When the media reports on the tiresome tweets of our defeated president, I am reminded of an interchange between Sir Thomas More and Lord Cromwell, in a “Man for All Seasons,” as they tried to force Sir Thomas More to acknowledge the absolute supremacy of the King:
Sir Thomas More: You threaten like a dockside bully.
Lord Cromwell: How should I threaten?
Sir Thomas More: Like a Minister of state — with justice.
Lord Cromwell: Justice is what you are threatened with.
Sir Thomas More: Then I am not threatened.
2020 was year in which it seemed that the rule of law and justice has been threatened. So, as 2020 draws to a close, it is appropriate to look back on the highlights and lowlights in the American judicial system.
Clearly, the single most important highlight of 2020 was the fact that the rule of law prevailed over an attempt to nullify a democratic election. Over 60 lawsuits were filed by the outgoing president and his cronies with virtually no evidentiary support.
These lawsuits were routinely and quickly tossed out of court by judges appointed both by Republican and Democratic presidents. One unfortunate point of note was that none of the courts imposed sanctions against the plaintiffs or their attorneys for filing frivolous lawsuits. This is relatively common when frivolous lawsuits are filed. It remains to be seen whether ethical sanctions will be imposed against some of the Trump legal team that concocted fanciful lawsuits that were clearly intended to contradict the rule of law and the US Constitution.
Perhaps the lowest of the lowlights is the series of corrupt presidential pardons that were intended to obstruct justice and reward sycophantic toadies who lied to Congress to protect the president from inquiries into the overwhelming attempts to block the world from learning about his conspiracy with Russia to steal the election.
Here is a selection of some other notable positive and negative decisions, depending upon your point of view:
In the case of Trump v. Vance, the Court held that a sitting president was not above the law, and was therefore subject to a criminal subpoena issued in a state criminal investigation. The Court cited cases involving Thomas Jefferson, Richard Nixon and Bill Clinton as precedents showing that the president is not above the law.
However, the president’s banker was able to dodge subpoenas issued by Congress for bank records. SCOTUS took the position that these subpoenas were unduly broad and not necessarily connected to the legislative role of Congress.
A notable expansion of civil rights was created in Bostock v. Clayton County. In this case, discrimination by employers based upon homosexuality or transgender status was deemed to be a violation of the 1964 Civil Rights Act even though it was not initially intended to cover these issues.
Individual civil rights fared less well when measured against religious freedoms. While Sir Thomas may have applauded this preservation of Church authority, progressive elements in the U.S. probably do not share that view. In Little Sisters of the Poor v. Pennsylvania, the Supreme Court upheld guidelines issued by the Department of Health and Human Services allowing religious organizations to opt out of coverage for “preventative care and screenings” for female employees without any cost, since these services included contraceptive guidance.
It was a mixed year for immigration issues. The highlight clearly occurred when the Court upheld the deferred deportation action program known as DACA. The Trump administration had terminated the program, but the Court held at the manner in which the program was shut down was arbitrary and capricious.
Another decision helpful to immigrants upheld their rights to federal court review when they assert that they will be tortured if returned to their home country. Under the Convention Against Torture treaty, deportation in such instances is not allowed. If only Sir Thomas had managed to reach the shores of the U.S. (a few hundred years later), he might have been spared the discomfort of being separated from his head.
But not all the news was good for immigrants. The court also held that an immigrant crossing the border seeking asylum cannot file a habeas corpus petition. And in Hernandez v. Mesa, the Court held that a U.S. border agent who shot across the U.S.-Mexican border and killed a 15–year-old Mexican national could not be sued by the victim’s parents, since such actions may undermine border security and directly affect foreign relations
In a decision which seems to undermine the respect for basic legal process, the Supreme Court held that actions of New Jersey Governor Christie’s henchmen, who arranged to restrict traffic on the George Washington Bridge in order to embarrass the mayor of Fort Lee could not be prosecuted under federal law since no federal statute was violated. As Sir Thomas might have exclaimed in response to this case (as he did in A Man for All Seasons when faced with the perjured testimony of his associate Richard Rich), “It profits a man nothing to give his soul for the whole world. But for New Jersey?”
Opponents of the death penalty were handed a victory in Andrus v. Texas. In that case the Court held that the case should be remanded due to inadequate legal representation where the defense counsel failed to present mitigating evidence of the prisoner’s horrible childhood, including his mother’s addiction and prostitution, and his own prior drug habits. On the other hand, it should be noted that the number of federal executions carried out in 2020 exceeded the total from all 50 states.
Abortion rights were preserved in the case of June Medical Services v. Russo. Louisiana had passed a law limiting abortion clinics to doctors who have visiting privileges within 30 miles of the clinic. But,the law was struck down as unconstitutional.
In a case out of Washington (Chiafalo v. Washington), the Supreme Court held that states may require electors to follow the results of a presidential election and fine electors who do not follow the requirements of law. Whew!
Highlights and lowlights elsewhere around the country
A lawyer was sanctioned by a federal appeals court for frivolous filings including a brief quoting Bugs Bunny. “That’s all folks,” he wrote. No one has mentioned if he has joined the Trump legal team but his haiku that was also included in his brief seems to bolster his chances:
“All know: talk is cheap/lawyers can claim anything/no evidence?! Balk!”
A Tennessee legal disciplinary board counsel (Jerry Morgan) was forced to resign after tweeting that he was “a proud anti-Muslim bigot.” At the time, he was investigating a Nashville lawyer married to a well-known Muslim lawyer.
Sidney Powell, the conspiracy theorist on the Trump legal team, promised to “Release the Kracken.” Hopefully, he will return soon to Mar-A-Lago.
Seven of the top 200 law firms applied for and received the maximum $10 million PPP loan created by Congress to support employment during the pandemic. The firm managed by super lawyer David Boies (rumored to bill $2000 per hour by “Law 360”) received such a loan despite reports that the firm brought in $400 million in revenue with average partner salaries of $3.3 million each in the prior year.
Nineteen congressional candidates in the four battleground states joined the Texas attorney general seeking to invalidate the Biden Harris election (and their own?).
The Fifth Circuit Court of Appeals upheld a law defunding Planned Parenthood, ruling that Medicaid recipients do not have the right to choose their own health care providers.
An appeals court overturned restrictions on “conversion therapy,” a medically unsupported technique intended to reverse sexual preference and gender identity choices. The court held it was an impermissible restriction on freedom of speech (Otto v. City of Boca Raton). This holding was reached despite growing evidence that the counseling technique is harmful to patients receiving it.
In November, 2020 a Department of Justice lawyer argued that the U.S. can kill its own citizens without judicial review, if the litigation would release state secrets. The plaintiff is a journalist and U.S. citizen working in Syria. He alleged that he was targeted five times in drone strikes and is on a kill list because of his connections to Syrian rebel fighters. This case is still working its way through the court system.
And one final legal highlight – Oregon voters legalized psychedelic mushrooms. Is it time to invest in a truffle hunting pig?
Returning to A Man for All Seasons, consider these words of Thomas More: “This country is planted thick with laws from coast to coast. Man’s laws, not god’s. And if you cut them all down . . . do you really think you could stand upright in the winds that would blow then?” So let’s give thanks that some of the trees planted in our Constitution and by democratically elected legislative bodies, continued to grow in 2020, even as autocrats attempted to chop them all down.
