SCOTUS and the US courts 2017-18

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Supreme Court of the United States
SCOTUS & Brett Kavanaugh

It’s time for term limits for Supreme Court justices
(Vox) Unlike every other democracy in the world, the US has lifetime appointments for the Supreme Court. This means that whoever gets appointed could serve for 30 or more years — a tenure that is becoming more and more the norm.
The idea of term limits for Supreme Court justices (10, 12, or 18 years are the most common proposals) has been floating around for decades. But the increasingly contentious nature of the confirmation process should give this proposal new urgency.
For one, it would significantly decrease the likelihood of another unexpected departure, like the one caused by Justice Antonin Scalia’s death almost a year ago now. Scalia was appointed in 1986. He would have been term-limited out long before his passing. In these partisan times, justices are staying on the bench longer, not wanting to leave unless they can be replaced in a political environment that ensures a replacement on the same side. Which makes them more likely to die on the bench.
While the most direct way to enact term limits would be a constitutional amendment, that’s obviously a long shot in today’s politics.
A more likely way to accomplish this was suggested by Robert Bauer in 2005: that the president agree not to nominate anybody who wouldn’t agree to serve a limited term and the Senate agree not to confirm who doesn’t agree to serve a limited term. (27 June 2018)
What Happened With Merrick Garland In 2016 And Why It Matters Now
… only hours after Scalia’s death was announced, Senate Majority Leader Mitch McConnell declared any appointment by the sitting president to be null and void. He said the next Supreme Court justice should be chosen by the next president — to be elected later that year. … The 11 Republican members of the Senate Judiciary Committee signed a letter saying they had no intention of consenting to any nominee from Obama. No proceedings of any kind were held on Garland’s appointment.
McConnell’s blockade was doubly effective … First, it prevented the seating of a Democratic president’s choice. … Second, and more important, the vacancy became a powerful motivator for conservative voters in the fall. Many saw a vote for Trump as a means to keep Scalia’s seat away from the liberals and give the appointment to someone who promised to name anti-abortion justices supportive of Second Amendment gun rights.
… candidate Donald Trump treated the Supreme Court as a touchstone, sometimes simply shouting the two words to his rally crowds. And indeed, polling has shown the court vacancy did mean a great deal to Trump voters, especially those religious conservatives who had personal misgivings about him. (29 June 2018)

7 October
Requiem for the Supreme Court
Through the 20th century, the court stood as an independent arbiter of the rule of law. It is a unifying, national institution no longer
By Garrett Epps
(The Atlantic) Critically, skeptically, but deeply, I loved that Supreme Court. Where is it? Where is the Court that claimed it was at least striving to transcend partisan politics?
That Court is gone forever. We will spend at least the rest of my lifetime fighting over its rotting corpse. No prating about civility can change that fact. The fight is upon us now and the party that shirks it will be destroyed.

6 October
Confirming Kavanaugh: A Triumph for Conservatives, but a Blow to the Court’s Image
By ADAM LIPTAK
The Supreme Court will move further to the right than it has been in many decades, with two distinct blocs that reflect the deep polarization of the American public and political system.
The new majority is sure to move the law to the right on countless deeply contested issues, including abortion, affirmative action, voting and gun rights. And the victory will very likely be a lasting one. Judge Kavanaugh, now 53, could serve for decades, and the other conservative justices are young by Supreme Court standards. The court’s senior liberals are not. Justice Ruth Bader Ginsburg is 85, and Justice Stephen G. Breyer is 80.
There will be no swing justice in the mold of Anthony M. Kennedy, Sandra Day O’Connor or Lewis F. Powell Jr., who forged alliances with both liberals and conservatives. Instead, the court will consist of two distinct blocs — five conservatives and four liberals. The court, in other words, will perfectly reflect the deep polarization of the American public and political system.

