What Justice Cabano Brought —— Through Seven Cases

20 18, after Justice Cabano's noisy Senate confirmed the end of the storm, I wrote an article "What Justice Cabano will bring" (see: /p/e7877c40cb33). This paper selects the cases in which the first three justices stood in strict accordance with the principle of freedom and conservatism, and the Liberal Party won because of Justice Anthony M. Kennedy's key vote, and makes some predictions on what issues the Supreme Court of the United States will reverse after Justice Cabano is replaced by Justice Kennedy. I have been a little uneasy since the article was published, and I don't know how wrong I will be.

Let's talk about the background: It is generally believed that according to the ideological division of conservatism and liberalism, Chief Justice john roberts, Justice clarence thomas, Justice alito and Justice Neil M. Gorsuch belong to conservatives; Justice ruth bader ginsburg, Justice breyer, Justice sonia sotomayor and Justice elena kagan belong to liberals; Kennedy, who retired from 2065438+2008, was relatively gentle, so he encountered some cases with sharp conflicts between the two sides' judicial ideas, and the verdict often depended on the inclination of Justice Kennedy. Justice Cabano, on the other hand, was so conservative that he was strongly resisted by the Democratic Party in the Senate. It is widely expected that his entry into the Supreme Court will bring about changes in favor of conservatives. Curious about this change, let's take a look at what happened during the first session of Justice Cabano (June 20 18 to June 20 19).

Of the 73 cases in this session, only 8 were decided by 8 judges, and all of them were Justice Cabano, probably because the new judge missed the previous hearing stage. The remaining 65 cases were all decided by nine judges. Among these 65 cases, the verdict of 5 votes to 4 votes is18; In the case of 14, the two sides fought against each other according to the conservative-liberal line, and the score was 7-7, which was almost the same as before, indicating that the arrival of Justice Cabano did not obviously break the original balance. Why? Let's talk about it later.

If Justice Kennedy had not retired, it was difficult to estimate which side he would vote for in the seven cases won by conservatives. But according to his past record, it is reasonable to judge that he will take the opposite position to his successor in some cases. Let's look at these seven cases in chronological order:

Secretary of Homeland Security Nelson v. Bray et al. (Nelson, Secretary of Homeland Security et al.)

This case will be combined with two similar cases in the Ninth Circuit Court of Appeals, involving the issue of illegal immigration that has aroused widespread concern since President Trump took office.

According to federal law, foreigners arrested for deportable reasons can be released on parole through bail hearings until the issue of whether deportation is necessary is resolved; At the same time, according to another special provision adopted by the National Assembly in 1996, when foreigners who have committed certain dangerous crimes or participated in terrorism are released from prison, they must be immediately arrested in prison by the immigration bureau without holding a hearing and detained until the deportation issue is concluded. The defendants were people arrested by the Immigration Bureau after serving many years in prison. At least one of them was arrested on 20 13 after he was released from prison in 2006. They argue that they are not foreigners who need to be detained according to special rules, because they were not immediately arrested by the Immigration Bureau when they were released from prison, and they have the right to hold a bail hearing. The Court of Appeals for the Ninth Circuit supported their claim.

The Supreme Court overturned the decision of the Ninth Circuit Court of Appeals and sent it back for retrial. Justice alito read out a court opinion jointly written by several conservative justices, Cabano and Thomas wrote a coordination opinion respectively, and breyer submitted an objection on behalf of four liberal justices.

After a lot of semantic analysis (even the detailed use of definite articles) and the analysis of the application of the law, the court concluded that the power given to the government by the federal law was not lost because the defendant was not arrested immediately after he was released from prison, and the Ninth Circuit Court of Appeals improperly interpreted the law. It is worth noting that Justice Cabano pointed out in his concurring opinion that the only problem in this case is narrow, only explaining that the law stipulates that the administrative department has the compulsory obligation to arrest a specific person, and failure to arrest the parties immediately due to various reasons such as resource constraints will not lose this obligation. There is no constitutional problem here.

