Archive for the ‘United States Supreme Court’ Category

President Trump said that reports that his administration will not continue to seek a citizen question on the 2020 census is “fake news”

July 3, 2019


Graphic Credit: Unknown

The Trump Administration is seeking a question about citizenship on the 2020 census. On June 27, 2019, the United States Supreme Court issued a 5-4 opinion remanding the case to the federal district court for a determination of whether the Trump Administration can “offer genuine justifications . . . that can be scrutinized by courts and the interested public.”  The majority opinion by Chief Justice John R. Roberts, Jr. stated:

“Accepting contrived reasons would defeat the purpose of the enterprise. 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.”

While the citizenship question currently not allowed, it is possible that the Trump Administration will be able to offer adequate justifications for it.

There were numerous media reports that the Trump Administration planned to forgo further legal challenges on the citizen ship issue.  But on July 3, 2019, President Trump tweeted:

“The News Reports abut the Department of Commerce dropping its quest to put the Citizenship Question on the Census is incorrect or, to state it differently, FAKE! We are absolutely moving forward, as we must, because of the importance of the answer to this question.”

In the meantime, the Census Bureau has started the process of printing the 2020 Census without the citizenship question.

On July 2, 2019, a few days after the Supreme Court rendered its opinion on the issue, President Trump tweeted:

“A very sad time for America when the Supreme Court of the United States won’t allow a question of ‘Is this person a Citizen of the United States?’ to be added on the #2020 Census! Going on for a long time. I have asked the Department of Commerce and the Department of Justice to do whatever is necessary to bring this most vital of questions, and this very important case, to a successful conclusion. USA! USA! USA!”

The Trump Administration argued in part before the Supreme Court that the citizenship question was being added to aid in enforcement of the Voting Rights Act.  Chief Justice  Roberts’ majority opinion stated that the Administration’s justification for the citizenship question “seems to have been contrived.”

In the dissenting opinion by Justice Clarence Thomas, which was joined by Justices Neil M. Gorsuch and  Brett M. Kavanaugh, Justice Thomas stated: “For the first time ever, the court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.” Justice Samuel A. Alito, Jr., wrote in his own dissent: “To put the point bluntly, the federal judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.”

Article I, Section 2 of the United States Constitution mandates that a census be taken every 10 years of every person living in the United States.

“It counts our population and households, providing the basis for reapportioning congressional seats, redistricting, and distributing more than $675 billion in federal funds annually to support states, counties, and communities’ vital programs — impacting housing, education, transportation, employment, health care and public policy.”

Source: What is a census and why it is important?  (United States Department of Commerce, United States Census Bureau).

“A citizenship question was asked in each decennial census of the total population from 1890 to 1950. . . . The 1820, 1830 and 1870 census questionnaires also included some form of a question about citizenship.” Source: D’Vera Cohn, What to know about the citizenship question the Census Bureau is planning to ask in 2020 (Pew Research Center — March 30, 2018.)


Credit: Pew Research Center


Is there anything wrong with Census workers asking if residents are citizens?

April 25, 2019


Photo Credit: Diego M. Radzinschi / ALM

The United States Department of Commerce planned to ask residents whether they were citizens during the 2020 Census.  The plan was challenged on the ground that the decision to add a citizenship question was “arbitrary and capricious.”

On April 24, 2019, the United States Supreme Court entertained argument on the issue.  The decision by the Supreme Court will impact how Congressional seats are apportioned, how many electoral votes each state receives in a Presidential election and how taxpayer dollars are distributed on a per capita basis.

Lawyers for 18 states and several of the nation’s largest cities together with immigrant groups filed amicus briefs telling the Court that the citizenship question would make immigrants reluctant to respond to Census takers.  Amicus briefs filed by 17 states told the Justices that the citizenship question was needed to help enforce the Voting Rights Act.

The case was styled Department of Commerce v. New York, Case No. 18-966. The Secretary of the Department of Commerce is Wilbur Ross.  Democrats claimed that adding the citizenship question was a politically motivated attempt to undercount persons living in heavily Democratic districts.  The Census Bureau projected that asking about citizenship would lower the Census count by about 6.5 million persons — mostly among immigrants.

“This boils down to whether the Secretary’s judgment here is a reasonable one,” said Solicitor General Noel Francisco, who argued the case on behalf of the United States Department of Commerce.  During argument, General Francisco also told the Justices: “There’s no evidence in this record that the Secretary would have asked this question had the Department of Justice not requested it.”

