Constitutional law scholar lays out the Supreme Court’s rule of lawlessness

Editor’s note: The following first appeared in Dorf on Law. As a reminder, click on the headline for a easy-reading experience. –JS

Listening to the oral argument in the Trump immunity case last week, I could not help but think how surreal the conservative justices were acting. It felt like they were going out of their way to ignore our immediate and pressing crisis involving an ex-president who tried to resist the peaceful transfer of power with violence and lies.

The male conservatives also pretended that every potential future issue involving presidential immunity had to be worked out in this case, which is exactly the opposite position of the “good for one day” language and theme of Bush v. Gore. The only similarities between the two cases are Republicans looking out for Republicans, which is exactly what one would expect from a highly partisan ultimate veto council staffed with a majority of Republicans.

The disaster that was the Trump v. United States oral argument reminded me of how little the Roberts court has actually cared about rule of law values and legal transparency during its 18-year run. Leaving aside the overturning or narrowing of numerous landmark cases, from abortion to affirmative action to the free exercise of religion, the Roberts court has consistently, in the court's most important and publicized opinions, engaged in subterfuge, sleight of hand and even outright lying.

In this post, I discuss landmark cases involving affirmative action, health care, voting rights, separation of church and state and the Second Amendment to show, not that I disagree with the results (I do), but instead to demonstrate that no matter what side of the issues you may favor in these country-defining cases, the Roberts court has resolved these questions in a lawless manner because of reliance on demonstrably false facts and obviously misleading descriptions of prior rulings and other legal materials.

In short, the Roberts court has acted lawlessly from the beginning.

Affirmative action
In the first full term of the Roberts court, the conservative justices got off to a terrible start. Parents, teachers, students and school board officials in Seattle and Louisville worked tirelessly for years to devise plans to desegregate their public schools, because most efforts had been stymied by red-lining, residential housing patterns and other forms of institutional racism.

Although their plans were not identical, both cities required a minimum level of desegregation by utilizing racial balancing criteria. These efforts did not affect large numbers of pupils, but a handful of students were not allowed to attend their neighborhood schools. These desegregation goals were not required by court order. but were the products of substantial negotiations among local officials and parents.

The court struck down these important efforts in a 5-4 highly controversial decision. However one feels about the result, part of the majority's rationale is offensively incorrect.

The court's rejection of the efforts by school officials to bring more racial diversity to their public schools was short on text, history and tradition, but did erroneously rely, incredibly, on the plaintiffs’ brief in Brown v. Board of Education for the proposition that “the Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.”

The court's efforts to recast Brown as an anti-affirmative case were demonstrably false, unnecessary, and nothing less than bad historical fiction.

This out-of-context snippet from a brief, not the actual opinion, misstates both the background to and the rationale of Brown. There is not a syllable in the brief or the case discussing the possibility of local school districts trying on their own to address racial segregation in public schools, because in many states they were not allowed to, and because the case was about the total separation of the races under state law.

Even worse, the brief referred to by the court was written by former Supreme Court Justice Thurgood Marshall and other lawyers associated with the NAACP. We know with certainty that the authors of that brief favored affirmative action once it came along in the 1970s, because Marshall told us so in no uncertain terms on numerous occasions. It is likely that the furthest thing from the minds of the authors of the plaintiffs’ brief in Brown in 1953 was what the 14th Amendment had to say about voluntary efforts by government officials to desegregate public schools given longstanding laws requiring the total separation of the races in public schools.

It was wrong for the court to pretend Brown was on the side of preventing Louisville and Seattle from making efforts to desegregate their own public schools. And it was insulting to suggest that a brief written by Thurgood Marshall, America's most important civil rights litigator, and a man who fought tirelessly in favor of affirmative action, would stand for such a proposition.

The truth is that he didn't, the brief didn't and, unlike the merits of affirmative action, there are not two sides to that debate. The court's efforts to recast Brown as an anti-affirmative case were demonstrably false, unnecessary, and nothing less than bad historical fiction.

Health care
One of the issues in the first Affordable Care Act case was whether Congress could use its spending power to require states to adopt more permissive requirements for people to be on Medicaid as a condition for states receiving future Medicaid payments from the federal government.

The law went into effect in 2010, but this part of the law was inoperative until 2014, and even then, the federal government was going to pay for the larger number of eligible beneficiaries for the first few years. Medicaid had been amended over 50 times since its inception and states had to agree to abide by the new conditions if they wanted to continue to participate in the program.

For the first time since the 1930s, the court said Congress had exceeded its spending power authority because the condition was too coercive. Of course, the states had every legal right to refuse the federal money, so it is hard to see the coercion. More importantly, in building the argument for striking down the new requirement, the court described the ACA as including "post-acceptance or retroactive conditions.”

