Conservatives exert new control over Supreme Court

The US Supreme Court offered new evidence on Tuesday that conservatives have exerted control and liberals are not goi...

Posted: Apr 25, 2018 9:38 AM
Updated: Apr 25, 2018 9:38 AM

The US Supreme Court offered new evidence on Tuesday that conservatives have exerted control and liberals are not going quietly, in a pair of 5-4 decisions that could explain the remarkably slow pace of decisions this session.

Earlier signs of a rightward shift were reinforced particularly as the majority shielded foreign corporations from certain lawsuits over human rights abuses. The opinions in that case -- subjected to oral arguments back in October -- played out over 85 fractious pages.

The latest actions give contours to the first full term of President Donald Trump's appointee, Neil Gorsuch, and come on the eve of oral arguments in what is arguably the most important case of the annual nine-month session.

The justices Wednesday will hear a challenge to Trump's travel ban on immigrants from select majority-Muslim countries. The dispute over this signature Trump initiative, a foundation of his 2016 campaign, could be the greatest test of the reconstituted Roberts Court's ideological divisions.

It is difficult to know the exact source of the delays -- the justices meet in private and require confidentiality among law clerks. But sufficient signs have emerged that the dueling ideological camps are engaged in especially protracted rounds of back-and-forth, attacking each other's legal rationales.

The conservative wing has prevailed in most of the narrowly decided cases but individual conservatives have not always been united in their rationale. This is a long-standing pattern but one that has been accelerated by Gorsuch's distinct approach, tied to an 18th-century understanding of the Constitution.

Since the term began last October, the justices have handed down 23 signed opinions. That is a historic low for this point in the term dating back more than a century, according to Adam Feldman, whose Empirical SCOTUS blog examines trends at the Supreme Court of the United States. He said the court is experiencing record-long turnaround times for cases, from when argued to when the decision is announced, of an average 114 days.

Feldman said the court under Chief Justice John Roberts, who took the bench in 2005, has, on average, issued 36 signed decisions through April.

In Tuesday's Jesner v. Arab Bank, Justice Anthony Kennedy announced the judgment of the court and was joined by Roberts and fellow conservatives only to an extent in the 29-page opinion declaring that victims of human rights abuses cannot sue foreign corporations in US courts for financing in the abuse. Justices Clarence Thomas, Samuel Alito and Gorsuch wrote separate concurring opinions.

Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. That liberal foursome joined a 34-page opinion by Sotomayor.

She concluded their dissent by likening the new case to Citizens United v. Federal Election Commission, the 2010 ruling that lifted regulations on corporations in political campaigns and that stands as one of the most controversial rulings of the Roberts Court. She said such decisions let corporations "enjoy fundamental rights without having to shoulder attendant fundamental responsibilities."

In his concurrence, Alito denounced liberals' approach in the case that turned on the 18th-century Alien Tort Statute. "The dissent invokes 'the considered judgment of the Executive Branch and Congress' that ATS suits against foreign corporations are 'necessary to help the United States avoid diplomatic friction,'" Alito asserted. "Tellingly, however, the dissent cannot muster a single source that actually supports that bold contention. "

The footnotes have become a regular battleground of rhetorical swipes. In an earlier 5-4 April case that liberals lost, Ginsburg leveled one of her harshest critiques in small type at the end of her opinion. In the dispute over Fair Labor Standards Act overtime protections, she said the conservative majority had undercut worker protections from the 1930s New Deal era "without even acknowledging that it unsettles more than half a century of our precedent."

On Tuesday, in a separate 5-4 patent ruling in which Ginsburg was again in dissent, this senior justice on the left assigned the main dissenting opinion to Breyer. But she wrote a one-paragraph statement criticizing Gorsuch's majority opinion and its "wooden reading" of the law at issue.

She then suggested an alternative, which Gorsuch spurned in a footnote that concluded, "lawful ends do not justify unlawful means."

Indiana Coronavirus Cases

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Cases: 613228

Reported Deaths: 9728
CountyCasesDeaths
Marion846851338
Lake45676687
Allen32980552
Hamilton29649315
St. Joseph27531382
Elkhart24478345
Vanderburgh19610250
Tippecanoe18108141
Johnson15191295
Porter14944169
Hendricks14485250
Madison11044222
Clark10811144
Vigo10795181
Monroe9458113
Delaware9170134
LaPorte9145164
Howard8292144
Kosciusko810183
Warrick680299
Hancock6782104
Bartholomew6640100
Floyd6507110
Wayne6177162
Grant6027116
Dubois558680
Boone556468
Morgan548695
Henry511464
Marshall506984
Cass486964
Dearborn486545
Noble475659
Jackson427747
Shelby420781
Lawrence393780
Clinton375044
Gibson374459
Harrison353045
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Knox336239
Miami324544
Steuben315046
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Fayette248648
Greene242262
Posey241028
Wells236951
LaGrange230062
Scott226839
Clay224332
Randolph215248
Jennings200636
Sullivan193533
Spencer193022
Washington188023
Fountain184927
Starke176444
Jay168623
Owen167637
Fulton164830
Orange160935
Carroll159715
Rush156318
Perry155929
Vermillion149734
Franklin149333
Tipton133133
Parke13088
Pike118526
Blackford111822
Pulaski97837
Newton92021
Brown88335
Benton87110
Crawford8099
Martin74913
Warren6857
Switzerland6695
Union6297
Ohio4977
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Ohio Coronavirus Cases

Data is updated nightly.

Cases: 868656

Reported Deaths: 10768
CountyCasesDeaths
Franklin102154707
Cuyahoga865201153
Hamilton64744448
Montgomery43516419
Summit35250762
Lucas31663631
Butler31268232
Stark26096443
Warren19830142
Lorain19296229
Mahoning17471339
Lake16250154
Clermont16128112
Delaware1453680
Licking13326137
Fairfield1294981
Trumbull12920317
Greene12174141
Medina11732168
Clark11058265
Wood10457158
Allen9988127
Portage9454111
Miami924473
Richland9236118
Marion7486113
Tuscarawas7440183
Columbiana7409124
Pickaway732150
Wayne7111172
Muskingum710342
Erie6221130
Ross5558100
Hancock555292
Scioto542764
Geauga515955
Darke473492
Lawrence460658
Union456928
Ashtabula456473
Sandusky439562
Mercer435089
Seneca433866
Huron432841
Auglaize424164
Shelby422522
Jefferson422469
Belmont421145
Washington394240
Athens38389
Putnam378075
Madison358129
Knox356122
Ashland349038
Fulton340443
Defiance334486
Crawford325774
Preble322737
Brown315821
Logan312132
Ottawa296543
Clinton291543
Williams280367
Highland279018
Jackson265845
Guernsey257126
Champaign253428
Fayette239530
Morrow23464
Perry233718
Holmes226774
Henry221953
Hardin215533
Coshocton206922
Van Wert203445
Gallia199826
Wyandot196751
Pike178017
Adams177715
Hocking173224
Carroll157616
Paulding145321
Noble121040
Meigs109724
Monroe102232
Harrison89921
Morgan83931
Vinton71314
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