Three lower federal courts found that Secretary Ross acted in an “arbitrary and capricious” manner and circumvented the Administrative Procedures Act, which requires federal agencies to study all relevant evidence before implementing a new policy.  One federal district judge in Maryland ruled earlier this month that Secretary Ross violated the United States Constitution “by unreasonably compromising the distributive accuracy of the Census.”  The lower court held that the Constitution requires the United States to survey “all persons” living in the United States every decade regardless of citizenship or status.

If five of the Supreme Court Justices rule that the Secretary Ross’ decision was proper then the citizenship question will be allowed in 2020.  Justice Brett Kavanaugh noted that many countries ask a citizenship question during a census and such is recommended by the United Nations.  Justice Kavanaugh also noted that until 1950 a citizenship question was a regular feature of the United States Census.

Justice John Roberts asked a question of New York Attorney General Barbara Underwood, who argued that the citizenship question was improper. “But we’ve had demographic questions on the Census — sex, age, do you own a house or own a radio?” Justice Roberts asked.

Ms. Underwood responded: “But there is no comparable evidence that those questions depress the count in such a way.”

The Court also allowed the Democratic-led House of Representative time to argue against adding the citizenship question.

California Attorney General Xavier Beccera, who also argued against the citizenship question, told the Justices:

“An undercount would threaten at least one of California’s seats in the House of Representatives — and, by extension — an elector in the Electoral College.  It would deprive California and its cities and counties of their fair share of billions of dollars in federal funds.”

Justice Sonia Sotomayor said: “There is no doubt that people will respond less [with the citizenship question].  That’s been proven in study after study.”

“There needs to be a reason to add the question, and I don’t see any reason,” said Justice Elena Kagan.  “It did seem the Secretary was shopping for a need.”

Justice Ruth Ginsburg asked General Francisco why the citizenship question was dropped after the 1950 Census.  “There was nothing in 1960 to the effect that the Census Bureau found that putting it on the short form would depress the count of non-citizens?  Nothing like that?” Justice Ginsburg said.

Justice Samuel Alito said that even if the citizenship question depressed Census participation it could give the Census Bureau answers from 22 million people for whom it lacks any citizenship information.

The Census Bureau previously sent out a separate questionnaire that included a question about citizenship.  However, the question was not included in the 2010 Census.

After the argument President Trump tweeted: “The American people deserve to know who is in this Country. Yesterday, the Supreme Court took up the Census Citizenship question, a really big deal.  MAKE AMERICA GREAT AGAIN!”

In early April 2019 President Trump tweeted: “Can you believe that the Radical Left Democrats want to do our new and very important Census Report without the all important Citizenship Question?  Report would be meaningless and a waste of $Billions (ridiculous) that it costs to put together.”

The Supreme Court is expected to render a decision in late June 2019.  NBC News predicted that the Justices would hold in favor of the Secretary.

“The Supreme Court seemed willing Tuesday to let the Trump administration add a question about citizenship to the 2020 census . . . despite claims from populous states that it would actually make the count less accurate.”

Source: Pete Williams, Supreme Court appears likely to allow citizenship question in 2020 census (NBC News — April 23, 2019).


Photo Credit: Hans Pennink / AP 



The United States Supreme Court will decide an appeal alleging racial discrimination in the selection of a jury in a quadruple murder case

April 6, 2019


Photo Credit: Dale Gerstenslager / AP

On March 20, 2019, the United States Supreme Court entertained oral argument in Flowers v. Mississippi, Supreme Court Case No. 17-9572.  The issue before the Court was whether a criminal defendant’s Constitutional rights were violated by the prosecution’s exercise of its peremptory strikes to exclude five black prospective jurors.

Sheri Lynn Johnson of Ithaca, New York presented the argument on behalf of Flowers.  She began her argument by stating:

“The only plausible interpretation of all of the evidence viewed cumulatively is that [District Attorney] Doug Evans began jury selection in Flowers IV with an unconstitutional end in mind, to seat as few African American jurors as he could. The numbers are striking. In the first four trials, Mr. Evans exercised 36 peremptory challenges, all of them against African American jurors.  in the sixth trial, he exercised five out of six of his challenges against African American jurors.”


