SCOTUS and the US courts 2017

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Supreme Court of the United States

Three Trump judicial nominees stumble — with Republicans
(The Hill) In the last week, the GOP chairman of the Senate Judiciary Committee has pressed the White House to not proceed with two controversial candidates — including one who had never tried a case in court.
A third nominee on Thursday struggled to answer relatively easy questions about basic principles of law during a cringeworthy appearance before the Senate Judiciary Committee.
Worse from the White House’s point of view, the questions came not from a Democrat but from a conservative Republican.

10 November
Trump Is Rapidly Reshaping the Judiciary. Here’s How
by Charlie Savage: “In the weeks before Donald J. Trump took office, lawyers joining his administration gathered at a law firm near the Capitol, where Donald F. McGahn II, the soon-to-be White House counsel, filled a white board with a secret battle plan to fill the federal appeals courts with young and deeply conservative judges. …  Start by filling vacancies on appeals courts with multiple openings and where Democratic senators up for re-election next year in states won by Mr. Trump – like Indiana, Michigan and Pennsylvania – could be pressured not to block his nominees. And to speed them through confirmation, avoid clogging the Senate with too many nominees for the district courts, where legal philosophy is less crucial.
Nearly a year later, that plan is coming to fruition. Mr. Trump has already appointed eight appellate judges, the most this early in a presidency since Richard M. Nixon, and on Thursday, the Senate Judiciary Committee voted along party lines to send a ninth appellate nominee – Mr. Trump’s deputy White House counsel, Gregory Katsas – to the floor.”
Trump Nominee for Federal Judgeship Has Never Tried a Case
by Vivian Wang
A 36-year-old lawyer who has never tried a case and who was unanimously deemed ‘not qualified’ by the American Bar Association has been approved for a lifetime federal district judgeship by the Senate Judiciary Committee. The lawyer, Brett Talley, is the fourth judicial nominee under President Trump to receive a ‘not qualified’ rating from the bar association and the second to receive the rating unanimously.”

3 October
Did district lines rig Wisconsin elections? Supreme Court case could reshape politics
(PBS Newshour) The Supreme Court is considering a lawsuit that challenges Wisconsin’s legislative map over partisan gerrymandering, and the outcome could have national implications. Special correspondent Jeff Greenfield offers an overview of the case, then Marcia Coyle of The National Law Journal joins Lisa Desjardins to break down the arguments heard by the court on Tuesday.
What’s at stake in the most important Supreme Court case of the year
(Quartz) The nine Supreme Court justices entertained arguments in Gill v. Whitford (pdf), a case arising from Wisconsin’s 2010 Republican redistricting efforts, which Democrats say has led to unjustified election success for the right. The plaintiffs (now appellees in the Supreme Court), including retired law professor William Whitford, argued that the GOP’s method for making Wisconsin’s electoral map, dividing the districts politically to create partisan advantages in state elections, consistently skews election results for Republicans and will continue to do so into the future.
(WaPost) Supreme Court takes up Wisconsin as test in partisan gerrymandering claims

2 October
Supreme Court set for historic new term
The Supreme Court is beginning a new term on Monday with a blockbuster docket of cases touching on civil rights, free speech, presidential power, redistricting and privacy rights.
The court has agreed to hear 43 cases so far, including a challenge to mandatory union fees in the public sector. The justices are likely to take up even more cases on Monday.
But court watchers may never get to hear arguments in two of the most closely watched cases of the term.
The court cancelled arguments scheduled for Oct. 10 in two cases challenging President Trump’s travel ban after the White House issued new, targeted restrictions on travelers from eight countries.

3 July
The Supreme Court just had a quiet term. These high-profile cases are about to change that.
(PBS Newshour) Nearly every single Supreme Court term in recent memory has had at least one-headline grabbing decision.
That changed in the court’s latest term, when it kept high-profile legal disputes off the docket.
But the absence of blockbusters in the term that ended last week is setting up the court for an explosive return to the bench later this year, when justices are scheduled to hear three politically-charged cases whose outcomes could directly impact some of Washington’s most divisive debates.
One involves President Donald Trump’s revised travel ban, which the justices reinstated — temporarily, and on a limited basis — last week. The second deals with partisan gerrymandering, and whether Wisconsin should have drawn its state legislative districts differently. And the third pits a baker who refused to make a gay couple a wedding cake on religious grounds against a Colorado anti-discrimination law.

