Last year’s drama surrounding the impeachment of West Virginia’s Supreme Court seems to have come to its final chapter. The United States Supreme Court announced that it will not hear a challenge to the decision that halted the impeachment proceedings on separation-of-powers grounds.
Reuters has a very interesting story on the case. Briefly, in April the Third Circuit Court of Appeals held that Delaware’s arrangement for picking state judges violates the First Amendment of the U.S. Constitution because it effectively prevents anyone unaffiliated with one of the two major political parties from holding judicial office. The story explains:
Delaware’s constitution includes two provisions that, according to the governor’s petition, are intended to ensure the political independence of its state judiciary. One provision, known as the “bare majority” requirement, insists that no more than 50% of the judges of the Supreme, Superior and Chancery Courts be affiliated with either major political party. The other clause, dubbed the “major party” provision, requires that Delaware judges be affiliated with one of the two major parties in the state.
In combination, the constitutional provisions maintain the political equipoise of the Delaware courts. But last April, the 3rd U.S. Circuit Court of Appeals ruled in Adams v. Governor of Delaware that the provisions violated the First Amendment right of free association of James Adams, a retired Delaware lawyer who alleged that he could not seek a judicial appointment because he is a registered independent.
The story goes on to identify several important questions raised by Delaware’s scheme. There seems to be little dispute that it has raised the reputation of the state’s courts, but at the same time it reduces judicial appointments to mere partisan politics and undermines both judicial independence and the courts’ legitimacy.
The Supreme Court has not been shy on weighing in on state judicial selection in the past, especially where First Amendment rights are implicated. It will be interesting to see if they take this case as well.
My colleague Lawrence Friedman (an occasional contributor to this blog) has a very nice piece in The Hill today, explaining why labeling individual Supreme Court Justices as “liberal” or “conservative” is a mistake. A snippet:
Attaching such labels to the justices is a common and unfortunate fixture of our politically polarized era. To be sure, the conservative and liberal tags may be accurate to the extent that they characterize the results of a Supreme Court decision as more favorable to one or the other political camp. The labels serve to shorthand judicial decisions for people who desire to know the bottom line. Does the result favor my side or theirs?
But it does not follow that the justices should be characterized in the same way. The shorthand may be helpful to those readers or viewers seeking to absorb the implications of a Supreme Court decision. The problem is that these labels fail accurately to reflect both the role of the Supreme Court in our governmental scheme and the ways in which the justices approach the critical task of judicial review in our democracy.
I urge you to read the whole thing.
A guest post by Lawrence Friedman
That a majority of the U.S. Supreme Court found the Bladensburg Peace Cross not to offend the Establishment Clause in American Legion v. American Humanist Association should not be surprising. The court has for years treated religious symbols on public property with a relatively light touch, relying upon the history and context of the particular display to determine whether it was intended to favor one religious sect over another, or to promote religion over non-religion.
Though he agreed with the majority’s conclusion, Associate Justice Neil Gorsuch would have gone farther and denied the plaintiffs standing to challenge the cross. He argues in his concurring opinion that the plaintiffs, who claimed to be “offended observers,” failed to satisfy the most basic requisites of modern standing. As articulated by Associate Justice Antonin Scalia in Lujan v. Defenders of Wildlife, a plaintiff must show (1) injury-in-fact, (2) causation, and (3) redressability. The first element requires an injury to be both (a) concrete and particularized and (b) actual or imminent.
Gorsuch maintains in American Legion that offense alone cannot qualify as a “concrete and particularized” injury “sufficient to confer standing.” And he is surely correct that, if “offense” is defined as “disagreement,” it should not count as the kind of injury necessary to trigger standing. The court has long held that standing requires some personal connection to government action, which is why individuals generally have no standing unless they can point to an injury they have suffered that is quantifiable and not contingent.
But maybe Establishment Clause challenges are different—or at least one kind of Establishment Clause challenge. Continue reading ““Offended Observers” and Public Religious Displays: the Question of Standing”
My latest piece for the New England Law Professors blog takes a look at the Supreme Court’s recent decision in Home Depot, Inc. v. Jackson, and asks whether the Court is quietly reevaluating the mission of the federal court system.
Give it a read, and while you’re there, check out the wonderful posts by my colleagues in areas as widespread as criminal law, immigration law, and constitutional law.
That was the recent ruling of the U.S. Supreme Court in Yovino v. Rizo, a case decided at the end of February. The Ninth Circuit Court of Appeals had issued its opinion, which included the vote of Judge Stephen Reinhardt, eleven days after Reinhardt passed away in March 2018. The Ninth Circuit panel justified the decision to include Reinhardt’s vote by noting:
“Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”
The Supreme Court disagreed, explaining that federal judges “are appointed for life, not for eternity.”
Donald Scarinci has a nice breakdown of the opinion and the underlying case in The Observer.
A guest post by M. Ryan Groff
On March 30, 2019, Clarence Thomas, Associate Justice of the U.S. Supreme Court, spoke at Pepperdine University School of Law’s 2019 annual dinner. He reflected broadly on the relationship between faith and judicial duty, drawing from his own experiences and also from past conversations with his former colleague, the late Antonin Scalia. During a brief aside, Justice Thomas questioned the meaning of oaths made by atheists:
“As an aside, I think it’s really interesting that people in a profession where we all take an oath, that they would look at people who have strong faith as somehow not good people when, if you’re an atheist, what does an oath mean? If you are a Christian, and you believe in God, what does an oath mean? You know, what do you say at the end of it? ‘So help me God.’ And you have taken an oath to God, and, as Mother Theresa said, it’s between you and God. So, you have given your word… when you give your word to God, is that special? And I think if you are faithful, you think it is special, and you work doubly hard to make sure you live up to it… Not only doesn’t it [faith] interfere in any way, it actually enhances your view of the oath.”
It is not difficult to understand what Justice Thomas means. If someone swears on something he does not believe exists, then there is good cause to question the trustworthiness of whatever was promised. However, the concern with these comments, ironically, has to do with oathtaking in colonial America and one of Congress’s earliest interpretations of the Constitution. Continue reading “The Affirmation Alternative: A Religious Case for Atheist Oaths”