Does the law require that Justice Ginsburg recuse herself in Trump v. Int'l Refugee Assistance Project?

To answer this question, it helps to look at how Justice Scalia handled recusal and  the relevant statute's language. Over 13 years ago, the Sierra Club wanted Scalia to recuse himself in Cheney v. United States District Court. And before that, the issue of recusal came up in Elk Grove Unified School District v. Newdow. In Cheney, Scalia did not recuse himself, but he did in Elk Grove. 

Background

              Cheney v. United States District Court

Early in his presidency, Geo. W. Bush established the National Energy Policy Development Group with Vice President Cheney as its head. This committee's broad purpose was to advise the president on energy policy. The Federal Advisory Committee Act requires that such committees conduct their business in public, unless they are composed exclusively of federal officials or employees,  The Sierra Club and Judicial Watch argued that energy industry lobbyists were members because they were so deeply involved in the committee's work; if true, the committee had to conduct its business in public. The Sierra Club and Judicial Watch wanted information about the committee to determine the extent to which private individuals were involved in the committee's work. Both the District Court and the D.C. Circuit Court concluded that the committee must turn over the information. The vice president petitioned the Supreme Court of the United States to review the case, and SCOTUS agreed to review it. The vice president was not a party in his individual capacity--the lawsuit wasn't against him personally--but only in his official capacity as vice president. 

The Sierra Club wanted Justice Scalia to recuse himself because of his friendship with Vice President Cheney and because the two had gone on a hunting trip together in 2003.

               Because Cheney was sued only in his official capacity
               as head of the committee and the lawsuit only
               challenged an administrative decision, the Cheney-
               Scalia friendship did not require recusal.

 Cheney and Scalia had been friends since their time in the Ford Administration. In responding to the recusal motion, Justice Scalia filed a memorandum in which he described the hunting trip. The gist is that Scalia's friend Wallace Carline admired Cheney; this led Scalia to ask Mr. Carline if he would like for Scalia to invite the vice president on their next hunting trip. Mr. Carline liked the idea, so Scalia extended the invitation and Cheney accepted. Cheney invited Scalia, a son, and Scalia's son-in-law to fly on the vice president's plane--if space allowed--to Louisiana for the hunting trip. This all occurred before the Court agreed to hear the case. 

The hunting party comprised 13 individuals. The hunters slept two or three to a room with the vice president having his own quarters. The vice president's security detail and a few members of Mr. Carline's staff were there too. Scalia and Cheney never hunted in the same blind, nor were they ever alone except, in Scalia's words, "perhaps, for instances so brief and unintentional that I would not recall them." Cheney left after two days; Scalia, his son, and son-in-law stayed longer and flew back to D.C. on a commercial airline. The motion to recuse must be based on these facts, not on facts surmised by others.

In deciding the issue, Scalia was guided, in part, by the Court's Statement of Recusal Policy; a policy that dated back to 1993. Because the Court is a nine-member court, the policy cautions against recusal "out of an excess of caution." The reason is simple: a single recusal would leave the Court with only eight members to decide the case. Because an evenly divided Court would result in the lower court's decision being unchanged, recusal would, as Justice Scalia wrote, be a vote against the petitioner. This led Scalia to reject Sierra Club's argument that any doubts about recusal should be resolved in favor of recusal. 

The essence of Sierra Club's argument was that Scalia should recuse himself because he and Cheney were friends. While it is true that if a friend's liberty or fortune is at stake recusal is the correct route, but friendship alone is not sufficient. Justice Scalia cited many examples from history where justices were personal friends with presidents. Justice Douglas, for example, regularly played poker with FDR. And, as Justice Scalia noted, most justices are nominated to the Court because of connections to high-ranking individuals in an administration. It would be quite a burden if friendship alone were enough. 

Another important factor, as noted above, is that Cheney was a party only as head of the committee. In other words, he was not being sued as Richard Cheney. If the head of the committee changed during the pendency of the suit, the new committee head would automatically be substituted in place of Cheney. And the issue in the case was not about Cheney, but rather an administrative decision. In such cases, it would be absurd to require recusal. Hence, Scalia rejected Sierra Club's motion. 

              Elk Grove Unified School District v. Newdow

The issue in Elk Grove Unified School District v. Newdow, was whether reciting "under God" in the Pledge of Allegiance at the beginning of the school day violated the Constitution. While the Court was considering whether to grant review, Scalia commented on the Ninth Circuit's decision in the case. He said, among other things, "The new constitutional philosophy says if those who decide the law think it would be a good idea to get religion out of the public forum, then it will be exterminated from the public forum through judicial fiat." Biskupic, An American Original at p. 267. Newdow asked Scalia to recuse himself from the Court's decision whether to review the case. In the Court's order granting review, the Court merely noted that Justice Scalia took no part in the decision. Scalia obviously thought that his comments set up a situation in which his "impartiality might reasonably be questioned," or that he had a "personal prejudice concerning a party." These are two of the bases in the statute that require recusal. But, as is the usual case, Scalia did not explain why he recused himself.