Justice breyer's dissent first pointed out that the focus of this case is whether foreigners who have been released for several years or even decades belong to those who are prohibited by law from being released on parole through bail hearings. Later, he also made a semantic analysis of the law paragraph by paragraph, and quoted some precedents and laws to oppose the majority opinion. Among them, the most powerful counter-evidence is another requirement of the federal bill: if the arrest cannot be carried out immediately due to resource constraints, the longest delay in arrest cannot exceed one year; If the opinion of the majority law holds, this law is unnecessary. At the end of the opinion, he refuted Justice Cafano's point of view by name, arguing that the interpretation of specific laws and regulations must be carried out in the context of the basic legal values of the United States. It is the initial commitment of the United States not to deprive freedom without due process of law, so this case is not a narrow legal interpretation issue.

Baciru v. Precy, Director of Missouri Department of Corrections and others.

This is a dispute about the execution mode of the death penalty, which comes from the Eighth Circuit Court of Appeals.

1996 Bassirou was sentenced to death for murder. After exhausting all means of appeal, Missouri is going to execute the death penalty by injecting pentobarbital. Bassirou claims that because he suffers from an extremely rare disease called congenital cavernous hemangioma, this execution method will bring him great pain and violate his Eighth Amendment right (prohibiting cruel and unusual punishment). The local court ruled that he lost the case, and the Eighth Circuit Court of Appeal sent him back for retrial according to the judicial principles established in Baze v. Rees and Glossip v. Gross, allowing the condemned prisoner to propose feasible and easy-to-implement alternatives. Bassirou proposed a method called "nitrogen hypoxia", which was rejected by the local court, and the Eighth Circuit Court of Appeals supported the local court's decision.

The court opinion written by Judge Gorsuch supported the judgment of the Eighth Circuit Court of Appeals, and Judge Katomas and Judge Vano submitted their concurring opinions respectively. Breyer's dissent was supported by three other liberal judges, and Judge Sotomayor submitted a separate dissent.

The court's opinion spent a lot of time reviewing the case, relevant precedents and the evolution of the execution mode of the death penalty in the United States, and held that the Eighth Amendment to the Constitution neither required the death penalty to be painless, nor guaranteed that a more humane execution mode would be adopted, but only prohibited the intentional infliction of pain. Bassirou failed to prove that the injection of pentobarbital would bring extra pain to his special patients, nor did he provide the technical details of nitrogen hypoxia, a never-implemented execution method. Most importantly, even if these two problems can be solved, Baciru can't prove that the implementation method he requested is less painful. In short, the majority opinion of the court held that Baciru only used all possible means to delay the arrival of the death penalty.

Judge Cabano's simple concurring opinion emphasizes that it is unlikely that a condemned prisoner who is at risk of severe pain will find a suitable alternative. If he must find one, Bassirou can choose to shoot him. "This usually leads to direct and definite death, and the risk of execution failure is almost zero.". If he had done this, Missouri might have implemented it long ago ... This kind of joking tone has the charm of the king of justice in the comedy scalia.

