF CORRECTIONS, ET AL.
This is an execution Manner dispute, from the Eighth Circuit Court of Appeals.
Bucklew was sentenced to death for murder in 1996. After exhausting all means of appeal, Missouri prepared to use pentobarbital injection to execute him. Bacchus claimed that because he suffers from an extremely rare disease called congenital cavernous hemangioma, this method of execution would cause him great pain and violate his Eighth Amendment rights (which prohibit cruel and unusual punishment). The district court ruled against him, and the Eighth Circuit Court of Appeals remanded for a new trial based on the judicial principles established in Baze v. Rees and Glossip v. Gross, allowing the death row inmate to raise an argument. a feasible and easy-to-implement alternative. Bacchus proposed a method called "nitrogen hypoxia," which was rejected by the district court. The Eighth Circuit Court of Appeals upheld the district court's decision.
The court opinion written by Justice Gorsuch supported the judgment of the Eighth Circuit Court of Appeals, and Justices Katomas and Vano submitted concurring opinions respectively; Breyer's dissent was supported by the other three The liberal justices joined, with Justice Sotomayor filing a separate dissent.
The court opinion spent a lot of space reviewing the facts of the case, relevant precedents and the evolution of the death penalty execution method in the United States. It held that the Eighth Amendment to the Constitution neither requires the death penalty to be painless nor guarantees the emergence of more humane execution methods. It must be used, but deliberate infliction of pain is prohibited. Bacchus failed to demonstrate that pentobarbital injection would cause additional suffering for his particular patient, and failed to provide technical details of nitrogen hypoxia, a method of execution that had never been practiced; most importantly, Even if both problems could be solved, Bacchus would not be able to prove that the implementation he is asking for would be less painful. In short, the court majority held that Bacchus was simply taking advantage of every opportunity to delay the death penalty.
Justice Kavanaugh's simple concurring opinion emphasized that death row inmates who are at risk of severe pain are unlikely to find suitable alternatives. If they must find them, Bacchus can choose to shoot, "usually resulting in immediate and certain death, the risk of execution failure is almost zero”. If he had done so, Missouri might have implemented it long ago... This joking tone has the charm of Justice Scalia, the "King of Comedy".
Justice Breyer once again wrote the dissent. He pointed out that the majority opinion can be broken down into three issues: whether Bacchus proved that lethal injection would cause him undue pain; whether a death row inmate with a rare disease such as Bacchus must find a method of execution; and how to reduce delays in executions. . On all three issues, he and the three liberal justices disagreed with the court majority. The first question is a question of fact. Justice Breyer believed that the expert testimony submitted by Bacchus proved that he would suffer massive respiratory tract bleeding after being injected with barbiturates, suffer great pain for an undetermined period of time, and then choke on his own blood. Death is beyond the limits of the Eighth Amendment to the Constitution. The majority opinion was wrong not to accept the expert's opinion. The second question is a legal one. The dissent held that Bacchus did not challenge the death penalty itself, nor did he challenge the use of barbiturate injection as a general method of execution. He only made a petition based on his unique physical condition and was inconsistent with the judgment precedent. There is no conflict. His proposed method of execution, which would be quick and painless, is backed by numerous studies and has been listed as an execution option in three states. The court opinion was rejected because it failed to provide operational details such as whether a gas chamber was needed or how pure nitrogen should be used, but judicial precedent did not require such a requirement. The Eighth Amendment to the Constitution is not static. No one believes that the punishments that were commonplace in the founding of the country are still constitutional today. The key to the determination is whether unnecessary pain is inflicted. On the third issue, Breyer admitted that the average time from death sentence to execution in the United States is as high as 18 years, with the highest even exceeding 40 years, which is too long and goes against the principle of speedy justice; but he believes that it limits the protection of the constitutional rights of death row inmates. It is not an appropriate solution and will cost more.
LAMPS PLUS Lamps, INC., ET AL. v. VARELA Employees defrauded the tax information of approximately 1,300 employees and filed a falsified federal income tax return in the name of employee Varela. Varela initiated a class action lawsuit against the company in federal district court on behalf of the employees whose information was leaked. LAMPS PLUS argued that the court should dismiss the lawsuit based on Varela's employment contract and instead force individual arbitration. The court dismissed Varela's lawsuit and the lighting company's request for individual arbitration and accepted Varela's request to authorize class arbitration. LAMPS PLUS's appeal was rejected by the Ninth Circuit Court of Appeals and then went to the Supreme Court. The final ruling overturned the judgment of the Ninth Circuit Court of Appeals and remanded the case for retrial.
