FOR IMMEDIATE RELEASE

            Ever since the battle over Brett Kavanaugh's confirmation to the Supreme Court, liberals have been complaining that President Trump and the Republicans are stacking the Court with political hacks who will toe the conservative right wing line.  Moreover, they falsely claim that Kavanaugh's appointment reflects the erosion of the independence of the Supreme Court and the rest of the federal judiciary, as the President and Republicans support the selection of conservative justices at all levels of the court system. 

            But this claim that the Court lacks independence from the executive and can't reach a fair decision is WRONG!, as criminal justice expert Paul Brakke, the publisher of American Leadership Books, demonstrates.  To this end he has written an opinion piece and published a short treatise showing why the liberals are wrong, using the top cases the Court decided in the first half of 2019.  As his research has shown, in six of a dozen cases, the justices favored liberal positions compared to only four favoring a conservative point of view.  The rest were cases where the Court didn't take a position or balanced liberal and conservative positions.  Even Justice Ruth Bader Ginsberg, considered a hero by the left and the Democratic Party, agreed.  As she commented at a talk to Duke University's D.C. Summer Institute on Law and Policy on July 25: "The court remains the most collegial places I have ever worked….We agree considerably more often than we sharply divide."

            Accordingly, as Brakke found in his review of these cases, the Court took a carefully reasoned, fair and balanced approach to deciding cases and even supported more liberal positions than conservative ones, in some of its decisions. 

            For example, in its cases supporting a conservative position, the Court favored greater privacy for business records in the Food Marketing Institute versus Argus Leader Media case, where the media wanted more open records.  In the Lamps Plus Inc. versus Varela case, it supported settling employer-employee disputes with individual arbitration, rather than class arbitration, which businesses wanted to keep down costs, rather than class arbitration, which could prove much more expensive.  The Court also took a hard line against criminals and immigrants in the Nielsen versus Preap case, when it decided that the federal government can detain noncitizens with a criminal record at any time after they are released from custody.

            By contrast, the Court took a liberal position in a number of criminal justice and politically charged rulings.  For example, in one widely publicized case dealing with the census, the Department of Commerce versus New York State, the Court stood up to the Trump Administration by temporarily blocking the Administration's plan to add a citizenship question to the 2020 census. The Court did by suggesting that the Administration's rationale for the effort seemed contrived, and ultimately this decision determined the matter, since it was too late for the President to generate an Executive order to get around the Court's decision.

            The Court likewise took a liberal position in the Apple Inc. versus Pepper antitrust dispute, when it decided that users of iPhones could sue Apple over charging excessive prices in its App Store, in order to protect consumers from monopoly prices -- the basis of antitrust law. 

            Then, to give two more examples of the Court's support for the liberal point of view, in the Flowers versus Mississippi case, it decided that Flowers deserved a new trial after being found guilty and imprisoned for 22 years in a quadruple murder case because of the prosecutor's racial discrimination in jury selection.  He did so in six trials over two decades by eliminating 41 of 42 potential black jurors through peremptory strikes.  Finally, in the Timbs versus Indiana case, the Court unanimously agreed that states shouldn't impose excessive fees, fines, or forfeitures as criminal penalties for individuals facing criminal charges.  The Court decided the states shouldn't charge such fees, because they could prevent low income criminal defendants from remaining out of prison or getting a fair trial.

            Additionally, Brakke found several cases where the court took no position or took into consideration the concerns of both conservatives and liberals. Thus, Brakke concluded that the Supreme Court really does offer a fairly balanced approach to making its decisions, which shows it is truly independent of the executive branch, despite liberal complaints to the contrary.  As Brakke has explained in his talks on the subject: "The evidence from these Court cases shows that it is wrong to claim the Court is biased in favor of conservatives. Rather, the Court has reached all of its decisions through a rational, fair, and balanced process."

            Moreover, Brakke notes that "Liberals outside the Court have failed to take into account the many cases, not in the public eye, where the liberal position has prevailed. As these varied Court decisions show, the Supreme Court is very much an independent institution that comes up with thoughtful, well-reasoned opinions.  So, the liberals are wrong in claiming that it isn't independent or that the conservative takeover represents a threat to our democracy. There is no conservative takeover.  The Supreme Court remains independent and able to decide cases using rational thinking to make its decisions.  Case closed."

            To learn more about the Supreme Court decisions or Brakke's other programs and books on improving the criminal justice system, healing the divisions in American society, and overcoming the immigration and opioid crises, contact Jana Collins at Jones & O'Malley.

Jana Collins

Jones & O'Malley, Toluca Lake, California

jana@jonesomalley.com   (818) 762-8353