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Rule of law starting to bend, but will it break under Trump-Sessions?
DANIEL A. COTTER
Law Bulletin columnist
Published: March 23, 2018
We continue to live in times that perhaps will be looked back on one day and the world will ask, what happened. How did the law move in reverse? This column looks at a few items that might find their way on such a list.
Sunshine as disinfectant
Louis Brandeis was a pioneer in the field of privacy, beginning with his influential article, “The Right to Privacy.” But he also considered the flip side of privacy and, in a 1913 Harper’s Weekly article, “What Publicity Can Do,” coined the famous statement, “sunlight is said to be the best disinfectant.”
The current administration apparently considers Brandeis to be an uninformed observer, if a recent report by The Associated Press is to be believed.
In 2017, the federal government made more assertions that it could not find any responsive information than have been made in the past decade. In 78 percent of more than 800,000 requests, the requesters received “censored files or nothing” in response.
In more than half the cases, the federal government stated it could not find any information. In addition to the percentage of zero responses, the amount spent on legal fees defending against FOIA requests also set a record, topping $40.6 million. President Abraham Lincoln’s powerful ending to the Gettysburg Address may be called into question:
“Government of the people, by the people, for the people, shall not perish from the earth.”
Federal courts and Trump’s nominees
In previous columns, we have written about the nominees President Donald J. Trump has made to the federal benches. The lack of diversity continues to be unprecedented in recent administrations — of the 87 people nominated to be judges at the federal level by President Trump, 80 are white, one is black, one is Latino and five are Asian or Pacific American. Sixty-seven of the nominees are men. No openly LGBTQ nominations have been made.
In 2017, Trump set a record in a first year when a dozen of his circuit court of appeals judges was confirmed. He added to his confirmed nominees in 2018 when on Jan. 30, 2018, the Senate confirmed eight circuit court of appeals nominees, David Stras, 56-42, and added a 14th when Elizabeth L. Branch, nominee to the 11th U.S. Circuit Court of Appeals, was confirmed by the Senate, 73-23.
Stras was a former justice on the Minnesota Supreme Court and Branch was a judge on the Georgia Court of Appeals. Stras is a former clerk for U.S, Supreme Court Justice Clarence Thomas and a professor from the University of Minnesota Law School.
Stras is on the list of potential Trump Supreme Court nominees. Branch is a former senior office in President George W. Bush’s administration. Ten other appeals court nominees have been submitted this year by Trump.
Twisted textualism
The Brennan Center for Justice recently wrote a piece on a recent Supreme Court decision, Murphy v. Smith, a 5-4 decision written by Justice Neil M. Gorsuch for the majority, a decision that the center claims “contorted the text of the statute to give prison officials everywhere an important victory and prisoners everywhere a stinging defeat.”
The statute at issue provides that a portion of the judgment is to be used to satisfy the attorney fees. Gorsuch, over a strong dissent by Justice Sonia M. Sotomayor, concluded that the trial judge has no discretion and must apply 25 percent of the award to attorney fees.
Judicial authority
In other federal judiciary news, the Justice Department has raised concerns about the ability of U.S. District Court judges to impose nationwide injunctions. This would be a significant change in how the federal judiciary has conducted business since the beginning. In its brief to the Supreme Court involving the global injunction against the administration’s travel ban, the Justice Department also asked the Supreme Court to limit injunctive relief “to redressing a plaintiff’s own cognizable injuries.”
U.S. Attorney General Jeff Sessions recently spoke to a Federalist Society gathering, calling the nationwide injunctions “limitless” and “unconstitutional.” Whether the Supreme Court addresses the injunction question is an open question, but the Justice Department is making similar arguments in a 7th Circuit case involving sanctuary cities. The debate over the practice may soon be decided.
One ‘Heller’ of a story
Sen. Dean Heller from Nevada recently was heard on tape predicting that the retirement of Justice Anthony M. Kennedy was imminent, in an apparent effort to save his seat in the Senate. Heller referred to the rumors of the impending retirement as getting “our base a little motivated” for a “new Supreme Court justice.” Other than Heller, no word has been uttered about Kennedy’s plans.
Missouri and the 15-year-old brides
In a prior column, we wrote about Missouri and efforts by at least 50 legislators to change a law on teenage marriage. While that effort failed, a recent report indicates that Missouri is the most lenient state for the young to marry.
Under Missouri law, those as young as 15 can marry if one parent signs, even if the other parent objects. Missouri is one of half the states with no minimum age for marrying, although if the person is 14 or younger, the judge must approve.
More than 1,000 15-year-olds have married in Missouri since 1999 and 8,350 under the age of 18 (more than 7,000 girls) have married in that same period.
Missouri is not alone. In Kentucky, Senate Republicans recently pulled a bill that would have outlawed marriage for anyone under 17 and required court approval for 17-year olds, when a conservative group, Family Foundation of Kentucky, asserted that parental rights were being taken away.
Kentucky is third in the nation, behind Texas and Florida, in marriage by minors, with more than 11,000 minors marrying in the 10-year period, 2000 to 2010.
Conclusion
In a case involving the “Keating Five,” Judge Stanley Sporkin raised the question of where the professionals, including lawyers, were when “clearly improper transactions were being contemplated.”
His admonition rings loud and clear at present as we continue to watch legislatures and others implement laws and rulings that may leave future generations asking the same questions about our profession.
Daniel A. Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else. He can be reached at dcotter@llflegal.com.