SCOTUS Watch: the conservative justices continue to attack the doctrine of stare decicis (updated)


The U.S. Supreme Court issued four decisions today. That leaves a dozen cases to be decided next week, beginning on Monday. There will be additional decision days next week.

The first opinion is a 7-2 decision in Flowers v. Mississippi, by Justice Kavanaugh joined by Justices Roberts, Ginsburg, Breyer, Alito, Sotomayor and Kagan. Justice Alito has a concurring opinion. Justice Thomas dissents, joined in part by Justice Gorsuch. The decision of the Supreme Court of Mississippi is reversed and remanded.

This was a case in which Flowers was tried six times for the murders of four people in a furniture store. In his sixth trial, the state struck five of six prospective black jurors; he argued that the state violated Batson v. Kentucky, in which the U.S. Supreme Court ruled that a prosecutor’s use of peremptory challenge in a criminal case — the dismissal of jurors without stating a valid cause for doing so — may not be used to exclude jurors based solely on their race.

The opening section of Justice Kavanaugh’s opinion emphasizes that the decision is based on “the extraordinary facts of this case” and that “we break no new legal ground.” Justice Kavanaugh goes through a relatively lengthy description of how the Court came to adopt the Batson framework. In reviewing the history of Mr. Flowers’ various trials, Justice Kavanaugh says, “The numbers speak loudly. Over the course of the first four trials, there were 36 black prospective jurors against whom the State could have exercised a peremptory strike. The State tried to strike all 36.” The same prosecutor had tried Flowers before and struck 41 of the 42 black jurors in the six trials, combined.

To quote Nina Simone, Mississippi Goddam (1965).

Justice Kavanaugh writes that “all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of” one black juror, who was similarly situated to a white juror who was not struck, “was not motivated in substantial part by discriminatory intent.” The court sends the case back for “further proceedings not inconsistent with this opinion.” Justice Alito inhis concurring opinion agrees that Flowers’ “capital conviction cannot stand.”

Here’s where it gets interesting. The one African-American on the U.S. Supreme Court disagrees. Justice Thomas in his dissent writes, “The majority’s opinion is so manifestly incorrect that I must proceed to the merits. Flowers presented no evidence whatsoever of purposeful race discrimination by the State in selecting the jury during the trial below.”

Sorry, but no. Justice Kavanaugh is correct.

In the section of Justice Thomas’s dissent that Justice Gorsuch does not join, Justice Thomas appears to question whether Batson is correct. Justice Thomas concludes his dissenting opinion in blistering fashion: “If the Court’s opinion today has a redeeming quality, it is this: The State is perfectly free to convict Curtis Flowers again. Otherwise, the opinion distorts our legal standards, ignores the record, and reflects utter disrespect for the careful analysis of the Mississippi courts. Any competent prosecutor would have exercised the same strikes as the State did in this trial. And although the Court’s opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families. I respectfully dissent.”

Wow. Clarence Thomas has spent so much time living with racist white people that he is like Clayton Bigsby, the black white supremacist in Dave Chapelle’s classic comedy skit “Frontline” – Clayton Bigsby. More importantly, this is the second time just this week that Justice Thomas has questioned Supreme Court precedent and the doctrine of stare decisis.

The second opinion is a unanimous decision in NC Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, by Justice Sotomayor. Justice Alito filed a concurring opinion joined by Justices Roberts and Gorsuch. The decision of the Supreme Court of North Carolina is affirmed. This is a case about whether the state could tax the income from a trust when the beneficiaries of the trust live in the state, even when the beneficiaries do not receive income from the trust in a particular tax year, have no right to ask for the income and are uncertain to receive it. The answer is no. The key point seems to be that the only tie to North Carolina was the existence of in-state beneficiaries. Justice Sotomayor emphasized that there were no distributions to a North Carolina resident, the trustee resided out of state, and trust administration was split between New York and Massachusetts. The existence of in-state beneficiaries was not enough of a “minimum connection” for the state to assert the tax.

The third opinion is a 7-2 decision in Rehaif v. United States, by Justice Breyer joined by Justices Roberts, Ginsburg, Sotomayor, Kagan, Gorsuch and Kavanaugh. Justice Alito dissents, joined by Justice Thomas. The decision of the Eleventh Circuit is reversed and remanded. 18 U. S. C. §922(g) makes it unlawful for certain persons, including aliens illegally in the country, to possess firearms, and §924(a)(2), provides that anyone who “knowingly violates” the first provision can be imprisoned for up to 10 years. The jury at Rehaif’s trial was instructed that the Government was not required to prove that he knew that he was unlawfully in the country. It returned a guilty verdict. The Court holds today that in a prosecution under §922(g) and §924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.

Justice Alito in his dissent questions why the Court even granted certiorari to begin with – “Indeed, there was no good reason for us to take this case in the first place.  No conflict existed in the decisions of the lower courts, and there is no evidence that the established interpretation of section 922(g) had worked any serious injustice.”

The fourth opinion is a 5-4 decision in Knick v. Township of Scott, by Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh. Justice Thomas also filed a concurring opinion. Justice Kagan filed a dissenting opinion, joined by Justices Ginsburg, Breyer and Sotomayor. This case was reargued after Justice Kavanaugh joined the court, which means that his vote swung the Court from what would have been a 4-4 tie vote, resulting in an affirmance of the Third Circuit. Instead, the Third Circuit’s decision is vacated and remanded. More importantly, this case overrules prior Supreme Court precedent in Williamson County v. Hamilton Bank.

The Court holds that the government violates the Takings Clause when it takes property without compensation, and a property owner may bring a lawsuit to challenge the taking under Section 1983 at that time. The property owner does not need to go to state court first. The Court overrules its earlier decision in Williamson County v. Hamilton Bank, which imposed the requirement of going to state court first. Roberts says that the Williamson County decision “was not just wrong,” but its “reasoning was exceptionally ill founded and conflicted with much of our takings jurisprudence.”

Justice Kagan in her dissent says that the decision to overrule Williamson County “transgresses all usual principles of stare decisis” — the principle that courts will not normally overrule their prior precedent unless there is a good reason to do so.

UPDATE: The New York Times adds:

Justice Kagan noted that the court had also overruled another major decision last month, Franchise Tax Board of California v. Hyatt, and she quoted from Justice Stephen G. Breyer’s dissent in that case.

“He wrote of the dangers of reversing legal course ‘only because five members of a later court’ decide that an earlier ruling was incorrect,” Justice Kagan wrote. “He concluded: ‘Today’s decision can only cause one to wonder which cases the court will overrule next.’”

“Well, that didn’t take long,” Justice Kagan added. “Now one may wonder yet again.”

The conservative justices on the court have been foreshadowing in their opinions this week that they have little regard for Supreme Court precedent and the doctrine of stare decisis. They seem to believe that “the law is whatever we say it is” whenever there is a five vote majority for a position — a position that can constantly shift over time whenever there is a new five vote majority on the court. Under this practice, nothing is ever finally decided and settled law, and everything is subject to constant relitigation with shifting new majorities on the court.

This has the effect of undermining the credibility and legitimacy of the court as a nonpartisan arbiter of fact snd law, and will lead to legal chaos (why even bother making citations to legal precedent if nothing is considered settled law any longer?)

H/T SCOTUSblog live blog of decisions.