SCOTUS Review: An Eagle’s Eye View on Civil Liberties

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As SC wraps its 2018-19 term, here we analyze the rulings that affect your liberties and politics

Supreme Court issued rulings in 68 of 69 cases it heard argued this term, here we take a look at which ones affect you the most. The Court’s term starts every year on the first Monday of October, with Justice Kennedy’s retirement this term had to tackle Justice Kavanaugh’s induction mid-session. This development, alone, had both political wings squirming in joy or fear.

This was not without cause, even if one discounts Kavanaugh’s leanings. Justice Kennedy, who served on the Court for thirty years, was regarded as the one and only true swing vote. Lawyers would tell you that while arguing in from of the Supreme Court, they’d specifically tailor their arguments for Justice Kennedy. But all that has changed with Justice Kavanaugh’s replacement of Judge Kennedy, sure, he is far more right-leaning in comparison to his predecessor but what exactly his rulings read makes for a more complicated analysis.

In our previous reporting, we had listed the cases on Court’s docket we were keeping an eye on. You can check the earlier story here. You’ve also read our analysis on SC rulings hurting FOIA Protections and endangering Fourth Amendment protections. Now that Court has ruled on the cases, let’s see how they are likely to affect your civil libertises in future.

Citizenship Question in Census 202

With President Trump’s press conference and the associated threat of executive ordinance, this has now become an on-going tussle between the executive and judiciary. The White House is going back-and-forth on what they want to do next, so let’s tackle that later.

SCOTUS Ruled against Commerce Department’s rationale for adding the question in Census 2020

This was, by far, the most complicated ruling with consequences somewhat subtle but far-reaching. The SC in majority ruling upheld the lower court’s opinion on Commerce Secretaries bid to add a citizenship question in the Census 2020. While the top court struck out the more blistering parts of lower court’s ruling such as that the Commerce Department committed “a veritable smorgasbord” of violations under the Administrative Procedure Act, the law that governs how federal agencies are allowed to make decisions.

Wilbur Ross, the Secretary of Commerce, had stated the need for this question, under oath, as necessary to enforce the Voting Rights Act. To this, Justice Roberts writing for the majority says,

The record shows that the Secretary began taking steps to reinstate a citizenship question about a week into his tenure, but it contains no hint that he was considering VRA enforcement in connection with that project. The Secretary’s Director of Policy did not know why the Secretary wished to reinstate the question, but saw it as his task to “find the best rationale.” Id., at 551. The Director initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ’s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA. After those attempts failed, he asked the Commerce staff to look into whether the Secretary could reinstate the question without receiving a request from another agency. The possibility that DOJ’s Civil Rights Division might be willing to request citizenship data for VRA enforcement purposes was proposed by Commerce staff along the way and eventually pursued.

Even so, it was not until the Secretary contacted the Attorney General directly that DOJ’s Civil Rights Division expressed interest in acquiring census-based citizenship data to better enforce the VRA. And even then, the record suggests that DOJ’s interest was directed more to helping the Commerce Department than to securing the data.

Justice Roberts, writing the majority opinion in a ruling barring the citizenship question – for now

Roberts also called Commerce Secretary’s reasoning “pretextual” — which is legalese for “Man! Come on now, that’s a lie.’ It must be noted, however, that the bench hasn’t closed the door on the addition of citizenship question completely. The judges have left the door open if Secretary Ross or any other executive branch can come up with a reasonable rationale for adding the question under Administrative Procedure Act.

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Critics, who are enjoying the momentary victory, say the addition of this question in Census will be used to enforce more stringent immigration policies and disenfranchise a plethora of voting population. The White House, on the other hand, has hinted on issuing an executive order to collect citizenship data from all other agencies while reviewing the legal recourse to take ahead.

Gerrymandering Democracy and the Courts

Supreme Court reached a rather conservative-liberal (what does that even mean anymore?) conclusion on two cases regarding political gerrymandering. Justice Kennedy, in his day, had left Court’s domain to intervene in such cases open if there was a “manageable standard” but the present bench has done away with that completely. The cases questioning federal courts jurisdiction over political gerrymandering had come from Maryland and North Carolina, where Democrats and Republicans had gerrymandered the districts to their advantage respectively.

Maryland’s “Praying Mantis” Congressional District

In a 5-4 decision, SC chose the principle of Separation of Powers over Judicial Activism. “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Chief Justice Roberts wrote for the conservative majority. “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”

This decision effectively closes the door on further challenges on partisan gerrymandering as Federal Courts will have no authority to hear such cases any more. While we are great fans of Separation of Powers, the classification of political redistricting as purely political questions places the onus on the State legislatures. That doesn’t fill us with much confidence.

