Friedman on the Supreme Court’s cert denial in Gee v. Planned Parenthood

Earlier this week, the Supreme Court denied certiorari in Gee v. Planned Parenthood, a case involving the ability of Medicare recipients to challenge a Louisiana law regulating payments to providers of certain services. While not specifically about abortion, the case certainly was determined in the shadow of the national abortion debate.

At least four Justices are needed for the Supreme Court to take up a case, but here only three of nine wanted to take it: Thomas, Alito, and Gorsuch. In an uncommon turn, Justice Thomas penned a dissent from the denial of certiorari, critiquing his colleagues for shirking their responsibility to decide cases that are or may be politically controversial.

Many people have weighed in on the Court’s decision and Justice Thomas’s dissent, but my colleague Lawrence Friedman has a particularly thoughtful and sensible take. Read the whole thing.

Chief Justice Roberts: “We do not have Obama judges or Trump judges”

Responding to President Trump’s characterization of a federal district judge who had ruled against the administration’s asylum policy as “an Obama judge,” Chief Justice John Roberts issued a statement rejecting the notion entirely.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

In a tweet, the President later responded, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”

The situation is a bit more nuanced than either side’s statements suggest, of course. The Chief Justice is correct that the federal judiciary is composed of extraordinary individuals who try to do their best, irrespective of the parties or issues in a case. But each judge also cannot help but apply the law in a manner informed by personal experience and beliefs. It is far too crass for the President to assert that his legal setback was due to an “Obama judge,” but he is not entirely wrong that the judge in question might have viewed the issue differently than some of his peers on the district court bench.

Still, three cheers for the Chief Justice, trying to maintain the legitimacy of the judiciary in the face of ongoing populist attacks.

Justice O’Connor’s fortitude

JMS and SDOC

Like so many others, I was saddened by the news that Justice Sandra Day O’Connor is battling early stages of dementia. Now 88 years old, Justice O’Connor has been in the national spotlight for nearly four decades. Even after she retired from the Court in 2006, she stayed very much in public life, first founding the iCivics program and then lending her name and cachet to the O’Connor Judicial Selection Plan. Her absence from the public sphere will be missed.

So will her wit, razor-sharp mind, and commitment to the judiciary. A former Arizona state legislator, O’Connor never forgot the importance of justifying the work of the courts to other branches of government, and to the American people. Her opinion in Planned Parenthood v. Casey (1992) observed that the Court’s power lies “in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.” Her work with iCivics emphasized the importance of understanding our government institutions and holding them appropriately accountable. And her crusade against judicial elections over the past decade was grounded in the belief that when judges act like politicians, the integrity and legitimacy of the courts suffer.

I was lucky enough to spend time with Justice O’Connor once, about ten years ago. She came by the IAALS office in what I assumed would be a short meet-and-greet. She sat at a table with our (small) staff, and asked what we were working on. At the time, I was heavily focused on judicial performance evaluation. Justice O’Connor was interested–interested enough, in fact, to pepper me with detailed and remarkably incisive questions for about 20 minutes. It was both a terrifying and exhilarating experience–the closest I have ever come to a Supreme Court oral argument. And this was on a topic that she professed to know very little about.

The recent news has led to a cascade of well-wishes from across the political spectrum. Let me add to the chorus. My thoughts are with her and her family as she embarks on this new stage of life.

Above: Your humble blogger with Justice O’Connor, circa 2007.

Kavanaugh’s “open mind” on courtroom cameras

My latest post for the New England Faculty Blog explores why Brett Kavanaugh’s professed “open mind” about broadcasting Supreme Court arguments may be more than the ordinary confirmation hearing blather.

Scenes from a tire fire: Day One of the Kavanaugh hearings

Yesterday’s first day of confirmation hearings for Brett Kavanaugh was a colossal embarrassment for everyone, save perhaps the nominee himself. It began with a series of sophomoric interruptions from protesters inside the Senate chamber–an undignified and unfortunate extension of our current national tantrum, which increasingly values volume and resistance over logic or civility. Watching the early minutes of the hearing, I kept waiting for a member of the committee–Chairman Grassley, or for that matter any of the Democrats within whose camp the protesters fell–to make explicit that such interruptions were entirely inappropriate and undignified. I waited in vain. As it was, the ongoing shrieks made it appear that no one really was in control of the moment.

It went largely downhill from there, culminating later in the day in an appalling libel of Judge Kavanaugh’s former clerk Zina Bash by social media trolls on the left, who accused Bash–a Mexican-born granddaughter of Holocaust survivors–of being a white supremacist. The whole event was a sad display of our dysfunctional politics, and a good example of the behavior that judges work to prevent in their own courtrooms.

Indeed, yesterday’s hearing sorely needed a presiding judge–an authority figure with some spine, wisdom, knowledge, and confidence. Nowhere was that better illustrated than during the interminable debate among committee members about the late-produced (or still withheld) documents relating to Judge Kavanaugh’s career. Continue reading “Scenes from a tire fire: Day One of the Kavanaugh hearings”