Gorsuch and Roberts, a relationship that could define
American justice
By Joan Biskupic, CNN Legal Analyst and Supreme Court Biographer
Updated 6:04 AM ET, Fri February 3, 2017
(CNN) He has been compared to the Supreme Court justice he would succeed, Antonin Scalia,
and the justice for whom he worked, Anthony Kennedy. Yet Neil Gorsuch offers an intriguing
contrast to the man who sits at the center of the raised mahogany bench: Chief Justice John
Roberts.
Gorsuch and Roberts were prep school boys who compiled glittering resumes. They developed
lively and effective writing styles that stand out in the stuffy world of law. And both have plainly
set out to make a difference with their brand of conservatism.
The Supreme Court’s conservative wing is already fractured. If the Senate confirms Gorsuch, a
looming question is whether these two polished jurists would find common ground or end up
rivals on the right.
This could make a difference in upcoming years as President Donald Trump likely makes
multiple Supreme Court nominations and presses his agenda. How the justices on the right work
together -- or apart -- could determine rights related to abortion, religion and race.
More broadly at stake are the relative powers of the three branches of government, from
domestic dilemmas over environmental protection and consumer welfare, to global concerns at
the forefront with immigration and refugee policy.
No matter where Gorsuch lands on the ideological spectrum among conservatives, he would
guarantee Roberts the broader control he lost when Scalia died last February. If US appeals court
judge Merrick Garland, whom President Barack Obama nominated to succeed Scalia, had been
confirmed, America's highest court would have undergone a historic shift to the left. Roberts
would have become a rare chief justice presiding over a bench on which his ideology was not the
majority’s.
Similarities
In the East Room of the White House Tuesday night, Gorsuch struck themes that recalled
Roberts' debut as a nominee of President George W. Bush in 2005.
Gorsuch, 49, a native of Colorado, extolled the vast West, noting that the Denver-based 10th
Circuit on which he serves covers about 20% of the continental US and 18 million people.
Roberts, age 50 when appointed and 62 now, referred during his confirmation process to the
“endless fields” of his home state, Indiana.
On a public stage, each speaks humbly and with wit, as when Gorsuch referred to the late Justice
Byron White, a football legend from Colorado, as “the only justice to lead the NFL in rushing.”
Both grew up in privilege, attended preparatory high schools and earned Harvard law degrees.
Gorsuch worked in the George W. Bush Justice Department, Roberts in the Reagan and George
H.W. Bush Justice Departments.
They each dwelt at prestigious Washington law firms, Roberts longer as a star appellate advocate
who eventually, with his deputy US solicitor general position, argued a total 39 cases before the
high court. Gorsuch, appointed to the 10th Circuit in 2006, has been an appellate judge for more
than a decade; Roberts served only two years on the US Court of Appeals for the District of
Columbia Circuit.
Throughout his 2005 Senate confirmation, Roberts invoked the umpire metaphor, saying a
judge's job was “to call balls and strikes, not to pitch or bat.”
Gorsuch similarly said Tuesday that the role of a judge is “to apply, not alter” the law.
“A judge who likes every outcome he reaches,” Gorsuch asserted, “is very likely a bad judge.”
Differences
Both jurists, in fact, cast themselves as more moderate than their court opinions reveal.
And for all their surface similarities, Gorsuch rules more like Scalia than like Roberts. He is
more rigidly conservative and appears less likely to consider how a ruling would play out in
ordinary life --- or the public eye.
Gorsuch has adopted the Scalia approach of looking to the Constitution as it was understood in
the 18th century and adhering to the plain text of a federal law. Gorsuch would go further than
Roberts to hem in federal regulators responsible for public health and safety.
He also might be readier to strike down Roe v. Wade, the 1973 milestone that made abortion
legal nationwide. Trump has vowed to appoint justices who would reverse Roe.
In his 2006 book, “The Future of Assisted Suicide and Euthanasia,” Gorsuch argues against
those practices and emphasizes the “inviolability” of human life.
Roberts, to be sure, has voted against abortion rights and compiled a conservative record on
religion, race and other social issues.
But he has also demonstrated concern for the court's institutional reputation that does not
similarly preoccupy fellow conservatives. Most strikingly, Roberts separated himself from his
brethren on the right in 2012 when he joined the four liberal justices to uphold President Barack
Obama's health care overhaul.