1 July
Justice Gorsuch Delivers
(NYT Editorial) Mitch McConnell, the Senate majority leader, has had a rough couple of weeks. Yet, however many setbacks he might suffer over health care reform or other parts of the Republican agenda, he knows he has already won the biggest fight of all: the theft of a Supreme Court seat from President Obama, the installation of Justice Neil Gorsuch and the preservation of the court’s conservative majority for years to come.
… It’s risky to read too much into a justice’s early opinions, but Justice Gorsuch … has already staked his claim as one of the most conservative members of the court.
The problem isn’t so much Justice Gorsuch’s judicial ideology, which is so far unsurprising. Presidents choose justices who they believe will rule in a way that aligns with their own views, and right-wing groups had long ago flagged Justice Gorsuch as a reliable conservative.  The problem is that he’s sitting in the seat that by rights should be occupied by Judge Garland. Had Mr. Garland been confirmed, the court would have had a majority of Democratic-appointed justices for the first time in almost half a century.
Instead, the court is back to a Republican-appointed majority, the consequences of which will only become more apparent next term, when the court is scheduled to hear high-profile cases involving partisan gerrymandering, Mr. Trump’s travel ban and religiously based challenges to anti-discrimination laws that protect same-sex couples.

26 June
Supreme Court to Hear Travel Ban Case
(NYT) The Supreme Court on Monday cleared the way for President Trump to prohibit the entry of some people into the United States from countries he deems dangerous, but the justices imposed strict limits on Mr. Trump’s travel ban while the court examines the scope of presidential power over the border.
Trump’s Limited Travel Ban Victory
The Supreme Court granted review of the president’s travel ban in October, but the Court clearly hopes—and strongly hints—that the case will be moot by then.
(The Atlantic)
the victory was limited in a way that anyone who has ever been 12 years old  will understand. The court didn’t say the government could never have a pony. But it didn’t say the government could have a pony either. Instead, it said, “If you still want a pony next October, we’ll see.
The ambiguity arises because, as Georgetown Law professor Martin Lederman pointed out within minutes of the decision, the court merely granted review, and delayed actual consideration of the case until the opening of next October’s term—by which time the specific issue will most likely be moot. At the same time, the interim order preserved the important victories won by many of those actually harmed by the travel ban—family members of American citizens or residents, foreign students at American universities, and potential foreign employees of American corporations.

19 June
Justices to Hear Major Challenge to Partisan Gerrymandering
The Supreme Court announced on Monday that it would consider whether partisan gerrymandering violates the Constitution, potentially setting the stage for a ruling that could for the first time impose limits on a practice that has helped define American politics since the early days of the Republic.
The case is part of a larger debate over political gerrymandering. Some critics, like Arnold Schwarzenegger, a Republican and the former governor of California, say districts should be drawn by independent commissions rather than politicians. Prominent Democrats, including former President Barack Obama and his attorney general Eric H. Holder Jr., are pushing an effort to undo the redistricting gains Republicans made after the 2010 census when the next census is taken three years from now.
In Wisconsin, the redistricting took place after Republicans had gained complete control of the state government for the first time in more than 40 years. Lawmakers promptly drew a map for the State Assembly that helped Republicans convert very close statewide vote totals into lopsided legislative majorities.