It should go without saying that judges should not lie.

This description is, quite simply, a lie. There is no interpretation of "post-acceptance" or "retroactive" that fits a law passed in 2010 that gives states notice that the requirements for eligibility would change four years later, and no additional money from the states would be needed for several years after that. The law was in no sense retroactive, nor did it in any way impose a post-acceptance condition. Yet those false ideas were an integral part of the court's misguided and inaccurate rationale.

One more thing about this case. Some may protest that this part of the opinion was 7-2, not 5-4, and Justices Kagan and Breyer went along. Of course, Plessy was 8-1 and Roe 7-2, and both cases have now been overturned. More importantly, reporting from CNN's Joan Biskupic shows that Roberts coerced Kagan and Breyer to join the Medicaid part of the opinion in return for Roberts upholding the individual mandate part of the law as a tax. That reporting makes sense because both Kagan and Breyer consistently take a broad view of Congress' powers.

People may not remember how important and in the news NFIB v. Sebelius was back in 2012. In this front-page case affecting millions of Americans, the court described a part of the law that would not go into effect for four years as "retroactive." But the law was prospective only, and it should go without saying that judges simply should not lie.

Voting rights
The Supreme Court’s 5-4 decision in Shelby County v. Holder, striking down Section 5 of the Voting Rights Act, is considered by many scholars to be one of the worst decisions in our country’s history. But however one feels about the case, part of the court's rationale is almost too terrible to be true. But, alas, it is.

The opinion authored by Chief Justice Roberts adopted an equal state sovereignty principle requiring Congress to have a strong reason to treat different states differently when exercising its power to enforce the 15th Amendment through, according to the text, “appropriate legislation.” To justify that anti-historical and non-textual principle, Roberts relied on some bizarre statements he made in a previous case, Northwest Austin v. Holder, involving an earlier challenge to the Voting Rights Act.

No case more clearly demonstrates the Roberts court's playing loose with both the truth and the rule of law than Northwest Austin. In that case, the court said the following: "The [Voting Rights] Act also differentiates between the States, despite our historic tradition that all the States enjoy 'equal sovereignty' ... Distinctions can be justified in some cases. 'The doctrine of the equality of States ... does not bar ... remedies for local evils which have subsequently appeared,' (citation to South Carolina v. Katzenbach omitted). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets."

This overturning of a major constitutional principle in a landmark, front-page case by deleting key words and replacing them with ellipses is egregiously bad behavior.

Before Roberts wrote those words, there never was any, much less a “fundamental principle,” of equal state sovereignty limiting Congress’s powers under the Reconstruction Amendments to pass laws regulating our country. That statement is not debatable. So how did the court get there?

As to the Fifteenth Amendment, the court in Katzenbach explicitly rejected the absurd idea of equal state sovereignty in the very same sentence Roberts cites above, but with the most important words replaced by an egregiously misleading ellipse. Here is the original passage from Katzenbach:

“In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary ... The doctrine of the equality of States, invoked by South Carolina, does not bar this approach, for that doctrine applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.

The phrase “for that doctrine applies only to the terms upon which States are admitted to the Union,” disappeared completely from Roberts’s quotation. Nevertheless, in Shelby County, the conservative majority used this alleged “fundamental principle” of equal state sovereignty several times to argue that Section 5 of the VRA was unconstitutional despite the undeniable fact that no text in the Constitution supports such an idea, and the court explicitly rejected the very same idea in a landmark case.

In Shelby County, Roberts cited his own opinion in Northwest Austin, which completely misquoted and mischaracterized what Katzenbach said about the issue. In fact, Katzenbach said the exact opposite about equal state sovereignty in the part of the opinion that Roberts omitted with ellipses.

This overturning of a major constitutional principle in a landmark, front-page case by deleting key words and replacing them with ellipses is egregiously bad behavior by the Roberts court. Did Roberts think no one would notice? Unlikely, as Justice Ginsburg made these exact same points in dissent so the conservatives knew what Roberts was saying about equal state sovereignty was demonstrably false. Openly overturning Katzenbach on this point would have been bad enough but doing it in this misleading manner smacks of deceit all the way down.

Separation of church and state
In Trinity Lutheran v. Comer, the plaintiff religious school challenged a provision of the Missouri Constitution prohibiting public money going to religious institutions. Trinity Lutheran challenged this exclusion when denied the opportunity to compete for state grants to improve school playgrounds. The lower courts upheld the constitutional provision, which is similar to provisions in many other state constitutions. Although some of these provisions were likely enacted due to anti-Catholic bias in the 19th century, there was no evidence in the record that Missouri made its decision because of such bias.