Judge breyer once again expressed his objection. He pointed out that most opinions can be divided into three questions: whether Baciru proved that lethal injection would bring him excessive pain; Baciru, a death row prisoner with a rare disease, must find a way of execution; How to reduce the suspended execution of death penalty? On these three issues, he and three liberal judges disagreed with the majority opinion of the court. The first question is a question of fact. Justice breyer held that the expert testimony submitted by Bassirou proved that he would suffer from massive respiratory bleeding after being injected with barbiturates, and he would be suffocated by his own blood after suffering great pain indefinitely, which exceeded the limit stipulated in the Eighth Amendment to the Constitution. Most people don't believe that the expert's opinion is wrong. The second issue is the legal issue. The objection is that Baciru did not challenge the death penalty itself or barbiturate injection as a common execution method. He only complained about his unique physical condition, which did not conflict with the precedent of the judgment. His execution method is fast and painless, supported by a large number of research reports, and has been listed as an execution method option in three States. The reason for rejecting the court's opinion is that he failed to provide operational details such as whether it is necessary to set up a gas chamber or how high purity nitrogen should be used, but judicial precedent did not require such a requirement. The Eighth Amendment to the Constitution is not immutable. No one thinks that the common punishment at the beginning of the founding of the People's Republic of China is still constitutional today. The key to judgment is whether it causes unnecessary pain. On the third question, breyer admits that the average time from death sentence to execution in the United States is as high as 18 years, or even more than 40 years, which is too long, which violates the principle of speedy adjudication; However, he believes that restricting the protection of the constitutional rights of death row inmates is not an appropriate solution, which will pay a higher price.

LAMPS PLUS Lamps Company v. Varela (LAMPS PLUS, Inc. et al. V. Varela)

The case in this case is that a hacker defrauded about 1300 employees from an employee of LAMPS PLUS and submitted a forged federal income tax form in the name of employee Varela. Varela initiated a class action lawsuit against the company in the federal district court on behalf of the employees whose information was leaked, while LAMPS PLUS advocated that the court should dismiss the lawsuit according to the contract agreement of hiring Varela and force arbitration on individuals instead. The court rejected Varela's claim and the individual arbitration request of the lighting company, and accepted Varela's application for authorization of collective arbitration. LAMPS PLUS's appeal was rejected by the Ninth Circuit Court of Appeals and appealed to the Supreme Court. The final ruling overturned the judgment of the Ninth Circuit Court of Appeals and sent it back for retrial.

Chief Justice Roberts wrote the court opinion, and the other four conservative justices joined; Judge Thomas submitted a separate concurring opinion. Justice Ginsburg submitted an objection, which was joined by Justice breyer and Justice Sotomayor; Judges breyer and Sotomayor jointly filed dissenting opinions; Judge Kagan filed a dissenting opinion, Judges Ginsburg and breyer joined the dissenting opinion, and Judge Sotomayor joined the second part.

The main controversy in this case is whether the judicial principles established by the Supreme Court in the case of Stohlt-Nielsen S.A v. Animal Feeds Int 'l Corp decided in 20 10 are applicable to this case. This principle is that unless one party to a contract expressly agrees to collective arbitration, the court shall not force one party to initiate collective arbitration. The Court of Appeals for the Ninth Circuit held that the conclusion of Stohlt-Nelson case is not applicable to this case, because in this case, both employers and employees clearly stated in the contract that they were "silent" about collective arbitration, and the employment contract in this case did not mention the issue of collective arbitration, so the principle that the contract drafter should lose the case when the contract is ambiguous in California contract law should be applied.

After citing a large number of relevant cases, the court held that the Stohlt-Nelson case was applicable to this case, on the grounds that compulsory collective arbitration violated the federal arbitration law and did not indicate the true wishes of the parties in the employment contract. Justice Thomas' concurring opinion emphasized that the intention of collective arbitration cannot be drawn from the text of the employment contract and should be regarded as "silence".

California Chartered Tax Commission v. Hite (California Chartered Tax Commission v. Hyatt)

This case is a question of national sovereign immunity, a real constitutional issue; Remarkably, the Nevada v. Hall case, which ruled this field for 40 years, was overturned.

Here I want to explain the case of Hall: California resident Hall collided with a Nevada official vehicle while driving on a highway in California, and he sued Nevada for compensation in California court. The Supreme Court ruled in 6-3 of 1979 that the Nevada government has no sovereign immunity in California courts, and California courts are not bound by the compensation ceiling of $25,000 stipulated by Nevada law. In the end, Hall received compensation of1150,000 USD. The majority opinion in this case is that the constitution does not prohibit private litigation against another state in state courts, and each state can decide for itself whether to avoid exercising jurisdiction over another state according to the principle of universal comity; The 11th Amendment prohibits the extension of federal jurisdiction to the jurisdiction of citizens of one state over another state, which is only binding on federal courts and has nothing to do with this case.

