Chief Justice John Roberts Leads

Chief Justice John Roberts has sided with the Supreme Court’s liberal justices on some of the biggest cases of the term, like decisions to invalidate the Trump administration’s effort to rescind the DACA program and Louisiana’s abortion-provider regulations. In others, he has stuck with the conservatives.

Chief Justice Roberts’s voting pattern certainly fails to conform to a predictable ideological pattern. But there is a pattern nonetheless. He is a conservative justice, but more than anything else, he is a judicial minimalist who seeks to avoid sweeping decisions with disruptive effects, reported the New York Times.

This has been the hallmark of his jurisprudence since he joined the court in 2005. And while there are significant exceptions (most notably, Shelby County v. Holder, which invalidated a major component of the Voting Rights Act), Chief Justice Roberts’s anti-disruption jurisprudence has become more pronounced the longer he has been on the court.

As a judicial minimalist, Chief Justice Roberts seeks to resolve cases narrowly, hewing closely to precedent and preserving status quo expectations. If a litigant seeks an outcome that will transform the law or produce significant practical effects, his vote will be harder to get. At the same time, he takes a strict view of “justiciability” — that is, whether a case should be in federal court at all. He is also reluctant to bless new avenues of litigation for those who seek to use the courts to drive public policy

He is generally reluctant to overturn decisions or to strike down federal laws. Thus he often reads precedents narrowly or construes federal statutes in ways that will avoid constitutional problems. Since he became chief justice, the Supreme Court has overturned its own precedents and struck down federal laws at a much lower rate than it did under Chief Justices Earl Warren, Warren Burger or William Rehnquist.

Where the chief justice concludes a statute is unconstitutional, his aversion to disruptive decisions leads him toward narrow remedies, including an aggressive approach to the doctrine of severability, under which the court excises as little of a law as possible to cure a constitutional defect.

For instance, after he found that the Affordable Care Act’s Medicaid expansion was unconstitutionally coercive on state governments in National Federation of Independent Business v. Sebelius, his remedy was to make the expansion optional, removing the coercion, while leaving the rest of the law in place.

These impulses have been on clear display in the chief justice’s decisions this term. In Seila Law v. Consumer Financial Protection Bureau, for example, he concluded Congress had unconstitutionally insulated the bureau’s director from presidential control by barring removal without cause. His decision remedied this constitutional flaw simply by eliminating the limitation on removal, while leaving the bureau’s regulations and enforcement actions intact.

This approach, he explained, would minimize the “disruption” of the decision; it also matches a strikingly similar remedy he ordered in 2010 in Free Enterprise Fund v. Public Company Accounting Oversight Board (that case involved a challenge to the constitutionality of the Sarbanes-Oxley Act of 2002, which established the board and sought to reform corporate America after the Enron and WorldCom accounting scandals). In addition, he made clear this holding applied only to the handful of agencies with an equivalent structure, and not to other independent agencies.

Chief Justice Roberts has hewed closely to precedent as well. In June Medical Services v. Russo, he voted to strike down Louisiana regulations governing abortion providers because they were virtually identical to ones in Texas that the court had struck down just four years ago. Although he disagreed with the court’s earlier decision, he explained that the need for the court to follow precedent and decide like cases alike required this result.

And in Ramos v. Louisiana, he voted against requiring unanimous jury verdicts in state courts under the Sixth Amendment, as he believed this would have required overturning a 1972 precedent, imposing ‘a potentially crushing burden on the courts and criminal justice systems of those States.’” Notably, this is the only dissenting vote the chief justice has cast thus far this term.

His aversion to disruption may have been most plain in his opinion rejecting the Trump administration’s DACA rescission. The administration has the authority to rescind DACA, Chief Justice Roberts explained, but it failed to account adequately for the “reliance interests” of those who depended upon the program, including not just DACA recipients but their families, employers and communities.

Much as in King v. Burwell, where the chief justice was unwilling to accept an interpretation of the Affordable Care Act’s text that risked depriving millions of Americans of subsidized health insurance, he was unwilling to greenlight a sloppy Trump administration effort that would have put thousands of law-abiding noncitizens at risk of deportation.

Even where Chief Justice Roberts has been responsible for disruptive opinions, he appears to have done so reluctantly. Four years before the Shelby County decision on the Voting Rights Act, he wrote a majority opinion in Northwest Austin Municipal Utility District No. 1 v. Holder, adopting an implausible interpretation of the act’s text so as to fend off a constitutional attack.

Writing for an 8-1 court, he justified stretching the statute’s text because of “underlying constitutional concerns” about Section Five (the act’s requiring of certain states to get federal approval of changes in their election laws) — concerns he likely hoped Congress would fix before another such challenge reached the court. Congress’s failure to act, the chief justice would write in Shelby County, left him “no choice” but to reach the underlying constitutional question. Even if you find the explanation unpersuasive, you can see the gravitational pull of his minimalist ethic in his approach.

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Police unions have had an impact on accountability and reform

The job of being a police officer comes with significant union protections, reported the ABA Journal. Work contracts often prevent municipalities from investigating internal discipline charges without affidavits, and it’s also common for the agreements to restrict access to officers’ employment files if they’re charged with a crime.

