MARY REICHARD, HOST: It’s Monday. This is The World and Everything in It. Today is the 12th of October, 2020. Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher.
Quick note, reminder, if you live in or near Jackson, Mississippi, you might want to make plans to meet our very own Kim Henderson. She’s speaking at First Presbyterian Church on the theme, “Journalism is Never Neutral.” It’s this Wednesday, October 14th—day after tomorrow. It’s open to the public, but seating is limited, so you’ll need to RSVP. We set up a page online at worldandeverything.org/reception that provides some detail on how to claim your seat.
Again, WORLD’s Kim Henderson speaking in Jackson, Mississippi this Wednesday afternoon. Details at worldandeverything.org/reception.
REICHARD: Well, the U.S. Supreme Court is back in session. It is closed today, though, to observe Columbus Day. So tomorrow, oral arguments will resume, once again by telephone.
Before we get to the two arguments I’ll cover today from last week, I want to mention a case the justices won’t hear.
This controversy grew directly out of a landmark decision of the court in 2015, the Obergefell case. Obergefell is the decision that redefined the legal meaning of marriage to include same-sex relationships. It ordered states all over the country to issue marriage licenses to same-sex couples.
A little over a month after that decision, one county clerk in Kentucky by the name of Kim Davis refused. For her refusal, a federal judge ordered her to jail for five days. When two same-sex couples sued her personally, Davis claimed immunity from suit, and fought the case up to the appeal the high court rejected last week.
EICHER: The justices found that the issues weren’t legally “clean” enough for the court to resolve. All the justices saw it that way.
Yet what’s notable here is that two justices issued an unusual three-and-a-half page statement. It put colleagues on notice: that at some point, when the right case comes along, the court is going to have to contend with an issue it’s left unresolved.
Justice Clarence Thomas wrote it; Justice Samuel Alito joined with him. The statement noted that the Constitution explicitly protects religious liberty, yet Obergefell prioritizes a newly discovered right. The same-sex marriage right the court created trumps the religious-liberty right the constitution spells out.
REICHARD: The Court, he wrote, created the problem and only the Court can fix it. Until then, Obergefell will continue to have, Thomas wrote, “ruinous consequences for religious liberty.”
This foreseeable collision is apparent in some cases the Supreme Court will hear this term.
EICHER: Well, before calling order on the first day of the term last week, Chief Justice John Roberts paid tribute to the late Justice Ruth Bader Ginsburg.
ROBERTS: During her time on the court, she authored 483 majority, concurring and dissenting opinions. Justice Ginsburg’s contributions as advocate, jurist, and citizen are immeasurable. We on the court will remember her as a dear friend and a treasured colleague.
Then, he got on with business:
ROBERTS: Our first case today is Number 19-309, John Carney, Governor of Delaware, versus James Adams.
James Adams is a retired lawyer in Delaware. He used to be a Democrat and now calls himself a Bernie Sanders Independent. He said in a deposition that he was to the left of the state Democratic Party, but that shouldn’t disqualify him from being a judge. Nevertheless, with no major party affiliation, the state constitution won’t let him.
That’s because in Delaware, judges in some of its top courts must either be a Republican or Democrat. The state constitution since 1897 has had provisions to prevent the governor from packing courts with partisans.
Here’s one example of how it works. The state has five justices in its supreme court. The constitution says three must be either Republican or Democrat, the two remaining from the other political party.
Delaware’s lawyer, Michael McConnell, explained the reason.
MCCONNELL: The framers of the Delaware constitution had lived through domination of the courts by one party and then by the other. On the basis of that experience, they resolved that a bipartisan bench would lead to fair and impartial decisions. For the last 27 years, one party has held both the governorship and the Senate, but the courts have remained balanced and nonpartisan.
REICHARD: So, changing the status quo, McConnell argued, would upset that balance.
MCCONNELL: So, if there were already a democratic majority on the Court and the governor were able to name Mr. Adams, it would just fly in the face and frustrate the purposes of the political balance provision.
Adams lawyer, David Finger, says you can’t assume political affiliation will determine how a judge will vote in a case. And Adams has the right to associate with whom he wants, including which political party he chooses. The only exception to that applies to people who make policy. Judges don’t make policy, he argued, they follow the law. Lawyer Finger:
FINGER: Delaware’s constitution denies Mr. Adams the opportunity to apply for a judgeship because he does not belong to a major political party. And this Court can look to its own history as a refutation of that premise. If this Court accepts the premise, it’s the end of the idea of an independent judiciary.