The court's opinion was written by Justice Thomas, and four conservative justices participated in it. Justice breyer submitted an opinion against the participation of three liberal justices-few people submitted another opinion of coordination or opposition.

After a detailed review of the case, the court's opinion focused on the analysis of Nevada v. Hall. Justice Thomas quoted the opinions of founding sages including Hamilton and Madison and Chief Justice john marshall, who laid the constitutional review power of the Supreme Court, on the issue of state sovereignty immunity in the early days of the founding of the People's Republic of China, and concluded that each state reserved immunity from private litigation in other States; Hall's judgment violates the constitutional design and the understanding of sovereign immunity when States ratify the constitution, and should be overturned.

Judge breyer disagreed that the Constitution did not grant states absolute immunity in other state courts. He pointed out that even the immunity between sovereign States is based on friendly and mutually beneficial choices, not absolute rights in international law; In the Hall case, the California court has made a decision not to grant Nevada sovereign immunity, and the Supreme Court has no right to intervene. Breyer believes that the majority view that the Constitution has secretly changed the relationship between states is unfounded. After analyzing the cases cited in the court's opinion one by one, he stressed that the common law should not overturn precedent unless there are extremely important reasons, and that the majority opinion, even if there are some reasons, does not meet the standard of overturning precedent.

Manhattan Community Access Company v. Halleck et al.

Although this case can be regarded as the first amendment to the constitution, it mainly discusses the subject of limitation, not the interpretation of the first amendment itself. The case is: According to the legislation of Congress 1984, the State of New York authorized Manhattan Community Access Company, a subsidiary of time warner Inc. Company, to run a public forum of cable TV called Manhattan Neighborhood Network. A program produced by Halek and others was stopped by the platform because of repeated complaints, which eventually led to Halek and others being deprived of the right to use the platform. Halleck and others took the company to court for violating the freedom of speech clause in the First Amendment to the Constitution. After the local court ruled that Halek and others lost the case, they were appealed to the Federal Court of Appeals for the Second Circuit. The Second Circuit Court rejected the judgment of the local court and ruled that Halek and others won the case.

As we all know, the right to freedom of speech is the right to protect citizens' speech from government censorship and restriction. Therefore, the focus of this case is very simple: whether private organizations authorized by the government should be the administrative subject, or whether cable TV stations operate public channels is a state act. After the case came to the Supreme Court, five conservative justices overturned the judgment of the Second Circuit Court of Appeals, and Justice Cabano wrote a court opinion. Judge Sotomayor raised objections on behalf of four liberal judges.

After reviewing the case and related legislative procedures, Justice Cabano clearly pointed out at the beginning that the Supreme Court accepted the case in order to clarify whether the private company operating the public channel was a state actor. He pointed out that according to the previous jurisprudence of the Supreme Court, private entities should be regarded as state actors when exercising "traditionally exclusive state power", but only a few functions will be regarded as state acts. Specific to this case, private TV stations have precedents for operating public channels, which are not traditional exclusive public functions; If you can be regarded as a state actor under government contract or supervision, countless private enterprises in the United States will receive equal treatment; He refused to extend state behavior beyond traditional borders.

Justice Sotomayor's objection is that the agreement granted by the New York City Government to time warner Inc. Company's cable TV franchise requires that channels open to the public be set aside. Public channels are operated by non-profit independent operators selected by the government, and the first seven directors of the operators are appointed by the Manhattan District Government; Moreover, opening public channels is the consideration of granting time warner Inc. the right to operate cable TV. This relationship is equivalent to the government renting private property for a long time, and the government enjoys the right to property rights; These factors indicate that public channel operators are government agents. Agencies authorized by the government to represent certain government functions should be regulated by the First Amendment, just as the government itself exercises these functions.