Where Gorsuch fits in the conservative wing
Even when all the conservatives vote together on a bottom-line judgment -- which they do more
often than not -- they often splinter in their legal rationales. The current four (Roberts, Kennedy,
Clarence Thomas, Samuel Alito) span a wider ideological spectrum than do the court's four
liberals (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan).
At one end is the more centrist Kennedy cautiously weighing each case; at the other is the
staunch originalist Thomas who would readily overturn precedents he believes conflict with the
Constitution as understood in the 18th century.
Thomas, as well as Alito, might ideologically align with Gorsuch more than they do Roberts.
Unlike the justice he would succeed, Gorsuch could be more persuasive with Kennedy, for
whom he was a law clerk in 1993-94.
Scalia often attacked Kennedy's legal reasoning and derided him as pretentious. In 2015, Scalia
denounced Kennedy's exalted appeal to constitutional liberty at the opening of his opinion
declaring a right to same-sex marriage. Dissenting, Scalia said if he ever joined an opinion that
began that way, “I would hide my head in a bag.”
Sarcasm is not Gorsuch's signature -- which ultimately could make him more of a force in
moving the court, and America, to the right.
How to kill a Supreme Court nomination
By Joan Biskupic, CNN Legal Analyst and Supreme Court Biographer
Updated 10:28 AM ET, Thu January 26, 2017
(CNN) Derailing a president's choice for the US Supreme Court is difficult. But it has happened
eight times in the last half-century, through the kind of Senate combat that led to the 1987 defeat
of Robert Bork and administration missteps like the 2005 case of Harriet Miers.
President Donald Trump said he would announce his proposed successor to the late Justice
Antonin Scalia next Thursday. Senate Democrats and their liberal allies, outraged over last year's
unprecedented refusal to consider President Barack Obama's nominee, have vowed to fight a
right-wing choice.
The stakes are significant for the law in America and any check by the judiciary on the executive
branch. Unlike a president's Cabinet choices, who are limited to his term in office, the nine
justices serve for life.
The current court is one of the most ideologically polarized ever. Important disputes over civil
rights, criminal procedure and corporate regulation often come down to the vote of a single
justice.
In the past five decades, nominations have gone off track when a president overplayed his hand
or his administration slipped up on candidate vetting. An instance of the latter involved US
appeals court judge Douglas Ginsburg, who President Ronald Reagan selected in 1987. Ginsburg
withdrew after reports that he smoked marijuana when he was a Harvard law professor in the
1970s.
The current court is one of the most ideologically polarized ever. Important disputes over civil
rights, criminal procedure and corporate regulation often come down to the vote of a single
justice.
In the past five decades, nominations have gone off track when a president overplayed his hand
or his administration slipped up on candidate vetting. An instance of the latter involved US
appeals court judge Douglas Ginsburg, who President Ronald Reagan selected in 1987. Ginsburg
withdrew after reports that he smoked marijuana when he was a Harvard law professor in the
1970s.
Some nominations toppled after Senate opponents depicted the jurists as a serious threat to civil
rights and racial equality, as with Reagan nominee Bork, or earlier, President Richard Nixon's
choices of Clement Haynsworth in 1969 and G. Harrold Carswell in 1970.
The single most common factor in the eight failed nominations -- out of a total 25 since 1968 -involved the political makeup of the Senate. The leading opposition party -- typically Democratic
-- held the majority in the chamber.
Democrats lack that advantage now. Currently, Republicans dominate the Senate, with 52 seats
to the 46 Democrats and two independents.
Democrats could mount a filibuster against a nomination, which would require 60 votes to break.
But such a move could inspire the Republican majority to invoke the so-called “nuclear option,”
a change in Senate rules to banish filibusters and let an appointee through on a simple majority
vote.
Democrats remain bruised by the Republican majority's 10-month refusal to act on Obama's
effort to replace Scalia with Chief Judge Merrick Garland of the US Court of Appeals for the
District of Columbia Circuit.
“If the nominee is out of the mainstream,” Senate Minority Leader Chuck Schumer, D-New
York, said on CNN's “State of the Union” Sunday, “we will do our best to keep the seat open.”