Art Credit: Art Lien

Jason L. Davis, Special Assistant Attorney General of Jackson, Mississippi, presented the argument on behalf of the State of Mississippi.  He began:

“The history of this case is troubling, but the history is confined to this case, and, as Mr. Chief Justice pointed out, it is unusual.  There are — this is the sixth trial in this small town, a small town of approximately 5,000 individuals.  The questioning of whether the makeup or the limited number of individuals in the town was one of the reasons for follow-up questions is accurate. At the outset, let me say that the Mississippi Supreme Court’s decision in this case was commensurate with Batson and its progeny.”

Mr. Davis later argued that while there is a troubling history involving earlier trials the strikes in the sixth trial were proper.  “Each of the jurors that were struck either worked with a relative, were related, or knew, intimately, family members, the defendant or his family members, up to and including one juror who lied on her questionnaire and then admitted to lying on the stand. . . . The juror who lied on her questionnaire expressly admitted that she lied for the sole purpose of getting off the jury.”  Dr. Davis further argued: “This is one of the issues with this case, is that each of these strikes that we have, we don’t have one single reason.  We have numerous.”


Artwork Credit: Art Lien

Curtis Giovanni Flowers was charged with murdering four employees of Tardy Furniture Store in Winona, Mississippi.  The factual background was set forth by the Mississippi Supreme Court in Flowers v. State, 240 So.3d 1082 (Miss. 2017).

On the morning of July 16, 1996, Bertha Tardy, the owner of the furniture store, along with three other employees were found with gunshot wounds to the head at the furniture store.  The other employees were Robert Golden, Carmen Rigby and Derrick Stewart.  The victims were discovered by Sam Jones, who arrived at the store for the purpose of employee training.  Mr. Stewart was still alive when Mr. Jones arrived but he later succumbed to his injuries.

[Ms. Tardy was 59, was the owner of Tandy Furniture Company. She had a husband and a daughter.  She was a graduate of Winona High School and New York School of Interior Design.  Mr. Golden, 42, was a delivery worker at the furniture store. Ms. Rigby, 45, was the bookkeeper at the furniture store and had a husband and two sons.  Mr. Stewart, 16, a part time employee at the furniture store, died on July 22, 1996 at University Hospital at Jacksonville, Mississippi.  He played short stop and pitcher for Winona High School and was the team’s leading hitter.]

Johnny Hargrove, the Chief of Police for Winona, was the first law enforcement officer to arrive.  Shell casings from 0.380 caliber bullets were recovered from the scene and a bloody shoeprint was found near one of the victims.  About this time there was a call about an automobile burglary at Angelica Garment Factory.  Deputy Sheriff Bill Thornburg responded and learned that someone burglarized Doyle Simpson’s car and stole a 0.380 caliber pistol.  An employee of the garment factory, Katherine Snow, had seen Flowers near Mr. Simpson’s car about 7:15 that morning.

Flowers was located and interviewed about 1:30 p.m.  Flowers consented to a gunshot residue test.  On July 18, 1996, Flowers was interviewed for a second time. He said he had been babysitting his girlfriend’s children on the morning of the murders but provided inconsistent statements about his schedule.  Flowers said he had been employed at the furniture store for a few days earlier that month but was fired on July 6, 1996 after he did not show up for work for a few days.

Flowers moved to Texas in September 1996.  After further investigation, Flowers was arrested and brought back to Mississippi.  During March 1997, Flowers was indicted on four counts of capital murder.

The case was unusual because it was tried six times.

First Trial — In October 1997, after a change of venue from Montgomery County to Lee County, Flowers was convicted for the murder of Bertha Tardy and sentenced to death.  The Mississippi Supreme Court reversed Flowers’ convictions on the ground that his right to a fair trial was violated by admission of evidence of the other three murder victims.  Flowers v. State, 773 So.2d 309 (Miss. 2000) (Flowers I).

Second Trial — Flowers’ second murder trial took place in Harrison County for the murder of Derrick Stewart.  Flowers was convicted and sentenced to death.  On appeal, the Mississippi Supreme Court reversed the conviction.  The court held that Flowers’ right to a fair trial was violated by admission of evidence of the other victims and by the prosecution arguing facts not in evidence.  Flowers v State, 842 So.2d 531 (Miss. 2003) (Flowers II).

Third Trial — Flowers’ third trial took place in 2004 in Montgomery County for all four murders.  Flowers was convicted and sentenced to death.  The conviction was reversed after the Mississippi Supreme Court held that the prosecution engaged in racial discrimination during jury selection.  Flowers v. State, 947 So.2d 910 (Miss. 2007) (Flowers III).

