A Programming Note For Tonight: Verdict

I’m in Boston tonight for the last of the Sisters in Law Podcast’s live shows. It’s a great week to be back together with Jill, Kim, and Barb! Guilty on all counts. It’s definitive.

Midafternoon as I drafted this, I wrote to you that because we had to be in the theater a bit before 5:00 p.m., if anything happened late in the day, I wouldn’t have a chance to discuss it with you before tomorrow morning. Then, as I was leaving after we heard that the jury would be calling it a day at 4:30 p.m., the announcement came. A verdict. Now I’m off to do the podcast. We’ll discuss the verdict tomorrow, but it is good to see justice done!

This morning, the Supreme Court announced its opinion in three cases, none of which are the marquee cases we have been eagerly awaiting. We’re at the point where they’re going to have to start adding additional days to their calendar to start announcing opinions in order to clear the rest of the cases before the end of their term; if they don’t, they would have to announce something like nine opinions at a time to finish, and they rarely announce more than three on one day.

Today’s cases were:

• Cantero v. Bank of America, N. A., an inside baseball banking case about the standards courts use to determine when federal regulations preempt state laws. The decision was unanimous.

• National Rifle Association of America v. Vullo, is a case about First Amendment free speech claims following allegations a government employee in New York pressured businesses to cut ties with the NRA. The Court sent the case back down to the lower court for it to determine whether the claims were true, saying that if so, they could violate the First Amendment. It was also unanimous. Note: A pair of important Second Amendment cases are still outstanding. Rahimi involves the federal government’s ability to criminalize possession of firearms by certain categories of people—domestic violence offenders here, but it could impact other groups like aliens and felons. Garland v. Cargill involves whether the Bureau of Alcohol, Tobacco, and Firearms (ATF) has the authority to ban bump stocks, which make it easier to fire rapidly. Cargill could also impact the government’s ability to regulate other devices, like machine gun conversions and ghost guns.

• Thornell v. Jones is a case about a claim that the defendant’s right to constitutionally sufficient counsel was violated during the sentencing phase of his capital murder trial. Justice Alito wrote the opinion, so you know what the outcome was, but to be fair, the floor was what counts as adequate assistance of counsel is painfully low under the existing standard, an old case, Strickland v. Washington, a precedent that the Court invoked here. The three liberal Justices dissented.

Writing in Slate Magazine, a former producer for Trump’s reality TV show “The Apprentice,” Bill Pruitt, says his NDA has expired, leaving him free to discuss details from his time on the show. His most startling revelation is a claim that while discussing which apprentice should win during one season of the show, Trump said, “but, I mean, would America buy a n— winning?” Pruitt says there is tape, like the Access Hollywood tape and has called for its release.

This morning, jury deliberations resumed in People v. Trump, with portions of the jury instructions and specific selections of testimony being reread for jurors’ benefit. Courtroom reporters indicated that the jury paid diligent attention, with at least some of them taking notes. There are very different views of whether this process should be taking place.

Those who support it believe jurors, especially in longer trials, may need a refresher to help them focus on parts of the case they believe are the most important. Particularly in a situation like this where written transcripts aren’t made available, visual learners may have more difficulty retaining jury instructions from a single read. Others, though, including the former Judge I’m married to, are opposed to rereading anything to jurors out of concern it might result in an over-focus on that one piece of evidence or one part of the jury instructions at the expense of the entirety of the record. There are fair points on both sides and no one consistent practice across the country, but I wonder if, over time, these old-school practices won’t disappear in favor of giving jurors more access in a world where we rely less and less upon memory.

Judge Merchan continues to make a good record, protecting a conviction, if there is one, for the inevitable appeal. This process of juror questions during deliberation can produce reversible error, so he is methodically consulting with the lawyers before answering questions to obtain their approval, proceeding with the process on the record in court so there is evidence it was done properly, and confirming with the jurors at the end that all of their questions have been adequately answered. Despite all the criticism from the right, he has tried the case fairly and Trump has been well-represented. And that will matter a great deal if there are convictions and an appeal.

Yesterday, Justice Alito wrote a letter advising Senators he had no intention of recusing from the presidential immunity case or anything else, because he has a duty to sit. “I am confident that a reasonable person,” he wrote, “who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events recounted above do not meet the applicable standard for recusal. I am therefore required to reject your request.” Justice Alito is perfectly comfortable saying how a reasonable person should decide his situation, but less so at letting that reasonable person (who is nonexistent at the moment since the Supreme Court answers to no one), look at the matter independently.

Later in the day, Maryland congressman Jamie Raskin, a constitutional law scholar aside from his day job, wrote a piece in the New York Times, arguing that there was something that could be done about Justices Alito and Thomas. He wrote that “Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection.” But then he disagreed, suggesting that “DOJ should petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law,” explaining that both statutory law and the Constitution supported such a request.

Whether the Congressman is correct in his analysis or not, it’s clear, particularly in light of a letter the Chief Justice wrote to Senators this afternoon that we’ll get to in a moment, that there would not be five votes on the Court to force a recusal. That may not have been Raskin’s point, in any event. By demonstrating that the Court has had every opportunity to fix its own ethical problems and failed to do so, he makes the case for Congress to act ever stronger. There is less of a separation of powers rationale for Congress to stay out of the morass if the Court has proven it will not police itself. Raskin, who certainly relishes the legal construct, is also laying groundwork for a pragmatic justification for Congressional action down the road.

Raskin explained masterfully why judges and justices must remain neutral:

"At his Senate confirmation hearing, Chief Justice Roberts assured America that “Judges are like umpires.”

But professional baseball would never allow an umpire to continue to officiate the World Series after learning that the pennant of one of the two teams competing was flying in the front yard of the umpire’s home. Nor would an umpire be allowed to call balls and strikes in a World Series game after the umpire’s wife tried to get the official score of a prior game in the series overthrown and canceled out to benefit the losing team. If judges are like umpires, then they should be treated like umpires, not team owners, team fans or players."

Chief Justice Roberts wrote to the Senate Judiciary Committee this afternoon, a two paragraph, highly unsatisfactory letter than makes it entirely clear he will not bring any pressure to bear on Justice Alito. Roberts wrote to Senators Durbin and Whitehouse that, “the Members of the Supreme Court recently reaffirmed the practice we have followed for 235 years pursuant to which individual Justices decide recusal issues.” He declined their invitation to make a trip across the street to visit with the Senators, noting that only rarely have Chief Justices met with legislators because of “separation of powers concerns.” If only Durbin and Whitehouse had offered up a luxury fishing trip and a private plane flight.

More, undoubtedly, tomorrow.

We’re in this together,

Joyce