Monday, December 19, 2022

Top Ten Worst SCOTUS Moments of 2022

 By Eric Segall

This was a no good, terrible, very bad year at the Supreme Court of the United States. Here are my top ten worst moments of 2022 (in no particular order). 

This post is not about how much I disagree with almost all of the big cases from 2022 but rather about the moments that should be a reminder to us all that the six conservative justices who now control the highest court in the land are just, well, terrible, even apart from their votes.

1) Adoption, Abortion, and Justice Barrett

During the oral argument in the Dobbs case, Justice Barrett asked several questions about adoption and "safe haven" laws that allow parents to give up babies to the state after birth, no questions asked. Barrett seemed oblivious to the idea that maybe this alternative is not one most women would choose (not to mention the physical, economic, and mental burdens associated with an unwanted pregnancy during the actual pregnancy). 

Of course this line of questioning, utterly irrelevant to the legal issues surrounding abortion, probably had nothing to do with Barrett's personal experience of adopting several children nor her religious objections to abortion. Right.... In any event, the idea that increased adoption opportunities mitigate the harm women suffer by forced pregnancies is just wrong and offensive.

2) Witch Burners

For reasons beyond anyone's imagination, Justice Alito in the Dobbs draft opinion relied on Mathew Hale, a despicable figure from the 17the century, whose writings, according to one commentator, "have caused enduring damage to women for hundreds of years." Among other heinous contributions, Hale is credited with furthering the legal rule that men cannot rape their wives and the practice of burning women at the stake when they are deemed (by men) to be witches.

The citations in the draft opinion are staggering enough but, even after the world criticized Alito for including Hale in that draft, Hale still appeared in the final opinion in much the same manner. Tone deaf is far too kind a description for Justice Alito's misogyny.

3) The Leak

Speaking of the leaked draft opinion, it has been over six months since Politico published it and still we have heard nothing about the alleged investigation of the leak authorized by Chief Justice Roberts. I predict we will never know because, and here's the real point, I do not believe anyone is conducting a real investigation aimed at finding out the truth.

4) Justice Gorsuch Lying about the Praying Football Coach

In Kennedy v. Bremerton School District, the school district disciplined a football coach who repeatedly prayed at the fifty-yard line after games and while still responsible for his students. The lower courts sided with the school district but the Court reversed the decision (of course). In describing the facts, Gorsuch said that "Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied."

It is not clear to me that a football coach immediately after a game while his players are still under his watch would have been allowed to "call for a reservation at a restaurant." But in any event, the "students were otherwise occupied" statement is a lie. How do we know, you may ask? We know because Justice Sotomayor in her dissent included photographic evidence of the praying coach surrounded by players. That's how we know.

Gorsuch argued that the Court should only be concerned with the three most recent prayers offered by the coach, so some have suggested reliance on those photos was misleading. The truth, as one commentator observed, was that there was a long relevant history of this coach praying with his students. The "fact that Kennedy had been leading prayers for his players at the 50-yard line for seven years ― and that when confronted by the school, he ran a public relations campaign to advertise his continued 50-yard line prayers, turning the school into a circus ― ha[d] no bearing on the case for Gorsuch or the other five conservatives. They ha[d] the votes, after all."

People don't mind it when folks criticize a President, Senator, or Governor for lying but for some reason we are not allowed to use that word in connection with the Supreme Court. But make no mistake, Justice Gorsuch and the other conservatives lied about the facts of this case.

5) Black Santas and KKK Children

During the oral argument in 303 Creative, a suit brought by a woman who says her religion requires her to refuse to offer web design services for same-sex weddings, the hypotheticals were flying 30,000 feet above any real connection to any actual legal principle that might help decide the case. But the worst of the worst was the following hypothetical asked by, who else, Justice Alito:

"If there's a -- a black Santa at the other end of the mall and he doesn't want to have his picture taken with a child who's dressed up in a Ku Klux Klan outfit, that -- that black Santa has to do that?"