1 October
(Quartz) The US Supreme Court begins a new term. There are just eight justices instead of the usual nine, with the confirmation of Brett Kavanaugh still in doubt over sexual-misconduct allegations he denies. For now the court will remain ideologically deadlocked as it begins hearing cases.
Jennifer Rubin: Reckless Republicans aren’t giving any thought to tomorrow
(WaPost) President Trump reportedly has been frustrated with Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) and Senate Majority Leader Mitch McConnell (R-Ky.) for delaying the confirmation of Judge Brett M. Kavanaugh. After the Thursday hearing, the White House apparently was vexed that Republicans didn’t hold a snap vote. Trump had a point: Given time for consideration of the facts and the declining public support for Kavanaugh, the Supreme Court nominee’s confirmation becomes a heavier burden to shoulder for Republicans each day it drags on.
Republicans cannot be entirely blind to the risk of post-confirmation discoveries. However, in their Scarlett O’Hara mind-set (“Oh I can’t think about this now! I’ll go crazy if I do! I’ll think about it tomorrow”), they cannot bear to consider what happens the day after the midterms. Right now they can only consider short-term perils — huge humiliation if Kavanaugh fails, a lost opportunity to fill the seat before January (when a Democratic majority might conceivably take over) and a triumph for the members of the imaginary, vast left-wing conspiracy who they say whipped this whole thing up. (Again, in O’Hara’s words: “I can’t let him go. I can’t.”)

28 September
Jeff Flake’s Deal With Democrats Puts Kavanaugh’s Nomination in Limbo
A deeply divided Senate Judiciary Committee advanced President Trump’s pick for the Supreme Court, but final confirmation will depend on a reopened FBI inquiry.
(The Atlantic) Brett Kavanaugh’s nomination to the Supreme Court was all set to move unimpeded through the Senate Judiciary Committee on Friday morning.
Then Jeff Flake had a sudden change of heart.

18 September
Dave Leonhardt: The Supreme Court Needs Term Limits
They would make the current system fairer — and tone down the intensity of the confirmation process.
(NYT Opinion) The most appealing idea to me is staggered 18-year terms on the court, with each four-year presidential term automatically bringing two appointments. Such a system would be more consistent with democratic principles. It would have several ancillary benefits, too. Aging justices would no longer hang on to their jobs past the point when they should (which has been a real problem in the past). And as Ornstein notes, highly qualified candidates in their late 50s and early 60s — who are now largely ignored by presidents — would be considered for the court.
There would still be some details to work out, such as the transition from the current system to the new one. The new law would also need a mechanism to prevent the opposing party in the Senate from denying a president a justice. But all of that is workable.

22 August
When the Supreme Court Lurches Right
What happens when the Supreme Court becomes significantly more conservative than the public?
(NYT Magazine) … Assuming Kavanaugh votes as his record suggests, the court will move to the right on several important fronts, even as the country’s demographics predict a shift of the electorate to the left, with more young voters and voters of color. Several priorities of the conservative legal movement already conflict with public opinion.
… Partisan entrenchment on the court could lead to partisan entrenchment in the other branches, as the law professors Jack Balkin and Sanford Levinson have argued, because of the court’s ability to influence the electoral process. Republicans tend to benefit when fewer people vote — and making it harder to vote, and harder for minorities to exercise political power, are already among the Roberts Court’s chief legacies.
… Constitutional amendments were, in fact, a safety valve back when the Lochner Court pitted itself against the public. The 16th Amendment reversed the Supreme Court’s decision to block the income tax. The 17th Amendment created direct elections for the Senate. The 19th Amendment granted women the right to vote. In other words, during the long darkness of Supreme Court recalcitrance, the country came together to address inequality and make American democracy more direct and inclusive. These days, however, political polarization is so extreme that constitutional amendments, with the elected supermajorities they require, are essentially out of the question. Elections are the only obvious, if indirect, way for the public to express its discontent with a wayward Supreme Court.

