August Meeting Report

By Fraser Perkins and Ann Nye —

Superior Court Judge Tom Long, former RPV mayor and PV Democrats member, walked us through the video of UCI (University of California Irvine) Law’s 2019-20 Supreme Court panel discussion of the decisions and provided insight as to how these rulings will affect us.  Judge Long is a graduate of Stanford Law School, has been a Superior Court Judge since 2015, and will be up for re-election in 2024.  This is the 10th annual UCI review of the Supreme Court and the fifth time PV Dems has presented their review with Judge Long.

To focus on the most important Court decisions and for the sake of time, we both stopped the video and skipped over some of the video’s cases to allow more of Judge Long’s commentary.

Kicking-off the review, Judge Long introduced the UCI Supreme Court review panel moderated by Richard Hasen, Chancellor’s Professor of UCI Law and Political Science. The panel included:

Erwin Chemerinsky, Dean of the UC Berkeley Law School

Ariane de Vogue, Supreme Court Reporter for CNN

Rachel Moran, UCI Law Professor

Kate Shaw, ABC Supreme Court Contributor and Cardozo Law Professor

Michael T. Morley, Assistant Law Professor, Florida State University

In his introduction, Judge Long recognized Professor Chemerinsky as the founding dean of the UCI Law School and originator of UCI’s annual review of Supreme Court decisions.  Additionally, he pointed to several books Chemerensky has written, including The Conservative Assault on the Constitution.  Summing up Professor Chemerinsky’s career, Judge Long stated, “Erwin Chemerinsky is one of the leading constitutional law scholars in the United States.”

Dean Chemerinsky led off the panel by making general comments on the recently concluded Supreme Court session and said “in so many ways this was a term unlike any other.”  The Supreme Court heard only 53 cases, the lowest number since 1862, early in the Civil War.  The Supreme Court cancelled oral arguments in March and April (the last time this happened was in 1919 because of the Spanish Flu), but work continued as the Court conducted 10 telephonic oral arguments in May with live audio broadcasts of those arguments.  Never before have there been live broadcasts of oral arguments.  Chief Justice John Roberts sided with the majority in all but 2 cases.  Chemerinsky summed up, “it truly was the John Roberts’ Court,” and by being in the majority in 90% of the cases, John Roberts was able to assign who would write the majority opinion.  “One area where the conservative position consistently prevailed,” said Chemerinsky, “were in the cases about religion,” which are reviewed below.

In Espinosa v. Montana the Supreme Court held that the Montana Constitution “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools.  By a 5-4 vote the Court reversed a Montana Supreme Court decision and held that whenever a government provides benefits to a secular entity, it must meet strict criteria to deny benefits to religious organizations.

In Our Lady of Guadalupe School v. Morrissey-Berru the Court, by a 7-2 vote, held that the “ministerial exception” under the religion clause of the First Amendment forecloses the adjudication of employment-discrimination claims of Catholic school teachers.  Religious schools are exempt from anti-discrimination suits.

Chemerinsky thought Justice Sonia Sotomayor’s dissents tied the two religion cases together.  Sotomayor said, in the Montana case, secular and religious schools had to be treated the same, whereas, in the Our Lady of Guadalupe case, the religious schools needed to be treated better and differently and exempted from discrimination laws.

In regard to these two religious cases, Judge Long said, “I think this is the most discouraging area of the last term of the Supreme Court.”  When it comes to benefits, the Supreme Court’s Montana decision held that religious institutions have to be treated equally with secular institutions, even when there’s a threat to a state’s establishment clause.  (Ed Note – the federal establishment clause refers to the First Amendment concerning religion – Congress is forbidden from establishing a state religion.  Many states followed the example of the US Constitution and included an establishment clause in their own state constitutions.)  Because religious institutions have limited burdens, this decision opens the door for religious institutions to discriminate under a broad interpretation of religious freedom.  Judge Long also viewed these cases as a Trojan Horse, allowing corporations to do an end run around civil protections by using religion as a cover for discriminatory policies.

During a follow-up question on the Our Lady of Guadalupe case, Judge Long explained it will no longer be necessary to show that the person you’re discriminating against holds a position key to the teaching of religion.  Judge Long said a school may simply say, “We’re a religious school and we don’t like people based on their sexual orientation,” and you can’t work here.

Judge Long commented on the June Medical Services LLC v. Russo abortion case.  By a 5-4 vote, the Supreme Court reversed Louisiana’s Unsafe Abortion Protection Act, requiring doctors who perform abortions to have admitting privileges at a nearby hospital.  Judge Long viewed this decision more as a 4-1-4 decision, saying, “all Roberts said was I’m voting against overturning a relatively new precedent right now … and I’m not joining the opinion written by the liberal members of the court because I don’t agree with their reasonings.”  “If Trump is reelected,” said Judge Long, “and makes another appointment to the Supreme Court, [this decision] will not act as precedent to stand in the way of a decision overruling Roe v Wade.”