26 May
Trump travel ban fight heads toward Supreme Court showdown
The fate of President Donald Trump’s order to ban travelers from six predominantly Muslim nations, blocked by federal courts, may soon be in the hands of the conservative-majority Supreme Court, where his appointee Neil Gorsuch could help settle the matter.
After the Richmond-based 4th U.S. Circuit Court of Appeals declined on Thursday to lift a Maryland federal judge’s injunction halting the temporary ban ordered by Trump on March 6, Attorney General Jeff Sessions said the administration would appeal to the Supreme Court.
A second regional federal appeals court heard arguments on May 15 in Seattle in the administration’s appeal of a decision by a federal judge in Hawaii also to block the ban. A ruling by the 9th U.S. Circuit Court of Appeals is pending.
If they take it up, the justices would be called upon to decide whether courts should always defer to the president over allowing certain people to enter the country, especially when national security is the stated reason for an action as in this case. They also would have to decide if Trump’s order violated the U.S. Constitution’s bar against the government favoring one religion over another, as the ban’s challengers assert.

25 May
Appeals Court Will Not Reinstate Trump’s Revised Travel Ban
A federal appeals court refused Thursday to reinstate President Trump’s revised travel ban, saying it “drips with religious intolerance, animus and discrimination.”
The decision, from the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., was a fresh setback for the administration’s efforts to limit travel from several predominantly Muslim countries.

22 May
Gorsuch dissents as Supreme Court upholds ban on big-money gifts to parties
(LATimes) New Justice Neil M. Gorsuch joined Clarence Thomas in dissent Monday when the Supreme Court rejected an appeal from a Republican Party lawyer seeking to strike down limits on big-money contributions to political parties.
By a 7-2 vote, the high court upheld limits set in the McCain-Feingold Act of 2002.
The dissent by Gorsuch is his first and most significant decision since joining the court last month, and it puts him squarely on the side of conservatives and Republican lawyers who believe that limits on political money are unconstitutional.By a 7-2 vote, the high court upheld limits set in the McCain-Feingold Act of 2002.

17 April
Neil Gorsuch speaks more in one day on bench than Clarence Thomas did in 10 years
(The Guardian) Newest US supreme court justice takes less than 15 minutes to ask first questions and lives up to reputation for focusing on ‘plain text’ of law
Gorsuch formally joined the court on 10 April after being confirmed three days earlier by the Republican-led Senate. (Reuters) Trump appointee Gorsuch energetic in first U.S. high court arguments

7 April
Senate confirms Neil Gorsuch to Supreme Court after bitter partisan process
(CNBC) The Senate voted Friday to confirm Neil Gorsuch to the Supreme Court following a bitter partisan process, possibly reshaping the ideology of the top American court for decades.
With Vice President Mike Pence presiding, the chamber voted 54-45 to make the 49-year-old conservative appeals judge an associate justice. Three Democrats up for re-election in red states next year — Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Joe Donnelly of Indiana — backed Gorsuch’s confirmation.
A day after Republicans changed Senate rules to override a Democratic filibuster, the chamber filled the seat that’s been vacant since the death of conservative Justice Antonin Scalia in February 2016. On Thursday, the Senate took the “nuclear option” to advance Gorsuch’s nomination with only a simple majority vote.

4 April
Is Gorsuch a ‘mainstream’ Supreme Court nominee?
By Stephen B. Presser, the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law and the author of the recently published “Law Professors: Three Centuries of Shaping American Law.”
(Chicago Tribune Opinion) The American Bar Association, a group that is not known for leaning to the right in recent years, has bestowed its highest rating of “well-qualified” on Gorsuch, and, from some parts of the academy and even the higher reaches of former Democrat administrations, Gorsuch has been lauded as a judge of exceptional even-handedness, intelligence and wit. And yet, it is now clear that the Democrats in the Senate will mount a filibuster against the nomination, the first time this has ever been done for purely partisan reasons. …
Ever since the Warren Court and, later, the Burger Court, refashioned constitutional doctrines in order to promote racial and sexual equality, the rights of criminal defendants, democratic representation and privacy rights, law professors have tried to justify this bold constitutional change.
They have done this by maintaining, first, that it was inevitable that judges should exercise some discretion, and, eventually, that that discretion ought to be employed in favoring the formerly powerless. A few brave souls in the academy fought these notions, none more strenuously than the late law professor and Justice Antonin Scalia
By now, given the behavior of the courts over the past few decades, the majority of the [legal] academy’s view of what judges ought to do has frequently been reflected in judicial behavior. Still, there may have been an understanding in most of the country that government by judiciary was not what the framers had in mind, and in the heartland, the “mainstream” in the academy was not flowing.
Our proudest boast, as Americans, has always been that ours is a government of laws and not men (or persons), which means that no one is above the law, not even judges. This, apparently, is no longer the view of one of our political parties, but it remains the view of the other, and the view of the current president. We are about to find out if the Republicans in the Senate are willing to alter their rules to defeat the filibuster to seat a Justice Gorsuch and, once again, to try to return us to the original mainstream.

