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| How Ginsburg’s and Kagan’s recent opinions send a healthy signal about the Supreme Court | How Ginsburg’s and Kagan’s recent opinions send a healthy signal about the Supreme Court |
| (about 20 hours later) | |
| Public confidence in the Supreme Court hinges on judicial nonpartisanship, actual and perceived. | Public confidence in the Supreme Court hinges on judicial nonpartisanship, actual and perceived. |
| Amid rampant political polarization, the court’s legitimacy under Chief Justice John G. Roberts Jr. is holding up better than much punditry would have you believe. | Amid rampant political polarization, the court’s legitimacy under Chief Justice John G. Roberts Jr. is holding up better than much punditry would have you believe. |
| Three national surveys in the latter half of 2019 — by Gallup, the University of Pennsylvania’s Annenberg Public Policy Center and Marquette University Law School — found that significant majorities held favorable views of the court, according to SCOTUSblog.com. | Three national surveys in the latter half of 2019 — by Gallup, the University of Pennsylvania’s Annenberg Public Policy Center and Marquette University Law School — found that significant majorities held favorable views of the court, according to SCOTUSblog.com. |
| If there is cause for concern in these data, though, it came from the Annenberg poll’s finding that just 49 percent of the public believe the justices decide cases based on the Constitution, the law and facts, as opposed to their personal or political views. | If there is cause for concern in these data, though, it came from the Annenberg poll’s finding that just 49 percent of the public believe the justices decide cases based on the Constitution, the law and facts, as opposed to their personal or political views. |
| For the court and the country, it would be better to have that number much closer to 100 percent — which, in turn, is a reason to applaud the opinions Justices Ruth Bader Ginsburg and Elena Kagan, liberal Democratic appointees both, wrote for the court last week. | For the court and the country, it would be better to have that number much closer to 100 percent — which, in turn, is a reason to applaud the opinions Justices Ruth Bader Ginsburg and Elena Kagan, liberal Democratic appointees both, wrote for the court last week. |
| In two separate cases, Ginsburg and Kagan joined their conservative Republican-appointed colleagues (indeed, with all the other justices) in rulings uncongenial to what many Democrats and progressives might have preferred. | In two separate cases, Ginsburg and Kagan joined their conservative Republican-appointed colleagues (indeed, with all the other justices) in rulings uncongenial to what many Democrats and progressives might have preferred. |
| The first case involved Evelyn Sineneng-Smith, a San Jose, Calif., immigration consultant who had been convicted in federal court of encouraging foreigners to immigrate illegally as part of a lucrative visa-fraud scheme. | The first case involved Evelyn Sineneng-Smith, a San Jose, Calif., immigration consultant who had been convicted in federal court of encouraging foreigners to immigrate illegally as part of a lucrative visa-fraud scheme. |
| In 2018, the San Francisco-based U.S. Court of Appeals for the 9th Circuit, a liberal bastion, threw out the conviction on the grounds that a federal ban on “encouraging” anyone to immigrate illegally was so broad that it could chill all kinds of benign advice to migrants, including that of legal counsel — thus violating First Amendment rights. | In 2018, the San Francisco-based U.S. Court of Appeals for the 9th Circuit, a liberal bastion, threw out the conviction on the grounds that a federal ban on “encouraging” anyone to immigrate illegally was so broad that it could chill all kinds of benign advice to migrants, including that of legal counsel — thus violating First Amendment rights. |
| The 9th Circuit reached that conclusion, however, despite the fact that Sineneng-Smith did not raise it in her own defense. | The 9th Circuit reached that conclusion, however, despite the fact that Sineneng-Smith did not raise it in her own defense. |
| A three-judge panel of the 9th Circuit brought up the free speech issue on its own in an order that also asked specified civil liberties groups to brief and argue the matter as “friends of the court.” Then, in effect, the court ruled in favor of its own suggestion. | A three-judge panel of the 9th Circuit brought up the free speech issue on its own in an order that also asked specified civil liberties groups to brief and argue the matter as “friends of the court.” Then, in effect, the court ruled in favor of its own suggestion. |
| Though Ginsburg is a strong supporter of immigrant rights, she is also a stickler for proper procedure — a sensibility that the 9th Circuit’s maneuver seems to have thoroughly offended. | Though Ginsburg is a strong supporter of immigrant rights, she is also a stickler for proper procedure — a sensibility that the 9th Circuit’s maneuver seems to have thoroughly offended. |
| “No extraordinary circumstances justified the panel’s takeover of the appeal,” Ginsburg wrote. “A court is not hidebound by counsel’s precise arguments, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.” | “No extraordinary circumstances justified the panel’s takeover of the appeal,” Ginsburg wrote. “A court is not hidebound by counsel’s precise arguments, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.” |
