SCOTUS, Trump & the US courts May – November 2020

Lawfare
See also: SCOTUS and the US courts 2017-18
SCOTUS, Trump & the US courts July 2018 – April 2020

William (Bill) Svelmoe’s brilliant series of suggestions on how to deal with Trump’s nomination of Judge Barrett:
How Democrats Should Address the ACBarrett nomination.

26 November
What a conservative majority on the court really means
(WaPo) Barrett played the decisive role in the court’s decision Wednesday to grant requests from Catholics and Orthodox Jews in New York City to block church and synagogue attendance limits in covid-19 hot spots.
…with Barrett’s ascension to the bench … Roberts is now unable to stop a majority from overruling local officials as they try to combat the coronavirus’s spread.
The impact of Barrett’s arrival goes well beyond tying states’ hands in the fight against covid-19. Her vote will accelerate a trend toward deference to religious institutions that her fellow conservatives — including the chief justice — have been pursuing for a decade. Once upon a time, the court sought to balance the twin religion clauses of the First Amendment — separation of church and state on one hand and free exercise of religion on the other. More recently, its right wing has been all but ignoring the Constitution’s proscription against an establishment of religion while deferring to increasingly far-fetched religious-liberty claims.
Barrett is likely to ramp up the court’s support for people and organizations that demand carve-outs from rules that the rest of society must follow

Midnight Ruling Exposes Rifts at a Supreme Court Transformed by Trump
The justices issued six opinions, several of them unusually bitter, in upholding challenges from churches and synagogues to state pandemic restrictions on religious services.
(NYT) Just months ago, Chief Justice John G. Roberts Jr. was at the peak of his power, holding the controlling vote in closely divided cases and almost never finding himself in dissent. But the arrival of Justice Amy Coney Barrett late last month, which put a staunch conservative in the seat formerly held by the liberal mainstay, Justice Ruth Bader Ginsburg, meant that it was only a matter of time before the chief justice’s leadership would be tested.
Supreme Court relieves religious organizations from some covid-related restrictions
(WaPo) The Supreme Court’s new conservative majority late Wednesday night sided with religious organizations in New York that said they were illegally targeted by pandemic-related restrictions imposed by Gov. Andrew M. Cuomo to combat spiking coronavirus cases.
The 5 to 4 order was the first show of solidified conservative strength on the court since the confirmation of Justice Amy Coney Barrett. The decision differed from the court’s previous practice of deferring to local officials on pandemic-related restrictions, even in the area of constitutionally protected religious rights.

13 November
Why so sour, Justice Alito? Your side in the Supreme Court is winning.
Alito’s address [to the Federalist Society’s annual convention]— one of several he has delivered to the conservative lawyers group, but this time done via streaming video — was, instead, suffused with grievance.
About efforts (unsuccessful) to prevent federal judges from belonging to the Federalist Society. About politically correct pressure on law school campuses that exposes students to “harassment and retaliation if they say anything that departs from the law school orthodoxy.”
About a friend-of-the-court brief by five Democratic senators suggesting that the court might need to be “restructured,” calling it “an affront to the Constitution and the rule of law” — comparing it to a tank pulling up outside a courthouse in an authoritarian regime….

10 November
Key Justices Signal Support for Affordable Care Act
At a Supreme Court argument on Tuesday, Chief Justice Roberts and Justice Kavanaugh suggested that striking down one provision would not doom the balance of the law.
(NYT) At least five Supreme Court justices, including two members of its conservative majority, indicated on Tuesday that they would reject attempts by Republicans and the Trump administration to kill the Affordable Care Act.
It was not clear whether the court would strike down a provision of the act that initially required most Americans to obtain insurance or pay a penalty, a requirement that was rendered toothless in 2017 after Congress zeroed out the penalty. But the bulk of the sprawling 2010 health care law, President Barack Obama’s defining domestic legacy, appeared likely to survive its latest encounter with the court.
Supreme Court Justice Brett Kavanaugh’s Vote May Save Obamacare This Time
By Amy Davidson Sorkin
Oral arguments can be deceptive. It may be hard to tell, from Tuesday’s arguments, just how each Justice will come down on the zeroed-out mandate, or on the question of standing. Kavanaugh’s version of the “broccoli horrible” was a hypothetical about whether the federal government could require every American who lives in a house to fly the American flag. But both he and Roberts appear to be reasonably firm on what the remedy would be: remove the mandate and let the rest stand. If that proves true, there would, with Breyer, Sotomayor, and Kagan, be five votes saying that the ways in which Obamacare protects the most vulnerable will survive, despite Ginsburg’s death in October. Barrett will not have undone her work—at least, not yet.

4 November
Supreme Court and the Election: What We Know
It is not at all clear that an election dispute will reach the justices.
(NYT) President Trump promised early Wednesday morning to ask the Supreme Court to intervene in the election. “We’ll be going to the U.S. Supreme Court,” he said. “We want all voting to stop.”
The first statement was premature. The second did not make sense.
The Supreme Court decides actual disputes, not abstract propositions, and then only after lower courts have made their own rulings. While there have been countless election cases filed around the nation, it is not clear which of them might reach the court in the coming days.
Why the Supreme Court probably won’t help Trump’s reelection fate
The president’s vow to take his unsubstantiated election claims to the highest court was met with confusion

30 October
Trump Tells the Supreme Court It’s on His Election Team
Around 3 a.m., Trump made an especially revealing plea directly to the Supreme Court’s justices:
If Sleepy Joe Biden is actually elected President, the 4 Justices (plus1) that helped make such a ridiculous win possible would be relegated to sitting on not only a heavily PACKED COURT, but probably a REVOLVING COURT as well. At least the many new Justices will be Radical Left!
Trump is arguing that the Court should rule in his favor, because if Joe Biden wins, he will dilute the power of its incumbent members — either by packing the courts, or by implementing a reform that would rotate federal judges through the Supreme Court.
As Trump appeals go, this one isn’t bad. Biden probably won’t have the votes to pack the Court or even to implement a more modest reform. But he does support reform, and has promised to appoint a bipartisan commission to formulate a plan of action. So a Biden election certainly creates real risk for the Supreme Court.

