Dorf on Law: Supreme Myths II: The Roberts Court Years

The Supreme Court's recent Per Curiam opinion striking the CDCs eviction moratorium in Alabama Associaiton of Realtors is a classic example of what Segall refers to as the court acting as a political veto council. - GWC

Dorf on Law: Supreme Myths II: The Roberts Court Years

By Eric Segall

My first book, Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges, came out in 2012, about six years after the Roberts Court began. The thesis of the book was not that the Court is always partisan or that all the Justices are awful or that the country would be much better off if only the Court mirrored my progressive politics. The thesis of the book was that over the centuries the Supreme Court has not taken prior positive law seriously enough to justify calling the institution a court. 

It is relatively common ground that judges are not supposed to make all-things-considered decisions but rather they should at least minimally take prior law into account. My book discussed numerous areas of constitutional law since the Founding and reached this conclusion:

Because the Court functions much more like a political veto council than a court of law...the Supreme Court's power to overturn the important decisions of other governmental officials should be seriously re-evaluated. Perhaps, having an ultimate veto council is a good idea for a representative democracy whose people believe in limited government. But if so, we should be honest about how the council is structured and actually operates. It is well past time to pull back the curtain on, and then reassess, the Supreme Court of the United States.

I am not here to argue that in the almost ten years since the book was published the Court has been less a court than during the previous two centuries. But I am here to say that the last ten years strongly support the thesis of Supreme Myths. Moreover, because social media have dramatically altered the landscape of reporting on the Court, more and more people actually understand the inherently flawed nature of a governmental institution staffed by people with jobs for life who wield effectively unreviewable power.****

Supreme Court strikes down federal eviction moratorium, limits pandemic powers

 

  Pastures of Plenty - Woody Guthrie

Is the judiciary the most dangerous branch?

We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’”

Scotus - Per Curiam - 6-3 August 21, 2021 in Alabama Ass'n of Realtors

With no legal avenues remaining to take action on its own, the Biden administration issued a plea to state and local officials on Friday to do more to help. In a letter, top cabinet members urged governors, mayors, county executives and judges to apply for federal aid before enforcing evictions and recommended that evictions be delayed while rental aid applications were pending."

NY Times August 28, 2021 reporting on the consequences of the U.S. Supreme Court decision in Alabama Realtors blocking the CDC eviction moratorium.

READ:

Alabama Association of Realtors v. Department of Health and Human Services  United States Supreme Court (2021) Per Curiam; Breyer, J., dissenting (with Kagan and Sotomayor)

The most dangerous branch. Arrogant and unreviewable.

- By George Conk

I hadn't yet absorbed the Supreme Court's reversal of course on immigration (now greenlighting injunctions limiting Presidential discretion on immigration policy) when the high court -limiting an emergency public health measure stopping evictions - leapt to its bottom line: property rights over public health.  Of course the majority formally embraces the limitation of federal powers. But it is notable that in its aggressive statutory construction limiting a Congressional grant of power to protect public health the majority reached back to a notably broad rendition of the `castle doctrine' - that a "man's home is his castle":

Despite the C[enters for] D[isease] C[ontrol]’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means.  And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 435 (1982).

​

In Loretto the court found a `taking' of property by New York which compelled landlords to allow a cable TV company to install wiring at the request of a residential leaseholder.​ ​  The attachment and installation of cable devices were a physical intrusion on the owner's right to exclude, according to Justice Thurgood Marshall's majority opinion.

Justice Thurgood Marshall did caution that "States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails." But Harry Blackmun (joined in dissent by William Brennan ​and Byron White) warned of the implications of the principle that even a trivial regulatory burden is a `taking' compelling compensation under the due process clause of the 5th Amendment to the U.S. Constitution. 

Long recognized precedent declares that the federal government - contrary to popular expectation - is not generally empowered to protect the public ​health and welfare.  Gibbons v. Ogden (1824) distinguished between the regulation of commerce and the general "police power" such as to quarantine. But the Alabama Realtors court did not elect to challenge the national government's authority as beyond that allowed under the commerce clause power specified in Article I of the Constitution. Instead it narrowly construed 42 USC 264a of the Public Health Service Act which provides:

​The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment​ are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.

​But the court decided that Congress did not allow the ​Surgeon General or Secretary's discretion to run beyond the routine examples offered by the statute - "inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated"

​This sort of statutory construction is an example of the lawyerly craft of turning words into their opposite.  Thus "such measures" are limited to the sorts specifically enumerated in the Consitution. The public interest and necessity are given no heed. So our national government lacks the power to protect health that it has over commerce. See In re Debs (1895) “The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails”. No mandate is recognized to protect the public health such as preventing many thousands from joining the ranks of the homeless in a modern version of the Dust Bowl migrations.

In my view the question should be framed is NOT "What does the law command?" But does the law allow what the elected branches have decided is necessary and proper? By that measure the CDC residential eviction moratorium order would stand. And it would fall to the elected branches to decide whether and how to distribute the burden imposed by the pandemic-related limitations.

