Legal Docket - Legal intervention

MARY REICHARD, HOST: It’s Monday, March 28th and a brand new work week for The World and Everything in It. Thank you for joining us today! Good morning. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Lots of news from the U.S. Supreme Court last week.

AUDIO: [Sound from confirmation hearing]

The Senate wrapped up its confirmation hearing for Judge Ketanji Brown Jackson, President Biden’s first nominee to the high court to replace retiring Justice Stephen Breyer.

A vote on that is expected by next Monday.

Chief Justice John Roberts began last Wednesday’s argument session with this announcement about Justice Clarence Thomas:

ROBERTS: Justice Thomas is unable to be present today but will participate in consideration and decision of the cases on the basis of the briefs and transcript of oral arguments.

The 73-year-old justice entered Sibley Memorial Hospital in Washington on Friday, March 18th. He complained of flu-like symptoms, turns out they were not due to Covid. Justice Thomas received intravenous antibiotics and the hospital discharged him one week later.

The court provided no additional health information on Justice Thomas.

REICHARD: Meanwhile, the high court handed down two decisions last week. The first is an 8-1 ruling in favor of a man on death row who wants his pastor to pray out loud and physically touch him in the execution chamber.

I spoke to John Henry Ramirez in person on death row in February. Here’s what he told me:

RAMIREZ: I want my pastor to be able to pray with me. He's my spiritual adviser. I want to be able to pray with me. I want to be able to talk with God and commune with God, with Him at my last moments. And they said, “no, you’re not going to be able to do that.” So that's when I filed the grievance on that.

The majority justices agreed with him that he’d likely succeed at trial on a claim of violation of his religious exercise rights.

This decision does not spare Ramirez from the death penalty. That was never an issue. But it does establish some guidelines for prisons to follow. Now the case returns to lower court for further proceedings.

EICHER: A second, unanimous ruling says verbal criticism by itself is not censorship.

Here, a man sued the board of directors of the Houston Community College System upon which he also served. The Board censured him for conduct it called reprehensible. For example, he hired a private investigator to surveil one of them and sued the district many times.

The man claimed violation of his freedom of speech. But the opinion noted the censure hadn’t actually chilled the man’s speech. This decision in the case is technical and very narrow: it’s confined to verbal censure of an elected official.

REICHARD: On to our one oral argument for today.

This case seeks to determine whether two legislators in North Carolina have a right to intervene in a lawsuit meant to defend the state’s voter-ID law.

Note this is not about voting rights or ballot access or whether requiring a photo ID at the poll booth is constitutional.

It’s about “intervention” - that is, whether to allow someone who isn’t a party to an existing lawsuit to join in.

EICHER: Here’s the background: The North Carolina legislature in 2018 passed a law to require that voters show a photo ID to cast a ballot.

The state chapter of the NAACP sued to try to overturn the law. The group took the position that requiring photo ID discriminates against racial minorities.

In general, that’s the position of the Democratic party yet the North Carolina attorney general, a Democrat, is defending the photo ID law. That’s typically what a Republican would do.

And state Republican leaders don’t think the attorney general’s heart is in it. Leaders of the state House and Senate, Tim Moore and Phil Berger, want to mount a more vigorous defense.

Their lawyer David Thompson:

THOMPSON: There is no basis in this case for a federal court to second-guess a state’s decision that it needs a representative exclusively focused on vindicating state law.

REICHARD: Thompson went on to argue these legislators are agents of the state, clearly designated as such.

Justice Elena Kagan stopped him there:

KAGAN: But not in replacement of the Attorney General. I mean, it would be different if you said, no, you know, we're tired of the Attorney General, the legislators now represent the state. But you kept the Attorney General going.

Yes, but Thompson’s clients have an interest in the case that is not that same as the attorney general. His is a mere administrative interest, an attempt to parse the law, to just see what parts of the law must be enforced.

That’s why the Republican leadership want someone who is a true champion of voter ID law to defend it.

Lawyer for the NAACP chapter disputed the idea that the AG wouldn’t adequately defend the law. Elizabeth Theodore mentions “petitioners.” She’s referring to the Republican leaders.

THEODORE: …there's just no need for intervention here. Petitioners explicitly seek to assert the state's sovereign interest in enforceability and defense of state law, the exact interest the Attorney General is charged by statute with representing and is telling this Court he is representing. And he's not only representing that interest, but unfortunately for my clients, he's winning.

She said, why complicate matters with multiple voices that draw the federal courts into disputes over state law?

But Chief Justice Roberts had a question about that:

ROBERTS: Counsel, you said right at the outset that there's a federal interest that people on each side of the case speak with a single voice, right? Where did -- where did that come from?

Theodore answered from a stance of common sense: that the federal interest is to have the state tell the federal court what its position really is, in one voice.

Justice Samuel Alito probed further:

ALITO: But what if at some point the Attorney General says, “Look, this is costing too much, we should settle.” Or suppose there's an adverse decision and the Attorney General says: “You know, we did our best, but we are not going to take an appeal.” Would intervention be allowed at that point?

She answered yes, intervention would be allowed then.

ALITO: Well, what sense does it make to allow the appeal -- to allow intervention at the appellate level after the Attorney General has made what the legislature regards as an inadequate defense of the statute or an inadequate record? Doesn't that just make things more complicated?

The Chief Justice pursued that line further. I’ve edited the audio to shorten it up.

ROBERTS: …but it does seem a little unfair to me that you're -- you're asking us to let -- to pick your opponents. I'd rather in court, I'd rather have only one person arguing against me rather than two. But I think that's a little bit of a -- a conflict there. I mean, what's -- what are you afraid of? …

THEODORE: Well,... I think what Rule 24 is about is simplifying litigation, and it -- it says we don't add another defendant, we don't add another plaintiff unless there’s a really good reason…

ROBERTS: Well, you keep saying “we, we.” I mean, …I don't mean this the way it might sound, but I don't know why we're terribly interested in what your views are on that in the first place, because you're the one who's going to benefit if we throw one of your opponents out.

Justice Elena Kagan questioned lawyer for the AG’s office, Sarah Boyce. Listen to this exchange where she restates the petitioners’ argument. Again, the petitioners are the Republican leaders who want to intervene to defend the vote ID law.

KAGAN: They're representing a different interest. They're asserting a different interest. You can't adequately represent an interest that's not your own. So, as long as they were saying we're here as the legislature representing a distinctively legislative interest, all your objections would fall away, is that correct?

BOYCE: I think that's partially correct.

It is important to figure out who can defend our laws.

Still, these partisan battles cost us taxpayers a whole lot of money.

And that’s this week’s Legal Docket.

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