SCOTUS & the US courts June 2022-

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SCOTUS, Trump & the US courts

What to expect from the Supreme Court’s new term
(Politico Nightly newsletter) The court did grant review in nine cases, including two involving the legal standards that apply to cases charging that Google and Twitter failed to adequately police terrorism-promoting content on their sites.
What cases should we be watching this term?
None of the cases granted today will be as closely watched as those the court already agreed to hear this term: The standouts are the Harvard and the University of North Carolina cases over affirmative action. Also the case over the “independent state legislature” theory, which could largely sideline state courts and even governors in the process of setting election rules. It might even empower legislatures to set aside complete elections. The case involving a Colorado web designer who has refused to work on same-sex weddings is similar to others the court has taken up in recent years, but it could also produce a sweeping result from a court that has shifted strongly to the right.
2 October
As New Term Starts, Supreme Court Is Poised to Resume Rightward Push
By Adam Liptak
(NYT) The last Supreme Court term ended with a series of judicial bombshells in June that eliminated the right to abortion, established a right to carry guns outside the home and limited efforts to address climate change. As the justices return to the bench on Monday, there are few signs that the court’s race to the right is slowing.
The new term will feature major disputes on affirmative action, voting, religion, free speech and gay rights. And the court’s six-justice conservative supermajority seems poised to dominate the new term as it did the earlier one.
“On things that matter most,” said Irv Gornstein, the executive director of the Supreme Court Institute at Georgetown Law, “get ready for a lot of 6-3s.”

18 September
Special master ruling shows Trump’s takeover of courts has started to sting
… in one four-year term [Trump] slammed through about 30% of the entire US federal judiciary. That’s more appointments than George W Bush (156) and almost as many as Barack Obama (315) – who both had eight years.
Last week, the significance of Trump’s hyper-aggressive remodeling of the federal bench lurched into view. Aileen Cannon, who Trump nominated for the US district court for the southern district of Florida in May 2020, granted the former president his desire to have a “special master” handle thousands of documents seized by the FBI from the former president’s Mar-a-Lago club in Florida.
The ruling was greeted with astonishment by legal scholars who noted how convenient it was for Trump to give the special master control over highly classified materials. Cannon effectively erected a roadblock in front of the justice department’s criminal investigation into how national security intelligence had been illegally hidden in Mar-a-Lago.
But Cannon’s maverick decision is just the thin end of the wedge. From the supreme court down, the impact of Trump’s recalibration of the federal judiciary is now starting to sting.
The consequences of Trump’s three appointments to the supreme court are now well understood by many Americans. The evisceration of the right to an abortion; blocking government action on the climate crisis; rolling back gun control laws are just a few of the seismic changes wrought by the court’s new 6-to-3 conservative supermajority.

27 July
Justice Thomas bows out of teaching fall seminar at GWU law school
Thomas, on the high court for more than 30 years, has taught at the D.C. law school since 2011. His adjunct faculty position there drew controversy this summer after the court’s conservative majority overturned Roe v. Wade, the landmark 1973 ruling that had established a constitutional right to abortion.
Afterward, thousands signed a petition that called for Thomas to be removed from the law school faculty.
University leaders resisted those demands, saying June 28 that they “steadfastly support the robust exchange of ideas and deliberation” and that “the university will neither terminate Justice Thomas’ employment nor cancel his class in response to his legal opinions.” They added that the justice’s views do not represent those of the 26,000-student university or its 1,700-student law school.
24 July
Jan. 6 panel prepared to subpoena Virginia ‘Ginni’ Thomas, Supreme Court justice’s wife
(Fox) Committee members also hope to learn more about Ginni Thomas’ own effort to keep Trump in office and the potential conflicts of interest for Clarence Thomas as a result on Jan. 6 cases that have come before the Supreme Court. The committee sent a letter to Ginni Thomas last month seeking an interview and hopes she will comply, Cheney said.

26 July
The Supreme Court Is Making America Ungovernable
The West Virginia v. EPA ruling signals a future in which no one in power has the ability to tackle the biggest issues society faces.
By Lisa Heinzerling, law professor at the Georgetown University Law Center
(The Atlantic) In West Virginia v. EPA, the Supreme Court held that Congress may not authorize an administrative agency like the EPA to address an issue of great economic and political significance—in the Court’s parlance, a “major question”—unless Congress speaks extremely precisely in doing so. Broad statutory language, written with the aim of empowering an agency to take on new problems in new ways, will no longer suffice.
The Court’s decision has the immediate effect of limiting the EPA’s power and flexibility in regulating fossil-fuel-fired power plants under the Clean Air Act. But it extends beyond that: Any agency that asserts authority over an issue of great economic and political significance could meet a hostile reception in the courts precisely because it has tried to do something big.

