NICK EICHER, HOST: It’s Monday morning and we are back at it for another week of The World and Everything in It. Today is the 5th day of August, 2019. Good morning. I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. Remember this phone call we received from back in July?
AUDIO: Hi, this is Todd from San Antonio.
He called in to say how much he likes Legal Docket. But…
EICHER: Right, it was as though he’d read your mind.
It’s just frustrating the crush of cases toward the end of the Supreme Court term. So many of them hitting at the same time.
REICHARD: Exactly, and with complete reason and good sense Todd asks for exactly what I wish I could provide in a more timely way!
AUDIO: One request, though, would be rather than just saying what the decision was that a sentence or two about why the judges chose would be helpful. Thank you.
We’re working on a way to do more of this, and so today I’ll offer a small down payment. I’ve picked two opinions that had interesting aspects or unexpected coalitions between the conservative and liberal leaning justices. And I called up Professor Adam Carrington at Hillsdale College to analyze them. He teaches political science and writes about the Supreme Court on occasion.
EICHER: First one is the case of an African American man named Curtis Flowers. A white prosecutor tried Flowers in Mississippi tried him six times for the same crimes.
That prosecutor had a long history of racial bias in jury selection. And that long history was the lynchpin around which the justices decided 7 to 2 to dismiss Flowers’s conviction and death sentence.
REICHARD: And so I asked Professor Carrington to take it from there.
CARRINGTON: Yeah. This is a messy trail. So I’ll try to be as simple as I can. There were six trials. All of them were either resulted in a hung jury or after a conviction, the conviction was overturned by a higher court because of prosecutorial bad behavior. And what this case particularly was trying to decide is in the last sixth trial was the way that the prosecutor excluded certain jurors and defense and prosecuting attorneys are allowed to remove potential jurors at their discretion—was, at least one of those removals based on race.
And the court said, because of this long history, it seemed pretty clear to them that at least one of those was racially motivated. And the idea is that it violates the Equal Protection Clause of the Constitution to exclude jurors on the basis of race. So that was the final decision they came to.
What made this one so difficult was that lawyers do have pretty wide discretion to turn away potential jurors, except on the basis of race, right?
CARRINGTON: Yes. One thing that shows is that it’s really hard for the Supreme Court to do really fact-based decisions. They’re very good at laying down general principles. This one is very fact-based. They had to get really into the weeds about, well, why did this juror get excluded?
There’s other reasons it could have been. And really I think what they finally came to the conclusion of is one prior statistic was there were 42 potential African American jurors for these, for these trials. Forty-one of them were excluded. And I think the court finally threw up its hands and said, this goes too far.
But one thing, I think the dissent, which was written by Justice Thomas, said—is that in getting into these weeds where it’s not perfectly clear with that you serve a smoking gun. Why the, why they did this? You might be setting up some really tough instances later where you’re going to have to get into the mind of the prosecutor and play the “guess what he was thinking” game.
And when you don’t have as extreme of facts as you do in this instance, will that make trials a lot messier and a lot less set in stone once they happen? I think that’s the difficulty forward when it isn’t as plain and clear as these facts were.
Why on earth someone didn’t intervene and just put in a new prosecutor is the great mystery with that one. Only the district attorney could request that to happen, and he did not.
Let’s talk about another opinion, in the case of Gundy v. United States. Here, Herman Gundy failed to register as a sex offender when he moved from one state to another. His argument was the sex offender law wasn’t law when he was first convicted, so the law shouldn’t be applied to him retroactivly.
He lost, 5 to 3, with Justice Kavanaugh not part of the vote. And here conservative Justice Samuel Alito joined the liberal justices to form the majority.
CARRINGTON: I think you’ve got to understand the bigger question because obviously he’s not a very nice litigant. And the bigger question here was: Has Congress over especially the last century given up too much of its legislative power? Basically giving the executive branch and federal agencies all too much of its lawmaking power.