Nick v. Nick v. Scottown, Pennsylvania, etc.

This is a problem of the Fifth Amendment to the Constitution. The trigger clause is "Without fair compensation, private property shall not be used for public purposes." The specific question is, what kind of legal procedures should be used to deal with disputes caused by government land regulation. Because land disputes are under the jurisdiction of state courts, and compensation disputes are constitutional issues and belong to the jurisdiction of federal courts; In fact, this problem is on the edge of two parallel systems: federal justice and state justice.

The case is that Scottown issued a decree requiring all cemeteries to be open to the public during the day, and then Nick received a fine notice saying that the cemetery on her private land was closed to the public, which violated the law. Nick applied to the state court for an injunction, but did not file an anti-conviction lawsuit. The state court held that Nick could not be proved to be damaged without litigation and refused to make a ruling. Nick sued the federal district court on the grounds that the town government decree violated the Fifth Amendment. According to the decision of the Williamson County District Planning Committee case, the court ruled that Nick must first file a federal claim in the state court. The Court of Appeal for the Third Circuit upheld the original judgment and was appealed to the Supreme Court.

Chief Justice Roberts drafted the court opinion, and Justice Thomas submitted the coordination opinion; The dissenting opinions of four liberal justices were written by Justice Kagan.

Chief Justice Roberts pointed directly at the Williamson County case from the beginning. He pointed out that the judgment of this case held that the loss of expected income of property owners caused by the actions of local administrative authorities did not constitute a federal expropriation in violation of the Fifth Amendment before the judgment of the federal court was obtained. However, because the federal court will follow the principle of universal comity and respect the local court's ruling on compensation. In this way, the plaintiff is caught in a dilemma: if he does not sue in the state court, he cannot sue in the federal court; If he loses in the state court, the federal court will reject his claim. Chief Justice Roberts listed several cases that were troubled by the precedent of Williamson County, and decided that as long as the government did not automatically start compensation when supervising land use, the parties concerned could directly file a claim with the federal court.

Justice Kagan disagreed that the Constitution did not require the government to pay compensation for expropriation of private property in advance or at that time. Under the background of more and more government regulations on land use, court opinions will break the tradition of many judicial cases, so that a large number of cases originally under the jurisdiction of state courts will flood into federal courts, forcing federal judges to try according to unfamiliar state land laws and regulations, which violates federalism. As for the dilemma brought by the Williamson County case to the parties, it should be solved by slightly amending the law by Congress, which undermines the value of legal stability by overthrowing the long-standing precedent of a few cases.

Lucho et al (Lucho et al. 5. Common undertakings, etc. )

The last situation is a bit special. The case is a joint trial of two lawsuits, namely, some Republican voters in North Carolina and some Democratic voters in Maryland. The litigation requests are all for the court to decide that the state's constituency division method violates the freedom of association clause in the First Amendment and the equal protection clause in the Fourteenth Amendment. Because the defendant is not a civil subject, the translation of the name of the case is a small problem; The core issue of the judgment is not the common legal application or judicial interpretation, but whether the plaintiff's application should be accepted, or whether it is a legal issue or a political issue. The district court supported the plaintiff, and the case appealed directly to the Supreme Court from the federal courts in the Central District of North Carolina and Maryland.

Here we need to explain the electoral system involved in this case: the division of constituencies mainly involves the election of representatives. The number of representatives in the United States is distributed according to population. In the early days of the People's Republic of China, about every 30,000 people elected a representative. Now, every 700,000 people elect a representative. In order to win the party competition, politicians who have the power to divide state constituencies often draw a constituency map and maximize the seats in the House of Representatives by "diluting votes". The specific method is to divide the voters of the opponent party into several constituencies and divide the supporters of the party into constituencies with a relatively large proportion. This practice has led to strange "wandering" constituency maps in many States.

