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Trends in the Law: Democracy Protected or Denied?

SUPREME COURT ROUND-UP

This week marks the end of the Supreme Court’s 2018-2019 term, and true to form, SCOTUS waited to hand down some of its most anticipated decisions until now. The following are highlights of some of the biggest cases of the current term.

In The American Legion v. American Humanist Association, the Supreme Court considered whether to allow a 40-foot tall cross in a memorial park honoring WWI veterans in Bladensburg, Maryland, to remain standing. Several non-Christian residents of Prince George’s County, Maryland, objected to the cross on the basis that it constituted government affiliation with Christianity. Construction of the cross began in 1918, and the cross was celebrated in Christian services. In 1961, Maryland National Capital Park and Planning Commission acquired the cross and the land, as well as the responsibility to maintain, repair and otherwise care for the cross.

American Humanist Association, a nonprofit organization advocating for the separation of church and state, together with individual residents of the county, sued the Commission, alleging a violation of the Establishment Clause. The District Court found that the Commission did not violate the Establishment Clause because: (1) the cross has a secular purpose; and (2) it neither advances nor inhibits religion, and (3) it does not have a primary effect of endorsing religion. The Fourth Circuit reversed and remanded.

In a 7-2 decision written by Justice Alito, the Supreme Court reversed the decision of the Fourth Circuit and remanded the case. Justices Ginsburg and Sotomayer dissented. The decision, like the entanglement of church and state itself, is messy. The bottomline, though, is that the Peace Cross, as it is known, is allowed to stand and be maintained by the state.

In another 7-2 opinion, the Supreme Court upheld the “separate sovereigns doctrine” in Gamble v. United States, in which it affirmed the judgment of the Eleventh Circuit. The separate sovereigns doctrine holds that charging an individual for the same crime in two different sovereigns does not violate the Double Jeopardy Clause of the Fifth Amendment to the Constitution. Some experts worried that the Court would overturn the doctrine—and the judgment of the lower court—due to political considerations; if charges in state and federal jurisdictions for the same offense were no longer allowed, then a presidential pardon for a federal offense would eliminate all criminal jeopardy. For this reason, people feared that a court with two Trump appointees and a conservative majority might overturn the separate sovereigns doctrine. This would clear a path for presidential pardons of Trump associates convicted of federal offenses, who could no longer be held accountable in state courts and who would therefore no longer have a reason to cooperate in investigations.

However, the separate sovereigns doctrine was upheld and prosecutions in state and federal jurisdictions for the same crime can occur. It should be noted that this rarely happens; rarely are the elements of a state criminal offense exactly the same in a federal offense, and rarely does the DOJ bring charges that the state could bring unless it adds charges that only can be brought at the federal level.

SAVING THE BEST FOR LAST

On June 27, the last day of its current term, the Supreme Court handed down two highly anticipated decisions. The first was its decision in the so-called partisan gerrymandering cases. These cases were appeals from a North Carolina case, Rucho v. Common Cause, and a Maryland case, Lamone v. Benisek, both of which were decisions issued by 3-judge panels of district courts. In the North Carolina case, the panel found that the legislators there had violated the constitution by drawing the districts to hurt the electoral chances of Democratic candidates. In the Maryland case, the panel ruled that state officials could no longer use the map redrawn by the Democrats in 2011 that had led to the defeat of the Republican incumbent and the victory of the current Democratic Congressman.

The Supreme Court ruled against the challengers on both in a 5-4 decision along conservative-liberal lines. Roberts wrote for the majority, stating: “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.”

The long-awaited decision about whether the Trump administration can put a question regarding citizenship status on the 2020 U.S. Census was finally handed down on June 27, 2019. As was expected, the decision is complicated, with both sides of the dispute claiming a victory of sorts. The Department of Commerce has the power to add such a question, but the question cannot be added now because the reason given did not hold up to scrutiny: “We are presented…with an explanation for agency action that is incongruent with what the record reveals about the agency’s priorities and decision-making process” wrote Chief Justice John Roberts. More pointedly: “If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case, “ Roberts stated. Department of Commerce v. New York was remanded to the Southern District of NY, Judge Jesse Furman, for further hearings on the reason for adding the citizenship question. Judge Furman was one of three judges in the country who issued rulings blocking the addition of the question to the 2020 Census.

The partisan gerrymandering case and the census case are related, because both affect representation. Partisan gerrymandering is a direct attempt to influence the outcome of elections; adding a question regarding citizenship to the census could lead to under-representation of certain minorities and the political parties associated with those minorities. The fact that the Supreme Court considered gerrymandering a “political question” beyond its purview yet exercised its crucial role of judicial review in the census case is perplexing. The practical effect of the Supreme Court declining to intervene in the gerrymandering case is that states will be able to continue extreme gerrymandering, which will continue the extreme polarization in politics we see today—since moderate candidates will not get elected. If the citizenship question is ultimately added to the 2020 census, and an undercount of minorities occurs as the Commerce Department’s own experts predict, that polarization will only be exacerbated.

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