              28 U.S.C. § 455

The statute sets out the grounds for recusal. One part applicable here requires that "[a]ny justice . . . disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The other applicable part requires recusal if the judge "has a personal bias or prejudice concerning a party."

Because Trump is a party only in his official capacity and the case challenges only a government policy, the law does not require that Ruth Bader Ginsburg recuse herself from participating in Trump v. Int'l Refugee Assistance Project.

At the end of June, SCOTUS granted review in Trump v. Int'l Refugee Assistance Project . Fifty-eight members of Congress sent a letter to Justice Ginsburg demanding that she recuse herself from the case. First, a letter from members of Congress is not how recusal works. A party to the case must file a motion seeking recusal. Unless a party files a motion, Ginsburg won't even address the matter. 

Second, President Trump is a party in his official capacity just as Cheney was in Cheney v. United States District Court. (This is an important distinction lost on at least one law professor. Here, Lumen Mulligan associate dean at the University of Kansas School of Law shows his misunderstanding of the distinction.) 

How does this apply to Justice Ginsburg and Trump v. Int'l Refugee Assistance Project ? Here--just as was the case in the Cheney matter--Trump is sued in his capacity as president, i.e., his official capacity. And this case is about a policy of the federal government. Because Trump is a party in his capacity as president, Justice Ginsburg's dislike of Trump the businessman, Trump the candidate, Trump the Presbyterian, Trump the husband, etc. doesn't matter for purposes of recusal in this case. Justice Ginsburg has not made any public statements about her opinion of the policy, she's only expressed dislike of Donald Trump. 

Does Justice Ginsburg have a predisposition regarding the policy at issue in Trump v. Int'l Refugee Assistance Project? Doubtless she does. But having a predisposition about the legal issues does not require recusal. As Scalia wrote in Republican Party of Minnesota v. White, "a judge's lack of predisposition regarding the relevant legal issues in a case has never been thought of as a necessary component of equal justice, and with good reason . . . [because] it is virtually impossible to find a judge who does not have preconceptions about the law."

Conclusion

Justice Ginsburg should exercise discretion and avoid attacking the president. But, for the following reasons, her behavior does not require recusal:

• Trump is not sued in his personal or individual capacity;
• The case is about a government policy, not about Trump's behavior in his individual capacity;
• Ginsburg's preconceptions about the policy do not require recusal.

    

Who was Joseph Warren?

With Fourth of July coming up, let's take a look at a founder who backed his beliefs in word and deed. Joseph Warren began practicing medicine in Boston at the age of 22--after graduating from Harvard at 14--making him the youngest doctor in Boston. Although the relationship between the colonies, particularly Massachusetts, and Great Britain had been deteriorating for years, it was the public reaction to Great Britain's passage of the Stamp Act   that caused Dr. Warren to join the ranks of the Patriots. 

Great Britain's oppressive treatment of Massachusetts led Samuel Adams to propose committees of correspondence to facilitate communications among the counties and towns of Massachusetts. And Joseph Warren was an early supporter of this idea, which eventually would be used to tie the 13 Colonies together. In November 1772, the Boston Committee of Correspondence produced the Boston Pamphlet. This document comprised three sections: (1) "A State of the Rights of the Colonists and of this Province in particular"; (2) "A List of the Infringements and Violations of those Rights"; and (3) "A Letter of Correspondence with the Other Towns." Samuel Adams was the primary author, and he wrote part one. Dr. Benjamin Church wrote part three. And Joseph Warren wrote part two. 

Dr. Warren listed 12 acts by Great Britain that violated the colonists' rights. These included passing laws without the colonies' consent, imposing taxes on the colonists without their consent, authorizing the military to use the general warrant to enter any house, shop, ship, etc. where the officials suspected that they could find goods for which the taxes had not been paid, and depriving the colonists of the right to trial by jury. Another act opposed by the Boston Committee of Correspondence was Great Britain's using revenue from these illegal taxes to pay colonial officials. The Committee knew that Great Britain's paying these officials would make them more interested in doing King George's bidding than protecting the colonists' rights. This, however, was not the end of Dr. Warren's lists. 

