SCOTUS & the US courts

Written by  //  May 7, 2021  //  Justice & Law, U.S.  //  No comments

See also: SCOTUS and the US courts 2017-18
SCOTUS, Trump & the US courts May – November 2020

Adam Gopnik: The New, Conservative Supreme Court Is Returning to the Second Amendment
The risk is that even the self-evidently essential right of the people to live in peace without worrying that someone coming down the street is carrying a weapon is under threat from the Court as it’s now constituted, particularly from Justices Amy Coney Barrett and Brett Kavanaugh, whose statements and decisions make clear that they see in the newly redefined Second Amendment something close to an absolute right for Americans to take a gun anywhere they like. (As a federal-circuit judge, Barrett wrote a dissent in which she maintained that even preventing convicted felons from having guns is unconstitutional, unless they can be shown to be “dangerous” convicted felons.)
The assertion of imaginary freedoms in the face of obvious disasters has become the unique signature of the American right.
…the Court now so radically misrepresents the electorate, which has voted for a Democratic President in seven of the past eight elections, that it may be the time for a case to be made to expand the Court. …it may be time to become serious about the one original meaning that resides in the Constitution: that the majority of voters should be confident that, with every allowance made for the minority, their views will eventually prevail. The American people support gun sanity. The Supreme Court shouldn’t blindly follow election returns; but it must not be allowed to turn a blind eye to them, either.

26 April
Supreme Court to hear major new gun-control case next term on carrying weapons outside the home
(WaPo) The Supreme Court announced Monday it will hear a major new gun-control case next term, accepting a National Rifle Association-backed challenge that asks the court to declare there is a constitutional right to carry a weapon outside the home.
The court will hear the challenge to a century-old New York gun-control law in the term that begins in October. It is considering a law that requires those who seek a permit to carry a concealed weapon to show a special need for self-defense. It is similar to laws in Maryland, Massachusetts and elsewhere that the court in the past has declined to review.

18 April
Biden Inherits F.D.R.’s Supreme Court Problem
By Evan Osnos
Roosevelt tried to pack the Court to protect his ambitious agenda from conservatives. Biden, facing a similar threat, has appointed a commission to study options.
(The New Yorker) The Court can be shrunk or expanded by a simple majority vote in Congress, and the dream of doing just that has occasionally tantalized Presidents beset by judicial opposition—most famously, the predecessor whom Biden cites frequently as an inspiration: Franklin Delano Roosevelt. But, on the issue of the Court, his fondness belies contrasts in the two leaders’ political instincts.

10 April
Court-packing isn’t the right fix for our courts. Ending life tenure is.
(WaPo Editorial Board) Justice Stephen G. Breyer  urged in a Harvard Law School lecture Tuesday that “those whose initial instincts may favor important structural change . . . such as forms of court-packing, think long and hard before they embody those changes in law.” Speaking for nearly two hours, and drawing on his long experience in the law, including nearly 27 years as a Democratic president’s liberal appointee on the high court, Justice Breyer, 82, noted that the court’s effectiveness hinges on its legitimacy, which hinges on the perception that “the court is guided by legal principle, not politics.” That perception would be eroded if one party changed the court’s long-standing nine-member size to further policy objectives.
Encouragingly, the broad mandate Mr. Biden has assigned the commission allows it to examine what is a valid area for potential Supreme Court reform: replacing life tenure, instituted in 1788, at a time of much shorter life expectancy, with an 18-year term.
… Encouragingly, the broad mandate Mr. Biden has assigned the commission allows it to examine what is a valid area for potential Supreme Court reform: replacing life tenure, instituted in 1788, at a time of much shorter life expectancy, with an 18-year term.
Biden Creates Commission to Study Supreme Court Expansion
(New York) The White House announced that President Biden will sign an executive order Friday that will establish an official commission on the Supreme Court to study possible reforms, keeping a promise he made last year on the campaign trail. At the time, Biden was facing pressure from some fellow Democrats to embrace significant changes to the Court — such as adding more justices or implementing term limits — to counter the conservative tilt on the bench after President Trump added three members.
The Presidential Commission on the Supreme Court of the United States is composed of 36 legal professionals whose work focuses on constitutional law, civil rights, and voting rights. Its co-chairs are Bob Bauer, a professor of practice and distinguished scholar of residence at New York University Law School and former White House counsel under President Obama, and Cristina Rodríguez, a law professor at Yale School of Law and a former deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice

