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Gorsuch And Kavanaugh Are Absolutely Right For All The Wrong Reasons

Updated: Jul 31, 2023

The most disturbing part is when you wonder about WHY they didn't get any liberal backup.

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This article originated on abovethelaw.com in March of 2023, to read the original text, click HERE.


Today, the Supreme Court rejected cert in a criminal contempt conviction where the district court decided to act as the proverbial judge, jury, and executioner… ginning up a criminal conviction that the U.S. Attorney explicitly refused to pursue. One judge charged the attorney and appointed his own personal prosecutor and then another judge heard the case and issued a six-month prison sentence. Seven Supreme Court justices decided that this was proper.


Justices Gorsuch and Kavanaugh, on the other hand, were correct.


It’s been about 12 years since Steven Donziger first sued Chevron in Ecuador on behalf of indigenous peoples for years of water and soil contamination on the part of one of its predecessor entities. Donziger won that suit to the tune of $9.8B, but since respect for foreign jurisdictions only flows one direction in the eyes of the U.S. court system, Chevron got collection on that judgment blocked, with Judge Lewis Kaplan finding bribery and extortion in the Ecuadorian case.


That could’ve been the end of it, but Chevron decided to seek money Donziger might have earned in pursuing the case that he won in Ecuador. This is where Donziger somewhat forfeited the moral high ground by refusing to comply with discovery requests, resulting in a criminal contempt referral from Judge Kaplan. The U.S. Attorney’s Office read the criminal contempt claim and promptly rolled its eyes at the ridiculousness of it all, so Judge Kaplan appointed a private prosecutor to pursue the criminal claim that the executive branch refused to go after, resulting in the six-month sentence.


You’d be forgiven if your third-grade civics lesson leads you to question this procedural history. Generally speaking, the court can act on its own in holding someone in contempt as a remedial measure — for instance, penalizing someone for the purpose of ensuring compliance with an order — but if the contempt measures are not likely to result in persuading the actor to comply, the judge’s power hits its limit. Meanwhile, criminal contempt designed to punish someone with no design on persuasion, requires the executive to act because that’s how separation of powers work.


Justice Gorsuch, joined by Kavanaugh, remembers third-grade civics:


However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty. In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge. In the name of the “United States,” two different groups of prosecutors have asked us to turn a blind eye to this promise. Respectfully, I would not. With this Court’s failure to intervene today, I can only hope that future courts weighing whether to appoint their own prosecutors will consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning. Our Constitution does not tolerate what happened here.

This is accurate.


Which might have you wondering why the three non-conservative justices didn’t accept the invitation to take up this case. The answer, most likely, is in the dissent’s reasoning.

Justice Gorsuch litters the dissent with executive branch cheerleading championed by the more radical segments of the conservative legal movement. For Gorsuch, Donziger’s case seems less about protecting a citizen from the judiciary branch meting out private punishment than an opportunity to expound upon executive power.


It was the executive branch that was wronged, in his eyes, when the judiciary failed to show proper deference. But also, the executive branch went — admittedly involuntarily — too far when it acquiesced in allowing executive action by private prosecutors who failed the requirement of serving in the executive branch proper.


This is a one-two punch that, in most contexts, visits all sorts of mischief. It’s a gut punch to the administrative state and an admonition that the judiciary had best stop questioning presidential power (unless the president is temporarily a Democrat). It may well be that the three justices who might have given Donziger justice today were too worried that hearing this case would wreak even injustice for everyone else down the road.


That’s a horrible way to run a legal system. But it’s a really practical way to run an unaccountable and unelected political branch. Without a fundamental Supreme Court reset, it’s hard to blame them if this really is their calculus in the face of their colleagues.



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