One theory by one justice binds together Supreme Court’s contradictory election opinions
Roberts is skeptical of federal judges intervening in those decisions, but defers when state courts and election boards step in.
(WaPo) The court kept in place a requirement that absentee ballots in Alabama bear a witness’s signature, but said a suspension of that requirement in Rhode Island was okay. In the past week, it turned down a request to extend the deadline for receiving mail-in ballots in Wisconsin, and allowed extensions to remain in place in Pennsylvania and North Carolina.
… Roberts, along with his fellow conservatives, has blocked changes imposed by federal judges in Alabama and Wisconsin. But he has been open, along with the court’s liberals, when state actors — the Pennsylvania Supreme Court, and election officials in Rhode Island and North Carolina — agree to loosen restrictions.

28 October
The facts about whether or not Supreme Court packing requires a constitutional amendment:
“Congress has kept the same number of Justices since 1869, but it is not constitutionally fixed, and history has shown that it is Congress’s prerogative, subject to the President’s veto, to add to or subtract from the seats on the Court.”
What the Democrats Achieve By Threatening to Pack the Supreme Court
The confirmation of Justice Amy Coney Barrett has put the ongoing credibility of the Supreme Court at risk.
(The New Yorker) Having previously indicated that he was “not a fan” of court-packing, Biden promised that, if elected, he would convene a bipartisan commission of constitutional scholars to recommend court-reform ideas, including “a number of alternatives that go well beyond packing” the Court. Such other options may include term limits. Last month, House Democrats introduced a bill that proposes a new Supreme Court appointment every two years, for a nonrenewable eighteen-year term. The current Justices would be exempted from the term limit and retain their life tenure, but the two-year cycle would take effect immediately without regard to their retirements. The Constitution clearly does allow Congress to determine the number of seats on the Supreme Court. But any proposal to limit Justices’ terms through legislation, rather than a constitutional amendment, would have to contend with the long-established reading of Article III’s statement that federal judges “shall hold their offices during good behaviour” to require life tenure.

Heather Cox Richardson: On Monday, five Supreme Court justices—all appointed by Republicans—backed a request from Wisconsin Republicans to throw out ballots postmarked by November 3 but received up to six days later. In his explanation of why he was siding with the Republicans, Kavanaugh said that state legislatures should be the ones to decide on voting rules. He specifically noted Vermont as a state that has “decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots.” In fact, Vermont did change its rules, making two major changes, and today Vermont’s Secretary of State Jim Condos formally requested that Kavanaugh’s opinion be corrected.

27 October
Amy Coney Barrett’s first decision as a justice was a wrong one
Barrett didn’t have to participate in a prime-time political spectacle at the White House, just eight days before Election Day. But she did.
The Republican Party’s Supreme Court
NYT Editorial Board: The quest to entrench political conservatism in the country’s highest court comes with a steep cost
Senate Republicans, who represent a minority of the American people, are straining the legitimacy of the court by installing a deeply conservative jurist, Amy Coney Barrett, to a lifetime seat just days before an election that polls suggest could deal their party a major defeat.
As with President Trump’s two earlier nominees to the court, Neil Gorsuch and Brett Kavanaugh, the details of Judge Barrett’s jurisprudence were less important than the fact that she had been anointed by the conservative activists at the Federalist Society.
Justice Amy Coney Barrett Is Sworn In Under Darkness at the White House
By Amy Davidson Sorkin
(The New Yorker) As if there hadn’t been enough hollow gestures in the course of the day, Trump also mentioned Ginsburg’s legacy. That he did so served only to highlight how sour and cynical the process has been.

Three Paths for Reforming the Supreme Court
(NYT) …if Democrats manage to win the White House, reclaim the Senate and keep the House in the coming weeks, they will acquire a far more expansive legislative arsenal. Even Joe Biden, who resisted calls for court reform during the primaries, has said he would commission a bipartisan group of scholars to study ways of overhauling the judiciary, because, as he put it, “it’s getting out of whack.”
If elected, he will not want for ideas. On Tuesday, my colleagues in Opinion published a suite of pieces from legal thinkers about what brought us to this point, how the court should be reformed and whether it needs reforming at all. Here is a distillation of those proposals, as well as several others that have caught the attention of people in power.
Increase the size of the court (or threaten to)
Limit how long justices serve
Make the court less important

24 October
Amy Coney Barrett’s Judicial Philosophy Doesn’t Hold Up to Scrutiny
The Constitution should be the sturdy vessel of our ideals and aspirations, not a derelict sailing ship locked in the ice of a world far from our own.
Angus King Jr., U.S. Senator from Maine and Heather Cox Richardson, Professor of history at Boston College
(The Atlantic) To put it bluntly, the whole premise of originalism is nonsense in that it pretends to make the work of the Supreme Court look straightforward and mechanical, like “calling balls and strikes,” in Justice John Roberts’s famous phase. But defining equal protection, due process, or unreasonable is not. We need a Supreme Court to interpret the intent and appropriate application of the terms of the Constitution to particular cases (many not dreamed of by the Framers).
Originalism is an intellectual cloak drummed up (somewhat recently) to dignify a profoundly retrogressive view of the Constitution as a straitjacket on the ability of the federal government to act on behalf of the public.
The real problem with the originalist theory is that it allows no room for ethical, moral, or political growth. If the Framers didn’t think it, it’s not allowed.

20 October
Sen. Ted Cruz and five other Senate Republicans have introduced a constitutional amendment to prevent Democrats from packing the Supreme Court if Joe Biden wins the White House and Democrats capture the Senate.
The proposed amendment simply states: “The Supreme Court of the United States shall be composed of nine justices.”
Don’t fret: any amendment must pass with a two-thirds super majority in both the Senate and the House and be ratified by three-fourths of the states, or 38 of the 50 states, within seven years after its submission for ratification.
The other Republican sponsors of the plan are Sens. Thom Tillis (N.C.), Martha McSally (Ariz.), Roger Wicker (Miss.), Kelly Loeffler (Ga.) and Cindy Hyde-Smith (Miss.). Tillis, McSally and Loeffler are face competitive reelection races this fall.