This hypothetical is absurd and unhelpful for many reasons related to, you know, law and reasoning, but the worst part is that Alito's question is simply too unrealistic to take seriously. Everyone knows, as Megyn Kelly told us while she was working for the 10th Justice (Fox News), Santa Claus is white.

6) Originalism and Affirmative Action

During the almost five hours of oral arguments concerning the affirmative action policies used by Harvard and UNC, the four die-hard, self-described originalists on the Court did not seem to care at all about the original meaning of the 14th Amendment as applied to racial criteria in university admissions. As David Gans reported:

Given the insistence of many of the Court’s conservatives that they are bound by the original public meaning of the Constitution, one would have expected them to ask lots of questions during the argument about the text and history of the Fourteenth Amendment. Yet more than two and a half hours into the Court’s argument, it was not one of the Court’s conservatives—but Justice Elena Kagan—who put the question of originalism on the table, asking “what would a committed originalist think about the kind of race-consciousness that’s at issue here?”

Why, you might ask, were the conservatives not interested in originalism in this case when they have seemed to all agree previously that originalism is the most important tool of constitutional interpretation? You already know the answer, but in case you don't, it can be summed up by a hash tag I often use on Twitter: #notacourt.

6) The Most Anti-Originalist Case in History?

Speaking of originalism, as I recently wrote on this blog, Bruen may well be the most anti-originalist opinion in American history:

Justice Thomas said that the only legitimate methods of constitutional interpretation for judges to use are text and history and that courts should not balance public policy concerns against the weight of asserted rights. The founding fathers, however, simply did not treat rights that way. Constitutional rights were subject to restrictions if policy concerns were substantial enough. As Professor Jud Campbell has written, almost everyone at the Founding (and before) thought “rights were not a set of determinate legal privileges or immunities that the government  could not abridge. … Rights…could be restricted by law to promote the good of the society.”

At the very least, the framers understood that judges always had to balance the reason for the law at issue with the strength of the asserted claim. Yet, Justice Thomas, writing for all the originalists, specifically rejected this mode of analysis universally accepted when the people ratified our Constitution.

Why would our loudest originalist justice write an opinion so at odds with what everyone at the founding thought about judicial review? I think you know but in case you don't: #notajudge

7) Justice Alito and Rome

Shortly after reversing 50 years of precedent and returning the issue of abortion to the states in an opinion utterly devoid of empathy for women and families whose lives will be ruined by states forcing them to bear children against their will, Alito traveled to Rome to give a speech sponsored and paid for by, wait for it, the Notre Dame Law School's Religious Liberty Initiative. In this speech, Alito mocked world leaders and others and made light of those upset by Roe's reversal which is itself just mean and ugly. But there's more. In the words of Dahlia Lithwick and Mark Joseph Stern (themselves the targets of a tasteless and dangerous rant by Judge Bill Pryor at this year's Federalist  Society National Convention):

There is the breathtaking conflict of interest at work when a justice gives faith-based speeches at faith-based events sponsored by faith-based parties who file briefs before the court. We only found out about this speech a week later when Notre Dame released the video, because the justices have no obligation to publicize or record their public speeches. The Rome event’s sponsor, Notre Dame Law School’s Religious Liberty Initiative, was founded about four months before Justice Amy Coney Barrett joined the Supreme Court in 2020. As Gabe Roth of Fix the Court, a nonprofit that promotes judicial ethics reforms, noted in an email Thursday, RLI and its affiliated professors 'have filed amicus briefs in several SCOTUS cases, and they have a near-perfect record.'

There are few things more distasteful than sore winners, and Alito is one of the absolute worst. If you don't know why this man would think it proper to engage in such off-the-court activities, you haven't been paying enough attention: #notajudge.

8)  Justice Thomas and, Gasp, Partisanship

The Court recently heard oral arguments in Moore v. Harper, which might be much ado about nothing or the end of our democracy. A central issue in the case is whether state supreme courts have authority to determine whether state election laws and redistricting maps violate state law (of course they do but that's the merits). 

