The rule of law doesn’t choose sides.
Op-Ed by Delonia Watson – Democratic Candidate for Justice, Second Court of Appeals, Place 6
As we watch cities being invaded by federal agents dispatched by the Trump Administration sans local agreement and peaceful protestors snatched from the streets and thrown into unmarked vans without due process, we are painfully reminded of the importance of the “Rule of Law.” Without well-defined and established laws that are scrupulously adhered to by all levers of power and, most importantly, protected by all levels of the judiciary, we are at risk from those who would unethically or arbitrarily exercise unchecked power.
Conservatives claim to be the only true protectors of the “Rule of Law,” repeatedly spouting invective against “liberal” judicial candidates who they claim will decimate such rule if elected by “legislating from the bench.” Nothing could be further from the truth. The response to recent Supreme Court cases demonstrate that conservatives pay mere lip service to protecting the “Rule of Law.” Instead, they seek to canonize their interpretation of the law, even to the point of demonizing nominally conservative judges who reach decisions based on well-settled law, long-standing doctrine and rules of construction, and sound legal reasoning that do not always settle easily into the furrowed road of conservatism.
A conservative court?
With President Trump’s appointment of Justices Neil Gorsuch and Brett Kavanaugh adding to the trio of right-leaning justices already on the Court — Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito — many conservatives, indeed most observers of the Court, believed that the right’s most-cherished dream had finally come true — a five-vote Supreme Court majority that would ensure decades of decisions firmly rooted in conservatism. Given the histrionics of conservatives, recent decisions by the Supreme Court appear to have left that dream more than frayed around the edges for them.
In an opinion authored by Justice Gorsuch in Bostock v. Clayton County, and joined by Chief Justice Roberts and the non-conservative cohort of four, the Court, relying on the express terms of the statute, held that an employer who fires an employee for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The Court’s conclusion destroyed the Trump administration’s argument that Title VII’s prohibition against employment discrimination “because of sex” does not apply to homosexual or transgender employees, and provides unexpected legal protection to the LGBTQ community that is abhorred by conservatives.
Just three days later, Chief Justice Roberts in a 5-4 decision in Department of Homeland Security v. Regents of the University of California held that the government had failed to make its case for immediately ending the Deferred Action for Childhood Arrivals (DACA) program, established during President Obama’s administration, that protects so-called Dreamers –- undocumented immigrants who arrived to the U.S. as children — from deportation.
After Trump’s election, then Attorney General Jefferson B. Sessions III ordered the Department of Homeland Security (DHS) to rescind DACA, based on his conclusion that the program was unlawful.
Dreamers affected by Session’s decision, and some third parties including the University of California, challenged the termination arguing, in part, that the Trump Administration had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on the decision to terminate, i.e., the rescission of DACA was arbitrary and capacious in violation of the APA. Judge Roberts agreed, calling the Trump Administration to task because of its failure to follow APA’s requirements for rescinding the law, but in no way suggesting that the program could not be rescinded if done properly.
To add insult to injury, Chief Justice Roberts, later in the month, concurred in an opinion joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayer, and Elena Kagan, in vacating a Louisiana anti-abortion law on the grounds that the Court had vacated an identical law in Texas just four years earlier. The Louisiana law at issue in June Medical Services like the Texas law required that doctors who perform abortions have admitting privileges at a hospital located no further than 30 miles from the location at which the abortion is to be performed.
Although Chief Justice Roberts had joined a dissent in the Texas case and stated in the Louisiana case that he continued to believe that the Texas case had been wrongly decided, for him the question was not whether the former case was right or wrong, but rather relying on a legal doctrine known as stare decisis, which is Latin for “to stand by things decided,” whether to adhere to the Texas case in deciding the Louisiana case. He concluded that “stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”
The rule of law isn’t about politics.
Then Justice Gorsuch struck again, delivering an opinion in McGirt v. Oklahoma joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, in which the Court held that certain treaties entered into by the federal government with the Creek Nation meant that a large swarth of Oklahoma remained an Indian reservation for purposes of federal criminal law.
Although acknowledging that Congress could have “disestablished” the Creek Nation reservation, Justice Gorsuch also concluded that the Congress had not done so, and held the government to its word that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 368 (1832 Treaty). Noting that the government had “broken more than a few of its promises to the Tribe,” Justice Gorsuch refused to infer that Congress had divested the reservation of its land and diminished its boundaries without a clear indication from Congress that it intended to do so.
On July 24, 2020, Chief Justice Roberts again sided with the non-conservative cohort. This time, in Calvary Chapel Dayton Valley v. Sisolak, to deny a rural Nevada church’s request that the Supreme Court block the state from enforcing a policy that limits in-person church attendance to 50 people because of COVID-19.
LGBTQ rights, immigration, abortion, state’s rights, religious rights — a quintet of cases agreeing with liberals!!!
How dare they!!!
And conservatives lost their collective minds, concluding that Roberts and Gorsuch had gone over to the dark side of liberalism, and more especially Chief Justice Roberts, deeming him a “national disgrace” and calling for his impeachment.
Though the decisions reached by Roberts and Gorsuch follow the Rule of Law, relying on well-settled doctrine like stare decisis, rules of statutory construction, and longstanding administrative law, conservatives cannot be bothered with that because this slate of rulings violate what they believe every conservative judge should hold to — their idea of conservatism and only their idea of conservatism.
Conservatives believe that the Rule of Law should only be operative when it lines up with their beliefs. And when it doesn’t, Rule of Law be damned and off with the heads of imposters like Chief Justice Roberts masquerading as staunch believers in conservative principals. But doctrines like stare decisis and textualism are not liberal principals, and no judge should be required to set aside what he or she truly believes is required by the Rule of Law to artificially interpret the law to fit a particular ideology, but this is exactly what conservatives demand.
No one should believe that Chief Justice Roberts or Justice Gorsuch have become unmoored from conservative principles.
They simply have not lost sight of what they learned in law school, what a lifetime of practicing law has taught them, and what the Rule of Law demands of them — an interpretation of what a particular law means guided by consistent principles, doctrine, and honesty. They refuse to ignore conflicting and underwhelming facts, and shoddy legal arguments to reach a “conservative” result.
And “liberal” judges are no different. We are committed to following the Rule of Law because we understand that without consistent and insistent adherence to it, we risk exactly what is happening in our country now — people paying lip service to our laws while plotting how to “curve” the law to an ideology. Like Chief Justice Roberts, we may not always agree with the results, but we must always protect the integrity of how we get there, which is one of the best protections for the Rule of Law.
Delonia Watson is the Democratic Candidate for Justice, Second Court of Appeals, Place 6. Her career experience includes working as an assistant US attorney with the United States Attorney’s Office, an attorney in private practice, and an assistant district attorney in Tarrant County. She has also served as the minister at Legacy Fellowship Church, a coach for Fort Worth Hornets Youth Basketball Association, Inc., and is affiliated with the Black Women Attorneys of Tarrant County.