SCOTUS & the US courts December 2020-

Written by  //  July 6, 2021  //  Justice & Law, U.S.  //  No comments

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

The Supreme Court inches closer to a press freedom showdown
Charles Lane
(WaPo Opinion) At the Supreme Court, today’s lonely dissenting opinion sometimes grows into tomorrow’s constitutional law. …  So take note of Justice Neil M. Gorsuch’s 11-page dissent on the last day of the just-completed term, in which he argues that the court should have heard a challenge to its 1964 landmark holding in New York Times v. Sullivan.
For more than half a century, the Times precedent has protected press freedom — and the robust public debate that it enables — by making it extremely hard for public officials and public figures to win libel suits against the media. The Times decision permits even untrue and defamatory statements as long as they were published unintentionally or at least without “reckless disregard” for the facts. … Gorsuch’s opinion …adopted a more-in-sorrow-than-in-anger tone. It focused not on the alleged bias of all-powerful networks and newspapers but on the hapless inability of these financially challenged legacy news organizations to uphold journalistic standards as they compete for clicks with upstart social-media rivals.
… Gorsuch’s opinion draws heavily on a new law review article by professor David A. Logan of the Roger Williams University School of Law, which bluntly faulted Times for “frustrating a basic requirement of a healthy democracy: the development of a set of broadly agreed-upon facts.”

1 July
Paul Waldman: The Supreme Court’s new ruling confirms it’s the enemy of democracy
(WaPo) To no one’s surprise, the Supreme Court’s six conservatives on Thursday ruled for Republicans in a pair of key voting rights matters, upholding two Arizona voter suppression laws. It’s part of the long-running partnership between Republicans in the states, Republicans in Congress and Republicans on the Supreme Court to make sure that the rules of American elections are twisted and contorted to give the GOP every possible advantage.
At issue was a section of the Voting Rights Act (VRA), which was once the crown jewel of U.S. voting law and a foundation of political equality, that has been gutted by a Supreme Court unremittingly hostile to voting rights.
Supreme Court upholds Arizona voting laws that lower court found were unfair to minorities
Justice Samuel A. Alito Jr. wrote the opinion in the 6-to-3 ruling, with the court’s conservative majority in charge. The court’s liberals joined an opinion by Justice Elena Kagan protesting that the decision weakens the shield provided by the Voting Rights Act (VRA), first passed in 1965 to forbid laws that result in discrimination based on race.
Both supporters and detractors of the decision said that it would probably strengthen the hand of state legislatures that say tighter voting laws are necessary to combat election fraud and that it would make it more difficult for challengers to eliminate laws they contend fall most heavily on minority voters.
A bit premature in light of the above
The Supreme Court’s Surprising Term
During a time when the country has been starkly divided on matters ranging from the pandemic to the Presidency, the Court has largely avoided partisanship.
By Jeannie Suk Gersen
(The New Yorker 5 July ed.) The Court didn’t even attempt to decide the 2020 Presidential election, as Donald Trump wanted it to and as many feared that it would. Instead, the Justices repeatedly defied expectations, with conservatives and liberals together forming majorities in high-profile cases in order to avoid or defer the fighting of deeper wars.
This term, the Justices worked hard at conflict management. At times, they even appeared to be demonstrating how to properly practice politics: reach broad agreement on narrow issues, enhance legitimacy, and avoid coming to partisan blows. As the Court turns to next term’s cases on abortion and gun rights, we’ll see how long its defiance of expectations can last.

Heather Cox Richardson June 17, 2021
Today, the Supreme Court upheld the Affordable Care Act, also known as Obamacare, for the third time, with only two justices voting no. The court did not take on the central issue in the case, which is the argument that the law became unconstitutional in 2017 after Congress took away the penalty for failing to obtain coverage under the law. In 2012, the court decided that the mandate fell under Congress’s power to assess taxes. Republicans—who took away that penalty—argued that removing it meant that Congress no longer had the power to impose the law.
Rather than taking on that issue, the justices simply decided that those suing did not have the standing to sue. But as the law becomes more and more popular, it seems increasingly unlikely the Supreme Court will kill it. “This ruling reaffirms what we have long known to be true: the Affordable Care Act is here to stay,” former president Barack Obama tweeted.

