Last week “Notorious RBG,” Justice Ruth Bader Ginsburg, Hinted at Sharp Divisions Ahead as Supreme Court Term Nears End:
On Friday, Justice Ginsburg gave a speech at a judicial conference in New Paltz, N.Y. There was little in her remarks to hearten liberals.
She started by noting the most fundamental change at the court. “Justice Kennedy announced his retirement,” she said. “It was, I would say, the event of greatest consequence for the current term, and perhaps for many terms ahead.”
In her speech, Justice Ginsburg gave an extended and largely neutral summary of what is probably the most important case of the term, Department of Commerce v. New York, No. 18-966. The court will decide whether the Trump administration may add a question on citizenship to the 2020 census.
It is, Justice Ginsburg said, “a case of huge importance.”
Justice Ginsburg’s concluding comments seemed to foreshadow a closely divided case in which she will be on the losing side.
“Speculators about the outcome note that last year, in Trump v. Hawaii, the court upheld the so-called travel ban, in an opinion granting great deference to the executive,” she said, referring to a 5-to-4 decision in which the court’s four liberals dissented. “Respondents in the census case have argued that a ruling in Secretary Ross’s favor would stretch deference beyond the breaking point.”
Justice Ginsburg also touched on other important cases to be decided before the end of the month. One concerns a 40-foot cross honoring soldiers who died in World War I. At the argument in the case, American Legion v. American Humanist Association, No. 17-1717, a majority of the justices seemed inclined to reject the argument that the cross was an unconstitutional endorsement of religion.
On Friday, Justice Ginsburg called the cross a “towering monument” and quoted with seeming approval from an appeals court decisionrequiring its removal. “The Latin cross, the majority reasoned, is not a generic symbol of death,” she said, “it is the ‘pre-eminent symbol of Christianity,’ the ‘symbol of the death of Jesus Christ.’”
In that case, too, it would not be surprising if Justice Ginsburg found herself in dissent.
There are two other pending decisions “very high on the most-watched-cases list,” Justice Ginsburg said, referring to challenges to voting maps in North Carolina and Maryland that were designed to amplify the power of the political party in control of the state legislature.
Justice Ginsburg explained the basic problem. “Given modern technology,” she said, “a state legislature can create a congressional delegation dramatically out of proportion to the actual overall vote count. In North Carolina, for example, in the 2016 election, Republicans won 53 percent of the statewide vote, yet they won 10 of the 13 congressional seats.”
“However one comes out on the legal issues,” she continued, “partisan gerrymandering unsettles the fundamental premise that people elect their representatives, not vice versa.”
As in 2012, Justice Ginsburg’s remarks on Friday were at most suggestive. But she did indicate that many of the court’s remaining decisions are likely to be sharply divided.
“Given the number of most-watched cases still unannounced,” she said, “I cannot predict that the relatively low sharp divisions ratio will hold.”
Not this week. The court began the day with 27 cases yet to be decided. Today the court announced decisions in only three cases, and did not schedule any additional decision days this week, leaving two dozen cases yet to be decided this month.
The court continued to clear the low hanging fruit of relatively easy cases to decide.
The first decision is a unanimous opinion in Quarles v US, from Justice Kavanaugh, with a concurring opinion from Justice Thomas. This is a criminal case involving the Armed Career Criminal Act, which requires at least a 15-year prison sentence for a felon who unlawfully possesses a gun and has three prior convictions for a “serious drug offense” or a “violent felony,” with “violent felony” being defined to include “burglary.”
The Court has defined burglary to mean the unlawful entry into or remaining in a building, with the intent to commit a crime. The question is whether a “remaining in” burglary occurs only if a person has the intent to commit a crime at the exact moment when he first remains in a building or instead when he forms the intent to commit a crime at any time while unlawfully remaining in a building. The court today concludes that “remaining-in” burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure. Well OK, then.
The second decision is a 6-3 opinion in Return Mail v. USPS, from Justice Sotomayor for the majority. Justice Breyer dissented, joined by Justices Ginsburg and Kagan. The decision of the Federal Circuit is reversed and remanded. This is a patent case. The question before the court was whether the government is a “person” that can seek review under the Leahy-Smith America Invents Act of 2011, which created the Patent Trial and Appeal Board and creates three new types of administrative proceedings before the board that allow a “person” who is not the patent owner to challenge the validity of a patent after the patent is issued. Today the majority answers that the government is not a person who can challenge the validity of a patent under the act.
The third and final decision is a unanimous opinion in Parker Drilling Management Services v. Newton, from Justice Thomas. The Ninth Circuit is vacated and remanded. This case involves the Outer Continental Shelf Lands Act, which applies federal law to the subsoil and seabed of the outer continental shelf. Under the act, the laws of states adjacent to the shelf are federal law “to the extent that they are applicable and not inconsistent with” other federal law. The question in the case was how to determine which state laws meet this requirement and therefore should be adopted as federal law. The court holds today that when federal law addresses the relevant issue, state law is not adopted as surrogate federal law under the OCSLA.
If you were hoping for controversy and/or excitement today, you are sorely disappointed. Enjoy it while you can. As “Notorious RBG” warned above, it’s coming soon. You have until at least next Monday to steel your nerves for the controversial decisions.
H/T to SCOTUSblog for its live blog analysis.