Chief Justice Roberts wrote the opinion, joined by the other four conservative justices; Justice Thomas submitted a separate concurring opinion. Justice Ginsburg filed a dissent, joined by Justices Breyer and Sotomayor; Justices Breyer and Sotomayor jointly filed a dissent; Justice Kagan filed a dissent. Justices Ginsburg and Breyer joined in the dissent, and Justice Sotomayor joined in the second part.
The main dispute in this case is the judicial principle established by the Supreme Court in Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp. in 2010. Applicable to this case. This principle is that unless a party to a contract expressly agrees to collective arbitration, a court may not compel a party to initiate collective arbitration. The Ninth Circuit Court of Appeals held that the conclusion in Stolte-Nielsen did not apply to this case because the employer and employee in that case expressly expressed their “silence” on collective arbitration in the contract, and the employment contract in this case did not mention collective arbitration. question, the principle in California Contract Law that an adverse ruling should be made against the drafting party of the contract should be applied when the contract is ambiguous.
After citing a large number of relevant cases, the court opinion concluded that the Stolte-Nielsen case was applicable to this case on the grounds that the employment contract did not reveal the parties’ true intention for collective arbitration issues. , forcing class arbitration violates the Federal Arbitration Act. Justice Thomas's concurring opinion emphasized that the intention to agree to collective arbitration cannot be obtained from the text of the employment contract and should be regarded as "silent."
FRANCHISE TAX BOARD OF CALIFORNIA v. HYATT (FRANCHISE TAX BOARD OF CALIFORNIA v. HYATT)
This case is an issue of state sovereign immunity, a true constitutional issue; a compelling one This is the case that overturned Nevada v. Hall, which had dominated the field for 40 years.
Here we have to explain the situation of the Hall case: Hall, a California resident, was driving and collided with a Nevada official vehicle on a California highway. He sued Nevada in a California court for compensation. The Supreme Court ruled 6-3 in 1979 that the Nevada government did not have sovereign immunity in California courts, and California courts were not bound by the $25,000 upper limit on damages stipulated in Nevada law. Hall eventually received $1.15 million in compensation. The majority opinion in this case held that the Constitution does not prohibit the courts of one state from filing private lawsuits against another state. States can decide for themselves whether to avoid exercising jurisdiction over another state based on the principle of general comity; but it prohibits the extension of federal jurisdiction to a state. The Eleventh Amendment's action by a state citizen against another state only governs federal courts and has nothing to do with this case.
The opinion was written by Justice Thomas and joined by four conservative justices; Justice Breyer filed a dissent joined by three liberal justices—rarely, no additional concurrence or dissent was filed Opinion.
After reviewing the facts of the case in detail, the court opinion focused mainly on the analysis of Nevada v. Hall. Justice Thomas cited the opinions of founding fathers such as Hamilton and Madison on the issue of state sovereign immunity in the early days of the founding of the country, including Chief Justice John Marshall, who established the Supreme Court's constitutional review power, and determined that states have retained immunity from private lawsuits outside the state. rights; the judgment in the Hall case violates the design of the Constitution and the understanding of sovereign immunity by states when they ratified the Constitution, and should be overturned.
Justice Breyer's dissenting opinion held that the Constitution does not grant states absolute immunity from the courts of other states. He pointed out that even immunity between sovereign states is based on the choice of friendship and reciprocity, rather than an absolute right in international law; in the Hall case, the California court has made a decision not to grant Nevada sovereign immunity, and the Supreme Court has not right to intervene. Breyer believed that the majority opinion's view that the Constitution implicitly changed the relationship between states was unfounded. After analyzing the cases cited in the court opinion one by one, he emphasized the principle that common law should not overturn precedent unless there are extremely important reasons. He believed that the majority opinion Even if there is some truth, it does not meet the standard of overturning precedent.
MANHATTAN COMMUNITY ACCESS CORP. ET AL. v. HALLECK ET AL.
Although this case can be regarded as a First Amendment issue, , but the discussion is mainly about qualified subjects, not the interpretation of the First Amendment itself. The facts of the case are: According to the 1984 legislation of Congress, New York State authorized the Manhattan Community Access Company, a subsidiary of Time Warner, to operate a public *** forum for a cable television station called the Manhattan Neighborhood Network. Halleck et al. A program he produced was suspended by the platform after receiving many complaints, which eventually led to Halleck and others' rights to use the platform being revoked. Halleck and others considered this violation of the freedom of speech clause of the First Amendment of the Constitution and banned the program. The company went to court. The district court ruled against Halleck and others and then appealed to the Federal Court of Appeals for the Second Circuit. The Second Circuit Court overturned the district court's decision and ruled in favor of Halleck and others.