Past is prologue
Modern Supreme Court battles began with Democratic President Lyndon Johnson's attempt to
elevate Associate Justice Abe Fortas to the chief justice spot in 1968.
Fortas, a longtime confidant of Johnson, had been on the bench since 1965 and a consistent vote
for the liberalism inspired by Chief Justice Earl Warren, who was ready to retire.
In the last year of his presidency, Johnson's political capital was dwindling. Southern Democrats
joined with Republicans to filibuster the nominee derided as far too far to the left and a Johnson
“crony.”
Johnson's separate 1968 nomination of Homer Thornberry, for the seat that would have opened if
Fortas had been elevated to chief, also went down. No vote was every taken on Thornberry, a
federal appeals court judge in Texas and close pal of Johnson through home-state ties.
The following year, Fortas, facing new conflict-of-interest accusations related to his personal
finances, would resign from the court.
Nixon, elected president by then, stumbled in his first two attempts to fill the seat.
The records of each of the judges inspired opposition from civil rights advocates, along with
general resistance from some Democrats fuming over Fortas’ rejection.
Haynsworth, a US appeals court judge in South Carolina, was defeated 55-45. Next up was
Carswell, a US appeals court judge in Florida whose past segregationist tendencies emerged
along with questions about his standing in the legal profession.
In response to criticism that the judge was “mediocre,” Republican Sen. Roman Hruska of
Nebraska famously declared, “Even if he were mediocre, there are a lot of mediocre judges and
people and lawyers, and they are entitled to a little representation aren't they?”
The Senate defeated Carswell 51-45.
Nixon’s third nominee, Harry Blackmun, a federal appeals court judge in Minnesota, was
confirmed 94-0, a year after Fortas had resigned.
President Reagan ushered in the next failed nominations. Opposition to Bork, then a veteran
judge on the US Court of Appeals for the District of Columbia Circuit, galvanized immediately.
Sen. Edward Kennedy, D-Massachusetts, declared on the Senate floor, “Robert Bork's America
is a land in which women would be forced into back-alley abortions, blacks would sit at
segregated lunch counters, rogue police could break down citizens' doors in midnight raids ... .”
Bork lost 58-42. Reagan next picked Douglas Ginsburg, also of the DC Circuit. After reports of
the marijuana use, he withdrew without Senate action. Reagan's third choice on that round, US
appeals court judge Anthony Kennedy of Sacramento, was confirmed by a vote of 97-0.
The next botched nomination was that of Republican President George W. Bush, who selected
White House counsel Miers in October 2005 to succeed the retiring Justice Sandra Day
O’Connor.
Miers was a longtime friend of Bush from Texas and had limited constitutional law experience.
She withdrew from consideration not because of Democratic opposition, but because Republican
doubts that she would be a staunch conservative on the bench.
In one of the stranger twists of nomination politics, Bork played a leading role in Miers’ demise
and Bush’s alternate selection of appeals court judge Samuel Alito for the O’Connor seat.
Bork, who by 2005 had resigned from the bench, contended that Miers’ scant constitutional-law
credentials and unproven conservatism made her nomination “a disaster on every level.”
Some liberals hope the Merrick Garland fiasco at the hands of Senate Republicans inspires a new
Supreme Court version of “what goes around comes around” with Senate Democrats.
Trump’s second Supreme Court pick could be the real
drama
By Joan Biskupic, CNN Legal Analyst and Supreme Court Biographer
Updated 6:07 AM ET, Fri January 13, 2017
(CNN) President-elect Donald Trump is looking for a surefire conservative for the Supreme
Court, and Senate Democrats are vowing to fight his choice.
But for all the escalating rancor, this round to replace the late Justice Antonin Scalia could be the
prelude to a more consequential battle.
The possibility of a second Supreme Court vacancy in the near future is subtly affecting the
strategy of the Republican Trump team in the final stages of selecting a candidate and of
Democratic opponents girding for what could be years of political turmoil surrounding the
composition of America's highest court.
Scalia, who died last February, was a rigid conservative on social issues such as abortion rights,
affirmative action and gay marriage. Trump’s replacement would likely be a wash.