15 June
Biden nominated as many minority women to be judges in four months as Trump had confirmed in four years
Fifteen of his 19 nominees so far are women, including 11 women from diverse racial and ethnic backgrounds. The Senate confirmed U.S. District Judge Ketanji Brown Jackson — widely considered a Supreme Court contender — to the influential U.S. Court of Appeals for the D.C. Circuit on Monday. Additionally, it gave final approval to Zahid Quraishi, a magistrate judge from New Jersey and the first Muslim confirmed as a federal judge, in a bipartisan vote on Thursday.
Ruth Marcus: I’ve urged Supreme Court justices to stick around — but never to retire. Until now.
No justice wants his or her retirement to look politically motivated, even if nearly all justices these days have an eye on the occupant of the White House and try to match their departures to a president of their own party.
If Republicans regain the Senate majority, Minority Leader Mitch McConnell (Ky.) has now said that he will do everything within his power to prevent President Biden from filling any Supreme Court vacancy that arises.
Note to Justice Breyer: This is not Ted Kennedy’s Senate, where you worked as his chief counsel on the Senate Judiciary Committee four decades ago. This is not the Senate that confirmed you 87-9 in 1994. Those kind of bipartisan votes on Supreme Court nominees are ancient history. That Senate is no more. “Talk to them” until you discover common ground — Kennedy’s approach for dealing with Republican colleagues, as Breyer related in a talk to students at the National Constitution Center last month — is great advice for high-schoolers learning to navigate the world. It doesn’t work with McConnell.
And that is why Breyer should retire at the end of the court’s current term, when there is ample time for the Democratic majority to confirm a successor. This is no easy choice. Next term has some blockbuster cases, including on guns and abortion, that Breyer might want to stick around for.
Meanwhile, he has seemed uneasy at the prospect of leaving on what looks like a political timetable, for fear of eroding — or further eroding — the public’s view of the judiciary as impartial and above politics.
McConnell: I’d block Biden SCOTUS nominee in 2024
The Senate minority leader’s comment comes as all eyes are on whether Supreme Court Justice Stephen Breyer will retire.

6 June
The Biggest Supreme Court Decisions Coming This Term
By Ed Kilgore
There are still 23 cases on the docket for this term, which normally ends in late June or early July. While the Court has already handed down a few rulings, justices traditionally back-load important decisions, so the best — or the worst — could be yet to come.
By most reckonings, there are four potentially big decisions that are likely to come down in the remainder of the term. Here are the cases to watch out for in the coming weeks, in descending order of notoriety (if not necessarily legal significance).
Following repeated Republican efforts to strike down the Affordable Care Act, the law will be tested once again in California v. Texas.
As Republican-controlled states compete to restrict voting opportunities and preempt local-election management in Democratic cities, the Supreme Court is expected to hand down a decision in Brnovich v. Democratic National Committee that could pry open the door to such practices even more.
Fulton v. City of Philadelphia involves a Catholic social-services agency that refused to comply with Philadelphia’s laws against anti-LGBTQ discrimination in adoption placements made subsequent to a city contract. The New York Times suggests the Fulton decision could continue the judicial march toward a separate, parallel set of rules for those claiming religious grounds for discrimination.
A fourth “big case”, Mahanoy Area School District v. B.L.,  on how the First Amendment applies to social media
Many schools and educators, supported by President Joe Biden’s administration, have argued that ending their authority over students at the schoolhouse gates could make it harder to curb bullying, racism, cheating, and invasions of privacy — all frequently occurring online.
The American Civil Liberties Union, representing Levy, has argued that students need protection from censorship and monitoring of their beliefs.
See The Complicated Case of the Pennsylvania Cheerleader
The Supreme Court considers thorny questions about free speech, bullying, and whether schools can discipline students for their behavior/speech online and outside of the school-supervised setting.
Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis
An organization that has defended the First Amendment rights of Nazis and the Ku Klux Klan is split by an internal debate over whether supporting progressive causes is more important.
The A.C.L.U., America’s high temple of free speech and civil liberties, has emerged as a muscular and richly funded progressive powerhouse in recent years, taking on the Trump administration in more than 400 lawsuits. But the organization finds itself riven with internal tensions over whether it has stepped away from a founding principle — unwavering devotion to the First Amendment.

17 May
Supreme Court to review Mississippi abortion law that advocates see as a path to diminish Roe v. Wade
(WaPo) Abortion opponents for months have urged the court’s conservatives to seize the chance to reexamine the 1973 precedent. Mississippi is one among many Republican-led states that have passed restrictions that conflict with the court’s precedents protecting a woman’s right to choose before fetal viability.
In accepting the case, the court said it would examine whether “all pre-viability prohibitions on elective abortions are unconstitutional.” That has been a key component of the court’s jurisprudence.
[Background: Both sides on abortion certain Barrett would restrict, if not overturn, landmark court decision]
The court has now accepted for the term that begins in October two issues dear to conservatives: gun rights and the ability of states to restrict abortion. It is what they had hoped for once the court reached a 6-to-3 conservative majority with the addition of Justice Amy Coney Barrett, a conservative nominated by President Donald Trump.

7 May
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.

2020

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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