Supreme Court strikes another pandemic-related restriction on religious services
In another late-night ruling, the Supreme Court on Friday blocked another California coronavirus restriction on religious gatherings, saying the state’s limits on home-based Bible study and prayer sessions violated constitutional rights.
The 5-to-4 order on an emergency petition illustrates how a new majority on the court — with Justice Amy Coney Barrett playing a decisive role — is now in control when the court considers if pandemic-related restrictions cross the line to endanger religious rights.

23 March
The ‘shadow docket’: How the U.S. Supreme Court quietly dispatches key rulings
By Lawrence Hurley, Andrew Chung, Jonathan Allen
(Reuters) – In the months before former President Donald Trump left office in January, the U.S. Supreme Court briskly paved the way for the lethal injection of 13 federal inmates, the first federal executions in 17 years.
In many of those cases, the court summarily overturned lower court rulings using an obscure legal procedure known as the “shadow docket.” But the short-circuit approach, intended only for emergencies, isn’t reserved for death penalty cases. It has, in the last four years, significantly changed the way the high court does business.
Increasingly, the court relies on the shadow docket to make decisions in a wide range of consequential cases, often in a dramatically accelerated fashion and without providing signed opinions or detailed explanations. Sometimes, as in death penalty cases, the decisions are irreversible.

18 March
Russell Wheeler: Can Biden ‘rebalance’ the judiciary?
(Brookings) …here’s the situation that Biden faces, as of March 17, 2021: Biden will have fewer vacancies than did President Trump and thus not as many appointments. The closely divided Senate will make confirmations arduous, especially if Republicans vote against Biden nominees in numbers similar to Democratic votes against Trump nominees. Biden should be able to bolster the Democratic-appointee majority on the district courts. But he will still have difficulty changing the Republican-appointee majority on the courts of appeals.
Breyer mum as some liberals urge him to quit Supreme Court
(AP) 82-year-old Justice Stephen Breyer…is the oldest member of the court and has served more than 26 years since his appointment by President Bill Clinton.
With spring comes the start of the period in which many justices have announced their retirement. Some progressives say it is time for Breyer to go, without delay. Other liberal voices have said Breyer should retire when the court finishes its work for the term, usually by early summer.
“He should announce his retirement immediately, effective upon the confirmation of his successor,” University of Colorado law professor Paul Campos wrote in The New York Times on Monday.
Breyer’s predecessors have tended to time their retirements so that they can be replaced by justices with similar views of the law.

16 March
Sen. Sheldon Whitehouse asks AG Merrick Garland to probe 2018 FBI background check into Brett Kavanaugh, suggests it was ‘fake’
In a Tuesday press release, Whitehouse, a member of the judiciary committee, said that there were still unanswered questions about the FBI’s investigation into allegations of sexual misconduct against Brett Kavanaugh.

11 March
Our Lonely Chief Justice
A recent solitary dissent by John Roberts points to his isolation from the court’s other conservatives.
By Linda Greenhouse
His opinion was pure John Roberts: pithy, smart, with deep historical analysis leavened by a touch of sarcasm. “The court sees no problem with turning judges into advice columnists” was his description of what will happen with courts no longer limited to deciding live controversies. No law clerk wrote that sentence. The view of standing that Chief Justice Roberts expressed in this opinion has always been his view of standing.
… “Today’s decision risks a major expansion of the judicial role.” Either Judge Friendly or Justice Rehnquist could have written that line, but it was their former law clerk who built a powerful dissent around it.
And who now stands alone.