Rachel Moran reviewed Dept. Homeland Security v. Regents of University of California.  By a 5-4 vote the Supreme Court vacated in part, reversed in part, and remanded this case involving the Deferred Action for Childhood Arrivals (DACA).  The Court held DHS’s decision to rescind the entire DACA Program was arbitrary and capricious under the Administrative Procedure Act.  Moran reminded us that this case came after the split 4-4 decision in 2016, which challenged the expansion of DACA to include parents, which upheld the lower court’s decision that allowed Obama’s original DACA program to remain intact.  After Trump was elected, his administration rescinded the DACA program which served as a basis for this current case.

Judge Long thought this case was similar to how Roberts dealt with the Census case last year where Trump wanted to include the citizenship question in the census.  The court at that time concluded that the “government had simply lied about why they wanted to ask that question.”  Roberts’ decision, continued Judge Long, said “if your decision is based on something that is demonstrably false, you are not going to be allowed to make that decision.”  Judge Long said the DACA case dealt with two issues – eligibility for benefits and deferred deportation.  Rather than separating these issues, the government attempted to rescind, arbitrarily and capriciously, the entire program.  “What’s marvelous about this Supreme Court ruling is it required the government to be more transparent and logical in its decisions.”  If the Roberts’ court can continue this time of jurisprudence, Judge Long thought, “it holds out a lot of hope for conforming government agency decisions to a higher standard.”

The next two cases delved into attempts by Congress and the State of New York District Attorney to obtain private records of the president for various purposes.

In Trump v Mazars the Supreme Court held that a Congressional subpoena needs a legitimate legislative purpose.  By a 7-2 vote the Court vacated and remanded a decision that though congressional subpoenas for the president’s information may be enforceable, the lower court did not adequately take account of the separation of powers implicated by subpoenas of the House of Representatives.  Judge Long said, “the decision rejected the minority view advanced by Justices Alito and Thomas as outliers, that you can’t obtain documents from a president at any time.“  The Court did not determine whether or not Congress had a legitimate legislative purpose in seeking the president’s records and as Judge Long reflected, “it certainly won’t result in documents being available before the November election.”

In Trump v Vance the Supreme Court held that a state attorney general had to meet the normal requirements for the subpoena of records.  The roots of this case extend back to President Jefferson who yielded private documents after expressing the opinion that such provision might be an undue burden, and thereby interfere with his normal presidential duties.  Judge Thomas’ argument emphasized the idea that Trump has such enormous responsibilities as President that he wouldn’t have time to gather his personal records to respond to a state’s criminal investigation.  “Factually one might question Thomas’ argument,” thought Judge Long, “about our current president with large amounts of so-called executive time on his calendar and who is visibly seen spending large amounts of time on golf courses…. If the job is really consuming all of his time such that he can’t respond to a subpoena, [then] particularly just like everything else, he can delegate his response to the subpoena like he delegates his other responsibilities.”

Judge Long thought the gay rights case, reviewed by panelist Michael Morley, “is arguably one of the best decisions of the Supreme Court for what it means for the future.”

Bostock v Clayton County the Court held, by a 6-3 vote, that an employer who fires an individual merely for being gay violates Title VII of the Civil Rights Act of 1964.  Morley said Justices Gorsuch and Roberts joined together with the liberal justices focusing on the language of Title VII which says, “it is unlawful to discriminate against any individual because of sex.”  The case focused on whether this statute inhibits employers from discrimination against homosexuals and transsexuals on account of their sexual orientation or their gender identity.  Justice Gorsuch’s majority opinion said “of course it does…. It’s literally impossible to talk about someone’s sexual orientation or sexual identity without considering sex and without taking their sex into account, and treating employees differently based on their sexual orientation or sexual identity unavoidably constitutes a form of sex discrimination.”  Justice Gorsuch advanced the argument that an employer who fires a woman because she is gay violates Title VII because she is being treated differently than a man attracted to a woman.  In Judge Long’s view, “Gorsuch’s opinion is not only clever, but accurately describes what the law should be, if you apply the standards that all the conservatives say they are applying…. What has happened in this case and which shows a great deal of hope is, if you are in front of the Supreme Court defending a statute, that the literal meaning of the statue is very broad even though it may not have been applied that way for an extended period of time.  If the literal meaning of the statute is very broad then we can still have that literal meaning applied.”

During the UCI Panel’s Q&A, they first talked about the Shadow Docket cases that come before the Supreme Court on an emergency basis.  Rick Hasen says so much is happening before the courts via emergency petitions, like on the death penalty and on voting rights.  Ariane de Vogue says these are cases we don’t pay too much attention to, ergo “that’s why it’s called the Shadow Docket.”  De Vogue described two death penalty cases where the Supreme Court came out with opinions at two in the morning, clearing the way for the federal death penalty.  She proclaimed “those Shadow Docket items have to be added to the ledger here.”  Kate Shaw spoke about the Purcell rule that says “Federal courts should not disrupt election procedures on the eve of an election.”  This came up in the Wisconsin primary where the Court ruled 5 to 4 a few days before the election to put the order on hold to expand absentee voting deadlines preventing the relief that had been ordered by a lower court.  In other voting rights cases like in Alabama and Florida, Shaw said, “the Court has acted in a consistent direction of thwarting rather than facilitating access to the ballot.”  Hasen asked the panel whether they thought if Trump vs. Biden will make it to the Supreme Court.  Since no one from the panel wanted to weigh in on that, Hasen said, “I think the biggest variable is whether or not the election is close.  And if it is a close election, I expect the Supreme Court will play some role in it.”