16 October
The Most Useless Job Interview Ever
Amy Coney Barrett interviewed for a lifetime appointment on the most powerful court on the planet, and refused to tell us anything about how she would perform that job
(RollingStone) On day two of her confirmation hearings, Supreme Court nominee Amy Coney Barrett held up a blank notepad for the senators to see the notes she was working from. At the beginning of the hearing, many saw the blank piece of paper as a powerful symbol of how smart and prepared Judge Barrett was, their perfect nominee who didn’t need any prepared material to survive the grilling she was sure to encounter by hostile Democrats.
However, by the end of the four days of hearings, the blank notepad was a perfect symbol of something else — just how empty and vacuous the hearing was, and how little Judge Barrett was willing to say about virtually anything relevant to the job of being a Supreme Court justice. In short, the notepad had nothing on it because Judge Barrett said nothing.
Jennifer Rubin: Barrett seeks refuge in ignorance and evasion
The general impression one gets from Barrett is that she is less knowledgeable about U.S. contemporary life than any Supreme Court nominee in recent memory, with the possible exception of Robert Bork. She cites theories of jurisprudence with ease, but she cannot acknowledge obvious political realities and facts about economic power, discrimination and science. That is a recipe for rigid, abstract judicial reasoning. Despite her insistence to the contrary, she seems to treat jurisprudence in a vacuum, with little regard for how it will affect others with whom she has little familiarity.
Heather Cox Richardson October 14
After the war, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, the Supreme Court tried to level the social playing field between Americans through the justices’ interpretation of the law. … The focus of the Supreme Court in these years was not simply on equality before the law. The justices also set out to make the government more responsible to its citizens.
… Today’s “originalists”… argue that justices who expanded civil rights and democratic principles were engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. They say that justices in this era, and those like them in the present—people like Ruth Bader Ginsburg, who protected women’s equality before the law– were “legislating from the bench.” They hold tight to the argument that the Constitution is limited by the views of the Founders, and that the government can do nothing that is not explicitly written in that 1787 document.
Their desire to roll back the changes of the modern era serves traditional concepts of society and evangelical religion, of course, but it also serves a radical capitalism. If the government is as limited as they say, it cannot protect the rights of minorities or women. But it also cannot regulate business. It cannot provide a social safety net, or promote infrastructure, things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses. In short, under the theory of originalism, the government cannot do anything to rein in corporations or the very wealthy.
Barrett, Vowing Independence, Is Haunted by Trump’s Demands
Judge Amy Coney Barrett is not the first Supreme Court nominee to profess her independence, but her task has been made far more complicated by the president who nominated her.
(NYT) David A. Strauss, a constitutional law professor at the University of Chicago, said it was not unusual for presidents to seek ideological predictability in their Supreme Court nominees. What is different in this case, he said, is how far the president went beforehand in laying out his perceived requirements.
Amy Coney Barrett confirmation hearing live updates: (WaPo) Trump nominee says ‘no one is above the law’ but declines to say whether president has power to pardon himself
Barrett, Declining to Detail Legal Views, Says She Will Not Be ‘a Pawn’ of Trump
President Trump’s Supreme Court nominee refused to weigh in on critical matters that could come before the court, including health care, abortion rights and a possible election dispute.
(NYT) Judge Amy Coney Barrett flatly refused on Tuesday to pledge that she would recuse herself if a dispute over the Nov. 3 election came before the Supreme Court, insisting that despite her nomination by President Trump, she would not “allow myself to be used as a pawn to decide this election for the American people.”
During a nearly 12-hour question-and-answer session, Judge Barrett evaded Democratic senators’ attempts to pin down her views on the Affordable Care Act, abortion rights, gay marriage and a possible election-related case. She played down her history of taking conservative stances in legal writings and personal statements, arguing that she might view issues differently as a sitting justice.
Kamala Harris grilling prompts doubtful claim from Amy Coney Barrett
Democratic senator and vice-presidential nominee condemns Republican push to overturn healthcare law and abortion rights
(The Guardian) Kamala Harris delivered a blistering rebuke of Republican efforts to tear down healthcare and abortion access as she grilled Amy Coney Barrett, prompting the supreme court nominee to make the unbelievable claim that she was not aware of Donald Trump’s campaign promise to appoint justices who would dismantle Obamacare.
A Supreme Court decision to strike down the ACA would create chaos in the health care system
(Brookings) This piece considers some of the major changes (outside the private insurance market) that would follow in the wake of Supreme Court decision eliminating the ACA and concludes that implementation is likely to be quite chaotic. While Congress could in theory ameliorate some of this chaos by quickly enacting legislation, the political trajectory of the ACA to-date does little to inspire confidence that such action would be forthcoming.
No One Likes Amy Coney Barrett’s Abortion Answer
Nine unelected justices control the outcome of the abortion debate, which only feels good when your side is winning.
(The Atlantic) Now that conservatives are winning and are about to hold a definitive majority on the Supreme Court bench, however, liberals are exasperated that they have little ability to get Barrett on the record about what she might do regarding abortion. Barrett maintains that she will be a fair justice and can be trusted to uphold the rule of law, while Democrats have depicted her as a committed conservative ideologue who will surely undermine abortion rights in the United States. The only way to know the answer is to wait and see what she does on the bench, after her lifetime appointment is secure.
Barrett says she doesn’t classify Roe v Wade as superprecedent
(The Hill) Supreme Court nominee Amy Coney Barrett said Tuesday that she did not consider Roe v. Wade, the landmark ruling establishing a woman’s right to an abortion, as a superprecedent, meaning a decision so widely accepted that it is invulnerable to serious legal challenges that could see it overturned.
“Scholars across the spectrum say that doesn’t mean Roe should be overruled but descriptively it means it’s not a case everyone has accepted,” Barrett said.
The Irony at the Heart of the Amy Coney Barrett Fight
Republicans are pitching Donald Trump’s third Supreme Court nominee as a feminist icon at a time when the party is intensely unpopular among American women.
(The Atlantic) Republicans are hurting most among women who look like Barrett: people who are professionally ambitious and are likely balancing careers and motherhood. Many American women who fit this description may not think there’s a home for them on the right. Now in the national spotlight, less than three weeks before the election, Barrett offers Republicans a conservative model of feminism to point to, one in which women can lead exceptional careers, cultivate large families, remain dedicated to their communities and their faith—and be conservative.

9 October
Heather Cox Richardson, October 9
Congressional Republicans are…focusing on the confirmation of Barrett to the Supreme Court. Even this, though, does not suggest great support for Trump. To the contrary, Republicans appear to be determined to jam her through because they expect Trump to lose the election. Although 59% of Americans think the next president should fill the seat, and although the Senate is ignoring a desperately needed coronavirus relief bill, they are planning to shepherd her through to a seat on the court before November 3.
Today, the second debate between Democratic challenger Jaime Harrison and Senator Lindsey Graham (R-SC) was cancelled when Graham refused to take a coronavirus test despite the fact he was exposed to the virus on October 1 at a meeting that included Mike Lee (R-UT) who has since tested positive. Graham is the chair of the Senate Judiciary Committee, and a positive test would delay the start of the Barrett hearings, slated for Monday.
Democrats on the Senate Judiciary Committee have asked Graham to postpone the hearing in light of the positive tests of two Republican committee members, Mike Lee (R-UT) and Thom Tillis (R-NC). Concerns about the spread of the disease have made Senator Majority Leader Mitch McConnell recess the Senate until October 19, and the Democrats have noted that “no plausible public health or scientific rationale justifies proceeding with Senate Judiciary Committee hearings next week.”