In this case, the North Carolina Supreme Court, with a majority of Democrats at the time, rejected a map drawn by a GOP-controlled legislature. During the argument, Justice Thomas asked the following question to former Solicitor General Neil Katyal:

JUSTICE THOMAS: Let me ask you this just as -- it may be a bit unfair. If the state legislature had been very, very generous to minority voters in their redistricting and the state supreme court said under their state constitution that this was -- violated their own state constitution of North Carolina, would you be making the same argument? 
MR. KATYAL: So the -- if -- yes, I mean, if there is -- 
JUSTICE THOMAS: You just -- Justice Gorsuch said it seems as though it depends on whose ox is being gored. So I'm changing which ox is being gored. 

In other words, Justice Thomas was asking Katyal, a known progressive, if he would be making the same arguments if the partisan stakes in this case had been reversed. I guess no one told Thomas that the North Carolina Supreme Court is now controlled by GOP justices so a decision for Katyal's client would not help Democrats at all in North Carolina. 

Moreover, why did Thomas ask this question to begin with? We know why and it is called projection. Thomas's jurisprudence is not defined by originalism or textualism or judicial deference or even judicial arrogance, Rather, Thomas's jurisprudence is defined by, as I documented here, his partisan support for the Republican Party. He asked the question because his acceptance and rejection of legal principles are based, in fact, on "whose ox is being gored." And by now, there is no surprise as to why he decides cases that way: #notajudge.

9)  Justice Thomas, Ethics, and the 2020 Election

Justice Thomas's wife Ginny was trying in January 2020 to overturn the 2020 election. She had numerous e-mail exchanges with Trump's Chief-of-Staff on the issue and she tried to convince officials in Arizona to not certify the state for President Biden. According to the New York Times, "she was an active participant in shaping the legal effort to overturn the election." 

And yet, Justice Thomas refused to recuse himself in several cases directly related to the 2020 election, creating, according to legal ethics specialists interviewed by Adam Liptak in the article noted above, at the least the appearance of impropriety.

Professor Stephen Gillers said that Thomas "had an obligation not to sit in any case related to the election, the Jan. 6 committee or the Capitol invasion.” Professor Amanda Frost said this was an "easy case," and that when "your spouse is conversing with people who have some control over litigation to challenge an election, you shouldn’t be sitting on the Supreme Court deciding that election or any aspect of it.”

Yet, Thomas refused to recuse himself from any related cases including one to block the release by the White House of documents pertaining to the January 6th attack on the Capitol. In that case, Justice Thomas, naturally, was the lone dissenter. If you're wondering how or why Justice Thomas could act so improperly, well I think you already know at least part of the explanation. #notajudge

10) Maligning Previous Justices

The conservative justices could have reversed Roe and Casey by writing an empathetic, respectful opinion explaining the difficulty of the issue, the huge policy questions at stake, and ruling that there is so much disagreement surrounding abortion that perhaps returning the issue to political process, though painful in many ways for the pro-choice side, was the best path forward. That is not the opinion Justice Alito wrote and all the conservatives but Roberts joined.

Instead, Alito wrote an opinion incredibly disrespectful to the Justices who signed on to Roe and Casey. The insults are too numerous to list here but among other things, Alito said that Roe, a 7-2 opinion, was "egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences." 

As to both Roe and Casey, Alito repeatedly compared the cases to Plessy v. Ferguson, which infamously upheld the separate but equal doctrine and led to generations of Jim Crow in the South and other parts of the country. This analogy is offensive and denigrates the work of prior Justices, including the five Republicans who in Casey found that abortion was a protected right. 

Today in America, reasonable people can and do disagree about abortion. Today in America, only unreasonable racists and bigots would defend separate but equal. The Plessy analogies are gratuitously mean, unfair, and disrespectful--much like the conservative justices who made 2022 a no good, terrible, very bad year at the Supreme Court of the United States.

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