Category Archives: Law: The Supremes

Justice Thomas

Justice Clarence Thomas, 2012

For many years I shocked my students in Administrative (and before that Constitutional) law by offering a partial defense of Justice Clarence Thomas.  Yes, I found his Constitutional views deeply misguided, especially his focus on a contestable view of the so-called original intent of the Constitution-writers or ratifiers at the expense of any subsequent evolution, not least the Reconstruction Amendments.  And I am no fan of rigid formalism. But even so, I suggested, the Thomas project had some virtues of clarity and consistency, unlike that of Justice Scalia who it seemed to me was more likely to make first principles bend to results.  And, mindful of Justice Brennan’s and Justice Marshall’s long refusal to give in to death penalty precedents, I was unwilling to say that ignoring the Court’s earlier decisions was inevitably bad.

That defense has been a bit muted lately as Justice Thomas has changed his mind on some key issues such as Chevron (although, ironically, I’ve never been big fan of the Chevron decision–originally a method to legitimate right-wing interpretations of statutes).

But now, I have come around to thinking that it may be time for Justice Thomas to do the decent thing and resign.  If this ProPublica report, Clarence Thomas Secretly Participated in Koch Network Donor Events, is true, it comes on top of a series of revelations over secret luxury vacations, private jet flights, weird land deals, gifts for a relative’s private school tuition, and the deeply weird story of Justice Thomas financed his $267,230 R.V.

Lurking in the back of all this is the issue of the role of far-right activist and election denier Ginni Thomas, who appears to have benefited from concealed if not laundered payments from right-wing sources,  While one might much prefer for a Justice’s spouse to be above all suspicion like Caesar’s wife, official spouses also need to be free to have views and live lives.  It has gotten harder, over time, though, to buy the idea that the Justice never talks over legal matters with his wife….or his donors.

In a healthy democracy, Congress would be at least investigating whether there are grounds for impeachment here (if not, what exactly would it take)?  In 1969, Justice Fortas resigned when it became known that two years before he joined the Court, Fortas took a secret retainer from the family foundation of a friend and former client subsequently imprisoned for securities violations. The deal provided that in return for unspecified advice, Fortas was to receive $20,000 a year for life. That was enough for Fortas to step down in the face of calls for his impeachment.  From what’s been reported, the Thomas story seems at least comparable.

I have no illusions: Justice Thomas isn’t going anywhere while there is a Democratic President.  And Congress wants to impeach Hunter Biden, or something. But this is just one more sign of an ill democracy.

Posted in Law: The Supremes | 1 Comment

Bad Claims is the New Trump Litigation Strategy

Post-Mueller, the Trump Family 1 has embarked on a novel litigation strategy: bringing really bad claims. Making terrible legal arguments is nothing new for the Trumps, but generally they’ve made those arguments as defendants, often while defending very amateurish and inept attempts to overturn Obama-era regulations. And almost universally, those lost.

Now, however, we see the Trump Family is moving on to offense 2, and it’s not pretty: Treasury is setting up to argue it can ignore a quite clear statute requiring the IRS send Congress tax returns. Attorney General Barr, to his shame (if he has any), claims he can dictate to Congressional committees the terms of his appearances. Trump Family companies are suing Democratic House Oversight Committee Chairman Elijah Cummings to block a subpoenas on his finances and suing Deutsche Bank and Capital One to prevent them from complying with subpoenas.

What all these cases have in common is that the legal theories on which they are based are tenuous to non-existent.

What gives? These could simply be Hail Mary passes by the guilty: try this because you have nothing better.  Or they could be plays to delay bad news, maybe even run out the clock until the next election with appeals. Or, worst of all, they could be a cynical calculation that some or all of them might find favor before an increasingly stacked judiciary, and a very pro-Trump Supreme Court.  Or, why not, it could be all of the above.

All of these are bad answers.

  1. I have decided that from now on I will use the Mafia term while blogging, rather than call it an Administration.[]
  2. In the legal sense; in every other sense they’ve been there for quite some time.[]
Posted in Law: Administrative Law, Law: Constitutional Law, Law: Ethics, Law: Everything Else, Law: The Supremes, The Scandals | Comments Off on Bad Claims is the New Trump Litigation Strategy

A Truly Muscular Reply Brief in a Case of Great Importance

One case I’ve been following with great interest is (well, was) Michaels v. Sessions in which by a strange turn of events the Supreme Court is being asked to decide whether
Matthew G. Whitaker is or is not the Attorney General.

