Last week, as COVID-19 spread globally and in the United States, the U.S. Supreme Court continued to be in the spotlight. This column addresses a few items.

‘What the Constitution Means to Me’

If watching morning or evening newscasts lately, you may have seen advertisements for the play, “What the Constitution Means to Me,” playing at the Broadway Playhouse at Water Tower Place. If you have an opportunity to attend, I can highly recommended it.

The play tells the story of Heidi Schreck’s participation in constitutional debate contests as a young woman, earning money to attend college. It is an amazing and excellent performance that at times is a solo performance, at other times with minimal others and ends with an interaction with the audience to answer the question whether to keep or get rid of our founding document, the U.S. Constitution.

Emergency appeal on Supreme Court docket

Last week, in another matter involving an emergency appeal by the Trump administration, the Supreme Court granted the relief sought. The latest was in Chad Wolf, Acting Secretary of Homeland Security, et al. v. Innovation Law Lab, et al., a case involving the “remain in Mexico” asylum constraints that President Donald Trump and his administration had implemented.

The 9th Circuit had ruled the policy was illegal, but the Supreme Court ruled last Wednesday:

“The application for stay presented to Justice [Elena] Kagan and by her referred to the court is granted, and the district court’s April 8, 2019, order granting a preliminary injunction is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this court.”

Only Justice Sonia M. Sotomayor dissented and “would deny the application.” Perhaps Sotomayor, who had dissented in the Wolf v. Cook County decision, noting, “Perhaps most troublingly, the court’s recent behavior on stay applications has benefited one litigant over all others.” That led to calls for her recusal, and perhaps on this matter, she decided simply to show dissent without more.

The court in this matter responded to yet another emergency application by Solicitor General Noel J. Francisco, seeming to support Sotomayor’s previously expressed concerns.

Sitting judge attacks Roberts Court

In what some have characterized as surprising, a sitting judge, Lynn Adelman, who sits on the U.S. District Court, Eastern District of Wisconsin, wrote an article, “The Roberts Court’s Assault on Democracy,” Adelman, Lynn, The Roberts Court’s Assault on Democracy (Feb. 18, 2020). Harvard Law & Policy Review, Forthcoming . Available at SSRN: ssrn.com/abstract=3540318.

In the article, Adelman opens by noting that the “balls and strikes” analogy that Roberts used during his confirmation hearings “was a masterpiece of disingenuousness. Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the court over which he presides.”

Adelman goes on to blast the Roberts Court’s “hard right majority,” which Adelman asserts “is actively participating in undermining American democracy.”

The Adelman article is a bleak one and like “Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America” that we briefly reviewed in the last column, Adelman traces that same time horizon and the slide backward, writing:

“A government loses its character as a democracy when its leaders stop devoting their efforts to benefiting the public, including the large number of people who have little economic power, and instead serve the interests of a minority, the relatively few individuals and corporations who … play a key role in keeping the leaders in power. This is the direction in which the United States has moved in the last [50] years.”

Adelman writes a thought-provoking and compelling piece that adds to the concern over where the Roberts Court ultimately is heading. As we have repeatedly stated, whatever we will see this term and going forward, one should not expect that Roberts will save us.

Neomi Rao

In previous columns, we have written not only about D.C. Circuit Judge Neomi Rao and some of her opinions, but some other Trump appointees who appear to be working almost as political pundits or protectors of Trump.

Last week, in the House Judiciary Committee decision relating to the committee’s seeking to obtain the redacted grand jury materials in the Special Counsel’s Report, the panel, by a vote of 2-1, ruled that the court must be allowed to see certain confidential documents.

The legal press reminded everyone of Rao’s opinion last year that suggested Congress had little to no power to investigate a sitting president. Last week, in her dissent, her argument is that the impeachment is over and so the House must go back to the trial court and prove one more time that it was seeking these materials as part of an impeachment inquiry.

Her views have been labeled as allowing the administration to “run out the clock,” with an infinite loop of proving purpose. Rao wrote in part:

“Suspending the standing requirements of Article III in this context would constitute an exception to justiciability not supported by the Constitution, Rule 6(e), or the general supervisory power over grand juries.”

Rao wrote other thoughts as well, prompting fellow panel Judge Thomas Griffith to write a concurring opinion for one and only one purpose — to counter the Rao dissent. An unusual step by a sitting judge, who is retiring.

Conclusion

The rule of law in the Trump administration and the court’s role in shaping our nation continue to be the focus — and we are not even at the end of this year’s Supreme Court term.