25 February
What should we expect from Biden’s commission on Supreme Court reform?
Last year, Joe Biden promised to name a bipartisan commission for Supreme Court reform. Russell Wheeler provides background on previous court commissions—including one proposed by Biden when he was the chairman of the Senate Judiciary Committee—and predicts that incremental change is what will come out of the next commission.
(Brookings) In an interview last October, candidate Joe Biden—pressed on whether he favored expanding the Supreme Court—repeated his skepticism but promised to name a bipartisan commission to study “a number of other things that our constitutional scholars have debated.” Progressive groups will continue to press adding justices to offset Trump appointees who were confirmed with what many called a double standard. Whatever the commission recommends, the record of previous commissions suggests that even fallback recommendations won’t go far—long-brewing topics such as judicial term limits, electronic coverage of court proceedings, and tightened ethics rules. Long-delayed lower court expansion is already on the legislative agenda,

22 February
Supreme Court again rejects Trump’s bid to shield tax returns, other financial records from Manhattan prosecutor
Trump has waged an extraordinary battle to keep private his tax records, which every other modern president has released as an expected part of seeking the presidency. The court’s action does not mean Trump’s tax records are to become public — Vance has said they will be protected by grand jury secrecy rules — but is likely to accelerate an investigation that might be Trump’s biggest legal threat.
(WaPo) The Supreme Court on Monday rejected former president Donald Trump’s last-chance effort to keep his private financial records from the Manhattan district attorney, ending a long and drawn-out legal battle.
After a four-month delay, the court denied Trump’s motion in a one-sentence order with no recorded dissents.
District Attorney Cyrus R. Vance Jr. has won every stage of the legal fight — including the first round at the Supreme Court — but has yet to receive the records he says are necessary for a grand jury investigation into whether the president’s companies violated state law.
Supreme Court won’t take up challenge to Pennsylvania presidential election results
It was part of a purge of sorts. The high court formally dismissed a range of suits filed by Donald Trump and his allies in Pennsylvania, Wisconsin, Michigan, Georgia and Arizona — all states won by Democrat Joe Biden. The court’s intent in most of those had been signaled when it refused to expedite consideration of them before Biden was inaugurated as president.
The case about deadlines for receiving mail-in ballots was different, though. Three justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — said it deserved the court’s attention, even though the number of votes at issue would not call into question Biden’s victory. … Neither Chief Justice John G. Roberts Jr. nor two of the three justices nominated by Trump signed on to dissents from Thomas and Alito. Besides Gorsuch, Trump chose Justices Brett M. Kavanaugh and Amy Coney Barrett.


22 December
What Will It Take to Get a Black Woman on the Supreme Court? The fate of Biden’s campaign promise lies with Georgia.
(New York) In February, he declared that he would nominate the first Black woman to the Supreme Court. … But whether Biden will be able to actually do it will likely be decided by the Georgia Senate runoffs in January. If Democrats gain control of the Senate, the only question will be when a vacancy will open up. And if they don’t, the fate of any nominee will be decided by how much Mitch McConnell thinks he can get away with.
The groundwork is already being laid for the battle ahead. The Wall Street Journal reported recently that Biden advisers plan to have a Supreme Court nominee shortlist by Inauguration Day. When I asked one person whose name has appeared on shortlists if she believed herself to be under consideration, she laughed and said, “Every Black woman under the age of 50 is under consideration.”
Two names, though, have come up most often in conversations with legal insiders: California State Supreme Court Justice Leondra Kruger and federal district court judge Ketanji Brown Jackson, a former clerk to the oldest current Supreme Court justice, Stephen Breyer. Both have impeccable credentials — and, crucial to a lifetime appointment, are in their mid-40s.