3 October
McConnell says Senate won’t meet as planned after a third senator tests positive.
(NYT) … but indicated that Republicans would press ahead to confirm Judge Amy Coney Barrett to the Supreme Court without delay.
The announcement comes after three members of Mr. McConnell’s conference, two of them on the Judiciary Committee, have tested positive for the coronavirus in the last 24 hours. Others, like Senator James Lankford of Oklahoma, have tested negative but have gone into quarantine.
Supreme Court opens new term at the center of America’s bitter political divide
(WaPo) With Justice Ruth Bader Ginsburg’s seat on the bench still draped in black crepe, the eight remaining justices will gather via teleconference to tackle a docket that, for now, is not nearly as controversial as the last.
That term saw the court strike a restrictive state abortion law, decide LGBTQ workers are protected by federal anti-discrimination laws, grant temporary relief to undocumented immigrants brought to the United States as children and reject President Trump’s insistence he was above investigation from Congress and local prosecutors while in office.
“The court in this term may be looking for ways to avoid partisan controversy, to delay deciding cases that are of deep ideological division as much as it can,” David Cole, the national legal director for the American Civil Liberties Union, said last week in a briefing for reporters.

30 September
Religious group scrubs all references to Amy Coney Barrett from its website
(The Guardian) People of Praise, a tiny charismatic Catholic organization, admits removing mentions and photos of Trump’s supreme court pick.

29 September
The Faith of Amy Coney Barrett
Her record, not religion, tells us all we need to know.
(Commonweal) No one should object to Barrett joining the Supreme Court because she is a conservative Catholic, or because she might belong to the People of Praise. Her nomination deserves to be rejected because of her appalling record—a record that shows her to be a ready ally of the reactionary forces arrayed against what remains of American democracy. Barrett’s supporters will try to portray her as a victim; Democrats shouldn’t give them any excuses to do so. Let her persecution belong only to the wild imaginings of conservatives in that alternative reality where they, rather than the least among us, are about to be attacked.
Trump Supreme Court pick Amy Coney Barrett meets with Republican Senators, VP Pence
Amy Coney Barrett, U.S. President Donald Trump’s pick for the Supreme Court, met with Vice-President Mike Pence, Senate Majority Leader Mitch McConnell and other Republican senators on Tuesday before an expected fast-track confirmation process set to begin mid-October.

28 September
How “Extremist” Amy Coney Barrett Could Reshape the Supreme Court & Hand Trump the Election
(Democracy Now!) As President Trump nominates conservative federal judge Amy Coney Barrett to the Supreme Court to fill Ruth Bader Ginsburg’s seat, we look at how an emboldened 6-3 conservative majority on the Supreme Court could dramatically loosen gun laws, hurt immigrant communities and play a possibly central role in deciding a close presidential election. “Her religious conservatism is not what’s extreme about her. It’s her actual judicial opinions,” says Elie Mystal, justice correspondent for The Nation. “She does not use her religion to guide her through her decisions; she uses her extremist conservative views.”

25-27 September
What a piece of work is this man: Trump trolls liberals with Barrett history play
(The Guardian) The stage dressed to recall Ruth Bader Ginsburg, the president portrayed her arch-conservative successor as the embodiment of feminist virtue
For liberal America, it was a ceremony of unseemly haste to rank with Hamlet having to watch his mother marry his father’s murderer. Enough to make anyone mad.
Democrats debate whether to engage — or withdraw — in Supreme Court fight
Some moderate Democratic senators may be inclined to sit down with the nominee, although a robust debate about whether to do so has percolated through the Democratic caucus in recent days, according to officials familiar with the discussions.
Other Democrats took umbrage with the White House’s effort to schedule meetings between the nominee and Democratic and Republican senators on the Judiciary Committee before the nominee had been named, and before memorial services had concluded for Justice Ruth Bader Ginsburg.

Two very different views of Amy Coney Barrett
I’ve known Amy Coney Barrett for 15 years. Liberals have nothing to fear.
By O. Carter Snead, professor of law at the University of Notre Dame
v.
Ruth Marcus: The bombshell consequences of Amy Coney Barrett

Catholic Lobby Rejects the Nomination of Amy Coney Barrett
In response to news reports of President Trump’s planned nomination of Judge Amy Coney Barrett to become a Supreme Court Justice, NETWORK Lobby for Catholic Social Justice announces its opposition to Judge Barrett. Years of decisions by Judge Barrett on the Seventh Circuit Court of Appeals prove that she does not hold all life to be sacred, as we are instructed to do by Catholic Social Teaching and Pope Francis.
The next Justice who fills the seat of Ruth Bader Ginsburg must advocate for the equally sacred issues that Pope Francis calls all people of good faith to defend: the vulnerable, those in poverty, and immigrants. Until an appointee is presented who can meet this call, as Justice Ginsburg did, the Senate must not consider filling the vacancy.
To move forward with the nomination of Judge Barrett weeks before a Presidential election is an assault on our democratic system. The people and their next chosen President must decide on the next Supreme Court Justice. Catholic voters will not accept a partisan power grab by President Trump, Senator McConnell, and his Republican colleagues.

24 September
McConnell’s fabricated history to justify a 2020 Supreme Court vote
(Brookings) Senate Republicans’ decision to vote on Justice Ruth Bader Ginsburg’s successor reflects individual and collective cost-benefit calculations of seating a rock-ribbed conservative in what may be the Trump administration’s waning days. As a fig leaf to obscure the hypocrisy of voting on President Trump’s election-year nominee after refusing to vote on President Obama’s in early 2016, Republicans have claimed an historical norm that doesn’t exist.
Why Do 9 Justices Serve on the Supreme Court?
The Constitution doesn’t stipulate how many justices should serve on the Court—in fact, that number fluctuated until 1869. Only since 1869 have there consistently been nine justices appointed to the Supreme Court. Before that, Congress routinely changed the number of justices to achieve its own partisan political goals, resulting in as few as five Supreme Court justices required by law under John Adams to as many as 10 under Abraham Lincoln.
The U.S. Constitution is silent about how many justices should sit on the Supreme Court…..It’s Congress, not the Constitution, that decides the size of the Supreme Court, which it did for the first time under the Judiciary Act of 1789 passed by Congress on 24 September and signed by President George Washington, establishing the Supreme Court of the United States as a tribunal made up of six justices who were to serve on the court until death or retirement. That day, President Washington nominated John Jay to preside as chief justice, and John Rutledge, William Cushing, John Blair, Robert Harrison and James Wilson to be associate justices. On September 26, all six appointments were confirmed by the U.S. Senate.
7 Things You Might Not Know About the U.S. Supreme Court