Maybe a mobilized Democratic Party can somehow overcome all the barriers of Republican entrenchment as it did in the 1930s (and this time we get to skip the Great Depression). If a new dominant national alliance emerges to the left of the Roberts Court, maybe the justices will find a way to become a part of it. Or the Republicans could remain in power because they make a persuasive case to the voters, not because the court aids in eroding the democratic process. In other words, maybe Dahl turns out to be right. Let’s hope so. The democracy may be riding on it.
25 July
The Atlantic: Court Battle: Republican Representative Justin Amash is calling on his Senate colleagues to oppose Brett Kavanaugh, Trump’s nominee for the Supreme Court, because of his record on privacy. And two Democratic senators raised concerns about the honesty of Kavanaugh’s answers at his D.C. Circuit Court of Appeals confirmation hearing in 2006. Other critics of Kavanaugh are concerned about the possibility that a more conservative court could overturn Roe v. Wade, leaving women to attempt illegal self-abortions by ordering pills online—a practice that’s already taking place.

9 – 11 July
Showdown on a Trump Subpoena Could Overshadow Brett Kavanaugh’s Confirmation
Mr. Trump’s choice for the court, Judge Brett M. Kavanaugh, has expressed strong support for executive power, hostility to administrative agencies and support for gun rights and religious freedom.
Those are all conventional positions among conservative lawyers and judges. But there is one stance that sets Judge Kavanaugh apart, and it could not be more timely: his deep skepticism of the wisdom of forcing a sitting president to answer questions in criminal cases.
Winners and losers from Brett Kavanaugh’s Supreme Court nomination
(WaPost) The big winner of President Trump’s second Supreme Court pick is Trump himself. He seized the retirement of Justice Anthony M. Kennedy to remind the Republican Party why it needs him: He has the power to make the Supreme Court lean more reliably conservative for a generation.
The outgoing Justice Kennedy: Kavanaugh wasn’t the only former clerk of Kennedy’s on Trump’s list of potential nominees. But Kavanaugh’s addition to the list last fall, The Post reports, was seen as a way of reassuring Kennedy that he could retire while Trump was president and have a replacement he could be happy with.
George W. Bush: In one way, it’s surprising that Trump picked Kavanaugh. He spent a number of years as a top aide to President George W. Bush, and the Bush family represents a wing of the party that’s been at odds with Trump.
Russia-investigation intriguists: It’s not out of the realm of possibility that aspects of the ongoing investigation into how Russia interfered in the 2016 presidential election will reach the Supreme Court. And if that happens, Kavanaugh has more relevant material in his past than your average judge for both sides to dig through.

David Brooks: It Took a Village to Raise Kavanaugh
Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative.
This community didn’t just happen; it was self-consciously built. If you want to understand how to permanently change the political landscape, it’s a good idea to study and be inspired how it was done.
A Liberal’s Case for Brett Kavanaugh
By Akhil Reed Amar, professor at Yale Law School
(NYT Opinion) The nomination of Judge Brett Kavanaugh to be the next Supreme Court justice is President Trump’s finest hour, his classiest move. Last week the president promised to select “someone with impeccable credentials, great intellect, unbiased judgment, and deep reverence for the laws and Constitution of the United States.” In picking Judge Kavanaugh, he has done just that.
In 2016, I strongly supported Hillary Clinton for president as well as President Barack Obama’s nominee for the Supreme Court, Judge Merrick Garland. But today, with the exception of the current justices and Judge Garland, it is hard to name anyone with judicial credentials as strong as those of Judge Kavanaugh.

The Secrets of Leonard Leo, the Man Behind Trump’s Supreme Court Pick
A Catholic fundamentalist who controls a network of right-wing groups funded by dark money has put three justices on the court. He’s about to get a fourth.
(Daily Beast) When President Donald Trump nominates a justice to the Supreme Court on Monday night, he will be carrying out the agenda of a small, secretive network of extremely conservative Catholic activists already responsible for placing three justices (Alito, Roberts, and Gorsuch) on the high court.
And yet few people know who they are—until now.
At the center of the network is Leonard Leo of the Federalist Society, the association of legal professionals that has been the pipeline for nearly all of Trump’s judicial nominees. (Leo is on leave from the Federalist Society to personally assist Trump in picking a replacement for Justice Anthony Kennedy.) His formal title is executive vice president, but that role belies Leo’s influence.