The court ruled for the church school in a case it never should have decided. The school did not seek damages but simply prospective injunctive relief that its application be treated equally in the future with secular schools. A few months before the decision was handed down, however, the newly elected Republican governor of Missouri announced he was changing the state’s school funding policy. In the future, the governor announced, religious schools would be treated in exactly the same manner as non-religious schools, which was the only relief Trinity Lutheran asked for in its complaint.

Article III’s requirement of a “case or controversy” at a bare minimum requires two parties arguing over something real. In this case, we had two aligned parties arguing over nothing.

After the governor made his announcement, the court asked the parties whether the case was moot. Both the school and the state, now on the same side of this dispute, asked the court to resolve the case anyway because they wanted a final decision striking down the state’s constitutional amendment. The legal basis for their request that the court rule on the merits was an exception to the mootness doctrine that a defendant’s "voluntary cessation of its allegedly illegal conduct does not necessarily moot a case." The court summarily accepted that argument in a footnote.

The court cited only one case for that rule but there was a claim for money in that case (not true in Trinity), and one of the parties in that case urged the court to dismiss it (not true in Trinity). Simply reciting the magic words “voluntary cessation of [illegal conduct] does not [necessarily] moot a case” did not give the religious school a personal injury that could be redressed by the court, nor did it make the claims ripe for adjudication. The state said it had no plans to resume the allegedly illegal behavior, and there was no reason to doubt that assertion. That in some hypothetical future election a new governor of a different political party might (or might not) be elected and might (or might not) change the policy back is simply too speculative to support federal court jurisdiction.

All the parties in Trinity agreed on every single issue in the case, both the merits and the jurisdictional question. Article III’s requirement of a “case or controversy” at a bare minimum requires two parties arguing over something real. In this case, we had two aligned parties arguing over nothing. I cannot find any other Supreme Court case in American history where the parties agreed on every single issue in the case. But the Roberts court wanted to resolve the controversy, so it did. Never mind that there was no dispute at all between the parties and only the slenderest of possibility the controversy could ever arise again.

The Second Amendment
In New York State Pistol & Rifle Ass’n v. Bruen, the Roberts court issued one of the most unusual and potentially dangerous opinions in American history. Justice Thomas, writing for the conservatives, instructed lower court judges to rely exclusively on history and tradition to resolve Second Amendment cases and to completely ignore the government’s asserted public interests in passing gun control laws. Assuming that a person’s conduct is arguably covered by the Second Amendment’s text, the justices said, the government can only prevail in a case challenging a gun reform law if it demonstrates similar laws were enacted in the past.

The court’s exclusive focus on history and tradition in Bruen radically departs from the court's constitutional law jurisprudence. Prior to Bruen, the justices looked at the importance of a constitutional right and compared that to the public policy interests put forward by the government to justify the restriction of that right. New conditions obviously sometimes require new rules to govern the difficult relationship between gun safety and gun rights. The Bruen idea that the court must ignore the reasons why a law was enacted and what public purposes the law was trying to accomplish is absurd, radical and not supported by case law.

In the name of history and tradition, the Roberts court in Bruen adopted a new and radical methodology and then lied about how that approach had been used before.

Justice Thomas argued in Bruen that this myopic tradition-and-history-only method has also been employed by the justices in First Amendment speech cases. But that assertion, like many of the statements made by the Roberts court in huge cases, is simply and demonstrably false.

The court does consult history and tradition at times to determine whether a plaintiff’s allegedly illegal conduct is speech or expression that is protected by the First Amendment. If not -- ie, if the conduct, even if expressive, falls within a category of proscribable speech (like true threats or incitement) -- the plaintiffs lose. If so, however, the court doesn't just stop but balances the importance of the asserted speech right against the public interest the law is trying to achieve using various levels of scrutiny depending on the restriction and speech at issue. What the court has not done in speech cases — or in almost any other constitutional challenge — is completely ignore the asserted rationale for the law at issue.

In the name of history and tradition, the Roberts court in Bruen adopted a new and radical methodology and then lied about how that approach had been used before.

Rejecting rule of law values
This type of misleading decision-making occurs all-too-often in the Roberts court. This blog post, along with a few published law review articles, is the beginning of a book-length project that will show that, regardless of how one feels about the results reached by the Roberts court, its method of deciding cases has been to reject rule of law values like consistency, transparency, and simple truth-telling. The Roberts court will go down in history as one of the most, if not the most, lawless courts in American history.