23 September
Chief justice calls Ginsburg a ‘star’ whose opinions ‘will steer the court for decades’
The late Supreme Court justice’s memorial services kicked off Wednesday morning in Washington

18-22 September
If the McConnell Rule Is Dead, Court-Packing Is Permitted
By Eric Levitz
Congress has the constitutional authority to alter the number of justices on the Supreme Court, and it has done so six times since the Republic’s inception. All that stands in the way of a Democratic president and Congress from legislating themselves a liberal Supreme Court majority are norms. And this is what’s actually at stake in the bizarre, mutually disingenuous procedural argument about election year Supreme Court appointments: McConnell wants to disguise the fact that he is subordinating norms of forbearance to the attainment of power, and Democrats want to expose this fact.
(New York) Mitch McConnell leads a political party that believes that Roe v. Wade legalized genocide, that Christian institutions have been placed under siege by LGBT extremists, and that most regulations of the corporate sector are stepping stones on the road to serfdom.
Whether these civic ills will turn fatal or dissipate depends largely on the composition of the Supreme Court. Conservatives have little hope of paring back reproductive freedom or restricting trans rights or repealing the Clean Air Act through congressional action. On the contrary, the party proved incapable of even partially repealing Barack Obama’s health-care law when it had unified control of Congress.
But federal judges don’t need to worry about alienating voters.

‘She’s been groomed for this moment’: Amy Barrett’s Supreme Court preparation began early
From her first year as a Notre Dame law student, conservatives marked her as a future leader in the mold of the Federalist Society
Now a judge on the Seventh Circuit, Barrett is the leading contender for President Donald Trump’s nomination to replace Ginsburg on the court. Her ascension would be a coup for Catholic culture warriors 25 years in the making and a high point in the right’s decades-long project of reshaping the judiciary.

How Trump’s Supreme Court Maneuver Could Dangerously Increase the Powers of the President
A Federalist Society majority could upend the balance of power between the three branches of government.
With Senator Mitt Romney’s announcement that he supports moving forward with the confirmation of a new Supreme Court Justice, Donald Trump and Mitch McConnell have secured the Republican votes they need to begin the process of filling the seat of the late Ruth Bader Ginsburg. Trump and McConnell now stand poised to create a conservative majority on the Court that could last decades. The moment marks a triumph for the Federalist Society, a conservative and libertarian legal group that has worked since the nineteen-eighties to recruit ultra-conservative lawyers to serve as judges. Republicans face a potential backlash in November, but a dramatic and historic change in American democracy and jurisprudence is under way that could vastly increase the power of the Presidency, corporations, and the wealthy, and curtail, or bring to an end, abortion rights, Obamacare, and expansive voting rights.

Jeffrey Toobin: Can Trump and McConnell Push Through a Successor to Ruth Bader Ginsburg?
(The New Yorker) In Washington, grief yields quickly to calculation. The announcement of the passing of Ruth Bader Ginsburg, the Supreme Court Justice and epic figure in American legal history, came in the early evening on Friday. This led to two simple questions that are now preoccupying the Capitol: Can President Trump win confirmation for Ginsburg’s successor before the end of his term? If so, who will it be?
The real question is more political than procedural. McConnell has proved to be a cunning leader of the Senate, but he is not an absolute ruler. Under McConnell, the Republicans changed the Senate rules to abolish the filibuster for Supreme Court nominations, so he only needs a simple majority to confirm a Justice. (He also has the tie-breaking vote of Vice-President Mike Pence.) There are fifty-three Republicans in the current Senate, and they all have their own calculations to make on the issue. Several senators, including Lisa Murkowski and Susan Collins, as well as Lindsey Graham and Chuck Grassley, have expressed misgivings about or outright opposition to pushing through a confirmation in an election year. Others, such as Mitt Romney and Lamar Alexander, might be expected to feel similarly. But those were theoretical concerns about theoretical nominations.

Can Mitch McConnell Be Stopped?
By Michelle Goldberg
(NYT) Outraged people should take to the streets en masse. Democrats in the Senate may not be able to stop Republicans from shoving a nominee through before the election or during a lame-duck session, but if it happens they should do all in their power to grind Senate business to a halt.
And if Republicans do give Ginsburg’s seat to some Federalist Society fanatic, Democrats must, if they win back the presidency and the Senate, abolish the filibuster and expand the court, adding two seats to account for both Garland and Ginsburg.
For McConnell, Ginsburg’s Death Prompts Stark Turnabout From 2016 Stance
The majority leader pledged that President Trump’s nominee to replace Justice Ginsburg would receive a Senate vote, despite his 2016 move to block President Obama’s nominee in the waning months of his term.
Ruth Bader Ginsburg, Supreme Court’s Feminist Icon, Is Dead at 87
The second woman appointed to the Supreme Court, Justice Ginsburg’s pointed and powerful dissenting opinions earned her late-life rock stardom.
Ginsburg’s death draws fresh scrutiny over a list of Supreme Court nominees Trump updated last week.
President Trump, who counts his two Supreme Court appointments as among his greatest successes, last week issued a new list of 20 potential nominees to the court. There was no vacancy at the time, and the exercise seemed aimed at focusing attention on an issue that had helped secure his election in 2016.
With the death of Justice Ruth Bader Ginsburg on Friday, the list has become the subject of intense interest.

McConnell says Trump’s nominee to replace Ruth Bader Ginsburg ‘will receive a vote’ in the Senate.
The Senate majority leader, Mitch McConnell of Kentucky, said late Friday that he would move forward with President Trump’s nominee to replace Justice Ruth Bader Ginsburg on the Supreme Court.
“Americans re-elected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary,” Mr. McConnell said in a statement.

Members of the Senate Judiciary Committee

14 September
The People v. Donald J. Trump The criminal case against him is already in the works — and it could go to trial sooner than you think.
By Jeff Wise
(New York) No commander-in-chief has been charged with a criminal offense, let alone faced prison time. But if Donald Trump loses the election in November, he will forfeit not only a sitting president’s presumptive immunity from prosecution but also the levers of power he has aggressively co-opted for his own protection. Considering the number of crimes he has committed, the time span over which he has committed them, and the range of jurisdictions in which his crimes have taken place, his potential legal exposure is breathtaking. More than a dozen investigations are already under way against him and his associates. Even if only one or two of them result in criminal charges, the proceedings that follow will make the O. J. Simpson trial look like an afternoon in traffic court.