28 March
Pity the author taints this piece with vituperative comments about all things liberal.
Jay Ambrose: Gorsuch eloquently states case for confirmation
(Morning Call) Gorsuch turned out to be every bit as bright, articulate and incisive as one would expect from someone who was a brilliant law school student at both Harvard and Oxford, a youthful law clerk for a Supreme Court judge, a highly successful lawyer who a became Justice Department official and then a widely praised federal appellate judge.
His hundreds of decisions have won him accolades from prestigious groups of bipartisan persuasion, scholars appreciative of his intellectual rigor and even from some liberals immune to ideological inanity.

25 March
Neil Gorsuch’s confirmation hearing revealed his hidden similarity to Trump
The two appear to be a study in contrasts – but both display a remarkable lack of compassion. Their likeness could serve to justify Democrats’ opposition
As Trump tweeted angry disinformation in response to the revelation of an FBI investigation into his administration, Gorsuch sat coolly before members of the Senate judiciary committee. He quoted Socrates and reminisced with Ted Cruz about playing ball on the supreme court’s basketball court as young clerks.
Mainly, though, he successfully dodged senators’ questions aimed at, as one put it, determining “who you really are”. He was one of the most evasive nominees in recent memory, but what he did finally reveal had nothing to do with his patently conservative ideology – one thought to be even more staunchly conservative than that of the man he would replace, the late Antonin Scalia. Instead, on display were a set of unmistakably Trumpian attributes that should sound familiar to any close observer of the 2016 presidential election: a cold cognitive empathy coupled with a dearth of compassion.
“A good judge doesn’t give a whit about politics,” Gorsuch said at one point, a line whose variations would become a mantra of his throughout the week. But Gorsuch’s record and comments suggest he may also believe a good judge does not give a whit about people.

21 March
Trump Supreme Court pick Gorsuch declares no promises and no one above law
(Associated Press) Supreme Court nominee Neil Gorsuch declared Tuesday he’s made no promises to Donald Trump or anyone else about how he’ll vote on abortion or other issues and testified he’ll have no trouble as a justice holding anyone accountable, including the president who picked him.
Gorsuch also called Trump’s attacks on federal judges “disheartening” and “demoralizing.”

3 March
How Gorsuch the Clerk Met Kennedy the Justice: A Tale of Luck
(NYT) It … produced something else: a lasting bond between an ambitious, already staunchly conservative clerk and a justice, three decades his senior, whose style and temperament appear to have rubbed off on him, even if the justice’s more moderate views did not. … Justice Kennedy taught his law clerks by example, Judge Kavanaugh said, instilling in them an independent frame of mind and a “gentlemanly tone.”
“A lot of us have tried to emulate that in our careers,” Judge Kavanaugh said. “Neil has exemplified that better than anybody.”