- GWC August 26, 2021

After Scathing Sanctions Ruling, Kraken Lawyers Face Future Penalties | National Law Journal

After Scathing Sanctions Ruling, Kraken Lawyers Face Future Penalties | National Law Journal by Jacqueline Thomsen

A team of lawyers behind a series of failed post-election challenges received their first court-ordered sanctions this week, a move that could trigger future disciplinary proceedings against the attorneys.

U.S. District Judge Linda Parker of the Eastern District of Michigan’s scalding 110-page opinion against the “Kraken” lawyers, including Sidney Powell, Lin Wood, Howard Kleinhendler and several others, refers the attorneys to disciplinary authorities to investigate them for potential suspension or disbarment. Donald Campbell, who represents most of the sanctioned attorneys, said Thursday that they disagree with the ruling and plan to appeal it.

Several legal experts said that while the attorneys can appeal other penalties Parker ordered, including paying for Detroit and Michigan state officials’ attorney fees in the case, as well as taking continuing legal education courses, they can’t take issue with the judge’s referral to disciplinary authorities. That leaves disciplinary bodies in eight states and D.C. deciding whether to take further action against the lawyers, with some of those bodies likely already undertaking investigations.

Powell is one of the lawyers who was already facing scrutiny. Michigan officials said Thursday that the Texas Office of Chief Disciplinary Counsel has scheduled a Nov. 4 investigatory hearing about Powell’s bar license. State officials in February filed complaints against three other attorneys in the case: Greg Rohl, Scott Hagerstrom and Stefanie Junttila.

“It’s coming from a federal district judge and that needs to be taken seriously, if for no other reason,” Steven Lubet, a law professor at Northwestern University, said of Parker’s referral. “But this was notorious litigation that stretched over months, almost from coast to coast, that turned out to have little or no basis in law or fact. And I think some of the jurisdictions involved and perhaps all of them will dig into this with investigatory zeal and will take it seriously.”

Parker on Wednesday indicated that she doesn’t believe her court ruling alone will be enough to block future meritless lawsuits, particularly from Powell. In a footnote, the judge said she is “troubled that Powell is profiting from the filing of this and other frivolous election-challenge lawsuits” and said other lawyers in the case might be as well, as they seem to be tied to Powell’s group “Defending the Republic.”

“What is concerning is that the sanctions imposed here will not deter counsel from pursuing future baseless lawsuits because those sanctions will be paid with donor funds rather than counsel’s. In this court’s view, this should be considered by any disciplinary authority reviewing counsel’s behavior,” Parker wrote.  

Different jurisdictions have their own procedures for investigating attorney misconduct. The lawyers involved in the case also had different roles in the litigation. While Parker said working fewer hours on the lawsuit did not exempt the involved attorneys from sanctions in her court, disciplinary authorities could decide to hand down differing penalties, if any, based on individual lawyer’s conduct.

Bruce Green, a legal ethics scholar with Fordham University, said he believes Parker’s opinion serves as a “baseline” for other judges who are considering similar sanctions. A pair of federal judges in Wisconsin are considering motions for sanctions over post-election litigation from counsel for the Trump campaign, as well as Powell and others.

“If you have other cases that are like this in other jurisdictions, if the court doesn’t find sanctionable misconduct, the court’s going to have to explain why. Were these pleadings less frivolous and had more of a legal basis for them? Were the affidavits less outlandish and was more time spent preparing them?” Green said. “I think that this creates a problem for the lawyers in those other cases, because it’s the standard against which other courts are going to have to compare their cases.”

KEEP READING

Trump "election fraud" lawyers sanctioned

King v. Whitmer, Governor  of Michigan 

Talking Points Memo reports:

"The team of “Kraken” attorneys who sought to overturn the 2020 election “scorned their oath, flouted the rules, and attempted to undermine the integrity of the judiciary along the way,” according to a Wednesday opinion from a Detroit federal judge.

U.S. District Judge Linda Parker for the Eastern District of Michigan referred the team of lawyers — who sought to overturn the election in courts through a series bogus claims — for suspension or disbarment while granting requests for sanctions.

Parker also ordered the “Kraken” team — which included Trump-aligned lawyers Sidney Powell and Lin Wood — to pay for legal fees for the city of Detroit and state of Michigan, and referred them for “at least twelve (12) hours of continuing legal education in the subjects of pleading standards (at least six hours total) and election law (at least six hours total).”

Parker wrote in the ruling that the “Kraken” lawyers had tried to create a “haze of confusion, commotion, and chaos” around the election."

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

---

SOUTHERN DIVISION

TIMOTHY KING, et al.,

Plaintiffs,

v.

GRETCHEN WHITMER, et al.,

Civil Case No. 20-13134 Honorable Linda V. Parker

Defendants.,

and

CITY OF DETROIT, DEMOCRATIC NATIONAL COMMITTEE, MICHIGAN DEMOCRATIC PARTY, and ROBERT DAVIS,

Intervenor-Defendants. _____________________________________/

---

OPINION AND ORDER

This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American people into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here.

Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order.