17 July
John Roberts’s Supreme Court power hinges on Trump’s reelection. But not in the way you might think.
By Robert Barnes
(WaPo) Roberts is a savvy operator on the court no matter its makeup. Still, he remains in the central position so long as the justices a reelected Trump would replace are conservatives or the ones a President Biden would replace are liberals.
If Biden gets to replace either [Ginsburg or Breyer], he would be maintaining the status quo, albeit with a new generation. Roberts’s place would seem to be secure.But if Trump chooses a replacement for one of the liberals, it would shift the court’s center of gravity considerably, and it would diminish Roberts’s influence. As the most influential of five conservatives, the court moves to the right only as far and as quickly as the chief justice wants. The scenario changes if he were one of six.

9-10 July
Supreme Court Rules Trump Cannot Block Release of Financial Records
Two rulings clear the way for prosecutors in New York to see President Trump’s financial records, but the justices stopped Congress for now.
(NYT) The Supreme Court on Thursday cleared the way for prosecutors in New York to see President Trump’s financial records, a stunning defeat for Mr. Trump but a decision that probably means the records will be shielded from public scrutiny under grand jury secrecy rules until after the election, and perhaps indefinitely.
In a separate decision, the court ruled that Congress could not, at least for now, see many of the same records. The vote in both cases was 7 to 2. Chief Justice John G. Roberts Jr. wrote both majority opinions. [Trump nominees Neil M. Gorsuch and Brett M. Kavanaugh joined the majorities.]
The court’s decision in favor of the New York prosecutors was a major statement on the scope and limits of presidential power, one that will take its place with landmark rulings that required President Richard M. Nixon to turn over tapes of Oval Office conversations and forced President Bill Clinton to provide evidence in a sexual harassment suit.
Supreme Court says Manhattan prosecutor may see Trump’s financial records, denies Congress access for now
(WaPo) The Supreme Court on Thursday rejected President Trump’s assertion that he enjoys absolute immunity while in office, allowing a New York prosecutor to pursue a subpoena of the president’s private and business financial records.
[Lawfare: The Supreme Court Rules in Trump v. Vance
In a separate case, the court sent a fight over congressional subpoenas for the material back to lower courts because of “significant separation of powers concerns.”
[Lawfare: The Supreme Court Rules in Trump v. Mazars
While the court said [Manhattan District Attorney Cyrus R.] Vance had the authority to subpoena the records from Trump’s private accounting firm, it also sent the case back to a district court for more work.
The information is part of a grand jury investigation, so the joint decisions probably dash the hopes of Trump opponents that the information will be available to the public before November’s election.
The Supreme Court Lets Trump Run Out the Clock
The justices reiterated that no president is above the law, but voters still won’t see his taxes before November.
In two major cases on Thursday, the Supreme Court rejected President Trump’s attempt to avoid all legal scrutiny of his financial records and reaffirmed the principle that undergirds any democratic society: No one, not even the president, is above the law.
That’s the good news. It’s also the bare minimum Americans should expect. The bad news is that Mr. Trump has again figured out how to game the legal system to his advantage, to dance along the edges of the law that the rest of us are expected to abide by.
Trump says he’s victim of ‘political prosecution’ after Supreme Court rulings
President Trump on Thursday decried what he called a “political prosecution” and claimed he was being treated differently than other presidents after the Supreme Court ruled that a New York prosecutor is entitled to see his private and business financial records but sent the case back to a lower court for more consideration.
Trump’s comments followed that decision and another that blocked House Democrats from accessing his financial records for now — both moves that mean the public is unlikely to see his tax returns and other records before the November election.

Supreme Court says much of eastern Oklahoma remains Indian land
(WaPo) The Supreme Court said Thursday that a large part of eastern Oklahoma remains an American Indian reservation, a decision with implications for nearly 2 million residents.
The land at issue contains much of Tulsa, the state’s second-largest city. The question for the court was whether Congress officially eliminated the Creek Nation reservation when Oklahoma became a state in 1907.
In a 5-to-4 decision, the court said that Congress “has not said otherwise” and that the land promised to the Creek Nation is still a reservation.
“If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law,” wrote Justice Neil M. Gorsuch, who was joined by the court’s liberal justices.

8 July
Why conservative justices are more likely to defect
By Adrian Vermeule, the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School.
(WaPo) The justices are indeed acting faithfully to law, but not by enforcing the written Constitution and laws. Rather what they enforce is our real, unwritten constitution, a set of understandings that underlies and shapes our interpretation of the law. Justices interpret open-ended provisions (“due process of law”) in light of this unwritten constitution. And because the background small-c constitution embodies a liberal order, it is unsurprising that their decisions do as well. … These unwritten norms allow the expression of dissenting views, but only as dissenting views. They thus exert the most force on justices who are otherwise least convinced of the conservative position in a given case. Hence the most conservative justices rarely defect. But in critical cases, involving central commitments of the unwritten constitution, it is highly likely that one or more of the middling conservative justices will do so.
Liberal justices, by contrast, are more likely to agree with the concrete order’s commitments in any event. Hence they end up forming a solid bloc. The resulting asymmetry in defections between liberal and conservative justices arises not from bad-faith, results-oriented liberal judging, but because the underlying norms and principles of the sociopolitical order of which they are a part skew systematically in a liberal direction.

Supreme Court says employers may opt out of Affordable Care Act’s birth control mandate over religious, moral objections
Wednesday’s decision greatly expands the ability of employers to claim the exemption, and the government estimates that it could mean that 70,000 to 126,000 women could lose access to cost-free birth control.
The decision sent the case back to a lower court and instructed it to dissolve a nationwide injunction that had kept the exception from being implemented.
Liberal Justices Elena Kagan and Stephen G. Breyer agreed with the court’s conservatives that the administration had the right to create an exemption, but they said lower courts should examine whether the decision to create this one was arbitrary and capricious.
Supreme Court ruling on Trump’s tax returns, financial records to come Thursday
The court’s decisions will carry major implications for the limits of presidential power and accountability, and could affect the fall election.