1 July
How to End the Judicial Confirmation Wars
Political norms surrounding the courts are broken, but new rules could restore balance to the process.
(The Atlantic) The judicial nominating process in general, and the Supreme Court process in particular, are contaminated from start to finish with disingenuous claims and counterclaims, guaranteed to end in something close to party-line votes cast amid ugly rhetoric and followed by recriminations.
The norms many Americans understandably hold dear, now in an obvious state of decay, might retain some vitality in a differently ordered world. One might imagine a world in which the court didn’t preside so majestically, and with such sharp divisions, over issues ranging from reproductive rights to burning issues of political and gender equality.
One long-standing proposal with so far no momentum has been to impose limits—under one leading proposal, eighteen-year limits—on Supreme Court terms. This makes sense. Eventually, once fully in effect, every president could expect to make at least one Supreme Court nomination during a four-year term in office.
This reform could have multiple benefits. It would drain away some of the political tension, if not eruption of crisis, around each nomination. The retirement of an Anthony Kennedy might not shake the country to its very foundations. Vacancies would remain consequential, but with more regular turnover and each president assured of a pick, there would be less drama.

27 – 29 June

Justice Kennedy, U.S. Supreme Court’s pivotal vote, to retire

(Reuters) – Supreme Court Justice Anthony Kennedy said on Wednesday he plans to retire after three decades as a pivotal vote on the highest U.S. judicial body, giving President Donald Trump an opportunity to make the court more firmly conservative.
The conservative Kennedy, who turns 82 in July and is the second-oldest justice on the nine-member court, has become one of the most consequential American jurists since joining the court in 1988 as an appointee of Republican President Ronald Reagan. He proved instrumental in advancing gay rights, buttressing abortion rights and erasing political spending limits. His retirement takes effect on July 31, the court said.

Joseph E. Stiglitz: American Democracy on the Brink
In just the past few days, the US Supreme Court has handed down a series of rulings favoring corporations over workers, and right-wing extremists over the majority of Americans. With the Court following Donald Trump down the path of racism, misogyny, nativism, and deepening inequality, it would appear that yet another pillar of American democracy has crumbled.
(Project Syndicate) The center is not holding. After US President Donald Trump’s election in November 2016, millions of Americans and others around the world took solace in the idea that strong institutions and the US Constitution would protect American democracy from his predations. But events over the past few days suggest that America’s institutional shock absorbers are not as robust as advertised. Within the Republican Party, which controls all three branches of the US government, the siren song of tribal politics is drowning out any remaining fidelity to America’s constitutional traditions.
Trump’s Anthony Kennedy Strategy Was Calculated, With None of His Trademark Chaos
(New York) But when it comes to what may be his most lasting legacy — shifting the Supreme Court to the right — the Trump administration has managed to avoid its trademark chaos. It’s quite possible that 81-year-old Justice Anthony Kennedy would have decided it’s time to retire regardless of anything Trump said or did, but the New York Times reports that for months the White House has been quietly working to assuage any fears he might have about Trump picking his replacement.

The Only Thing That Might Stop Trump From Replacing Kennedy With a Scalia Clone
(Slate) The only political hope here is for massive street protests, like we saw with the initial Trump travel ban to try to convince senators like Susan Collins of Maine or Lisa Murkowski of Alaska to vote no. It’s a long shot because we’ve seen these senators fold time and again. But it is worth trying.
The problem is that the Supreme Court issue has been a tough one to get people to rally around. Before the election, I wrote a long piece at Talking Points Memo about how the court’s makeup is the most important civil rights issue of our time. On everything from abortion to same-sex marriage to immigration, labor unions, and voting, the court touches all aspects of our lives. But it does so in ways that are opaque to the average person. A political movement needs concrete indications of a problem, and it did not materialize before the 2016 election that this upcoming crisis was obvious. Maybe the court’s opinions this week on the travel ban and labor unions can provide some impetus.