Additionally, police unions and municipalities have negotiated to throw out misconduct complaints after a certain time period. And if an officer shoots someone, the contract likely gives him or her what’s known as a “cooling off” period, which prevents management from questioning the individual and witnessing officers about the incident within a certain time period, usually 48 hours.

Also, some states give additional layers of protections for officers, with laws generally known as police officers’ bills of rights.

In fact, few, if any, unions have as much power in bargaining for discipline, internal investigation stipulations and conditions of employment as police do, say labor lawyers interviewed by the ABA Journal. And although complaints about police union contracts are not new, the criticisms have amplified since May, following the killing of George Floyd in Minneapolis.

Floyd, a 46-year-old Black man, was arrested May 25 after he was accused of buying cigarettes with a counterfeit $20 bill. He died in police custody after Derek Chauvin, a white police officer, allegedly held his knee on Floyd’s neck for 8 minutes and 46 seconds despite Floyd’s pleas that he could not breathe.

Following massive protests across the country amid COVID-19 quarantine restrictions, Chauvin, 44, was arrested and charged with second-degree murder days after Floyd’s death. The 19-year police veteran had had at least 17 misconduct complaints lodged against him, but his only discipline before Floyd’s death was two letters of reprimand, the New York Times reports.

Reuters in June analyzed Minneapolis Police Department officer complaints over the past eight years and found that 9 of 10 misconduct investigations were resolved without punishment or intervention with regard to behavior modification. Of 3,000 complaints during the time period examined, only five officers were fired.

Janeé Harteau, a former Minneapolis Police Department chief, told Reuters disciplinary decisions that get challenged and reversed via arbitration and union grievances made it difficult to have accountability in the department.

Taryn A. Merkl, a former assistant U.S. attorney in the Eastern District of New York, agrees such reversals can handcuff the effectiveness of police management. “When you include those sorts of checks on management authority, it can create a culture in the department where officers think management is adversarial to them, and whatever management decided to do was unfair,” says Merkl.

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Mattmangino.com one of the Top 60 Criminal Justice Blogs, Websites & Influencers in 2020

Feedspot selects  mattmangino.com as one of the Top 60 Criminal Justice Blogs, Websites & Influencers in 2020. To learn more CLICK HERE

Most states failing to protect prison inmates and staff from COVID-19

The ACLU and Prison Policy Initiative evaluated the actions each state has taken to save incarcerated people and facility staff from COVID-19.

The report found that most states have taken very little action, and while some states did more, no state leaders should be content with the steps they’ve taken thus far. The map below shows the scores we granted to each state, and our methodology explains the data we used in our analysis and how we weighted different criteria. The results are clear: despite all of the information, voices calling for action, and the obvious need, state responses ranged from disorganized or ineffective, at best, to callously nonexistent at worst. Even using data from criminal justice system agencies — that is, even using states’ own versions of this story — it is clear that no state has done enough and that all states failed to implement a cohesive, system-wide response.

In some states, we observed significant jail population reductions. Yet no state had close to adequate prison population reductions, despite some governors issuing orders or guidance that, on their face, were intended to release more people quickly. Universal testing was also scarce. Finally, only a few states offered any transparency into how many incarcerated people were being tested and released as part of the overall public health response. Even in states that appeared, “on paper,” to do more than others, high death rates among their incarcerated populations indicate systemic failures.

The consequences are as tragic as they were predictable: As of June 22, 2020, over 570 incarcerated people and over 50 correctional staff have died and most of the largest coronavirus outbreaks are in correctional facilities. This failure to act continues to put everyone’s health and life at risk — not only incarcerated people and facility staff, but the general public as well. It has never been clearer that mass incarceration is a public health issue. As of today, states have largely failed this test, but it’s not too late for our elected officials to show that they can learn from their mistakes and do better.

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GateHouse: The term ‘Nazi’ is misused and overused

Matthew T. Mangino

GateHouse Media

July 3, 2020

Longtime Houston prosecutor Kaylynn Williford recently resigned after posting a meme on Facebook that appeared to equate Nazis with people who have been participating in protests for racial justice.

Williford, who was head of the trial division at the Harris County, Texas District Attorney’s Office, posted the meme that showed a black-and-white photograph of a wooden box full of weddings bands that were removed from Holocaust victims.

A caption above the photo reads in part, “Each ring represents a destroyed family. Never forget, Nazis tore down statues. Banned free speech. Blamed economic hardships on one group of people. Instituted gun control. Sound familiar?”

The Nazis also started World War II, killed 6 million Jews during the Holocaust and were responsible for widespread looting, plunder and countless atrocities.

From white supremacists who find power in flaunting the swastika to others who want to pin a dreadful label on those whose views they oppose — the term “Nazi” is misused and overused.

In Germany, Nazi was actually a derogatory label for the National Socialist German Workers’ Party which began in 1919 following World War I. The Nazi party grew into a mass movement in the 1920s and early 1930s by promoting fanatical nationalism and anti-Semitism. The Nazis were looking for a scapegoat for the humiliating defeat and the onerous sanctions imposed by the Treaty of Versailles.