6 July
Supreme Court Won’t Block Ruling to Halt Work on Keystone XL Pipeline
But the justices stayed the rest of a federal trial judge’s ruling striking down a permit program, allowing construction of other pipelines around the nation.
(NYT) The Supreme Court on Monday rejected a request from the Trump administration to allow construction of parts of the Keystone XL oil pipeline that had been blocked by a federal judge in Montana. But the court temporarily revived a permit program that would let other oil and gas pipelines cross waterways after only modest scrutiny from regulators.
The court’s brief, unsigned order gave no reasons, which is typical when the justices rule on emergency applications, and it said it would last while appeals moved forward. There were no noted dissents.

Supreme Court says states may require presidential electors to support popular-vote winner
Colorado and Washington state officials had asked the court to settle the matter in case the November election is so close that a small number of what are sometimes called “faithless electors” could determine the result.
The Supreme Court ruled unanimously Monday that a state may require presidential electors to support the winner of its popular vote and punish or replace those who don’t, settling a disputed issue in advance of this fall’s election.
It is one of the rare political cases at the court that seems not to favor one party over another, which might explain the unanimity. (Justice Clarence Thomas disagreed with the majority’s reasoning, but not the outcome).
Both red and blue states urged the justices to settle the matter in advance of the “white hot” glare of the 2020 election. They said they feared a handful of independent-minded members of the electoral college deciding the next president
See He tried to stop Trump in the electoral college. A court says his ‘faithless’ ballot was legal (August 2019).

30 June
John Roberts Distances Himself from the Trump-McConnell Legal Project
By Jeffrey Toobin
(The New Yorker) …three times in recent weeks, the Justices have issued concrete directives that have changed the world—and for the better. They held that it was unlawful to fire people simply because they are L.G.B.T.Q.; they prevented the Trump Administration from deporting seven hundred thousand young people, known as the Dreamers, who have lived virtually their entire lives as Americans; and they guaranteed that women in Louisiana will continue to have at least some access to abortion. And the Chief Justice, John G. Roberts, Jr., a conservative who was appointed to the Court fifteen years ago, by George W. Bush, voted in the majority in all three cases.
I don’t pretend to know what’s in Roberts’s heart, but I can see what’s clear: that he is dissociating himself from key parts of the conservative legal project that Trump and McConnell have done so much to foster.

29 June
Supreme Court Lifts Limits on Trump’s Power to Fire Consumer Watchdog
The case concerning the Consumer Financial Protection Bureau was part of a politically charged battle over presidential authority.
The Supreme Court ruled Monday that the president is free to fire the director of the Consumer Financial Protection Bureau without cause. The decision, rejecting a federal law that sought to place limits on presidential oversight of independent agencies, was a victory for the conservative movement to curb the administrative state.
The vote was 5 to 4, with the court’s five more conservative justices in the majority.
The bureau, the brainchild of Elizabeth Warren, was created as part of the Dodd-Frank Act, which was passed in 2010 after the financial crisis. In an effort to protect the bureau’s independence, the statute said the president could remove its director only for cause, defined as “inefficiency, neglect of duty or malfeasance.”
President Trump targeted the agency, appointing Mick Mulvaney, the former South Carolina congressman, as interim director after the agency’s original director, Richard Cordray resigned in late 2017. Mr. Mulvaney, who was also the budget director, saw it as a an opportunity to dismantle an agency vilified by Republicans since its inception as an example of government overreach.
Supreme Court strikes down a Louisiana law requiring abortion clinics to have admitting privileges at nearby hospitals
The US Supreme Court has truck down a Louisiana law requiring clinics that perform abortions to obtain admitting privileges at a local hospital within 30 miles away.
In the case, June Medical Services v. Russo, the court ruled 4-4-1, with Chief Justice John Roberts concurring with the majority.
In 2016, the Court struck down an almost identical law in Texas in the case Whole Women’s Health vs. Hellerstedt, ruling that such restrictions pose an “undue burden” on a patients’ ability to access abortion.

15 – 20 June
The Tempting of Neil Gorsuch
Another conservative justice’s arc bends toward juristocracy.
By Ross Douthat
It might surprise contemporary Americans that for most of our history, what we call “culture war” debates — arguments about rights, social justice, the moral organization of society — were often settled through democratic deliberation, rather than the kind of ruling the Supreme Court just delivered on gay and transgender civil rights. Congress debated and passed laws. State legislatures did the same. Constitutional amendments were proposed, passed, ratified — and when necessary, repealed.
We may officially have three branches of government, but Americans seem to accept that it’s more like 2.25: A presidency that acts unilaterally whenever possible, a high court that checks the White House and settles culture wars, and a Congress that occasionally bestirs itself to pass a budget.
Today constitutional amendments have become unimaginable, Congress barely legislates, and the Supreme Court manages our social and cultural debates. Our affirmative action system was designed by Lewis Powell and amended by Sandra Day O’Connor. The boundaries of voting rights and free expression are policed by John Roberts. Our abortion laws reflect the preferences of Anthony Kennedy. And now anti-discrimination law and religious liberty protections will reflect what Neil Gorsuch, author of the new decision, thinks is right and good.
Roberts to Trump: Don’t Take the Supreme Court for Granted
A week of decisions contained hidden and not-so-hidden messages from the court.
By Linda Greenhouse
Monday’s ruling on the right of gay and transgender people to be free of discrimination in the workplace showed a court that by a refreshing vote of 6 to 3 decided not to stand in the path of a tide of social change. The DACA decision contained a message threaded through its dry language of administrative procedure — a warning to the Trump administration not to assume that it gets a free pass, not to take the Supreme Court for granted.