A major blow to public employee unions from the Supreme Court
(LA Times) A majority of the court’s justices overturned a 41-year-old precedent by ruling that the 1st Amendment protects non-union public employees from being required to support a private group — a union, in this case — whose views may differ from theirs.
The decision, in Janus vs. AFSCME, strikes down laws in California, New York and 20 other mostly Democratic-leaning states that authorize unions to negotiate contracts that require all employees to pay a so-called fair share fee to cover the cost of collective bargaining.

26 June
A Failure of Judicial Independence
The Supreme Court squanders a chance to check a reckless president.
(The Atlantic) This is not only a bad result; it is a bad opinion, and a bad omen for those who look to an independent judiciary as a stabilizing force amid the current chaos. …
the Court’s majority accepted the official version almost in toto. Though Roberts’s opinion reviewed the earlier, botched executive orders that tried to close the country’s doors to entrants from a number of Muslim countries, it recited their promulgation, lower-court rejection, and withdrawal in solely bureaucratic terms. Only 25 pages later did it mention “a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation.” Before any serious reckoning with the outright bigotry of Trump’s campaign and his statements as president, the majority conducted a dense discussion of the president’s authority under the Immigration and Nationality Act.
It’s Donald Trump’s Supreme Court Now
(New York) Roberts — along with Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch — not only buy the administration’s argument that Trump’s record of contempt for Muslims should be largely irrelevant to its assessment, they also don’t believe the untold damage he has done to the dignity of Muslims in the United States and abroad should be considered. “Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus,” Justice Sotomayor shoots back. “The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”
“SCOTUS Speaks”
I’m your humble host and editor Ezekiel Kweku, and today I’m talking with two members of New York’s politics team — Eric Levitz and Ed Kilgore — about the recent Supreme Court decisions and whether Obama should have nominated someone else to SCOTUS. …
Eric: My specific argument is that if Obama nominated the first African-American woman to the Supreme Court — and Republicans nullified her appointment — it would have been much easier for Clinton to turn the theft of a seat into a salient campaign issue. Merrick Garland did little to excite the Democratic base — so little Clinton couldn’t even commit to appointing him if she won. Beyond potentially increasing black turnout in 2016, I think such a move also would have helped delegitimize the Gorsuch court in the eyes of more Democratic voters. Which may be useful going forward.
Sotomayor and Ginsburg Issue Scathing Dissent of SCOTUS Travel Ban Decision
(MSN News) The Supreme Court upheld President Donald Trump’s travel ban Tuesday, siding with the president in Trump v. Hawaii. The 5-4 decision legally allows vast immigration restriction from several majority-Muslim nations: Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.
In the dissent, Sotomayor and Ginsburg accused the court majority of “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”
“The full record paints a far more harrowing picture from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith,” they wrote.

4 June
Supreme Court rules in favor of baker who would not make wedding cake for gay couple
(WaPost) … but it left undecided whether a business owner’s religious beliefs or free speech rights can justify refusing some services to gay people.
Instead, Justice Anthony M. Kennedy’s 7-to-2 decision focused on what he described as religious bias on the part of Colorado Civil Rights Commission members who ruled against baker Jack Phillips, who owns Masterpiece Cakeshop.
“The neutral and respectful consideration to which Phillips was entitled was compromised here,” Kennedy wrote, adding that the commission’s decision that the baker violated the state’s anti-discrimination law must be set aside.
But Kennedy acknowledged that the decision was more of a start than a conclusion to the court’s consideration of the rights of those with religious objections to same-sex marriage and the rights of gay people, who “cannot be treated as social outcasts or as inferior in dignity and worth.”

22 April
In travel ban case, Supreme Court considers ‘the president’ vs. ‘this president’
The Supreme Court’s final oral argument of the term will be one of its most important and potentially far-reaching, an examination of the president’s authority to protect the country by banning some foreigners who seek entry.
But, similar to a debate that has consumed Washington for the past 15 months, a major issue for the court is separating “the president” from “this president.”
The justices on Wednesday will consider President Trump’s third iteration of a travel ban that bars most nationals from a small group of mostly Muslim nations. It is the first time the court has considered the merits of a policy that has consumed the administration since its start, and raises deep questions about the judiciary’s role in national security issues usually left to the political branches.