But a Trump successor to either of the two eldest justices -- liberal Ruth Bader Ginsburg, who
will turn 84 in March, or centrist-conservative Anthony Kennedy, turning 81 in July -- could
truly transform the law in America.
Consider the stakes if Justice Kennedy, for example, were to step down in the near future:
He was the decisive, fifth vote to throw out tough abortion regulations in Texas last year.
Without him, restrictions on when a woman may end a pregnancy are more apt to be upheld.
Kennedy provided the key vote to affirm a University of Texas racial affirmative action policy in
2016. Without him, admissions practices boosting the chances of African American and Latino
applicants to ensure campus diversity could be on shaky legal ground. Such policies have been
upheld since 1978.
In one of his most defining moves, Kennedy in 2015 cast the crucial fifth vote and wrote the
opinion declaring a right to marriage for gay men and lesbians. Since a 1996 case, Kennedy has
taken the lead against discrimination based on sexual orientation.
Some former law clerks and others close to the justice say Kennedy, a Republican appointee now
in his 30th year on the bench, has been privately considering retirement. He did not respond to
requests to comment on any retirement plans.
For her part, eldest Justice Ginsburg, a 1993 appointee of Democratic President Bill Clinton, has
said she would stay on the bench as long as she is healthy. She spoke out against the Trump
presidency last summer and is likely loath to give him the opportunity to appoint her successor.
The next oldest justices are Stephen Breyer, a 1994 Clinton appointee who will turn 79 this year,
and Clarence Thomas, a 1991 appointee of Republican President George H.W. Bush, who will
turn 69.
List of 21 possibilities for Scalia’s seat
The current fight began last February when Scalia, 79, was found dead in his bed at a remote
Texas hunting resort. Senate Majority Leader Mitch McConnell, a Kentucky Republican,
immediately vowed to block any nominee of President Barack Obama, despite nearly a year left
in his term.
In March, Obama selected veteran appeals court judge Merrick Garland, and Senate Republicans
stuck to the McConnell pledge, refusing even to hold hearings on Garland.
That unprecedented stall has ratcheted up the partisan acrimony awaiting this first Trump
nomination. Sen. Jeff Merkley, an Oregon Democrat now chief deputy whip, is among those who
have deemed the seat “stolen” by Republicans.
Senate Minority Leader Chuck Schumer, a New York Democrat, has warned of Trump
nominees, “If they're out of the mainstream we'll oppose them tooth and nail.”
President-elect Trump said on Wednesday that he intends to announce his nomination about two
weeks after his January 20 inauguration.
Trump advisers say they have pared his earlier list of 21 possible candidates down to six longserving federal appeals court judges, including Steven Colloton of Iowa, Neil Gorsuch of
Colorado, Thomas Hardiman of Pennsylvania, Raymond Kethledge of Michigan, William Pryor
of Alabama and Diane Sykes of Wisconsin. But Trump aides say the selection process remains
fluid and others candidates, including those on state supreme courts such as Michigan justice
Joan Larsen, are still under consideration.
The possibility of a second opening gives Trump a chance to placate conservative insiders
jockeying for their favorite candidates, including GOP senators rooting for home-state jurists.
Candidates edged out on this round may be on deck for the next.
Trump is also using the possibility of a second opening to answer advisors, particularly from
prior Republican administrations, who have pressed him to broaden his list of candidates to
prominent conservative intellectuals. Among those left out were US Appeals Court Judge Brett
Kavanaugh and former US Solicitor General Paul Clement, Washington insiders who would
likely have made the shortlists of a more traditional Republican president.
Bork and filibusters
Yet, as much as the prospect of a second seat may offer a president more options, the potential
for an ideological mismatch and a bruising confirmation fight cannot be dismissed.
The possibility recalls the ordeal that led to the appointment of Anthony Kennedy three decades
ago.
When centrist Justice Lewis Powell announced his retirement in June 1987, President Ronald
Reagan nominated hardline conservative Judge Robert Bork of the US Court of Appeals for the
District of Columbia Circuit.
Then Sen. Ted Kennedy, a Massachusetts Democrat, immediately declared that his appointment
would mean America’s return to back-alley abortions and segregated lunch counters. The Senate
rejected Bork's nomination by a vote of 58-42.
President Reagan eventually turned to then-US Appeals Court Judge Kennedy of California. He
was approved on a vote of 97-0 in February 1988.