As we all know, the right to freedom of speech is the right to protect citizens from censorship and restriction by the government. Therefore, the focus of this case is very simple: whether a private institution authorized by the government should be regarded as an administrative subject, or whether the cable TV station's operation of a public *** channel is a state act. When the case reached the Supreme Court, five conservative justices overturned the decision of the Second Circuit Court of Appeals, with Justice Kavanaugh writing the court opinion. Justice Sotomayor filed a dissenting opinion on behalf of the four liberal justices.
After reviewing the facts of the case and the relevant legislative process, Justice Kavanaugh pointed out clearly that the reason why the Supreme Court accepted this case was to clarify whether the private company operating the public *** channel was a state actor. He pointed out that according to the Supreme Court's past jurisprudence, private entities should be regarded as state actors when they exercise "powers traditionally reserved for the state", but only a few functions will be regarded as state actors. Specific to this case, there are precedents for private television stations operating public television channels, which is not a traditional exclusive public television function; if they can be regarded as state actors if they obtain government contracts or are under government supervision, the United States has Countless private businesses would receive the same treatment; he refused to extend state action beyond its traditional borders.
Justice Sotomayor’s dissenting opinion held that the New York City municipality’s agreement to grant Time Warner Cable’s cable franchise requires that channels be set aside that are open to the public, and that public channels be selected by the government. It is operated by a non-profit independent operator, and the operator's initial seven directors are appointed by the Manhattan Borough Government; and the establishment of public channels is the consideration for granting Time Warner cable operating rights. This relationship is equivalent to a long-term lease by the government. For private properties, the government enjoys the income rights from the property rights; these factors indicate that the public *** channel operator is a government agent. Agencies authorized by the government to perform certain government functions should be subject to the First Amendment regulations just as the government itself exercises these functions.
KNICK v. TOWNSHIP OF SCOTT, PENNSYLVANIA, ET AL.
This is a Fifth Amendment issue and the triggering clause is "Private property shall not be used for public use without fair compensation." The specific question is what legal procedures should be used to handle disputes arising from government land regulatory actions. Since land disputes fall under the jurisdiction of state courts, while expropriation and compensation disputes are constitutional issues and fall under the jurisdiction of federal courts; such issues actually lie on the edge between the two parallel systems of federal justice and state justice.
The facts of this case were that the Town of Scott enacted an ordinance requiring all cemeteries to be open to the public during the day, and Nick subsequently received a penalty notice alleging that a cemetery on her private property was in violation of the ordinance by not being open to the public. Nick applied for an injunction in state court but did not file an anti-conviction claim. The state court found that Nick's harm could not be proven without litigation and declined to rule. Nick sued in federal district court on the grounds that the town ordinance violated the Fifth Amendment, and the court, relying on the Williamson County Zoning Commission case, ruled that Nick's federal claims lawsuit must first be filed in state court. The ruling was upheld by the Third Circuit Court of Appeals and then appealed to the Supreme Court.
Chief Justice Roberts drafted the court opinion, and Justice Thomas submitted a concurring opinion; the dissenting opinion of the four liberal justices was written by Justice Kagan.
Chief Justice Roberts opened with a direct reference to the Williamson County case. He pointed out that the judgment in that case held that the loss of expected income by a property owner due to the actions of local administrative authorities did not constitute a loss of income until a federal court judgment was obtained. Federal expropriation that violates the Fifth Amendment; however, because federal courts will respect the district court's ruling on compensation issues in compliance with the principle of general comity. This puts the plaintiff in a dilemma: if he has not sued in state court, he cannot sue in federal court; if he loses in state court, the federal court will reject his claim. After citing a number of cases that were troubled by the Williamson County precedent, Chief Justice Roberts ruled that as long as the government does not automatically initiate compensation when regulating land use, parties can directly file claims in federal court.
Justice Kagan’s dissenting opinion held that the Constitution does not require the government to pay compensation for the expropriation of private property in advance or at the time. In the context of increasing government regulation of land use, the court opinion will break the tradition of numerous judicial cases and flood the federal courts with cases originally under the jurisdiction of state courts, forcing federal judges to make decisions based on matters with which they are unfamiliar. State Land Code Trial, a decision contrary to federalism. As for the dilemma posed by the Williamson County case to the parties, which should be resolved by Congress through slight changes to the law, overturning long-standing precedent in a few cases undermines the value of legal stability.
RUCHO ET AL. v. COMMON CAUSE ET AL.
The last case is a bit special. The case is a consolidated trial of two lawsuits, filed by some Democratic voters in North Carolina and some Democratic voters in Maryland. The lawsuits are asking the court to rule that the state's district division method violates the First Amendment of the Constitution. The freedom of association clause and the equal protection clause of the Fourteenth Amendment, etc. Since the defendant is not a civil subject, the translation of the case name is a small problem; the core issue of the judgment is not the common legal application or judicial interpretation, but whether the plaintiff's claim should be accepted, or in other words, defining this as a legal The problem is still political. District courts sided with the plaintiffs, and the case was appealed directly to the Supreme Court from the federal court for the Middle District of North Carolina and the federal court in Maryland.