10 July
Pamela Paul: If Only John Roberts Would Retire
(NYT Opinion) Retirement would make Roberts a hero for many. He could stand up for his principles, as articulated in his opening statement during his confirmation process. (“If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court.”) He could enable President Biden to appoint a new chief justice, someone who could restore a smidgen of balance to an institution ideologically out of whack.
In retiring, Roberts could help the court move toward positions that more broadly reflect the opinions of most Americans, rather than those of an extremist faction.
He could bolster confidence in the court. In 2021, public opinion of the Supreme Court reached a new low, with only 40 percent of Americans voicing approval in a Gallup poll. Given this term’s decisions on guns, climate change and abortion, one can expect that rating to plummet even more.

3 July
The Supreme Court’s Conservatives Have Asserted Their Power
But what if their big and fast moves, eviscerating some constitutional rights and inflating others, are bound for collision?
(The New Yorker) In a single week in late June, the conservative Justices asserted their recently consolidated power by expanding gun rights, demolishing the right to abortion, blowing a hole in the wall between church and state, and curtailing the ability to combat climate change. The Court is not behaving as an institution invested in social stability, let alone in the importance of its own role in safeguarding that stability. But what if its big and fast moves, eviscerating some constitutional rights and inflating others, are bound for collision? As people harmed by one aspect of its agenda look to other aspects of it to protect them, the Court may not be altogether pleased with where that process leads.

1 July
A Transformative Term at the Most Conservative Supreme Court in Nearly a Century
The blockbuster decisions — on abortion, guns, religion and climate — told part of the story. But the court’s abrupt rightward shift ran through its entire docket.
(NYT) The Supreme Court moved relentlessly to the right in its first full term with a six-justice conservative majority, issuing far-reaching decisions that will transform American life. It eliminated the constitutional right to abortion, recognized a Second Amendment right to carry guns outside the home, made it harder to address climate change and expanded the role of religion in public life.
But those blockbusters, significant though they were, only began to tell the story of the conservative juggernaut the court has become. By one standard measurement used by political scientists, the term that ended on Thursday was the most conservative since 1931.

30 June
What you need to know about the Supreme Court’s EPA case
In a major blow to averting catastrophic climate change, the high court limited the EPA’s ability to regulate greenhouse gas emissions from power plants
(WaPo) In a 6-to-3 ruling, the court found the EPA does not have the authority to force electric utilities to close down coal-fired power plants and shift to wind, solar and other renewable forms of generation.
The ruling, written by Chief Justice John G. Roberts Jr. and signed by the court’s five other conservatives, is a major blow to the nation’s chances of averting catastrophic climate change. And it is the latest instance of the court’s emboldened conservative majority flexing its muscle following its decision to strike down Roe v. Wade. …
In reality, utilities have been closing coal plants over the past decade in the face of competition from cheaper forms of energy such as gas-fired generators, solar farms and wind turbines. In their own brief, Apple, Tesla and other major tech firms investing in renewable energy agree that “stable, nationwide rules” on emissions are needed to accelerate that trend.
Here’s what the decision in West Virginia v. EPA means for the country — and the planet.
Supreme Court Strips Federal Government of Crucial Tool to Control Pollution
President Biden vowed to press forward with his climate agenda after a decision that “risks damaging our nation’s ability to keep our air clean.” Republicans cheered the ruling, with Senator Mitch McConnell saying it limited the power of “unelected, unaccountable bureaucrats.”