And if you listened to the Founders, to combine law making power with another power in the government is on your road to tyranny. But ultimately, I think we’ve kicked the can down the road on whether the Congress needs to take back its lawmaking power. ‘Cause I think that was the fundamental question of what was going on here.
Some questions from listeners now. David Langford of Westchester, Pennsylvania, asks why do Supreme Court justices seem to become more liberal over the years on the bench, and not the other way around?
CARRINGTON: And I think this is an even worse problem in the past. Justices like Justice Stevens or Justice Souter that were both put on there by Republicans and didn’t turn out right.
Actually President Eisenhower said, “I made two mistakes as president, and they’re both on the Supreme Court.”
I think that what you have had for a long time is a much more robust, supportive left-leaning legal culture and not as robust and supportive originalist or textualist legal culture. And I think that started to change with things like the Federalist Society, with the growth of originalism and textualism as movements and as, as ways of interpreting the Constitution. And I think that because of that, at least there is less social pressure to move to the left.
And I think while you still may see some of it, I think you’re going to see less of it as those movements continue to produce people. I think if you look at people like even Alito and Roberts, they joined those legal movements, but they weren’t really educated in them. I think you’re going to see people like Kavanaugh and Gorsuch and going forward as the first crop of justices that were really brought up in this legal culture and therefore are going to be less likely to move than, than what’s happened in the past.
Listener Brian Wolff asks: what’s your overall analysis of how the two new justices judicial philosophy is revealed?
CARRINGTON: Yes, they’re the, so they’re appointed by the same president, President Trump, but we found that they’re not exactly the same. In fact they disagreed 30% of the time this last term, which is a pretty high percentage.
Justice Gorsuch is a little more friendly to criminal defendants and, and Kavanaugh a little more to prosecutors.
On native American rights, I think Justice Gorsuch is a little more supportive of Native American treaty interpretations, where Kavanaugh’s not.
I also think there’s a bit of a difference in approach. I think Gorsuch is a little bolder. He’s a little willing to strike down precedent. He wants more clear lines that the court will draw. Whereas I think Kavanaugh’s a little more cautious, a little more willing to set up precedent. And in those cases, what’s interesting is I think they’re both originalists, they’re both dedicated to the text as written, but what it shows is that movement is so broad now that there is at least some disagreement within it.
So I think they both want to get back to the original meaning of the Constitution. They have a little bit of a different view on some particular ways of how that happens.
That said, I should probably say, I think on a number of the big cases, they’re still going to agree, you’re still gonna see a lot of unity. But seeing these differences I think shows that the judicial philosophy they come out of is not necessarily outcome based. It really is trying to get at a certain approach to how a judge interprets the law.
And finally, has SCOTUS moved right or left with the Justices Gorsuch and Kavanaugh? Any surprising coalitions?
CARRINGTON: I think that in general it’s moved to the right, but not to the degree some people automatically expected it. I think partisan redistricting, we didn’t talk about that case, but I think that is a move to the right.
One thing we didn’t really talk about either was there was a Supreme Court death penalty case, a Bucklew vs. Precythe. And I think if you look at that, there’s some indications that the court might be moving much more to the right on the death penalty.
I think in coming terms you’re gonna see on religious liberty and the sexual revolution—some cases where they’re going to move a little more in an originalist or you could say a right-leaning direction there. So one term isn’t enough to determine it, but I think you’re seeing at least a slight move to the right.
But I will say you did get some interesting coalitions. I think you saw Justice Breyer and Justice Kagan are willing to join the conservatives on occasion, uh, the cross case being one instance.
Another instance where you’re seeing interesting coalitions is Gorsuch is willing to join the liberals on the instances of criminal defendant rights and that that’s something he’s going to consistently do.
So I think what this shows is the justices, while they will have a generally consistent philosophy, sometimes there’ll be some differences. They’re not merely voting along partisan lines in every case, which makes it interesting to watch going forward.
Adam Carrington is Assistant Professor of Politics at Hillsdale College. Thanks for making all this a little clearer for us, professor.
CARRINGTON: Pleasure. Thanks for having me.
And that’s this week’s Legal Docket.