Roberts Wanted Minimal Competence, but Trump Couldn’t Deliver
(The Atlantic) The chief justice expects the federal government to adhere to basic standards of honesty and fidelity to the public interest.
These cases have revealed Roberts as a bulwark against Trumpism on the Court, not because he is ideologically hostile to it, but because Roberts expects the federal government to adhere to minimum standards of honesty and fidelity to the public interest. These qualities are compatible with conservative governance but are anathema to Trumpism, an ideology wherein the whims of the executive take precedence over the rule of law. What is painfully clear is that the Trump administration could have prevailed in each of these cases, with Roberts’s express approval, had it comported itself with a minimum of good faith.
The conservative movement has come to view Republican-appointed justices as wholly owned subsidiaries of their party, and by extension the administration. That assumption has lulled it into the mistaken belief that the shoddiest legal reasoning can pass muster at the high court, simply because of the ideological predilections of the Republican appointees. This belief is not entirely without merit—although one Trump appointee, Neil Gorsuch, has an independent streak, in all of the previous cases mentioned here, four Republican appointees were willing to go along with whatever flimsy or dishonest pretext the Trump administration could cobble together. But John Roberts remains hostile to being made to look a fool.
Trump calls for ‘new justices’ on Supreme Court after unfavorable rulings
President Trump on Thursday escalated his criticism of the Supreme Court after a pair of rulings this week against his administration, calling for new justices to be appointed and pledging to release a new list of potential nominees ahead of November’s presidential election.
Supreme Court rejects Trump administration’s move to end DACA protections for nearly 700,000 young immigrants
(AP) — The Supreme Court on Thursday rejected President Donald Trump’s effort to end legal protections for 650,000 young immigrants, a stunning rebuke to the president in the midst of his reelection campaign.
For now, those immigrants retain their protection from deportation and their authorization to work in the United States.
The outcome seems certain to elevate the issue in Trump’s campaign, given the anti-immigrant rhetoric of his first presidential run in 2016 and immigration restrictions his administration has imposed since then. It was the second big liberal victory at the court this week, following Monday’s ruling that it’s illegal to fire people because they’re gay or transgender.
The justices rejected administration arguments that the 8-year-old Deferred Action for Childhood Arrivals Program is illegal and that courts have no role to play in reviewing the decision to end DACA.
Chief Justice John Roberts, joined by his four liberal colleagues, wrote for the court that the administration did not pursue the end of the program properly.
“We do not decide whether DACA or its rescission are sound policies,“ Roberts wrote. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.”

John Roberts May Not Be the Ally Gun-Rights Advocates Hoped For
The Court’s decision not to hear several Second Amendment cases may be a sign that the chief justice is not a solid vote against gun control.
Adam Winkler
(The Atlantic) Easily overlooked in all the attention paid (rightly) to the historic Supreme Court decision extending antidiscrimination protections to LGBTQ people was a quiet announcement by the justices that they would not hear any of the 10 Second Amendment cases they had been considering. By agreeing not to decide these cases, the justices sent a clear signal to the gun-rights movement: Stop looking to the Supreme Court to strike down gun-control laws.
The 10 cases raised fundamentally important and largely unanswered questions about the scope of the Second Amendment. In 2008’s District of Columbia v. Heller, the Supreme Court held that the Second Amendment guaranteed an individual right to have handguns in the home for personal protection. But the decision did not clarify whether a person has a right to carry a firearm on the streets, what kind of permitting cities and states can require for public carry, or whether assault rifles are protected arms.
The Court’s conservatives, along with gun-rights advocates, have complained about the Second Amendment being treated as a “second-class right.” They are the ones looking to change the law. The Supreme Court’s refusal to take any of these major Second Amendment cases is a strong signal that the Supreme Court—and Chief Justice Roberts in particular—isn’t about to do that anytime soon.

With LGBT ruling, Supreme Court hands liberals a surprise victory
LGBT rights advocates triumphed at the Supreme Court Monday, winning a sweeping decision from the justices that protects gay, lesbian and transgender employees from being disciplined, fired or turned down for a job based on their sexual orientation.
Two of the court’s Republican appointees, Neil Gorsuch and John Roberts, joined the court’s Democratic appointees to deliver the surprising 6-3 victory to those arguing for anti-discrimination protections
Writing for the court’s majority, the conservative Gorsuch embraced arguments that seemed radical to many liberals just a few years ago: that the 1964 Civil Rights Act’s prohibition on sex discrimination in employment also effectively banned bias based on sexual orientation or gender identity, even though few if any members of Congress thought they were doing that at the time.
The decision was a rout for social conservatives and a defeat for President Donald Trump’s administration, which had urged the justices to take a narrow view of the half-century-old law.
Backers of the new decision said it could spell doom for some Trump administration policies, particularly an effort to roll back protections for transgender individuals seeking health care.
The gay and transgender rights cases decided Monday have been lingering on the court’s docket for more than seven months. They were argued last October, on the second day of the court’s current term.
The Supreme Court’s Unlikely Intersectionality
(New York) By formally recognizing LGBT individuals into federal anti-discrimination law, the Court was effectively rejecting the siloing of rights, the pitting of historically marginalized groups against each other — including the claim, most prominently aired by J.K. Rowling, that trans rights come at the expense of cisgender women. That’s true even if you’ll never get Roberts or Gorsuch to say as much (though they did sign their names to an opinion that deferred to the plaintiff’s preferred gender pronouns).

4 June
The Supreme Court, Too, Is on the Brink
The polarization roiling the country has the Supreme Court in its grip.
(NYT Opinion) The Supreme Court made the indisputably right call last week when it refused to block California from limiting attendance at religious services in an effort to control the spread of Covid-19.
So why did the court’s order, issued as midnight approached on Friday night, fill me with dread rather than relief?
It was because in a ruling that should have been unanimous, the vote was 5 to 4. And it was because of who the four dissenters were: the four most conservative justices, two of them appointed by the president who a couple of months ago was demanding that churches be allowed to open by Easter and who, even before the murder of George Floyd in Minneapolis, was openly encouraging protests in the capitals of states not reopening as quickly as he would like.
As an astonished country witnessed on Monday night, as he held a Bible in front of a church near the White House after demonstrators were violently cleared from his path, Donald Trump is using religion as a cultural wedge to deflect attention from the consequences of his own ineptitude.
So what was the dissenters’ problem? Justice Kavanaugh’s opinion offers a clue. The Christian observance of Pentecost was last Sunday, and the clock was ticking as the justices considered the South Bay United Pentecostal Church’s request. “The church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities,” Justice Kavanaugh wrote. What does that sentence even mean? What’s the secular comparator when it comes to observing Pentecost? A Sunday afternoon softball game?
I’m baffled by why a particular liturgical observance should have even a walk-on role in this opinion. Last weekend was also Shavuot, a major Jewish holiday. But it’s the Christian calendar about which recently appointed federal judges seem exclusively concerned.

20 May
Democrats can’t keep ignoring this vital campaign issue
(CNN) Senate Republicans should be careful what they wish for — and that includes South Carolina Sen. Lindsey Graham, who this weekend said out loud what many of his fellow Republicans are thinking. “I don’t want to speculate, but I think appointing judges is a high priority for me in 2020,” he told Greta Van Susteren, host of “Full Court Press.”
Should a Supreme Court seat open up, President Donald Trump and Senate Republicans have five months to jam through another conservative. If the next available seat is vacated by one of the liberal justices, then their new appointee could cement the nine-member court’s conservative tilt for decades to come.