20 April
George F. Will: Gorsuch strikes a blow for constitutional equilibrium
(WaPost) Last week, one week after the first anniversary of Justice Neil M. Gorsuch’s ascension to the Supreme Court, he delivered an opinion that was excellent as it pertained to the case at issue, and momentous in its implications pertaining to the institutional tangle known as the administrative state. If he can persuade his fellow court conservatives to see why they were mistaken in disagreeing with him, and if he can persuade his liberal colleagues to follow the logic of their decision with which he concurred, the judiciary will begin restoring constitutional equilibrium. It will limit Congress’s imprecise legislating that requires excessive unguided improvising by all those involved in seeing that the laws are “faithfully” executed.

30 March
Trump’s dangerous plot to weaponize the Supreme Court
By Ruth Marcus
(WaPost) President Trump tweeted the other day about the call by retired Supreme Court justice John Paul Stevens to repeal the Second Amendment. … This was Trump’s take: “THE SECOND AMENDMENT WILL NEVER BE REPEALED! As much as Democrats would like to see this happen, and despite the words yesterday of former Supreme Court Justice Stevens, NO WAY. We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!”
Think about that last sentence, which received way less attention, and condemnation, than it deserved: “We . . . must ALWAYS hold the Supreme Court,” as if it were the presidency or a house of Congress, a prize awarded to the electoral victors.
As always, Trump manages to combine ignorance and cunning. He is ignorant of — ignorant, really, to the point of allergic to — the importance of the judiciary as an independent institution and the operation of the rule of law. Yet he is also maliciously canny; this is a man who knows that nothing motivates his base more than the prospect of courts packed with conservative judges.

26 February
Supreme Court refuses to hear Trump challenge on DACA
(The Hill) The Supreme Court on Monday refused to hear the Trump administration’s challenge to a lower court ruling temporarily blocking it from winding down the Obama-era Deferred Action for Childhood Arrivals (DACA) program.
The decision delivers a blow to the Trump administration, which argues that DACA is unconstitutional. It also could ease some pressure on Congress to quickly come up with a legislative solution, however, since it means the 9th Circuit Court of Appeals will continue to review the case.
(NYT) The Supreme Court’s move will, as a practical matter, temporarily shield the young immigrants who already had signed up for the DACA program from immediate deportation, and allow them to keep working legally in the United States. Their status lasts for two years and is renewable. The court’s decision not to hear the appeal could also relieve the immediate political pressure on lawmakers to permanently address the status of those immigrants, or to deal with the additional one million Dreamers who had never signed up for the DACA program. They remain at risk of deportation if immigration agents find them.
Even as he ended the DACA program, Mr. Trump had called upon Congress to give the young immigrants legal status — and an eventual path to citizenship — before the program was scheduled to expire March 5.

23 January
Trump And Republicans Are Forging Ahead With Conservative Judicial Nominees After Last Year’s Setbacks
(Buzzfeed) The White House on Tuesday announced Trump’s first wave of new judicial nominees in 2018. The Senate Judiciary Committee last week voted to approve 17 judicial nominees from last year in a push that critics called a “monster markup.”
The White House on Tuesday announced President Donald Trump’s first wave of new judicial nominees this year, less than a week after the Senate Judiciary Committee voted to send a large number of Trump’s 2017 nominees to the Senate floor for a final vote.
The moves signal that the White House and Senate Republicans are quickly trying to move past the failure of three of Trump’s nominees at the end of last year. Those unsuccessful nominations raised questions about how the White House and the Justice Department vetted and prepared Trump’s picks for lifetime seats on the federal bench, and gave Democrats and liberal groups a sliver of hope after a year that saw a record number of appeals court judges confirmed.

2017

17 December
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.” http://nyti.ms/2iRhuOv
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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