9 February

Court Refuses to Reinstate Travel Ban, Dealing Trump Another Legal Loss

A three-judge federal appeals panel on Thursday unanimously refused to reinstate President Trump’s targeted travel ban, delivering the latest and most stinging judicial rebuke to his effort to make good on a campaign promise and tighten the standards for entry into the United States.
The ruling was the first from an appeals court on the travel ban, and it was focused on the narrow question of whether it should be blocked while courts consider its lawfulness. The decision is likely to be quickly appealed to the United States Supreme Court.
That court remains short-handed and could deadlock. A 4-to-4 tie in the Supreme Court would leave the appeals court’s ruling in place.
Trial judges around the country have blocked aspects of Mr. Trump’s executive order, which suspended travel from seven predominantly Muslim countries and limited the nation’s refugee program, but no other case has yet reached an appeals court.
Not Even Andrew Jackson Went as Far as Trump in Attacking the Courts
The former president was critical of Chief Justice John Marshall’s rulings. But it was on constitutional, rather than political or personal, grounds.
(The Atlantic) President Trump’s attacks on the federal appellate judges considering a constitutional challenge to his immigration ban—he called the proceedings “disgraceful” and the courts “so political”—has provoked widespread condemnation from across the political spectrum. Even Judge Neil Gorsuch, Trump’s Supreme Court nominee, said the criticisms were “demoralizing” and disheartening.”
Some might look for a historical precedent for Trump’s attacks in the alleged comments of Trump’s hero Andrew Jackson, who criticized Chief Justice John Marshall’s decision in a case involving the Cherokee Indians. “John Marshall has made his decision, now let him enforce it,” the former president allegedly said. In fact, Jackson, whose portrait hangs in Trump’s office, provides no historical support for Trump’s unprecedented personal assault on the motives of judges evaluating the constitutionality of his executive orders.
Trump disputes account of his Supreme Court nominee’s comments
(Reuters) President Donald Trump on Thursday disputed bipartisan accounts that his U.S. Supreme Court nominee had privately voiced dismay over Trump’s attacks on the judiciary, saying Judge Neil Gorsuch’s comments had been misrepresented.

8 February
Trump attacks judges weighing travel ban
(The Hill) President Trump on Wednesday went after a panel of federal judges weighing whether a court order blocking his travel ban should be lifted.
Speaking to a gathering of law enforcement officials, Trump argued the judges should immediately reinstate the executive order in the name of national security.
“I don’t want to call a court biased, so I won’t call it biased,” the president said at a gathering of the Major Cities Chiefs Association in Washington. “Courts seem to be so political and it would be so great for our justice system if they could read a statement and do what’s right.” …
Trump appeared to take issue with media coverage of the hearing, which centered on the government lawyer’s struggle to make the administration’s case, as well as any skepticism of the order itself.
“I listened to a bunch of stuff on television last night that was disgraceful,” he said.
Richard Blumenthal: GOP Must Address Trump’s Attack On Courts
(Hartford Courant) Our nation is careening toward a constitutional crisis — testing the independence of the American judiciary. President Donald Trump‘s foot is on the accelerator, but make no mistake: Republicans in Congress will be complicit in the damage done to our democracy if they do not find the political courage to place country over party, and to prioritize patriotism over partisanship.
Congress must immediately seize the moment for oversight and accountability, checking a president who is attempting to elevate himself above the law. Immediate action will require particular political courage from Republican leaders who must join a bipartisan effort to push back against the president’s bullying.
(LATimes) Opinion If Trump respects the judiciary, he must retract his indefensible ‘so-called judge’ remark

5 February
Trump Criticizes ‘So-Called Judge’ Who Lifted Travel Ban
(WSJ) President Trump tweeted that the ruling by U.S. District Judge James Robart was ‘ridiculous and will be overturned!’
The social-media assault continued into the evening as the president suggested that Judge Robart would be at fault if there were problems caused by the people now free to enter the U.S.

4 February

Trump’s US Supreme Court nominee Neil Gorsuch is a lot like Scalia, with one key difference

neil-gorsuch-and-trump(Quartz) If confirmed, Donald Trump’s US Supreme Court nominee, Neil Gorsuch, will deliver lively judicial opinions that are stylishly written and make for entertaining reading, just like the late justice Antonin Scalia did. Like Scalia’s opinions, they will be based on strict principles of statutory construction, and a highly conservative outlook, according to the scribes at SCOTUS Blog, who have called the similarities between the two “eerie.”
In fact, Gorsuch was ranked highest in a Scalia-ness scale recently created by legal scholars and was deemed the deceased jurist’s “natural successor.” Scalia-ness in this case manifests in three things—adherence to originalist principles of interpretation, writing about how to consider the law beyond just legal issues, and issuing separate opinions to elucidate a personal position. … If Gorsuch is approved, he will no doubt be like Scalia in one other important way. Every so often, he’ll be unpredictable.