Democrats controlled the Senate back then. Republicans dominate now (52 seats, to 46
Democrats and 2 independents), which necessarily constrains Democratic chances for defeating
Trump nominees. The Senate filibuster -- which requires 60 votes to break -- remains in effect
for Supreme Court nominations, but GOP leaders could always decide to invoke the “nuclear
option” to break that rule should Democrats not accede to an up-or-down vote on Trump’s pick.
Further, Democrats and their liberal allies now researching the backgrounds of Supreme Court
candidates know that a succession of controversial appointments naturally tests the opposition’s
energy and resources.
In 1986, for example, Democrats poured their opposition efforts into Reagan’s elevation of thenAssociate Justice William Rehnquist to be chief justice and gave Scalia, chosen to succeed him
as an associate justice, limited scrutiny. Rehnquist ended up approved on a vote of 65-33; Scalia
was approved 98-0.
This time around liberal advocates are hoping that a Democratic show of force on the first
nomination serves as a warning to Trump not to put up an uncompromising conservative for a
more consequential opening.
John Roberts gets another chance for a conservative
legacy
By Joan Biskupic, CNN Legal Analyst and Supreme Court Biographer
Updated 2:42 PM ET, Thu November 10, 2016
(CNN) Chief Justice John Roberts is about to get the Supreme Court back.
And it could be even better for him over the next four years.
Tuesday’s election of Donald Trump as president of the United States will not only secure a
conservative majority and preserve recent rulings, for example, against campaign finance
regulation and for individual gun rights.
It could eventually mean a rollback of liberal precedents for abortion rights, campus affirmative
action, and protections based on sexual orientation.
As with so much in the wake of Tuesday’s election, expectations for the Supreme Court and law
of the land turned upside down as the results came in.
Last February, when Justice Antonin Scalia died, for the first time in decades the Republican
court appointees no longer held a majority. Democratic President Barack Obama, or a likeminded successor, appeared ready to fill the vacancy.
The Supreme Court was on the cusp of a historic reversal, and Roberts, the man with a golden
resume, who when appointed in 2005 at age 50 was the youngest chief since John Marshall in
1801, seemed to face the greatest challenge of his life in the law.
Obama nominated Merrick Garland, a respected moderate liberal and former prosecutor who is
chief judge on the U.S. Court of Appeals for the District of Columbia Circuit.
Republican Senate Majority Leader Mitch McConnell blocked Senate action on Garland,
insisting that the open seat should be filled not by Obama but by whoever won this election -- a
line he drew within an hour of the announcement of Scalia's death.
Obama had nearly a year left in his White House term at that moment, and given the tenor of the
presidential race most of the year, installing a liberal on the court seemed just a matter of timing.
As late as Monday, there was even discussion among Senate Democrats and some Republicans
over whether Garland would see a vote in the lame duck Senate before Hillary Clinton had a
chance to nominate a more liberal justice.
Meanwhile, the Supreme Court of four conservatives and four liberals was in a holding pattern,
deciding as little as possible and deadlocked on the most contentious issues.
Roberts was waiting it out, engaging in modest negotiations, giving up little and watching for the
political situation to clarify.
Now it is clear that Trump, backed by a still-Republican Senate, will choose the next justices.
His first appointee would likely have the same conservative ideology as Scalia and the 5-to-4
polarization that defined the Roberts Court in his first decade is likely to continue.
But more than that, if any of the older liberal justices retire, Trump could deepen the
conservative cast for years to come.
Senior liberal justice Ruth Bader Ginsburg is 83. The next most senior justice on the left is 78year-old Stephen Breyer. Justice Anthony Kennedy, who is generally in the conservative camp
but joined with liberals to declare a right to gay marriage in 2015 and affirm abortion rights and
campus affirmative action earlier this year, is 80.
With those ages, as Ginsburg herself has said, the court could experience significant change in
the next four years.
Justices are appointed for life, and a president's legacy for federal courts at all levels endures
long after he leaves office.
Roberts’s complicated decade on the court
Roberts, 61 and a student of history who considered earning a PhD at Harvard before turning to
law school there, knows well the evolution of the Supreme Court he inherited in 2005.
