JWG via DTN 15 January 2023 JT and Rae have been reading the tar baby saga and are trying hard…
SCOTUS & the US courts June 2022-December 2023
Trump transformed the Supreme Court. Now the justices could decide his political and legal future
By ALANNA DURKIN RICHER and LINDSAY WHITEHURST
(AP) — Donald Trump touts his transformation of the U.S. Supreme Court as one of his presidency’s greatest accomplishments. Now his legal and political future may lie in the hands of the court he pushed to the right. …
The three justices appointed by Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were among more than 230 federal judges installed under Trump as part of a GOP push to transform the ideological leanings of the bench. His impact on the high court has been seen in rulings rescinding the five-decade-old constitutional right to abortion, setting new standards for evaluating guns laws and striking down affirmative action in college admissions.
“This is a court that is already a lightning rod in our contemporary political discourse. A court that is viewed quite skeptically by a large swath of the American electorate,” Vladeck said. But he added, “It’s also a court that has not bent over backwards for Trump.”
(NPR) The Supreme Court is poised to play a pivotal role in the 2024 presidential election. As the justices face scrutiny and waning trust over several ethics scandals, here are the major disputes to watch next year:
The court is deciding whether to fast-track a case questioning whether former President Donald Trump has absolute immunity in a case related to his attempt to hold onto power after the 2020 election.
Justices will review the case of Joseph Fischer, who was charged with obstructing an official proceeding at the Capitol on Jan. 6, 2021. Fischer argues the Justice Department overreached when it charged him under a corporate fraud statute usually reserved for people who tamper with documents.
Trump has vowed to appeal a decision Colorado’s Supreme Court made this week to bar him from the state’s primary ballot.
Sandra Day O’Connor is gone. So, increasingly, is what she stood for.
(WaPo Editorial board) Unlike other justices, she rose to the pinnacle of the judicial branch by way of lawmaking in her home state’s legislature. From this, and her years on the ranch, she brought a practicality to the court that most of today’s justices lack.
In this sense, Justice O’Connor represents an era regrettably past — a time when government leaders cared about getting things done collaboratively. With her guidance, the Supreme Court weighed carefully the impact its rulings would have on Americans. In oral arguments, she would often ask how a hypothetical ruling might affect real people and institutions.
Sandra Day O’Connor, first woman Supreme Court justice, dies at 93
She was a pivotal figure during her 24 years on the court.
(Politico) It was announced in October 2018 that she had been diagnosed with dementia. In a letter, she wrote: “As this condition has progressed, I am no longer able to participate in public life.”
Throughout her 24-year term on the bench, O’Connor voted on some of the most contentious issues the court has faced, including affirmative action and abortion. One of her most influential roles was in the 5-4 vote in Bush v. Gore, as she joined justices Anthony Kennedy, William Rehnquist, Antonin Scalia and Clarence Thomas in a decision that led to George W. Bush’s 2000 election win.
In 2009, she was awarded the Presidential Medal of Freedom for her role in transforming the American judiciary, paving the way for women to join what had been a men’s only club. Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson have also joined the nation’s highest court since she was appointed in 1981.
“A judge and Arizona legislator, cancer survivor, child of the Texas plains, Sandra Day O’Connor is like the pilgrim in the poem she sometimes quotes, who has forged a new trail and built a bridge behind her for all young women to follow,” President Barack Obama said at the ceremony when she was awarded the nation’s highest civilian honor, recognizing O’Connor for both her journey to the Supreme Court and the role she played throughout her tenure
Sandra Day O’Connor, the Mom Next Door—And So Much More
We were neighbors when I was growing up in Phoenix, Arizona. She was always the adult I looked up to.
By Jonathan Rauch
(The Atlantic) … That the lack of an O’Connor on today’s Supreme Court has become a costly deficit goes almost without saying. The Court is often criticized for being too political, but Justice O’Connor’s virtue was that, having been a politician, she had an innate feel for consensus and consent. Today, all nine justices were appointed from U.S. appellate courts or legal academia. None has run for or held elective office. The result has been the kind of sweeping, ideologically inflected jurisprudence that Justice O’Connor avoided. She is rightly remembered as the Court’s first woman; she should also be remembered, alas, as its last politician.
In adulthood, I mostly lost touch with Mrs. O’Connor. Still, with time, I only grew in my appreciation of her qualities. They have become lamentably scarce in American public life and especially in the Republican Party, which owed her so much and yet became so hostile to her legacy. After she retired from the Court, I was surprised when she took up the cause of civics education. Wasn’t this too marginal and small-bore a cause for a person of her stature? Now I understand that, as usual, she was practical and prescient.
A Supreme Court case with momentous implications for government power
George F. Will
Jarkesy, like the Institute for Justice, is defending the nation’s constitutional structure against unaccountable agencies operating as a fourth branch of government.
(WaPo Opinion) …the case the Supreme Court will hear Wednesday, when George Jarkesy, a hedge fund founder, will at last have his day in court.
