Brett Kavanaugh's Surprising Dissent in SCOTUS Ruling Cheered by Liberals
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Supreme Court Justice Neil Gorsuch (L) and Supreme Justice Brett Kavanaugh attend the State of the Union address in the chamber of the U.S. House of Representatives on February 04, 2020 in Washington, DC. Gorsuch and Kavanaugh dissented in a case involving a criminal contempt conviction of an environmental lawyer.
- Steven Donziger asked the Supreme Court to hear his challenge to a criminal contempt conviction against him.
- Supreme Court Justices Neil Gorsuch and Brett Kavanaugh dissented from the majority and said they would have granted his request.
- Gorsuch argued that the prosecution in this case broke "a basic constitutional promise essential to our liberty."
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Supreme Court Associate Justices Neil Gorsuch and Brett Kavanaugh have won praise after they dissented in a case centered on a criminal contempt conviction against a debarred environmental lawyer.
Steven Donziger had asked the Court to hear his challenge to his conviction on the grounds that it violated his constitutional rights because a lower court appointed private lawyers to prosecute him after the Department of Justice (DOJ) declined to do so.
Donziger had secured a $9.5 billion judgement against oil giant Chevron over pollution caused by Texaco - a corporate predecessor to Chevron - in Ecuador, but he hasn't been able to collect on the judgement due to legal action by the company.
The Supreme Court denied Donziger's application, but Gorsuch and Kavanaugh, both members of the Court's conservative wing, dissented from the majority and said they would have granted his request.
Donziger argued that his conviction violated the U.S. Constitution's separation of powers principle because U.S. District Judge Lewis Kaplan appointed private lawyers to prosecute the contempt case against him.
Gorsuch, who authored the dissent, appeared to agree and noted that when Donziger had refused to comply with a court order to hand over his electronic devices as part of a suit brought against him by Chevron, "the U. S. Attorney 'respectfully declined' to take up the case."
The U.S. Court of Appeals for the 2nd Circuit ruled last year that Judge Kaplan had the authority to appoint prosecutors in the case, but Gorsuch and Kavanaugh's dissent was highly critical of both courts.
"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," the dissent said.
"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," Gorsuch wrote.
"Our Constitution does not tolerate what happened here," he concluded.
Donziger shared news of the Court's decision on Twitter, writing: "In a huge blow to the rule of law, the U.S. Supreme Court today let stand Chevron's prosecution and 3-year detention of me after helping Indigenous peoples win the historic Amazon pollution case."
He also pointed to the dissent, saying that Gorsuch and Kavanaugh were "declaring my Chevron private prosecution illegal."
University of Texas School of Law Professor Steve Vladeck, who represented Donziger, shared a quote from the end of the dissent where Gorsuch discussed the "basic constitutional promise."
"I'm biased, but amen," Vladeck said.
Alex Schultz, local editor at SFGate, pointed to the fact that three liberal justices had not filed a dissent, tweeting: "The 2 dissenters here were Gorsuch and Kavanaugh, meaning the 3 liberal Supreme Court justices decided to let Donziger's [sic] absurd contempt conviction stand."
"Gorsuch, joined by Kavanaugh, dissents from the court's refusal to take up Steven Donziger's case. The facts here are really hideous—it's a shame two more justices didn't agree," tweeted Mark Joseph Stern, senior writer at Slate.
Democratic presidential candidate Marianne Williamson also cited the dissent and added that "a corporatist Supreme Court is there to serve corporations more than to serve the Constitution. That's why ELECTIONS MATTER."
"Gorsuch and Kavanaugh are in the right here: Oil companies should not be allowed to use the courts as their private security force," tweeted Tom Winter, a former Democratic member of the Montana House of Representatives.
"The details of Donziger's case are absolutely shocking. What's not shocking: Our Supreme Court, as an institution, being just fine with corporate capture of the legal system," Winter added.
Newsweek has reached out to Steven Donziger via email for further comment.
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