McConnell, for Delaware, sowed doubt about Adams’ sincerity to even become a judge, casting doubt on his right to bring this case.
Justice Alito posed this scenario to him:
ALITO: Suppose he looked up when the next vacancy would occur on any of the covered courts and said, I plan to apply for that position. Would that be sufficient?
FINGER: I think so. His big problem is that his actions do not line up with his words.
And Justice Thomas picked up on that with Adams’ lawyer, Finger.
THOMAS: What if he has a long history of saying, I’m going to do this and I’m going to do that, and never really gets around to doing it?
FINGER: Well, again — again, it would depend on the circumstances.
Then the argument shifted to the merits: does that requirement— that judges be either Republican or Democrat— violate freedom of association?
Lawyer for Adams argued yes:
ADAMS: Again, these go back to the communist cases and the question of communists need not apply, which is not acceptable under the First Amendment…if you doing it just because you like it or just because you don’t like someone of another political party, that is no different than having a law that says, “you cannot apply.”
Side note: Our federal Constitution puts no constraints on the president to appoint judges and justices, aside from the advice and consent of the Senate.
The justices seemed quite divided, and not just along ideological lines.
Our second and final case today is a religious-freedom case. It involves several Muslim men born outside the United States who are now citizens or possess green cards. They sued FBI agents for placing their names onto a national registry. They say this was retaliation against them because they refused to inform on fellow Muslims.
The registry is the national “No Fly List,” and it prevents those on the list from flying from or to the United States, or even pass through American airspace. For one man, that meant he had to quit his job as a truck driver, because he couldn’t fly home after a one-way long distance delivery.
One of the laws the men sued under is a federal law known by the acronym RFRA, and it stands for the Religious Freedom Restoration Act.
RFRA says that when the government has substantially burdened a person’s religious exercise, that person may obtain, in the words of the statute, “appropriate relief against a government.”
These men contend it is their free-exercise right to refuse to be informants … because the tenets of their Islamic faith compel them.
As often happens, words have meanings and when those meanings are unclear, litigation ensues. Here, it’s what does “appropriate relief” actually mean? And relief against whom?
Deputy Solicitor General Edwin Kneedler argued on behalf of the FBI Agents. The Muslim men sued the agents in both official and personal capacities.
KNEEDLER: RFRA’s remedy section provides only for appropriate relief against the government. Damages against an individual employee in his personal capacity are not relief against the government.
Kneedler argued that RFRA is for injunctive relief, not money damages. Meaning, just tell the government to stop doing what it’s doing.
But that argument met strong headwinds in this from Justice Sonia Sotomayor:
SOTOMAYOR: One of the things that concerns me greatly is that RFRA was very concerned, at least Congress was, with the many families whose loved ones were being subjected to autopsies, in violation of their religious beliefs. And there was a lot of testimony before Congress about the fact that injunctive relief would not help those families.
KNEEDLER: Several things.
Kneedler answered that Congress wasn’t thinking about individual situations. Moreso the concern was removing burdens that applied across the board.
Lawyer for the Muslim men, Ramzi Kassem, ran with Justice Sotomayor’s line of thinking.
KASSEM: This Court notedthat leading up to RFRA, Congress focused on autopsies performed on Hmong and Jewish people, in violation of their religious beliefs. Those were consummated injuries that only damages could remedy. Yet Petitioners’ interpretation of RFRA would leave those families with no claim.
The complicating factor for the government is that other federal civil rights laws do permit money damages.
Yet, RFRA’s companion law, called the Religious Land Use and Institutionalized Persons Act, does not allow money damages.
Justice Neil Gorsuch seemed to lean toward finding a way to get monetary relief to the men. Their lawyer, of course, more than willing.
GORSUCH: So it would be sufficient for your purposes to, if we wrote an opinion, simply say we’re not relying on any presumptions of any kind anywhere. We’re looking at the text, the text refers us to the law of remedies and it allows the courts discretion to form sufficient relief to make a person whole.
KASSEM: Justice Gorsuch, as long as that opinion concludes with “and we affirm,” absolutely. (Laughter.)
GORSUCH: Naturally. I — I — I would assume no less. Thank you, counsel.
I didn’t hear much unity of concern among the justices. With only 8 on the bench right now, if they split 4-4, the lower court ruling would stand. That means the men can proceed with their litigation.
And that’s this week’s Legal Docket.