Adolf Hitler joined the party the year it was founded and within two years became its leader. By 1933, he became chancellor of Germany and the Nazi party soon began to undermine rights of citizens and electoral politics. Soon Hitler evolved from chancellor to dictator.

With the start of World War II, the Nazis’ ramped up the anti-Jewish rhetoric and increased the systematic slaughter of Jews. After invading and occupying Poland, the Nazis murdered thousands of Polish Jews. They confined many to ghettos where they starved to death and began sending others to death camps, where they were either murdered or forced into slave labor.

When Germany invaded the Soviet Union in 1941 the killing continued. Nazi death squads murdered thousands of Jews in western Russia.

The indiscriminate murder of Jews became a burden for soldiers and Nazi sycophants. In an effort to streamline the killings the Nazis convened a conference in the spring of 1942. The Wannsee Conference outside of Berlin came up with the “Final Solution,” the systematic murder of all European Jews.

The Nazis created a series of concentration camps where Jews and other “undesirables” would be delivered by cattle cars to face extermination. Men, women and children would be ushered into death houses after they were stripped of their belongings, i.e., the jewelry in the Williford’s meme, stripped naked and gassed. Their bodies incinerated in large ovens.

Throughout the remainder of the war, Jews in the countries occupied by Germany were deported by the thousands to the death camps. Places like Belzec, Sobibor, Treblinka, and Auschwitz began to operate with ruthless Nazi efficiency.

The killing continued until the last months of war. The liberation of the camps, as the Nazis retreated, revealed the horrors that are still etched in the collective memory of the human race.

As the Nazis made their way back to Berlin their feeble and delusional leader Hitler, hiding in a Berlin bunker, committed suicide.

For those who feel like attaching the label Nazi to some group they oppose or a person, or figure, they disagree with — think twice. Nazi is an abhorrent term reserved for the vilest organization in the history of the world.

Your political opponent is not a Nazi; the protesters down the street are not Nazis; the police are not Nazis. With few exceptions none of us have ever had to face a Nazi in the 75 years since the end of World War II, and for this we should be grateful.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino

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Court allows bombshell book by President's niece to be published

A New York court lifted a temporary restraining order against the publication of a book by President Trump’s niece, Too Much and Never Enough, enabling publisher Simon & Schuster to continue printing and distributing the explosive insider account by Mary L. Trump, reported The Washington Post.

President Trump’s brother, Robert, filed a petition last week asking that Mary Trump and the publisher be prevented from publishing the book, citing a confidentiality agreement signed by Mary Trump two decades ago as part of a settlement in an inheritance dispute.

A state Supreme Court judge agreed to impose the restraining order to allow the parties to present their arguments next week, raising doubts about whether it would be published.

However, the Supreme Court’s appellate division lifted the restraining order that had been imposed on Simon & Schuster, while leaving in place the one regarding Mary Trump. That effectively enables the publisher to continue distributing copies of the book in preparation for the planned July 28 publication, even as the overall merits of the case are argued.

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Circuit Court affirms absolute immunity for former St. Louis prosecutor

The US Court of Appeals for the Eighth Circuit ruled that former St. Louis Circuit Attorney Jennifer Joyce was entitled to absolute immunity over her decision to prosecute former police officer Jason Stockley for first-degree murder, reported Jurist.

In 2011 Stockley and another officer observed what they thought was a drug transaction, which led to a chase in which Stockley shot and killed the suspect. The St. Louis Metropolitan Police Department’s (SLMPD) Internal Affairs Division investigated the death, finding no basis for criminal prosecution. At that time, Joyce, the FBI, the US Attorney and the US Department of Justice Civil Rights Division all declined to prosecute Stockley.

In May 2016 the SLMPD Force Investigation Unit (FIU) reopened the investigation, following protests against Joyce’s decision not to prosecute Stockley. Before completing the investigation, FIU officers were told to return the police file to Joyce, who decided to prosecute Stockley for first-degree murder. Following a bench trial, Stockley was acquitted.

Stockley filed a claim in the US District Court for the Eastern District of Missouri in 2017, alleging that Joyce’s decision violated her own protocol of requiring an FIU investigation of a police shooting before any prosecutorial decision. He argued that she was not immune from liability for doing so.

He also alleged that Joyce announced in public settings that she had new evidence proving him guilty of first-degree murder, even though she did not. Stockley claimed that this violated his substantive due process rights and that it was also defamation. The district court dismissed the claims.

On appeal, the circuit court found that Joyce’s decision to end the FIU investigation and to charge Stockley with first-degree murder, “clearly falls within the prosecutorial function of initiating judicial proceedings.” She had absolute immunity from liability for that decision. Although not immune from liability for violating substantive due process, the court also found that Stockley failed to state a substantive due process claim against Joyce for her remarks. Stockley also failed to state a defamation claim against Joyce.

Because of this, the court affirmed the district court’s dismissal of the claims.

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