[In Flowers’ third trial Mr. Evans used all 15 of his peremptory strikes against black prospective jurors.  The Mississippi Supreme Court found that Mr. Evans discriminated in jury selection.  The court called Mr. Evans’ actions “as strong a prima facie case of racial discrimination as we have ever seen.”]

Fourth and Fifth Trials — Flowers’ fourth and fifth trials were also on all four counts of capital murder. Both resulted in mistrials when the jury was unable to reach a unanimous verdict during the culpability phase.  The State did not seek the death penalty in the fourth trial but sought it in the fifth trial.

[In the fourth trial, seven white jurors voted to convict and all five black jurors voted to acquit.  In the fifth trial, all but one juror — a black man — voted to convict.  This resulted in a hung jury.  After the trial the prosecutor charged the hold-out juror with perjury after the trial judge accused him of lying during voir dire.  The state attorney general eventually dropped all charges.]

[After the fifth trial, an alternate juror was charged with perjury for lying under oath about her contact with Flowers and his family before the trial.  She pleaded guilty and was sentenced to 15 months in prison.]

Sixth Trial — During June 2010 Flowers’ sixth trial took place in Montgomery County for all four murders. The prosecution called 21 witnesses during its case-in-chief.  On June 18, 2010, the jury returned a guilty verdict for all four murders.  Following a sentencing hearing, the jury sentenced Flowers to death.

It has been reported that Flowers’ sixth trial was the first time in United State history that the same person has been tried six times on the same murder charges.  Flowers’ sixth trial, Mr. Evans struck five black women and used a six strike on a white woman.

“Prosecutors have consistently argued Flowers had a ‘beef’ with the store because his paycheck had been withheld to offset merchandise damaged in his care. Several other factors tied Flowers to the crime: bloody shoe prints found at the scene matched shoes he was said to own; several eyewitnesses saw him in front of or near the store the morning of the killings; the gun used was stolen from Flowers’ uncle’s car the morning of the killings and Flowers was seen sitting on the car; cash found at Flowers’ home was close to what had been stolen from the store, and a gunshot residue test performed on Flowers hours after the killings confirmed particles on his hands.”

Source: Monica Land, No 7th trial for Curtis Flowers in quadruple murder (Nov. 16, 2014 — The Clarion-Ledger).

District Attorney Doug Evans represented the State of Mississippi in all six of Flowers’ trials.  Mr. Evans used 44 strikes in total — 36 against black and eight against white prospective jurors.

Flowers appealed based upon 13 assignments of error.  Assignment of Error No. 6 was that the jury selection process, the composition of the venire and the jury seated, and pervasive racial and other bias surrounding the matter violated Flowers’ constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution.

On Nov. 11, 2017, in a 6-3 opinion written by Justice Josiah D. Coleman, the Mississippi Supreme Court affirmed Flowers’ convictions and the imposition of the death penalty.  Flowers v. State, 240 So.3d 1082 (2017) (Flowers IV).  As to the jury selection issue, the court held that the fact that the prosecutor committed a “Batson violation” during an earlier trial did not preclude finding on retrial that the same prosecutor’s race-neutral explanations for striking five black venire members were credible.  The court concluded: “Taking into account the ‘historical evidence’ of past discrimination, i.e., Mr. Evans’ past Batson violations, the Court remains unpersuaded that the trial court erred in finding that the State did not violate Batson.”  240 So.3d at 1135.

“Batson violation” is based on the United States Supreme Court’s decision in Batson v Kentucky, 476 U.S. 79 (1986), in which the Court held that the Constitution forbids prosecutors from challenging potential jurors solely on account of their race or the assumption that black jurors as a group will be unable to impartially consider the State’s case against a black defendant.

Mr. Davis noted that the trial at issue was presided over by Judge Joseph H. Lopez, Jr., who “acknowledged that he would be diligent in making sure the same type of error [that took place in Flowers’ third trial] did not occur again.” Mr. Davis quoted Judge Lopez from the trial transcript where Judge Lopez said “I’m going to look very closely at this case.”  Mr. Davis further argued:

“In this case, the record itself shows that the district attorney offered valid race-neutral reasons for each strike. Each strike was considered by the trial court, who had made aware — made the parties aware of — that he was aware of the history of the case, and the record supports that all the jurors that were struck because they were either sued by Tandy Furniture, they were either related to the defendant, or friends with, or had worked with members of the defendant’s family.”