Understanding Trump’s Supreme Court pick. Feminists have depicted appeals court judge Neil Gorsuch as a disaster for women, based on his ruling in the Hobby Lobby case. Ephrat Livni, unpacking how an appeals process works, shows why contraceptive rights were not in fact at issue in the case, and why we need to give Gorsuch the benefit of the doubt for now.
What we really know about US Supreme Court nominee Neil Gorsuch based on his controversial Hobby Lobby decision
(Quartz) In assessing Trump’s pick of Gorsuch for the masses, the media is turning Hobby Lobby into something of a dog whistle for feminists. Slate called Gorsuch “hostile to women’s health care” based on the case. Bustle asked if he’d be a “good bet for women” and Cosmopolitan warned that his decision was “the canary in the coal mine” signaling the beginning of the end for women’s rights to contraception.
This ignores the fact that contraception wasn’t really the question—religious freedom was. Gorsuch called for tolerance of unpopular religious views, which is not quite the same as condemning birth control, or women. For now, his positions on abortion, for example, are unknown; he hasn’t opined on Roe v. Wade.
Reasonable conclusions require reflection and knowledge, and Gorsuch seems too complex to sum up in fast facts. It’s tempting to rush to judgment, but as any good judge knows, circumspection is usually best.
Dylan Matthews: I read Supreme Court nominee Neil Gorsuch’s book. It’s very revealing.
(Vox) Gorsuch’s core argument in [The Future of Assisted Suicide and Euthanasia] is that the US should “retain existing law [banning assisted suicide and euthanasia] on the basis that human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” The “private persons” bit there is telling — Gorsuch elaborates, “I do not seek to address publicly authorized forms of killing like capital punishment and war.”
Nor does his argument explicitly address abortion. But many of the book’s arguments apply equally well to both euthanasia and abortion — the latter of which could be considered the intentional taking of human life by private persons by a judge inclined to enact Gorsuch’s principle.
1 February
(The Atlantic) The Supreme Court: Last night, President Trump nominated Neil Gorsuch to replace the late Antonin Scalia. The long standoff over that vacant seat was one of the pivotal issues of the 2016 election: Many evangelical voters who were reluctant to back Trump were banking on his choice of a conservative justice—and with Gorsuch, Trump delivered. In addition to a strong interest in bioethics, the 49-year-old federal appellate judge has a record of reliably conservative decisions and tends, like Scalia, toward originalist interpretations of the Constitution. But he differs somewhat from Scalia in his Jeffersonian view of natural law, which may make him especially willing to enforce constitutional checks on the president’s power.
Confirmation Bias:  Senate Democrats quickly responded with criticism of both Gorsuch and the GOP’s year-long refusal to consider Obama’s nominee, Merrick Garland. Some Democrats intend to oppose Gorsuch, but it’s not yet clear whether the party will be able to present a unified opposition. Such unity is something their progressive constituents have clamored for during the Cabinet hearings, but so far that pressure has been slow to force the Democrats into action. Today, three Democrats joined the GOP in confirming Rex Tillerson as secretary of state. But two Republicans announced their opposition to would-be education secretary Betsy DeVos, which means her confirmation could hinge on just one Republican vote.

The Economist writes:American courts: Replacing Scalia In a live, prime-time television broadcast last night, Donald Trump announced that Neil Gorsuch was his choice to replace Antonin Scalia, the conservative Supreme Court justice who died nearly a year ago. With the ideological tilt of the court hanging in the balance Mr Gorsuch will face a tough confirmation. But he is a scholarly, refined jurist whom Democrats will be hard-pressed to vilify, writes our courts correspondent

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