Chief Justice Roberts wrote the court opinion again, and the objection was still written by Justice Kagan. The total opinions of the two sides are as long as 72 pages, which shows the great differences.

The court held that the constitution left the division of constituencies to the state legislature and did not provide for proportional representation, so the court could not determine how to divide constituencies fairly. Chief Justice Roberts quoted Justice Kennedy's conditions for accepting such issues in previous cases: clear, manageable and politically neutral criteria, and pointed out that the unfair election caused by racial discrimination can find the criteria that meet the above conditions, rather than the fairness caused by party politics. This issue should be handed over to Congress and state legislatures, and the court's ruling on it will greatly expand its power. Finally, he quoted the famous sentence that Chief Justice john marshall established the constitutional review power of the Supreme Court in Marbury v. Madison: "The function and responsibility of the judiciary is to clarify what the law is." And firmly replied: "This is not the law." Finally, the case was sent back to the lower court for dismissal according to the opinion of the Supreme Court.

First, the opposition cited some instructions issued by the powerful figures of the Open Congress and the State Election Commission, such as "how many seats a state must get for a political party" and the serious inequality between the popular votes in some states and the seats in the House of Representatives, pointing out that unfair constituency division makes the value of each vote far from each other, and the court cannot allow such malicious operations to undermine American democracy. As for the judgment criteria, Justice Kagan believes that the court does not need to predict what kind of election results will be brought by which constituency division method, but only needs to affirm some fair election methods that have been recognized by lower courts. For example, some States use randomly generated constituency maps, and some States require each county to enter a complete constituency. Giving the issue of fair elections to the legislature, the stage of party politics, has a doubtful effect; A neutral court should assume the responsibility of defending the people's exercise of power according to the Constitution.

In the Supreme Court, the lowest-ranking judge is nicknamed "gatekeeper"; Because in the closed meeting of the judge to discuss the case, he is responsible for opening the door and ordering coffee. It is generally believed that the changes that Justice Cabano, the "gatekeeper", will bring to the Supreme Court will give conservatives a clear upper hand. If there is a conservative justice who is as neutral as retired Justice Kennedy and keeps the two factions evenly matched, it is very likely that that person is Chief Justice Roberts, who has always been gentle.

However, it turns out that these predictions are not accurate. During the court session from 2065438+08 to 2065438+09, the conservative-liberal camp was tied, and there was no obvious change compared with the previous court sessions. Counting seven other cases in which four liberal justices and 1 conservative justices were in the majority, it was unexpectedly found that Justice Gorsuch, who was nominated by President Trump to enter the Supreme Court, turned to liberals for help the most, * * * 4 times; Followed by Justice Thomas, who has always been regarded as a hardcore conservative, twice; Another traitor is Justice Cabano, the protagonist of this article. The most popular Chief Justice Roberts maintained a "firm position" at least during this meeting.

Among the seven cases introduced in this paper, the most interesting are two judgments that overturn precedents. Under the tradition of "precedent is law" in common law, this is a serious event. Both cases come from the period of Berg Court (1969 ~ 1986), and are considered to be the most radical in the Supreme Court. They can be seen as a counterattack by conservatives against liberals and the changes brought about by Justice Cabano's entry into the Supreme Court. Interestingly, warren earl burger, the chief justice of the Berg Court, and Justice william joseph Brennan Jr., a staunch supporter of liberals, were nominated by President Dwight David Eisenhower, a party member and party member. It is said that their nomination for the Supreme Court was the most regrettable decision of the Allied Commander of World War II who swept Europe. Gorsuch, the first justice nominated by President Trump after taking office, stood with liberal justices four times in just one trial. Will he become a figure that President Trump regrets? Will Chief Justice Roberts, who is known for his gentleness, move closer to Justice Berg next year? Due to the state of emergency sweeping the world, the court session was extended from 20 19 to 2020, which should have been adjourned at the end of June, but it has not ended yet. These curious questions will be decomposed next time.