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“We are in Mad Max territory now; there are no rules,” said Justin Levitt, an election law professor at Loyola Law School. “I think you’ll see more legislators in more states [where there is unilateral control] taking up the mantle of extreme partisan aggression against people who disagree with them.” And Justin is right, “the best predictor of future behavior is past behavior,” there is no reason to believe the legislatures would change under the authority ceded by the judicial branch.

Justice Roberts noted that excessive partisanship in the drawing of districts does lead to results that “reasonably seem unjust,” but he said that does not mean it is the court’s responsibility to find a solution.

Flower’s & Racial Bias among Jury

Also, this June, SCOTUS ruled in favor of Curtis Flower, a black man in Mississippi convicted of quadruple murder after six trials by the same prosecutor. In its 7-2 majority ruling, the Court tossed out Flower’s death sentence ruling reflecting rare consensus on the bench that jurors in a trial cannot be discriminated on the basis of race.

Flower’s Death Sentence was overturned for Jury Bias

And that’s exactly what District Attorney Doug Evans did – allegedly – when he eliminated 41 out of 42 black jurors for whom he was allowed peremptory challenge.

Justice Brett Kavanaugh, who wrote the court’s majority opinion, said the trial court committed “clear error” by concluding that the prosecutor’s strike of a black juror was not motivated by discrimination. He said the prosecutor showed a “relentless, determined” effort to rid the jury of black members and try Flowers “ideally before an all-white jury.”

“Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process,” Kavanaugh wrote in the decision.

Justice Kavanaugh wrote in his majority opinion striking down Flower’s death sentence

Prosecutors also questioned black and white jurors differently, Kavanaugh said, addressing 145 questions to five black prospective jurors and only 12 questions to 11 white seated jurors. In the most recent trial, he said, prosecutors “struck at least one black prospective juror who was similarly situated to white jurors.”

While waiting for his seventh trial, Curtis Flower has been giving a new lease of life. The details of what went on during the two decades of jurisprudence show that racism is still very much a part of our judicial system, as it is of politics.

In a strongly worded dissent, Justice Thomas criticized the Court for “litigating and relitigating” this trial due to the media attention – which, he surmised, is a trend detrimental to all parties. With respect, we have to differ with the conservative Justice here. The bias in jury selection is clear and if relitigation saves one man’s life then it shouldn’t matter that he’d be going in for a seventh trial.

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Free Speech FUCT or Not to be FUCT

In what essentially became a First Amendment case, the United States Patent and Trademark Office (USPTO) had denied entrepreneur Erik Brunetti’s application for registering his clothing brand FUCT. The office refused Brunetti’s request because it said FUCT was the “phonetic equivalent” of the past tense of a vulgar word, and determined that federal law prohibits the registration of trademarks that consist of “scandalous” subject matter.

FUCT Founder Eric Brunetti

Eight years after Brunetti filed his trademark application, the top court finally ruled in his favor. Brunetti, who started the clothing brand in 1990, said it was the brand’s identity to question authority and the assumptions of society. He said his company’s name stands for “FRIENDS U CAN’T TRUST.”

“According to Brunetti, the mark (which functions as the clothing’s brand name) is pronounced as four letters, one after the other: F-U-C-T. But you might read it differently and, if so, you would hardly be alone,” Justice Kagan wrote for the majority. Kagan wrote the statute “does not draw the line at lewd, sexually explicit, or profane marks” instead it covers “the universe of immoral or scandalous” material.

“A law disfavoring ‘ideas that offend’ discriminates based on viewpoint, in violation of the First Amendment,” she wrote. Kagan was joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito, Brett Kavanaugh, and Neil Gorsuch in full. Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor concurred in part and dissented in part.

SCOTUS ruling favors Brunetti 6-3 in Iancu v. Brunetti

The statue referred to by the USPTO, and the bench, is Lanham Act which prohibits scandalous and immoral speech. Justice Alio writing in partial dissent asked the legislature to step in and act.

Iancu v. Brunetti inspired unusual interest in legal and political circles, even for a potentially precedent-setting free speech case. The word at the heart of the case was not allowed to be uttered in the solemn marble court during oral arguments in January, and each attempt to dance around it inspired giggles in the gallery and consternation among the justices.

Notes on other proceedings

We’d like to hear from you! How do you think gerrymandering will come to end if left to state legislatures? In another case, SCOTUS ruled that double jeopardy protections are not applicable in separate foriegns i.e. federal and state governments can try you for the same offense separately. Let us know in comments if you’d like to read our analysis on that ruling.

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