How the Supreme Court could radically reshape elections for president and Congress
(NPR) The U.S. Supreme Court announced Thursday that it has agreed to hear a case next term that could upend election laws across the country with the potential endorsement of a fringe legal theory about how much power state legislatures have over the running of congressional and presidential elections.
The case, called Moore v. Harper, is centered on newly drawn maps of voting districts for North Carolina’s 14 seats in the next U.S. House of Representatives.
Republican state lawmakers want to resurrect a map that North Carolina’s state courts struck down, finding that the map approved by the GOP-controlled legislature violated multiple provisions in the state’s constitution by giving Republican candidates an unfair advantage through partisan gerrymandering. A court-drawn map has been put in place instead for this year’s midterm elections.
… Republican lawmakers argue that the U.S. Constitution’s Elections Clause gives state legislatures the power to determine how congressional elections are conducted without any checks and balances from state constitutions or state courts.
Based on this independent state legislature theory, they contend that the North Carolina state courts’ decision to throw out and replace the legislature-drawn map violates the federal constitution — an argument that radically departs from the U.S. Supreme Court’s historical record of deferring to state courts on how state constitutions and laws should be interpreted.

Ketanji Brown Jackson sworn in as first Black woman on the Supreme Court
(NPR) “For too long, our government, our courts haven’t looked like America,” Biden said when he nominated her. “And I believe it’s time that we have a court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country at the highest level.”
At the noon ceremony at the Supreme Court, Jackson, took two oaths: a constitutional oath, administered by Chief Justice John Roberts, and a judicial oath, administered by Breyer. A formal investiture for Jackson will follow in fall.

24 June

Supreme Court and Roe v. Wade

On Jun 24, 2022, the Supreme Court overturned Roe v. Wade, eliminating the constitutional right to an abortion after almost 50 years. This will lead to all but total bans on the procedure in about half of the states.
Ending Constitutional Right to Abortion, Supreme Court Reshapes U.S. Politics
(NYT) The ruling eliminating the constitutional right to an abortion after almost 50 years was met with celebration and anger across the country. President Biden called the court’s action the “realization of extreme ideology.”
June 24, 2022: The Day Chief Justice Roberts Lost His Court
Outflanked by five impatient and ambitious justices to his right, the chief justice has become powerless to pursue his incremental approach.
In the most important case of his 17-year tenure, Chief Justice John G. Roberts Jr. found himself entirely alone.
He had worked for seven months to persuade his colleagues to join him in merely chipping away at Roe v. Wade, the 1973 decision that established a constitutional right to abortion. But he was outflanked by the five justices to his right, who instead reduced Roe to rubble.
In the process, they humiliated the nominal leader of the court and rejected major elements of his jurisprudence.
What Ruth Bader Ginsburg really said about Roe v. Wade
Ginsburg’s criticisms of Roe generally had to do with pragmatic and political concerns, rather than saying it was outright wrong. And far from wanting to leave this decision to the states, as Friday’s decision does, she repeatedly sided with the idea that abortion was a constitutional right. She had preferred that right to be phased in more gradually and that it rely more on a different part of the Constitution — the right to equal protection rather than the right to privacy, the basis of Roe.
Here’s what the justices in the majority opinion said about Roe during their confirmation hearings.

25 June
How Can This Be ‘Pro-Life’?
Three questions for abortion opponents celebrating the end of Roe v. Wade.
(On the Trail with Nick Kristof) My plea to those campaigning against abortion: Why not work with people across the political spectrum to reduce the number of unwanted pregnancies – and thus the number of abortions – by improving sex education, by supporting teen pregnancy prevention programs and by making effective contraception more available?
We’re unlikely to find ourselves in a burning hospital, forced to choose whether to save the life of a mom or of a tray of frozen embryos. But as a country we are making a choice, through the Supreme Court ruling today, and we’re siding with embryos over women. That’s unconscionable.

Roe v Wade: senators say Trump supreme court nominees misled them
Neil Gorsuch and Brett Kavanaugh said they would not overturn landmark abortion ruling, Susan Collins and Joe Manchin say

Background
2-4 May
Supreme Court Weighs Future Role and Final Word on Abortion
(NYT) Many are wondering if the leaked draft opinion on the contentious issue of Roe v. Wade signals a new, more politicized Supreme Court. The final opinion isn’t expected until summer, but many states are already moving forward with plans to outlaw or protect abortion.
Draft abortion opinion puts new spotlight on confirmation hearings
Supreme Court nominees told senators they saw Roe as reaffirmed precedent. Now they appear ready to overturn it.
The Supreme Court’s Legitimacy Crisis Is Here
Nicholas Reed Langen
(Project Syndicate) With its looming decision to overturn the 1973 Roe v. Wade ruling, the US Supreme Court’s conservative supermajority has abandoned any pretense of acting as a neutral arbiter of the law. America’s rancorous partisan politics have fully infected the Court, which is quickly descending into theocratic extremism.

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