11 December
‘Our institutions held’: Democrats (and some Republicans) cheer Supreme Court ruling on election suit.
the Supreme Court’s ruling effectively ended the president’s attempts to use the legal system to get a result the voters denied him.
(NYT) The rejection came swiftly. The celebrations came just as fast.
The Supreme Court’s unsigned order on Friday rejecting Texas’s bid to toss the results of the 2020 presidential election in four states that delivered the White House to President-elect Joseph R. Biden Jr. unceremoniously ended a case that President Trump had teased only hours earlier as “perhaps the most important case in history.”
Democrats cheered the ruling as a symbolic final blow to more than a month of failed legal challenges by Mr. Trump and his allies — this case drew support from more than 120 Republican members of Congress and 17 attorneys general — and a victory for the will of voters who delivered Mr. Biden 306 Electoral College votes and a 7-million-strong popular vote win.
Supreme Court rejects Texas-led effort to overturn Biden’s victory
The move likely marks the end of the line for Trump’s legal push to reverse his defeat.
(Politico) No justice indicated any endorsement of Texas’ arguments. Justices Samuel Alito and Clarence Thomas issued a statement saying they would have allowed Texas’ to file its case under a rarely-used procedure for interstate disputes, but they said “would not grant other relief.”
The decision brings an abrupt, unceremonious end to Trump’s legal effort to essentially scrap the democratic process in order to preserve his presidency, a six-week-long crusade in which he has spread false conspiracies about voter fraud to drive up distrust of the U.S. election system.

10 December
In Blistering Retort, 4 Battleground States Tell Texas to Butt Out of Election
(NYT) The attorneys general of Pennsylvania, Michigan, Wisconsin and Georgia asked the Supreme Court to reject a lawsuit from Texas seeking to overturn President-elect Joe Biden’s victories.
More Than Half of House Republicans Sign On to Trump’s Election Coup
By Matt Stieb
(New York) As the president’s lawsuits to contest the election results grow more and more absurd, Republicans’ rhetoric surrounding the soft putsch is becoming more and more worrisome. On Thursday, 106 GOP representatives signed an amicus brief sent to the Supreme Court in support of a petition by Texas attorney general Ken Paxton. The petition requests that the Supreme Court grant an emergency order that would nullify presidential election results declaring Joe Biden the winner in Georgia, Michigan, Pennsylvania, and Wisconsin based on a bogus claim about mail-ballot rules.
Like other Trump lawsuits slated to overturn an election in which there has been no substantial evidence of voter fraud, the Texas filing is extremely unlikely to succeed. (Election-law expert Rick Hasen on Wednesday described the attempt as “a press release masquerading as a lawsuit.”) Nevertheless, 17 Republican attorneys general filed their own amicus brief in support of the Texas lawsuit. Paxton’s suit will almost surely be dismissed from the high court as soon as it gets there

8 December
Supreme Court denies Trump allies’ bid to overturn Pennsylvania election results
The Supreme Court on Tuesday denied a last-minute attempt by President Trump’s allies to overturn the election results in Pennsylvania, a blow to the president’s continuing efforts to reverse his loss to Democrat Joe Biden.
The court’s brief order denying a requested injunction provided no reasoning, nor did it note any dissenting votes. It was the first request to delay or overturn the results of last month’s presidential election to reach the court, and it appears that Justice Amy Coney Barrett, Trump’s latest nominee, took part in the case.

4 December
Nevada, Michigan, Minnesota, Arizona and Wisconsin deliver more defeats to Trump legal effort.
The Trump campaign and its Republican allies lost five legal challenges to the election in five different states in a little more than three hours on Friday evening as President Trump’s attempts to use the courts to overturn the election results drew ever closer to an end.
The string of losses, coming practically on top of one another, was the latest rebuke to the president, who has continued to make baseless claims that widespread fraud tainted the counting of votes across the country. In each of the failed lawsuits or petitions, Mr. Trump or his allies had sought to invalidate the certification of a statewide election but judges — some of them conservatives — held the line and often offered striking repudiations of the claims.

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