The underlying matter isn’t in my wheelhouse, having to do with the constitutionality of a federal ban on possession of firearms by convicted felons. Michaels lost in the court of appeals, and duly asked the Supreme Court to hear his appeal via a petition for writ of certiori. While that was pending, Trump forced out Sessions; whether Sessions legally resigned or was fired is actually a not-irrelevant issue. Trump then tapped Whitaker to take over the job of Attorney General, purporting to exercise power delegated under the Vacancies Act.

The Vacancies act is a mire of constitutional and structural issues, but suffice it for now to say that it does give the President vast authority to fill vacancies with a wide variety of government employees, but it also contains exceptions, one of which very arguably applies to the Attorney General’s office becuase there is a specific statute that provides for succession in the AG’s office. Under that statute Rod Rothstein, the #2 in the department, would automatically becoming the Acting Attorney General until a successor was properly nominated and confirmed (or, I presume, given an interim appointment–an option that the Senate has quietly foreclosed by having pro-forma sessions every few days during the recess thus preventing the Constitutional trigger that permits interim appointments).

When a person sues the United States about a regulation, it is common to caption (that’s lawyer for “title”) the case with the name of the movant and the government official who heads the agency. When there is turnover at the head of an agency, as there often is, it is usually routine for the name of the case to change too — on request of a party, the court just amends the caption of the case.

That is what happened with the petition for certioria — until Michaels’s lawyers objected. Earlier this month they filed a “Motion to Substitute” in the Supreme Court in which they asked the Court to rule that the case should be captioned “Michaels v. Rothstein” rather than “Michaels v. Whittaker” as Rothstein, not Whittaker, was in fact the Acting Attorney General. Needless to say, the government objected. Michael’s lawyers replied with one of the most muscular briefs I’ve ever read. If you are a lawyer or law student, this is a must-read.

The Supreme Court has not yet ruled, and it could do so without a hearing if it chose to do so.

Posted in Law: Administrative Law, Law: Constitutional Law, Law: The Supremes | Comments Off on A Truly Muscular Reply Brief in a Case of Great Importance

‘Going to 11’ by Bill Widen

William H. Widen

My colleague Bill Widen asked me to post this for him,

Going to 11

Many who oppose the conservative drift of the court now argue for an increase in the number of Supreme Court Justices to 11. The idea is to rebalance the ideological rightward shift of the court back to center by appointing one centrist and one left leaning justice. An increase to 15 justices is clearly much too 1930’s. Eleven is just right (or left?) because President Trump has now appointed 2 Justices.

Nigel Tufnel: . . . What we do is, if we need that extra push over the cliff, you know what we do?

Marty DiBergi: Put it up to 11?

Nigel Tufnel: 11, exactly. . . [From the film This is Spinal Tap (1984)]

We may face another Supreme Court vacancy at any time. If we have not gone to 11 by then, here is another “outside the box suggestion” which Chief Justice Roberts might use all by himself.

When there is a vacancy and the Senate does not seem inclined timely to perform its Constitutional duty of advice and consent, simply appoint a sitting judge from the DC Circuit to sit by “designation” to fill the spot. Choose the fill-in like one chooses the third arbitrator in a contract dispute—allow Democrat appointed Justices and Republican appointed Justices to settle on a mutually acceptable substitute—just a hunch, but somebody like Judge Merrick Garland might get the call.

This substitute would function like a shadow justice—he or she would listen to the oral arguments in the gallery and write up a report—indicating a recommended disposition of the case (much like a U.S. magistrate currently advises a District Court judge). The sitting Justices would have an agreement to engage in “paired” voting, like was done in the Senate to allow one senator to attend a wedding while the others voted on Judge Kavanaugh’s confirmation. The paired voting would be done to insure the outcome is the same as if the shadow justice had been a duly appointed Justice. We have replicated a Supreme Court staffed with 9 Justices. No Presidential nomination. No Senate advice and consent. No problem.

The Chief Justice would only invoke such a procedure as a stop gap when the Senate decides to shirk its responsibilities. It guards against a 4-4 vote at the Supreme Court. It shows bipartisan self-help by Justices working together to pick the substitute when the Senators fail to act like the adults in the room. It reflects a practical commitment to problem solving to achieve just outcomes and the appearance of fairness. Sometimes to fix things only duct tape will do.

