I’ve written before about how the media often reports judicial decisions through a partisan-political filter having nothing to do with the decision.
Last week, the United States Supreme Court handed down two decisions that may confound those who view everything the Justices do in the context of ‘liberal’ vs ‘conservative’… or by which President appointed a particular Justice.
The first case is Diaz v United States, in which the court interpreted a rule of evidence. It’s really of interest only to criminal trial lawyers, so I won’t waste your time discussing it. However, if you want a good primer on the subject, you can read the case here.
My point of discussion is the lineup of the Justices in the majority, and dissenting, positions. Those in the majority upheld the conviction of a woman caught smuggling meth into the country from Mexico.
The Court’s majority opinion was written by Justice Thomas, who was joined by Justices Roberts, Alito, Kavanaugh, Barrett, and Jackson (who also wrote an opinion concurring with the majority).
That scorecard of those in the majority, to illustrate my point, is as follows:
Thomas was appointed by President George HW Bush in 1991.
Roberts, the Chief Justice, with whom ‘conservatives’ are still upset, for being the deciding vote that upheld ‘Obamacare’, was appointed by President George W Bush in 2005.
Alito, whom some liberals dislike because he wrote the Dobbs opinion that overturned Roe v Wade, was also appointed by Bush II, in 2006.
Kavanaugh was appointed by President Trump in 2018.
Barrett, whom Democrats vehemently opposed, was appointed by Trump in 2020.
Jackson, the newest Justice, was appointed by President Biden in 2022.
How do those most vociferous about the supposed ‘political ideology’ of justices account for Thomas, whom they consider the most ‘conservative’, being joined by Jackson who is seen as possibly the most ‘liberal’ ?
And there is a similar lineup among the dissenters.
Those dissenters (who wanted to overturn the conviction) were:
Gorsuch, who wrote the dissenting opinion, was appointed by Trump in 2017.
Joining Gorsuch’s dissent were Sotomayor and Kagan, both of whom were appointed by President Obama, in 2009 and 2010 respectively.
Diaz wasn’t the only case last week that goes against the media-perpetuated narrative of the politics of the justices. Gonzalez v Trevino arose from small-town Texas politics wherein a city commissioner sued the city mayor for (to simplify it) ‘false arrest’. (Here’s the case if you need help falling asleep.)
The Supreme Court overturned a lower court decision… the result being that the city commissioner (Sylvia Gonzalez ) could proceed with her ‘false arrest’ lawsuit against the city mayor (Edward Trevino). Eight of the justices, who (according to the media narrative) span the political spectrum, agreed on that result.
What’s also interesting is that two of the supposedly ‘conservative’ justices (Alito and Kavanaugh) filed separate opinions concurring with the Court’s decision… as did two of the ‘liberal’ justices (Jackson and Sotomayor).
So … was this a ‘conservative’ or a ‘liberal’ ruling by the court?
The only dissenter was Thomas, which will probably mean (to the media) that it was a ‘liberal’ ruling, despite that it was agreed to by five so-called ‘conservative’ justices. You see how absurd those media-created labels are…
(As an aside, Gonzalez v Trevino, could have an interesting ripple-effect. The Florida Supreme Court says I’m an ‘expert’ in criminal trial law, supposedly meaning that my opinions on that topic carry some weight . So, for what it’s worth, in my opinion, that case could invalidate the New York criminal conviction of Donald Trump, and entitle him to a big payday in a lawsuit against the Manhattan District Attorney who charged him. I’m further of the opinion that possibility may have been a hidden word of caution, by the Justices, to prosecutors thinking of pursuing politically motivated prosecutions. But, hey, what do I know? )
An aspect of Diaz and Gonzalez, further belying the ‘political’ narrative, is that both involved ‘statutory interpretation’ (SI) – defined in Black’s Law Dictionary as, “The act or process of interpreting a statute. Collectively, the principles developed by courts for interpreting statutes.”
Some of those ‘principles’ are so old they are still referred to in Latin. As some readers (educated back when the basics of our constitutional heritage were still being taught) may remember, the ex post facto doctrine appears in the United States Constitution. The third clause of Article 1, Section 9, states “No … ex post facto Law shall be passed”… which means laws can’t be passed that make something illegal retroactively.
If you want to know more, read here.
If you read it, you’ll note the last sentence says, “The Supreme Court has held that the constitutional prohibitions on ex post facto laws do not apply to crimes committed outside the jurisdiction of the United States against the laws of a foreign country.” An example of SI where the Court interpreted or explained what the language of the Constitution both means, and doesn’t mean.
Simply because of how it sounds, my ‘favorite’ old Latin SI principle is espressio unius, est exclusio alterius – “the expression of one thing implies the exclusion of the other, or of the alternative”. Explaining the intricacies of that rule requires more space than I want to devote in the context of this column… but, again, if you need help getting to sleep, start here.
I mention it only to illustrate there are long-recognized rules for interpreting what statutes mean, that have nothing to do with the political ideology of a particular judge.
The majority of cases heard by the U.S. Supreme Court do not result in “landmark” constitutional decision, though those are the ones that get the media hype. Most cases involve SI, as noted by the late Supreme Court Justice Antonin Scalia
“… courts in the United States spend most of their time interpreting statutory law.” — The Vocation of a Judge, 2007.
That being the reality of ‘judging’, and there being a set of rules judges utilize to interpret statutes, the media obsession with the supposed ideology of Supreme Court Justices means little in the scope of what that court actually decides. Those two decisions last week illustrate why.
Another old Latin phrase, occasionally used in a legal context, may explain the media obsession with attempting to simplify (dumb-down) Supreme Court decisions by making them all about partisan politics. Reductio absurdum (reduced to the absurd ).
Reducing complex legal decisions to simple partisan politics, in furtherance of a political agenda, is absurd. It also spares journalists from having to actually understand the subject well enough to coherently explain it.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.