Supreme Court

Some Supreme Court Justices Want the Court To Tackle More Government Abuse Cases

Unfortunately, in five separate cases today, they're outnumbered.


Typically, when the Supreme Court declines to take up various cases, it's not interesting news unless it's a big case many people were hoping they'd weigh in on.

But today's denials include five dissents from five different justices saying they wanted the court to tackle certain cases. The justices who wrote the dissents include newcomer liberal Justice Ketanji Brown Jackson and conservative stalwart Justice Clarence Thomas. But what the five dissents all have in common is that the justices are attempting to encourage the court to tackle cases that have the potential to hold the government more accountable for bad behavior or otherwise treat citizens' rights more seriously.

The first dissent, by Justice Neil Gorsuch, involves the Department of Veterans Affairs (V.A.) failure to pay retired Air Force Serviceman Thomas Buffington's disability payments for several years. Buffington was discharged in 2000 and awarded benefits for his injuries. He was called back into service in 2003 after joining the Air National Guard. His benefits were suspended while he served. After he retired again in 2005, the V.A. did not restore his benefits. Buffington asked in 2009 where his benefits were, and they were eventually restored. But the V.A. refused to pay him the missed benefits for the previous years.

Apparently, despite the federal statute stating that these payments can only be suspended while a servicemember is actively serving, the V.A. has decided that the law's wording is ambiguous and requires that these eligible recipients request the benefits or the agency will not pay. The Supreme Court declined to take up Buffington's claims, but Gorsuch wanted to explore the limits of the doctrine of Chevron deference. A Supreme Court precedent from 1984, Chevron v. Natural Resources Defense Council, gave federal agencies wide deference to interpret statutes so long as the interpretation is reasonable and doesn't contradict the law.

Gorsuch argues that Chevron deference has been taken too far and that court systems, which are responsible for interpreting what laws mean, are essentially letting regulatory agencies interpret statutes however they like: "We place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else." Gorsuch notes that the V.A. once had a rule that did what an average person thought it would do—as soon as a veteran retired again, these payments would resume. The law didn't change, but "agency officials proceeded to revise their rules anyway to place new burdens on veterans and make their own jobs easier. Expansive views of Chevron encourage and reward just these sorts of self-serving gambits."

Gorsuch calls upon the court to "acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law's meaning in the cases that come before the Nation's courts." But in this case, he was overruled.

Next up, Justice Sonia Sotomayor, joined by Jackson, wanted her peers to take on and reverse a verdict from Louisiana in an unusual case where a man, Willard Anthony, was convicted of rape and human trafficking by a grand jury after the court permitted the prosecutor to testify as part of the case itself. Over many objections by the defense and four calls for a mistrial, an assistant district attorney was permitted to testify. He did so to respond to the defense's efforts to challenge the credibility of two witnesses who had allegedly gotten deals to testify against Anthony.

Anthony was subsequently convicted and has been challenging his conviction because he didn't get a fair trial due to the impropriety of the prosecutor taking the stand. Sotomayor writes, "The prosecutorial misconduct in this case is not only blatant and egregious, but a clear due process violation. The court below nonetheless held that admission of the prosecutor's testimony was harmless error."

Sotomayor and Jackson disagree about the harmlessness of such an error. They believe that the prosecutor's participation in the trial as a witness was a jaw-dropping case of obvious injustice. They believe the verdict should be reversed:

These principles demand careful scrutiny of the rare cases in which a prosecutor takes the stand as a sworn witness in a jury trial. Because this case presents one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct, I respectfully dissent from the Court's refusal to issue a summary reversal.

Next up, Justice Thomas dissented from his peers in a case where the widow of Gary Clandening, who died of leukemia in 2016, was denied the ability to sue the federal government over claims that he was exposed to toxins and contaminated water while serving at Camp Lejeune. Under the Federal Tort Claims Act (FTCA) of 1946, private parties are permitted to sue the federal government for damages in claims involving government employees. But Feres v. United States, a Supreme Court decision from 1950, established an exception: Members of the armed forces cannot sue under FTCA for claims of injuries suffered on active duty.

Thomas believes that Feres was wrongly decided and should be overruled. He notes that the text of the FTCA specifically only exempts the government from liability claims from members of the military directly arising out of "combatant activities" during a time of war. But instead, courts are inconsistently deciding whether an injury is "incident to military service." One court determined that exposure to carbon monoxide at a military base was not incident to service (and therefore those harmed could sue), while another court determined that exposure to contaminated water at Camp Lejeune was incident to military service (and therefore could not sue.)

In short, Thomas believes that the wording of FTCA is clear that military members should be able to sue the federal government for harms they've suffered outside of war situations: "It would be one thing if Congress itself were responsible for this incoherence. But Congress set out a comprehensive scheme waiving sovereign immunity that we have disregarded in the military context for nearly 75 years. Because we caused this chaos, it is our job to fix it."

Next up, Justice Brett Kavanaugh and Gorsuch would have the Supreme Court examine whether it's constitutional for some states to convict people of crimes with juries of less than 12 people. Arizona and five other states allow for juries of smaller than 12. Ramin Khorrami was convicted by a jury of eight in Arizona in 2019 of fraud-related charges. Under Arizona law, trials for crimes where the death penalty doesn't apply and the maximum sentence is less than 30 years are heard by this smaller jury. Khorrami challenged his conviction, arguing that the Sixth and Fourteenth amendments require a jury of 12 to hear felonies.

Though the constitution doesn't actually indicate how many people should make up a jury, Gorsuch* notes that common law from the foundation of the United States (and even earlier in England) held that a criminal conviction required a "unanimous sentiment of the twelve jurors."

But in 1967, Florida passed a law allowing juries of just six to convict people of crimes. In a 1970 Supreme Court decision, Williams v. Florida, the justices determined that 12 people were not actually required for a conviction and that "the fact that the jury at common law was composed of precisely 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance 'except to mystics.'"

Gorsuch calls this ruling "an anomaly the day it issued," and adds, "In doing so, the decision contravened the Sixth Amendment's original meaning and hundreds of years of precedent in both common-law courts and this one." He argues that the court should have taken Khrorami's case to overturn Williams.

And finally, Jackson, again joined by Sotomayor, wrote a brief dissent (her first as a Supreme Court justice) that the court should have taken up the case of Davel Chinn, who was convicted in Ohio in 1989 of murdering a man and was sentenced to death. His lawyers claimed that the state suppressed evidence showing that one of their key witnesses had an "intellectual disability" that may have affected his memory and ability to discern fact and fiction in his testimony. The witness, Marvin Washington, was 15 when the murder took place and admitted involvement. Chinn's lawyers have argued that had the jurors known about Washington's impairment, it might have affected the case's outcome.

Jackson believes that the lower courts did not apply the proper standards to evaluate this potential violation of disclosure rules and would have sent the case back for reconsideration:

Because Chinn's life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts' own representations, … I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard.

So we have five very different cases and five different justices, but each case revolves around government power and accountability. It's also worth noting that in each case, the justices who want to hold the government to account or restrain its authority were in the minority.

* This post has been updated to correct that Gorsuch wrote the dissent in Khorrami v. Arizona, not Kavanaugh.