Judge Long, commenting on Hasen’s message, thought that “whether or not the Supreme Court plays a role in the Biden versus Trump election should be determined by whether or not there is a substantial federal question, not by whether or not the vote is close.”  Judge Long said people forget we don’t have a national election, but rather 50 elections and unless a state violates federal law, the states should be allowed to have their process play out.  This issue was at play in the 2000 Bush versus Gore election when the Supreme Court got involved, despite no violation of federal law in Florida’s recount of the ballots.  In Judge Long’s view, “If the Court makes the same mistake in this election that it made 20 years ago, it will further degrade what little remaining reputation it has for being unbiased politically.”  He continued by expressing the belief that the Supreme Court should revert to the standard of not reviewing state courts, unless there is a substantial federal question involved.

At the end of the UCI Panel’s Q&A, they talked about the influence of John Roberts on the court and what it mean for John Roberts to be the new center.  Chemerinsky didn’t want to comment on Roberts’ motives but rather on whether he plays the role of swing justice like past Justices Kennedy and O’Connor.  Chemerinsky admitted he had a case that “shamelessly pandered” to Justice O’Connor in hopes she would be the swing justice.  Chemerinsky believes John Roberts will not be a progressive judge and that overall he is conservative and gave examples where he gutted the voting rights act and is against affirmative action.  In regard to McGirt v Oklahoma, Chemerinsky thought Gorsuch’s majority opinion played a pivotal role in supporting Native Americans and acknowledging that the many promises Congress had made to the Native Americans have gone unfulfilled.  Ariana de Vogue ended the discussion by saying if Trump gets elected and gets another of his appointees on the Supreme Court, all the discussion about John Roberts holding the middle goes away with the conservatives holding five positions.  Future cases will include a ruling by the Court on whether the Affordable Care Act (ACA) is unconstitutional, which Chemerinsky says if ruled unconstitutional would mean 25 million people will lose their health insurance.   He thought it’s an unusual argument before the Court to say that since Congress rescinded the individual mandate, (the requirement that people have to pay a penalty, if they didn’t have health insurance) that the entire ACA should be unconstitutional.  Obviously, the previous Congress could have passed the ACA without the individual mandate and the current Congress had the opportunity to repeal the ACA without the individual mandate, but refused to do so.

Judge Long liked the way Gorsuch’s opinion on the McGirt case dissected the opposition’s argument which he paraphrased as:  “Yes, Congress has the power to abdicate big treaties with the Indians.  The constitution gives Congress control over relations with Indian tribes (not the states).  Whatever the states did doesn’t carry any force whatsoever. Yes, Congress allowed the Indians to sell property within the reservation to others…. Yes, Congress restricted the function of the tribal governments…. If you want to end the Indian reservation, you actually have to pass a law saying you are ending the Indian reservation.”

In answer to one of our audience questions, Judge Long said we have a collection of Supreme Court Justices who he would call moderate, liberal and conservative.  However, he says, “most of those who call themselves conservatives are really reactionaries,” saying they favor considerable change and show disrespect for precedent in pursuit of a political agenda.  As an example, Judge Long said, “you can think of people like Thomas who doesn’t think the Bill of Rights even applies to states and he now has support for that.”  Continuing on this theme, Judge Long said, “the Federalist Society has an agenda with its approved list of people for judges that is designed to get appointed judges only people who fit the political agenda of the Federalist Society.  There is no corresponding organized group on the Left.”  Judge Long concluded, “we have departed from an independent judiciary to a considerable degree.”

Another Supreme Court decision affirmed that states have power over “faithless” electors, electors pledged to vote for one candidate who change their mind and vote for another candidate.  In such a case the state may replace an elector.  Judge Long thought this showed, to some degree, “respect by the Supreme Court for the concept that these elections are State law elections and not Federal elections.”

Another person asked if Congress could react to a Supreme Court decision by enacting a new law that would reverse it.  Judge Long responded, “yes, if what the Court was interpreting was a statute.”  On issues based on federal statute, Congress can pass new legislation reversing a Supreme Court decision.

When asked about his own opinion about the future of the Supreme Court, Judge Long replied, “it will depend on the outcome of the election and it will depend on if future opinions continue to degrade the independence and neutrality that the Court is suppose to have.”  He said there may be difficulty if we have a split on who controls the Senate and the Presidency, because we’ll have difficulty getting anyone appointed to fill a Court vacancy and we are going to have a vacancy, soon.  Judge Long says, “I think the future of the Court is very uncertain.  The Court has degraded its independence and its reputation through actions that are at times very political.  It’s degraded things by rendering itself less and less relevant by deciding fewer and fewer cases with meaningful precedent and its opinions are frequently hard to read and reflect a lot more about bickering amongst themselves than about providing decisions that would act as real meaningful guidance and precedent to lower courts.”

Video from Our August Meeting

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