In May 1774, Parliament passed the Massachusetts Government Act as part of the Intolerable Acts--known in Great Britain as the Coercive Acts. The Intolerable Acts were in response to the Sons of Liberty's tea party in Boston Harbor in late 1773. The Massachusetts Government Act effectively voided Massachusetts's Charter, and it reduced Massachusetts to a Crown Colony. In September 1774, almost two years after the Committee's 1772 Boston Pamphlet, Dr. Warren wrote the final version of the Suffolk Resolves. The Suffolk Resolves were the Boston Committee of Correspondence's response to the Intolerable Acts. The Suffolk Resolves set forth 19 objections to Great Britain's treatment of the colonies. 

After the Committee approved the Suffolk Resolves, Dr. Warren dispatched Paul Revere to carry the Resolves to the First Continental Congress then meeting in Philadelphia; he completed the 350-mile journey in five days. The Continental Congress adopted the Suffolk Resolves word for word.

One could rightfully expect that Dr. Warren, having proven himself as a drafter of grievances, might be involved more directly with the Declaration of Independence. But you will search in vain among the names of the 56 signers of the Declaration for Dr. Joseph Warren. Why?

In April 1775, the British were preparing to attack Boston. William Dawes and Paul Revere were given the job of spreading the word when the British made their move. And just as Dr. Warren had done in September 1774 when he sent Revere to Philadelphia with the Suffolk Resolves, he dispatched Dawes and Revere on their rides to warn that the British were coming. And two months later, on June 17, 1775, the Battle of Bunker Hill was fought. The battle was fought mostly on Breeds Hill.

Only a few days before the battle, the Massachusetts Provincial Congress had appointed Dr. Warren as a major general. Dr. Warren, however, was true to his convictions; having protested Great Britain's oppression in speeches and writings, he did not wish to be in command at a safe distance from the battle. So six days after his 34th birthday, Dr. Warren gave up his commission and fought alongside the other volunteer soldiers. Dr. Warren was killed in the battle. And this is why you won't find his name among the signers of the Declaration of Independence. But his spirit surely is.    

Trademark and the First Amendment

Today, the Supreme Court of the United States (Gorsuch, J., not participating) held in Matal v. Tam that the Patent and Trademark Office's denial of a trademark to the band The Slants violated the First Amendment. The band wanted to trademark its name. The PTO denied the application because it determined that the registration of this name as a trademark would "'disparage . . . or bring . . . into contemp[t] or disrepute' . . . 'persons, living or dead.'" Matal v. Tam, No. 15-1293 at 1 (quoting 15 U.S.C. §1052(a)).

Justice Alito delivered the Court's opinion as to Parts I, II, and III-A. Seven other justices joined as to these parts with the exception of Justice Thomas's not joining Part II. Alito also wrote the opinion as to Parts III-B, III-C, and IV in which he was joined by Roberts, C.J., and Thomas and Breyer, JJ. Justice Kennedy wrote an opinion concurring in part and concurring in the judgment; Ginsburg, Sotomayor, and Kagan, JJ., joined. Finally, Justice Thomas wrote an opinion concurring in part and concurring in the judgment.

Part I is simply an overview of trademark law and background on the case. Part II addressed whether the statute applies to racial or ethnic groups as opposed to applying only to natural or juristic persons. Because Tam did not raise this issue in the lower court, SCOTUS did not grant certiorari on this issue. The government, however, urged the court to review this issue because it might avoid the constitutional question. Courts prefer avoiding decisions on constitutional grounds when they can. The Court, however, rejected Tam's argument as not supported by the text of the statute. Justice Thomas disagreed with Part II only because he felt the denial of certiorari on this issue should have ended the inquiry. Justice Thomas also argued that strict scrutiny applies when the government tries to suppress truthful speech even if it is characterized as commercial speech. The Court applied a less stringent test; because the Court even under the less stringent test found the statute unconstitutional, Thomas concurred in the judgment.

In Part III-A, the Court in an 8-0 opinion rejected the government's claim that the issuing of a trademark is government speech and therefore outside of the First Amendment. In rejecting the government's argument, the Court said that if registering trademarks is government speech, the government is "babbling prodigiously and incoherently."

In Par III-B Alito and three others rejected the government's claim that registering a trademark was analogous to a government subsidy and outside of the protection of the First Amendment. Likewise, in Part III-C Alito and three others rejected the applicability of the government's proposed "new doctrine that would apply to 'government-program' cases."

In Part IV, Alito discussed which standard should apply, but ultimately did not decide the issue because the statute in question failed under either standard. (Thomas would have reached this issue and applied strict scrutiny.)

In Kennedy's opinion (joined by three others) he concluded that the statute is unconstitutional because it is viewpoint discrimination. And he believed that this conclusion was all that was necessary to decide the case. Kennedy noted that the government's argument, i.e., the statute is viewpoint neutral because it prohibits all sides from disparaging others, was illogical. "By mandating positivity, the law . . . might silence dissent and distort the marketplace of ideas."