Photo Credit: Unknown

Justice Brett Kavanaugh asked Mr. Davis: “And can you say, as you sit here today, confidently you have confidence in the — how this all transpired in this case?” Mr. Davis responded:

“If have confidence in this record, Justice Kavanaugh.  I have confidence in the strikes that the district attorney made based on the four corners of this record. I have confidence that, if reviewed with an eye towards what actually transpired, it supports the Mississippi Supreme Court’s decision in this case.  That I have confidence in.”

In response to a comment by Justice Sonia Sotomayor that she would have thought that a different prosecutor would have been substituted before the fifth and six trials, Mr. Davis ended his argument:

“And again, I would agree completely, Justice Sotomayor, that we have an unusual circumstance, an unusual case with these six trials having been all tried by the same prosecutor. But I would resubmit, again, that the decision of the Mississippi Supreme Court in this instance was not violative of Batson and its progeny.”

The arguments before the Supreme Court were analyzed by Amy Howe, a former law professor who has argued two cases before the Supreme Court:

“After nearly an hour of oral argument that included the first questions by Justice Clarence Thomas since 2016, there seemed to be at least five justices who agree with Flowers. . . . Although Johnson emphasized Evans’ history of striking potential African-American jurors throughout the trials in Flowers’ case, much of the oral argument was spent grabbling with the specifics of Evans’ strikes in the sixth trial, and in particular some potential jurors’ relationships with the victims and their families and the extent to which Evans had questioned the would-be jurors about potential biases.”

Source: Amy Howe, Argument analysis: Justices seem receptive to inmate’s juror-discrimination claims (Howe on the Court — March 21, 2019). Ms. Howe further reported:

“But then Justice Clarence Thomas . . . had a question. He wanted to knw whether Flowers’ trial lawyer had used any of her peremptory strikes — and, if so, what was the race of the jurors whom she had struck.  Johnson responded that the trial lawyer had only used her strikes to remove white jurors from the juror pool, adding that ‘her motivation is not the question here.  The question is the motivation of Doug Evans.'”

If Flowers’ conviction is reversed then he could still face a seventh trial.


Photo Credit: Taylor Kuykendall / The Greenwood Commonwealth / AP


Photo Credit: Monica Land / The Clarion-Ledger

UPDATE: THE SUPREME COURT’S DECISION — On June 21, 2019, the United States Supreme Court overturned Flowers’ conviction.  Justice Brett Kavanaugh wrote in the Court’s 78-page opinion:

“All of the relevant facts and circumstances taken together establish that the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent.”

Two Justices — Clarence Thomas and Neil Gorsuch — dissented.  Justice Thomas wrote:

“Today’s decision distorts the record of this case, eviscerates our standard of review and vacates four murder convictions because the State struck a juror who would have been stricken by any competent attorney.”

Justice Thomas wrote that the potential jurors who were stricken were not blocked because they were black but because they could not be impartial for other reasons.

The State of Mississippi will be permitted to put Flowers on trial for a seventh time. Justice Thomas wrote that this was the “only redeeming quality.”


Federal judges are appointed for life — not for eternity

February 25, 2019


Photo Credit: Reuters

Judge Stephen Reinhardt was known as the “liberal lion” of the Ninth Circuit Court of Appeals. He died on March 29, 2018. On April 9, 2018, 11 days after Judge Reinhardt’s death, the Ninth Circuit handed down a 6-5 en banc opinion that listed Judge Reinhardt as the author of Yovino v. Rizo, 887 F.3d 453 (9th Cir. 2018).

In a footnote at the beginning of the opinion, the Ninth Circuit stated:

“Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”

The Ninth Circuit’s opinion was in a lawsuit brought by a woman for alleged violations of the Equal Pay Act, Title VII and the California Fair Employment and Housing Act.  The Ninth Circuit overruled a past opinion of the court and held that a female employee’s prior salary could not be used to justify payment of a lower wage to her.

On Feb. 25, 2019, the United States Supreme Court answered the following question: “May a federal court count the vote of a judge who dies before the decision is issued?”

In a per curiam opinion, the United States Supreme Court noted “it is generally understood that a judge may change his or her position up to the very moment when a decision is released.”  The Court then concluded:

“Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death.  But federal judges are appointed for life, not for eternity.”

(Emphasis added.) The Court emphsized: “Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed.”

The Supreme Court therefore vacated the Ninth Circuit’s opinion.