Here we need to explain a little about the electoral system involved in the case: constituency demarcation mainly involves the election of representatives of the House of Representatives. The number of representatives in the United States is allocated based on population. In the early days of the founding of the country, one representative was elected for every 30,000 people. Now, every representative is elected for approximately every 700,000 people. In order to win in party competition, politicians in states with the power to draw districts often draw district maps that maximize their party's House seats by "vote dilution." The specific method is to concentrate the voters of the opponent party into several districts and divide the supporters of the own party into districts where they hold a relative majority. This approach has resulted in strange "salamander-shaped" district maps in many states.
Chief Justice Roberts once again wrote the court opinion, and the dissent was still written by Justice Kagan. The opinions of both parties totaled 72 pages, which shows the huge differences.
The court opinion held that the Constitution left the issue of drawing electoral districts to state legislatures and did not require proportional representation. The court was unable to determine how to draw districts fairly. Chief Justice Roberts cited the conditions for the court to accept such issues raised by Justice Kennedy in previous cases: there should be "clear, manageable and politically neutral" judgment standards, pointing out that racial discrimination caused elections Injustice can find sentencing standards that meet the above conditions, but issues of fairness brought about by partisan politics cannot. The issue should be left to Congress and state legislatures, and a court ruling would greatly expand its own powers. Finally, he quoted Chief Justice John Marshall's famous saying in the Marbury v. Madison decision that established the Supreme Court's constitutional review power: "It is the duty and duty of the judiciary to clarify what the law is." and answered firmly. : "This is not the law." The case was eventually sent back to the lower court, requesting that it be dismissed in accordance with the Supreme Court's opinion.
The dissent first cites some publicly disclosed instructions issued by powerful figures in Congress and state election commissions such as "how many seats must be obtained by a certain party in the division of constituencies in a certain state", as well as the popular vote and the House of Representatives in several states The serious imbalance in seats points out that unfair gerrymandering makes the value of each vote very different. The court cannot allow this malicious operation to destroy American democracy. As for the judgment standard, Justice Kagan believed that the court does not need to predict which electoral district division method will bring what election results. It only needs to affirm some fair election methods that have been recognized by the lower courts. For example, some states use randomly generated district maps. , Some states require that each county must completely enter a constituency, etc. The effect of leaving the issue of fair elections to the legislative arena, a party political arena, is questionable; neutral courts should assume the responsibility of defending the people's exercise of power in accordance with the constitution.
In the Supreme Court, the most junior justice is nicknamed the "doorman" because he is responsible for opening the door and ordering coffee during closed-door meetings where the justices discuss cases. As for the changes that the current "doorman" Justice Kavanaugh will bring after entering the Supreme Court, it is generally believed that conservatives will have a clear upper hand; if there is a conservative justice like retired Justice Kennedy, Neutrality keeps the two factions evenly matched, and that person is most likely to be Chief Justice Roberts, who has always been moderate.
However, it turns out that these predictions are not accurate. In the 2018-2019 court session, the conservative-liberal camp was evenly matched, with no obvious changes compared with previous court sessions. Counting seven other cases in which four liberal justices and one conservative justice formed the majority, it was unexpectedly found that the one who tilted the most to the liberal side was Justice Gorsuch, who was nominated to the Supreme Court by President Trump. *** Four times; followed by Justice Thomas, who has always been regarded as a die-hard conservative, twice; the other "traitor" is Justice Kavanaugh, the protagonist of this article.
Chief Justice Roberts, the favorite, at least maintained a "firm stance" during this court session.
Among the seven cases introduced in this article, the most concerning are the two judgments that overturned precedent. In the common law tradition of "precedent is law", this is an event of no small importance. Both cases come from the Burger Court period (1969-1986), which is considered the most radical period of the Supreme Court. They can be seen as the counterattack of conservatives against liberals and the changes brought about by Justice Kavanaugh after entering the Supreme Court. Interestingly, the Burger Court’s chief justice, Warren Earl Burger, and liberal stalwart Justice William Joseph Brennan, Jr., were both** * and party member Dwight David Eisenhower, whose nomination to the Supreme Court is said to be the decision that the World War II Allied commander across Europe regretted most. Gorsuch, the first justice nominated by President Trump after taking office, sided with the liberal justices four times in just one court session. Will he become a figure that President Trump regrets? Will Chief Justice Roberts, who is known for his moderation, move closer to Justice Burger next year? Due to the unprecedented postponement of the 2019-2020 court session due to the state of emergency sweeping the world, the trial was supposed to be adjourned at the end of June but has not ended yet. These curious questions will be analyzed next time.