Its scaffolding traces back nearly a half century, when liberal groundbreaker Chief Justice Earl
Warren retired in 1969 and newly elected Republican President Richard Nixon replaced him
with Warren Burger.
Then Nixon and a succession of Republican presidents filled most of the vacancies that arose
through the years. Of the 16 new justices since 1969, 12 were Republican appointees, four
Democratic, not counting William Rehnquist's elevation in 1986 from associate justice to chief.
When President George W. Bush named Roberts to the center chair, Roberts had a ready-made
majority for the conservatism he had embraced since he was a young lawyer in the Ronald
Reagan administration in the 1980s.
Under Roberts’ leadership, the court curtailed the protections of the 1965 Voting Rights Act and
other racial remedies, allowed more religion in public places, and restricted class-action lawsuits
against corporate America.
His one significant departure from the conservative agenda came when he voted to uphold
Obama’s Affordable Care Act. Roberts was vilified by some Republicans for endorsing
Obamacare, something Trump and other GOP candidates constantly reminded their base in the
primaries.
That aside, the four liberal justices routinely protested the majority’s rightward direction. In
2007, when the conservative bloc rejected school integration policies in Seattle and Louisville,
Breyer said, “It is not often in the law that so few have so quickly changed so much.”
More controversial rulings were yet to come.
Two that arguably most mark this bench in the public mind are 2010 Citizens United v. Federal
Election Commission, which brought more corporate money into political campaigns, and 2013
Shelby County v. Holder, which scaled back voter protections, particularly in regions with a
history of race discrimination.
As Clinton campaigned across the country against Trump, she and her Democratic supporters
vowed to try to roll back those decisions.
Tuesday’s results instead deeply secure them and likely guarantee Roberts the legacy he sought
from the start.
Supreme Court, like the country, struggles with race
By Joan Biskupic, CNN Legal Analyst and Supreme Court Biographer
Updated 9:27 AM ET, Tue October 4, 2016
(CNN) Race has divided the Roberts court like nearly no other issue.
The justices have wrangled over how openly to talk about their differences. And now, as a new
session begins, the court is delving into a set of racially charged cases in the explosive context of
the criminal justice system.
The disputes evoke some of the hostile rhetoric of the presidential campaign and real conflicts
seen on urban streets: Slurs against Mexican-Americans. Testimony that black defendants are
more dangerous than whites. A claim that police used racial epithets during an arrest then
fabricated evidence.
The cases could especially test a Supreme Court that has been trying to smooth over differences
since the February death of Antonin Scalia and no Senate action on US Appeals Court Judge
Merrick Garland, nominated by President Barack Obama to succeed him.
The cases also arise as individual justices have been speaking more pointedly about the state of
race in America.
In an interview soon after the July 7 killings of five Dallas police officers during a protest of
police shootings of black men in Louisiana and Minnesota, Justice Ruth Bader Ginsburg voiced
distress.
“We never realized what was the promise of the ‘60s,” she said, responding to a question about
recent killings. "With all the equality legislation, the Fair Housing Act [of 1968], the Voting
Rights Act [of 1965], Title VII [of the Civil Rights Act of 1964], we still live in a highly
segregated society. Black communities and white communities. Black schools and white
schools.”
Justice Sonia Sotomayor, the first and only Hispanic justice, has increasingly referred to racial
divisions.
“[I]t is no secret that people of color are disproportionate victims of this type of [police]
scrutiny,” she wrote as she dissented in a June police-stop case. "For generations, black and
brown parents have given their children ‘the talk’ -- instructing them never to run down the
street; always keep your hands where they can be seen ... all out of fear of how an officer with a
gun will react to them.”
Supreme Court starts new term with more questions than answers
The justices have been riven more broadly on race, in cases covering school integration plans,
municipal hiring, voting rights and college affirmative action.
In June, when Justice Anthony Kennedy voted for the first time to approve a university
admissions program favoring minorities, he voiced new concerns about racial isolation and
stereotyping.
Chief Justice John Roberts dissented then and has been firmly on the other side of the issue. He
has expressed skepticism for remedies intended to promote diversity or counter historic
discrimination. In 2013, he won a narrow majority to limit the reach of the Voting Rights Act in
the Shelby County, Alabama, dispute.