Perhaps future appointments to the DC Circuit Court of Appeals could be made with the understanding that, when the Executive nominates, and the Senate confirms, these DC Circuit judges would form a “bench” of substitutes which might be called up by the Chief Justice. (Such judges already have life tenure on a bench, though for good measure any call-up from the minors could deposit an irrevocable resignation letter with the Chief Judge, agreeing to step down upon the appointment of a successor. Thus, technically, the substitute would have “lifetime tenure on the Court.”) The Senate and the President could, perhaps, retroactively designate all members of the DC Circuit for this purpose. That, of course, would require a bi-partisan effort to address a problem. For now, a self-help option might be handy.

Professor William H. Widen
University of Miami School of Law

Posted in Guest Posts, Law: The Supremes | 1 Comment

‘Honor Him’ by Bill Widen

My colleague Bill Widen asked me to post this for him. (I added the photo.)

Honor Him
(cc: Senators Flake & Kyl)

William H. Widen

We respect John McCain for choosing honor over convenience under the extreme conditions of captivity and torture. A great man filled a large office. We too often fill large offices with small people—people who fail the test even when the test posed is less severe. Failing the test of telling the truth under oath—even when uncomfortable—might result in being disbarred for perjury. The testimony of Dr. Ford at the confirmation hearings for Judge Kavanaugh was compelling. Her testimony raises a serious question about the truthfulness of Judge Kavanaugh under oath. To believe her is to believe that Judge Kavanaugh is either lying about the event or lying about the degree to which, as a young person, he allowed alcohol to impair his judgment and memory.

Jeff Flake recently expressed support for Judge Kavanaugh while simultaneously expressing serious doubts about who to believe. He expressed a wrong idea about the standard required for Senate advice and consent—stating that due process and the rule of law required his support because allegations against Judge Kavanaugh were not proven. Tragically, this is the wrong standard.

A public office is not the property of its holder (or would be holder). The standard for Senate advice and consent to hold office is to error on the side of protecting the Republic. This standard will deny office to some unjustly, but that is the price paid by those who would seek and hold public office. The Federalist Papers make this abundantly clear. Impeachment proceedings illustrate the point most clearly. An office holder, such as a President, should be removed, with the Senate erring on the side of removal to protect the Republic. Only after removal do we apply notions of due process to protect the former office holder in his life, liberty and property. The humiliation of removal from office goes with the territory of submitting to service, but due process protects thereafter. So too with considerations of appointment to office. The failure to appoint may be humiliating and unjust—but there is no remedy for this. The public offices are our offices, not the property or entitlement of individuals. No appointment should be made here—even though, in fact, this may work an extreme injustice to Judge Kavanaugh. In the face of serious doubt, the exercise of Constitutional authority requires a “no” vote.

One cannot suspend Constitutional duty to properly exercise Senatorial advice and consent to exact a political price on fellow senators for bad behavior—that is a reckoning for another time. Bad behavior by small people is a bipartisan activity. The cycle of tit for tat must stop. When a large office is filled by an ordinary person, sometimes the ordinary person rises to the demands of that office by choosing honor when confronted with adversity. Allow a Gladiator moment in this American tragedy. John McCain was a soldier of the Republic. Honor him!

Professor William H. Widen
University of Miami School of Law

Posted in Guest Posts, Law: The Supremes, U.Miami | 2 Comments

Getting Hammered

No, this isn’t a post about Bret Kavanaugh’s high school or college drinking. It’s about the blog. It seems is getting hammered by bots trying to break in to it, so the site has been up and down like a yo-yo for the past 24 hours or more.

I’ve spoken to tech support, and their only suggestion was to activate Cloudflare.  That comes in two flavors on my host.  One is free, but requires some changes, including to the site certificate.  The other is $120/year, which would practically double my hosting costs.  So I’m going to try to wait it out a bit before maybe changing hosts or something.

Meanwhile, on the subject of Kavanaugh, a friend from Yale writes:

Just for the record, I overlapped with Brett Kavanaugh at Yale Law School. However, I did not know him. The only Kavenaugh I was then aware of in the Yale community was Kavenagh’s, a great burger joint which featured a cheeseburger made with blue cheese. I can testify wholeheartedly to the fine character, intellect, and morals of that burger. Perhaps it should be appointed to the Supreme Court.


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