| To be sure, Ginsburg’s opinion leaves progressives the option of pursuing a constitutional attack on the law in another case — but with their jets appropriately cooled by her admonishment that courts do not “sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” | |
| Kagan’s lesson, in Kelly v. United States, was that not every sleazy political act is a federal crime. At issue was a dirty trick certain aides to then-New Jersey Gov. Chris Christie (R) played on the Democratic mayor of Fort Lee, N.J., in 2013: When the mayor refused to endorse Christie for reelection, Christie’s minions closed several lanes of the George Washington Bridge between Fort Lee and Manhattan — creating an epic traffic snarl. | Kagan’s lesson, in Kelly v. United States, was that not every sleazy political act is a federal crime. At issue was a dirty trick certain aides to then-New Jersey Gov. Chris Christie (R) played on the Democratic mayor of Fort Lee, N.J., in 2013: When the mayor refused to endorse Christie for reelection, Christie’s minions closed several lanes of the George Washington Bridge between Fort Lee and Manhattan — creating an epic traffic snarl. |
| This was the long-ago age when Christie was considered a likely 2016 GOP presidential nominee and “Bridgegate” caused a huge political uproar. New Jersey’s federal prosecutor, a Democrat, construed the bridge closure as a fraud on a federally funded program (the New York-New Jersey joint agency that operates the bridge) and won convictions against two of Christie’s staff. (The governor himself was never charged.) | This was the long-ago age when Christie was considered a likely 2016 GOP presidential nominee and “Bridgegate” caused a huge political uproar. New Jersey’s federal prosecutor, a Democrat, construed the bridge closure as a fraud on a federally funded program (the New York-New Jersey joint agency that operates the bridge) and won convictions against two of Christie’s staff. (The governor himself was never charged.) |
| Uh, no, Kagan explained: The prosecution had twisted the fraud statute by equating the bridge’s traffic lanes and the time its employees spent closing them to tangible money or property, then accusing the Christie aides of dishonestly “obtaining” it. | Uh, no, Kagan explained: The prosecution had twisted the fraud statute by equating the bridge’s traffic lanes and the time its employees spent closing them to tangible money or property, then accusing the Christie aides of dishonestly “obtaining” it. |
| This expansive theory would threaten individuals with unduly nebulous liability and the political and legal system as a whole with “a sweeping expansion of federal criminal jurisdiction,” Kagan wrote. | This expansive theory would threaten individuals with unduly nebulous liability and the political and legal system as a whole with “a sweeping expansion of federal criminal jurisdiction,” Kagan wrote. |
| Kagan’s ruling embraced those overriding considerations, even if it means that Christie, now an ally of President Trump, gets to crow that the outcome vindicated him and proved that President Barack Obama’s Justice Department was ultimately “culpable” for allowing a prosecutor to “weaponize the office for political and partisan reasons.” | Kagan’s ruling embraced those overriding considerations, even if it means that Christie, now an ally of President Trump, gets to crow that the outcome vindicated him and proved that President Barack Obama’s Justice Department was ultimately “culpable” for allowing a prosecutor to “weaponize the office for political and partisan reasons.” |
| Republican appointees on the court sometimes rule against “their” party’s interests, too — notably in Roberts’s repeated refusal to strike down Obamacare. | Republican appointees on the court sometimes rule against “their” party’s interests, too — notably in Roberts’s repeated refusal to strike down Obamacare. |
| Ginsburg’s and Kagan’s opinions last week had comparatively minor policy ramifications but sent the same healthy signal and modeled the kind of judging voters should demand from their next justice, no matter which party’s president makes that appointment. | Ginsburg’s and Kagan’s opinions last week had comparatively minor policy ramifications but sent the same healthy signal and modeled the kind of judging voters should demand from their next justice, no matter which party’s president makes that appointment. |
| Read more from Charles Lane’s archive, follow him on Twitter or subscribe to his updates on Facebook. | Read more from Charles Lane’s archive, follow him on Twitter or subscribe to his updates on Facebook. |
| Read more: | Read more: |
| Randall D. Eliason: On ‘Bridgegate,’ the Supreme Court got it right | Randall D. Eliason: On ‘Bridgegate,’ the Supreme Court got it right |
| Ruth Marcus: Will the Supreme Court permit Trump to be above the law? | Ruth Marcus: Will the Supreme Court permit Trump to be above the law? |
| Paul Waldman: The Supreme Court just reminded us why this election is an emergency | Paul Waldman: The Supreme Court just reminded us why this election is an emergency |
| George Conway: No one in this country is above the law. The Supreme Court is about to teach that lesson. | George Conway: No one in this country is above the law. The Supreme Court is about to teach that lesson. |
| The Post’s View: Supreme Court justices have taken a symbolic step toward respect and attention | The Post’s View: Supreme Court justices have taken a symbolic step toward respect and attention |
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