In earlier cases, he referred to “a sordid business, this divvying us up based on race” and insisted,
“The way to stop race discrimination on the basis of race is to stop discriminating on the basis of
race.”
Sotomayor turned that view against him as they tangled in 2014, saying, "The way to stop
discrimination on the basis of race is to speak openly and candidly on the subject of race."
Only Ginsburg joined her in that opinion, dissenting as the majority upheld a Michigan state
referendum prohibiting racial preferences in government programs. Justice Clarence Thomas, the
sole African-American on the court, has been on the other side of affirmative action, believing it
violates the Constitution's equality guarantee and can be stigmatizing to minorities.
Emerging against the backdrop of the presidential campaign and national controversy over
policing, the new cases could inflame such tensions at the court.
All involve legal questions that go beyond race and ethnicity. A dispute from Colorado, for
example, pits a defendant's right to fair trial against a longstanding principle safeguarding private
jury deliberations.
The case began in 2007 when Miguel Pena-Rodriguez was accused of sexually harassing and
attempted assault on two teenage girls in the bathroom of a horse-racing track.
During deliberations, a juror known in the record as H.C. said: “I think he did it because he's
Mexican and Mexican men take whatever they want.” He also dismissed Pena-Rodriguez's alibi
witness as “an illegal.”
After Pena-Rodriguez was convicted of sexual harassment, two jurors told defense lawyers about
H.C., and his lawyers tried to use their statements to challenge the fairness of the trial.
Denying the request for a hearing, the Colorado Supreme Court said H.C.’s comments, no matter
how “ideologically loathsome,” did not merit an exception to jury deliberation secrecy.
Two years ago, the Supreme Court foreshadowed this dispute when it reinforced the principle
protecting deliberations but said in the opinion by Sotomayor that, “There may be cases of juror
bias so extreme that, almost by definition, the jury trial right has been abridged.” The new case
will be heard October 11.
A long-running Texas appeal spotlights a psychologist’s testimony during sentencing that Duane
Buck, an African-American convicted of the 1995 murder of his former girlfriend and a male
friend, was statistically more likely to commit future violent acts than a white defendant.
Buck contends he was denied effective assistance of counsel; his lawyers had hired the
psychologist to testify on his behalf. Lower courts ruled that Buck lacked the “extraordinary
circumstances” needed to reopen his case.
Five years ago when the high court rejected a separate appeal from Buck, two justices
(Sotomayor and Elena Kagan) said his case was “marred by racial overtones” and should be
reviewed.
Three others justices (Samuel Alito, Stephen Breyer and Scalia) deemed the psychologist’s
testimony “bizarre and objectionable” but were among those rejecting Buck’s petition. His new
appeal will be heard Wednesday.
When can citizens sue for 'malicious prosecution?'
The third racially charged dispute also up Wednesday explores when a person may sue for
“malicious prosecution” based on Fourth Amendment protection against unreasonable searches
and seizures.
The dispute traces to March 18, 2011, when Joliet, Illinois, police officers stopped a car for
failure to signal a turn and pulled Elijah Manuel from it. Manuel’s lawyers told the justices in a
filing that an officer him pushed him to the ground and said, “You remember me, street punk?
Now I got you... .” The officer used a racial slur on Manuel, who is African-American.
Police found a bottle of pills that Manuel said were vitamins but that officers contended were
illegal Ecstasy pills. Manuel said tests at the scene and in a police lab showed the pills did not
contain controlled substances. Police claimed the opposite, leading to his indictment for unlawful
possession. When Manuel's lawyer asked for a copy of lab results and it was clear the pills were
not illegal, Manuel was released from jail on May 5, 2011.
Manuel sued for “malicious prosecution” on April 22, 2013, possibly beyond a two-year statute
of limitations. The case involves several procedural issues, but an overriding question is whether
Fourth Amendment protection extends beyond an arrest, through arraignment, and can serve as
the basis of a “malicious prosecution” claim.
The Innocence Network, a decade-old consortium of 69 groups representing prisoners,
emphasized in a “friend of the court” brief the possible consequences of Manuel’s case for
minorities: “Those incarcerated as a result of police misconduct ... suffer extensive harm. Racial
minorities, the poor, and the uneducated disproportionately suffer these effects.”