U.S. Supreme Court term not flattering to other government branches

Editor’s note: Dustin McDaniel is a legal analyst for Talk Business & Politics. He is a partner at McDaniel Richardson and Calhoun in Little Rock and served as Democratic Attorney General of Arkansas from 2007-2015. Opinions, commentary and other essays posted in this space are wholly the view of the author. They may not represent the opinion of the owners of Talk Business & Politics.
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Much like a PGA Golf tournament, the end of a U.S. Supreme Court term often features the most exciting flight of cases at the very end. This year was no exception, and the rulings may have an impact in Arkansas.

Cable news networks have been all abuzz that the Court dealt harsh blows to both the Democratic White House and Republican law makers by overturning the President’s Immigration Executive Orders and (again) invalidating unduly burdensome abortion laws. They also unanimously overturned the extremely high profile corruption conviction of former Virginia Gov. Bob McDonnell.

The Supreme Court is as close to a meritocracy as we will find in our government. Appointments are reserved for the most elite legal minds in the nation. Appointments are based on intellect, integrity and experience. Thus, the Court seems to run as the founders envisioned. They continue to adhere to a self-imposed timeline. They publicly decided every case argued this term, including those that are difficult and controversial. Imagine if Congress gave an up or down vote to every bill before adjourning.

Gov. McDonnell’s case is the only one with which I had personal involvement this term. I signed on to an amicus brief in support of Gov. McDonnell along with 76 other former attorneys general of both parties from states other than Virginia. Six former Virginia AG’s signed their own brief, bringing the total to 83 living former attorneys general of both parties calling on the Court to overturn this conviction.

In 2007, I traveled to Israel with then-Attorney General McDonnell and his wife Maureen. Bob was chair of Republican Attorneys General Association (RAGA) when I was co-chair of DAGA. I was shocked when he was indicted and disgraced for accepting $175,000 in gifts from a businessman who had dealings with his State. That reflected terrible judgment and flawed character. However, two major facts warranted Supreme Court review and ultimately a unanimous rebuke of the Justice Department’s prosecution: 1) the gifts were not illegal under Virginia law, and 2) the Governor never offered nor carried out any official act to benefit the businessman, as would be required to prove a corruption charge.

The Supreme Court rejected the DOJ’s position that gifts and contributions, plus access and meetings equaled proof of a criminal act. The Court defined official action as a decision or action in a pending case, matter, controversy, etc. Granting meetings, arranging meetings, photo ops, speeches and dinners do not constitute official acts.

This case may have real time implications in Little Rock. Capitol insiders know that the DOJ is eager to make a corruption charge against some (any) Republican luminary in the wake of stories about high profile gifts, campaign contributions, questionable PAC’s, flat rate fee contracts and one judge’s bribery plea. However, McDonnell v US, tells the DOJ that bad judgment and bad political optics are not enough. Those things should be exploited during elections, but not before federal grand juries. You must prove actual quid pro quo with an official act that would not have happened but for improper influence.

But this term hardly ended with the Court absolving elected officials of their sins. The Supreme Court in other cases showcased the need for elected officials to do their jobs and follow their oaths.

In United States v Texas, President Obama was denied his desire to act despite Congressional silence on America’s immigration crisis. This really was not an opinion by the Court, but a 4-4 tie due to the vacancy created by the death of Justice Antonin Scalia. A tie means the ruling below stands and the ultimate question remains unanswered. The lower court held that the President’s efforts to address the needs of millions of undocumented Americans and their children was outside the scope of executive authority. The President cannot simply act when Congress will not do so.

This was a huge victory for my friend, Ken Paxton, the embattled Attorney General of Texas, who stepped out of the National Association of Attorneys General meeting in Vermont last week to do interviews declaring gratitude for the court’s imposition of the rule of law and respect for the constitution on the politically motivated, ideology driven Democratic White House. That was Thursday.

On Monday, the Court in Whole Women’s Health v Hellerstedt struck down a Texas abortion law that was touted as a women’s health law to require abortion clinics to meet surgical standards and have doctors with hospital admitting privileges. In fact, it simply shut down clinics.

Legislators in Arkansas, Texas and many other states continue to pass abortion laws, knowing they cannot pass constitutional muster. The Arkansas Attorney General continues to litigate another such law that has already been stalled by a federal judge.

The Democrats took all the talking points from Thursday and threw them back across the aisle on Monday, praising the Court for imposing the rule of law and respect for the constitution on politically motivated, ideology driven Republican legislatures.

The Court has taken on dozens of key constitutional questions this term and will have a full slate next term. All the while, acting with an unfilled vacancy, a daily reminder to them that when sister branches act more like children, the Court must act more like a parent.