Wrap-Up of Three End-of-Last-Week's SCOTUS Cases and Anticipation of Today's Coming Decisions

by Michael C. Dorf

The Supreme Court could wrap up its current Term today. Even if it adds another day of announcements, one or more important cases will likely be handed down today. If so, I'll blog about at least one of them later today or tomorrow at the latest.

Meanwhile, I want to use this morning's first post to register brief comments on three cases handed down at the end of last week: (1) Flowers v. Mississippi, in which the Court, 7-2 in an opinion by Justice Kavanaugh, found a violation of the defendant's right to a jury selected without racial bias; (2) American Legion v. American Humanist Assn, in which Justice Alito, writing for a majority in important respects, rejected an Establishment Clause challenge to the Bladensburg Cross, but in a way that does not exactly invite numerous new religious-themed monuments erected and maintained at public expense; and (3) Gundy v. US, in which the Court rejected a nondelegation challenge to a federal statute delegating authority to the Attorney General to determine how a federal sex offender registration statute applies to people who committed offenses before the statute's enactment, but in which Justice Kavanaugh did not participate and in which the other four Republican appointees indicated their willingness to breathe new life into the hitherto largely moribund nondelegation doctrine, thus potentially imperiling regulation in many areas.

(1) I previously blogged about Flowers, in which I had more than an observer's interest, as it was briefed and argued brilliantly on behalf of Flowers by my colleague Sheri Johnson, working closely with my colleague Keir Weyble. Kudos to them on the 7-2 decision. Justice Kavanaugh's opinion self-consciously breaks no new ground, but he and his colleagues in the majority nonetheless deserve credit for holding the line where they did. Had the Court come out the other way, that would have sent a clear signal to prosecutors that they can use race-based peremptory challenges and defend doing so with the thinnest of pretexts.

Flowers is nonetheless disconcerting in one respect. Flowers was tried six times for the same crime. Each trial has now resulted in a reversal for some form of prosecutorial misconduct or a mistrial. The same prosecutor tried Flowers each time. One would hope that either due process or some penumbral principle of septuple jeopardy should bar a seventh trial. At the very least, if the state now attempts to try Flowers for the same crime yet again, the lead prosecutor and those who worked with him ought to be barred from participating. Yet the SCOTUS order simply reverses and, in the customary formula, remands for further proceedings "not inconsistent" with the Court's opinion. That doesn't preclude a septuple jeopardy claim or recusal motion, however, so if the state does seek to try Flowers again, presumably his trial-level lawyers will raise these objections.

Meanwhile Justice Thomas's dissent, which is objectionable on multiple grounds, also contains what appears to be a plain misstatement. He says that "49 of the State’s 50 peremptory strikes in Flowers’ previous trials were race neutral." Yet Justice Kavanaugh's opinion states (correctly) that the "State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court." So what is Justice Thomas talking about? (Interestingly, Justice Gorsuch, who joined most of Justice Thomas's dissent, did not join the introductory portion that contained the 49 of 50 claim.)

When I first read the 49 of 50 claim I thought perhaps that Justice Thomas meant that only one peremptory in the previous trials was adjudicated as race-based. If so, that would hardly be the same thing as a conclusion that the others were all neutral. Thus, the claim would be extremely misleading at best.

But it turns out that even that interpretation is too generous to Justice Thomas.  The trial judge found a constitutional violation with respect to one of the prosecutor's strikes at the second trial, and the Mississippi Supreme Court found two more on appeal from the third trial, so that's at least three that were adjudicated. Perhaps Justice Thomas has some other basis for his count, but he doesn't cite any, so for now it seems like a mischaracterization of the record. Fake news!

(2) Here's my (slightly cleaned up) Twitter thread on the Bladensburg Cross Case for those DoL readers who aren't also Twitter followers:

Reasonable minds can differ about the correct disposition of the Bladenburg Cross, which the SCOTUS decided today does not violate the Establishment Clause. Justice Alito’s best point for the majority is that removal or alteration of the cross now would be read as hostile to religion. And his opinion is much better than those of Thomas and Gorsuch. (My tweet originally included the Kavanaugh concurrence with the Thomas and Gorsuch concurrences in the judgment, but on reading Kavanaugh's concurrence more carefully, I think it is substantially more sensitive than the other two and in that respect more in line with the Alito lead opinion and the Breyer and Kagan concurrences.)

Meanwhile, despite being somewhat pleasantly surprised by the tone and nuance of the Alito lead opinion, it still strikes me as wrong in saying that the Cross has a “secular” as well as a religious meaning. It has a secondary meaning, but not a secular one. Alito says that the Cross “reminds the people of Bladensburg and surrounding areas of the deeds of their predecessors and of the sacrifices they made in a war fought in the name of democracy.” It does, but that’s not all it reminds them. It also serves as a reminder that American patriotic ideals relegate non-Christians to a secondary status. And that message is not a separate secular one. It is enmeshed in the Cross's religious meaning.

That is easy to see if one imagines an individual gravesite, as Justice Ginsburg invites readers to imagine in her dissent. Fallen Jewish and Muslim warriors typically have graves marked, respectively, with stars of David and crescents and stars. To mark them with crosses would be grossly incongruent. Likewise for other minority faiths and non-believers.

Most of Alito’s opinion proves points that are not dispositive: that the cross in this context symbolizes patriotic sacrifice and that this particular cross was not intended to display antisemitism or racism. That may be true. However, the hard question that Alito barely recognizes is what to do with the fact that the symbol’s patriotic meaning entwines with its religious meaning. Like many symbols, it is, to use a fancy word, polysemous. I considered such hard cases here.

(3) When the other shoe eventually drops, Gundy will be largely forgotten, but it should probably be understood as the case that marked the beginning of the Roberts Court's open war on the administrative state. Three justices--Alito, joined by Roberts and Thomas--would in substance overturn the "intelligible principle" test as it has come to be known since the New Deal. A fourth, Alito, didn't join them in Gundy, but signaled that he would do so in a future case in which a majority could be found to do so. And that future case could come soon, because Kavanaugh did not participate in Gundy. If, as I expect, he agrees with his Republican-appointed colleagues, then the Court will breathe new life into the nondelegation doctrine.

Well, what's so bad about that? Gorsuch quotes the likes of John Hart Ely--no radical right-winger, he--and others who criticized the nondelegation doctrine. And Gorsuch also points out that completely open-ended delegations of the sort that the toothless version of the doctrine allows seem inconsistent with the system of veto gates for lawmaking that the Constitution embodies.

That's also fair enough. In a well-functioning legal and political system, we could have a more robust non delegation doctrine, and Congress would respond by increasing its own reliance on expert staff in crafting detailed legislation to do some of the work now being done by agencies.

But as anyone paying attention knows, we do not have a well functioning legal or political system. The practical effect -- and I strongly suspect that for many of the champions of robust nondelegation review, the main point -- of a strengthened nondelegation doctrine is deregulation. If Congress cannot delegate broad power to the agencies, in many instances it simply will not legislate. Combined with the assault on the Chevron doctrine of deference to agencies, revitalization of the nondelegation doctrine is a judicial program of deregulation. It's not exactly Lochner, but it serves similar aims and interests.