The bottom line is that the Court's judgment is 8-0 that the statute violates the First Amendment, and this is the right conclusion.

73rd Anniversary of D-Day

Today marks the 73^rd anniversary of D-Day. On this day—73 years ago—“4,000 ships, 11,000 planes, and nearly three million soldiers, marines, airmen, and sailors assembled in England for the assault.”  The invasion succeeded, but success was not a foregone conclusion. Failure was as likely an outcome. Eisenhower wrote a note on June 5, 1944, accepting responsibility for the failure. (He mistakenly dated it July 5.)   It is doubtful in our era that we have leaders who would willingly accept such blame.

The first quote mentions the marines; students of history will question this as there are no stories of heroism by the U.S. Marines on D-Day. And if the Marines were involved, such stories would abound. By 1944, the Marines were masters of the amphibious assault. The Marines trained the Army in how to conduct amphibious landings in North Africa, Italy, and, yes, Normandy. But the Marines did not play a large role in the European Theatre. The Marines had their hands full in the Pacific, and they were much smaller than the Army; the Marines had six divisions in WWII compared to the 89 divisions of the Army. Some, however, attribute the Marines not playing a large role in Europe to the Army’s jealousy from WWI where the Marines received a lot of press for the success of the Battle of Belleau Wood. Marshall, Eisenhower, and Bradley were WWI veterans. I don’t know if there are any facts to back this up. I’ve always thought the Marines played a larger role in the Pacific Theatre because they are part of the Dept. of the Navy and the Navy, by virtue of the nature of the Pacific Theatre, played such a large role in the Pacific.

But today we ignore the pettiness that rules man, and remember those who did the unthinkable and broke the Nazi stranglehold on Europe.   

"For want of a comma"

The following sentence is from an exemption to Maine’s overtime law:  “The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of (1) agricultural produce; (2) meat and fish products; and (3) perishable foods.” Under the exception, employees engaged in these specified job processes are not entitled to overtime.

In O'Connor v. Oakhurst Dairy, --- F.3d ---, 2017 WL 957195 (1st Cir. 2017), a dairy’s delivery drivers sued claiming that they were entitled to overtime because they don’t “pack for distribution”; therefore, they are not exempt from the overtime law. The drivers’ argued that the lack of a comma between “shipment” and “or” results in the exemption applying only to those involved in “packing for distribution.”

The district court said “oh pooh, everyone knows that Maine’s legislature intended “packing” to modify “for shipment” and not “distribution.” The First Circuit said “not so fast lowly district judge.” The court goes through a lengthy discussion about the various grammar arguments in favor of each interpretation, e.g., parallelism and asyndeton.

You should use the serial or Oxford comma before the conjunction that joins the last two items in a series of three or more. The Chicago Manual of Style § 6.18 (16^th ed. 2010). The Maine legislature violated this rule, and this led to this overtime case going to the First Circuit. In their defense, however, the drafters followed the Maine Legislative Drafting Manual that specifically directs drafters to omit the comma “between the penultimate and the last item of a series.” The manual goes on to provide that the comma should be used if needed to prevent ambiguity. The strongest points in favor of the dairy are the manual and the absence of a conjunction before “packing.” If “packing for shipment or distribution” were intended to be the last element in the series—as the drivers argue—one would expect a conjunction before “packing.”   

The First Circuit noted that each item in the list is a gerund, and parallelism requires that “every element of a parallel series must be a functional match of the others . . . and serve the same grammatical function . . . .” O’Connor v. Oakhurst Dairy, --- F.3d ---, 2017 WL 957195 at *5 (1^st Cir. 2017) (citing The Chicago Manual of Style § 5.212 (16^th ed. 2010)). Each gerund refers to a stand-alone activity; therefore, “packing”—the last gerund in the list—applies to both “shipment” and “distribution.” And the lack of the serial or Oxford comma, when coupled with the court’s other grammar observations, led the court to conclude that “for want of a comma” the drivers were entitled to overtime.

Some of you were trained not to use the serial comma, but I urge you to follow The Chicago Manual of Style: “Chicago strongly recommends this widely practiced usage . . . since it prevents ambiguity.” The Chicago Manual of Style § 6.18 (16^th ed. 2010). By quoting Chicago’s use of “since” I made the skin of some of you crawl; you prefer or insist that “since” be used only in the temporal sense; you prefer that “because” be used here. You are free to reject “since” in a causation sense, but such use pre-dates Chaucer. Superstitions, Bryan A. Garner, Garner’s Modern English Usage (4th ed. 2016), at p. 877. So I wouldn't be too hard on those who use "since" in both senses.