Jarkesy wants the Supreme Court to affirm, and the SEC wants it to overturn, an appellate court’s ruling that the Constitution’s Seventh Amendment guarantees Jarkesy a right to trial by jury. And that Congress unconstitutionally delegated to the SEC, without the guidance of an intelligible principle, the power to decide the judicial forum for adjudicating disputes.
If he prevails, the constitutional right of access to courts will be vindicated, constitutionally dubious delegations of congressional power will be curtailed, and administrative state agencies will have to respect the separation of powers. Let us hope for what progressives fear: the end of government as they have transformed it.
SEC administrative enforcement process called into question, highlighting importance of private actions
(Reuters) Corporate fraud presents a substantial threat to the U.S. financial system, with major scandals frequently dominating headlines and investors facing massive losses as a result. With investors’ earnings at risk, the Supreme Court will soon decide — in the case SEC v. Jarkesy — whether to disable the Securities and Exchange Commission’s administrative enforcement proceedings, one of the major enforcement mechanisms targeting securities fraud in the United States.
What the Supreme Court’s New Ethics Code Lacks
The written code of conduct nods at the public pressure the Court is facing, but it can’t do much to change the justices’ behavior.
By Lora Kelley
(The Atlantic) The 15-page document opens with a paragraph-long statement emphasizing that the rules contained within it are largely not new. Their codification is an attempt to “dispel” the “misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.” The code does not explicitly restrict any of the activities, such as undisclosed gifts and travel, that have been drawing attention to the justices in recent months, and its guidelines on recusals in the event of potential conflicts of interest are vague. (A progressive group noted that the document includes should 53 times and must just six.) It also doesn’t acknowledge the existence of any current or past misbehavior, Noah Rosenblum, an assistant law professor at NYU, told me. But the introduction of the code, he said, “does suggest that, in fact, the pressure is getting to the Supreme Court, which, if you believe that the Supreme Court has gone rogue, is a really useful and important thing to know.”
US Supreme Court Adopts First Code of Conduct Following Ethics Controversies
New code doesn’t include enforcement or complaint mechanisms
Justices were under scrutiny following ethics revelations
(Bloomberg) The US Supreme Court adopted a code of conduct for the first time, responding to a stream of ethics controversies that have undercut its public standing and shined new light on the justices’ friendships and financial dealings.
The code won’t necessarily mean significant changes in how the nine justices conduct themselves. The court said the rules were mostly a “codification” of existing principles, and the justices stopped short of creating a system for the public to lodge complaints or for outside review of alleged violations.
Supreme Court to consider abortion pills, guns, social media in its new term
(NPR) … Guns are back
At issue is a 5th Circuit decision that invalidated a federal law banning the possession of guns for anyone who is the subject of a domestic violence restraining order. The question before the court boils down to this: In order to be constitutional, does a gun regulation have to be analogous to gun regulations at the time of the founding, or even after the Civil War when the 14th Amendment was passed?
… Social media cases and federal regulators
The court also has before it a whole series of social media cases. One is a test of state laws enacted by Texas and Florida that ban social media companies from removing content that the companies deem to be false or misleading — for instance erroneous posts about vaccines or election rules, or where and when to vote. The 5th Circuit upheld the Texas law banning such content moderation, and the social media companies, backed by the Biden administration, appealed to the high court.
A different social media case tests when a public official may block other people from his or her personal social media account. That’s something that President Trump tried to do when he was president, but these cases involve local officials and their longstanding personal accounts.
The Supreme Court Justices Are Just Like Anyone Else
Professionals like to believe themselves immune to the influence of gifts, but no one is.
What do some Supreme Court justices and physicians have in common? Both take gifts from those who stand to profit from their decisions, and both mistakenly think they can’t be swayed by those gifts.
Gifts are not only tokens of regard; they are the grease and the glue that help maintain a relationship.
Clarence Thomas’s $267,230 R.V. and the Friend Who Financed It
The vehicle is a key part of the justice’s just-folks persona. It’s also a luxury motor coach that was funded by someone else’s money.
How Supreme Court decisions are activating a generation of young voters
(WaPo) For many voters under 35 years of age, especially those on the left, the Supreme Court has become a political issue in the same way that climate change, gun violence and immigration have over the course of the past two decades, some political scientists and organizers have said.
Supreme Court was drawn into last four elections, and likely again in 2024
Democratic voters’ opinions on the justices could prove critical in close elections after decades of advantage for Republicans on the issue
One issue that could mushroom, both against the justices and helping Democrats, is the seemingly expanding scandals related to undisclosed gifts to Justices Clarence Thomas and Samuel Alito, from conservative billionaires.
The chief justice goes back and forth between appearing irked at the criticism aimed at the court, to saying today’s justices can handle the heat.
“The court has always decided controversial cases and decisions always have been subject to intense criticism and that is entirely appropriate,” Roberts said last September.
That appropriate criticism will continue to be intense so long as each party keeps turning the justices into campaign props.
The Tragedy of John Roberts
By Jeff Shesol, historian, who has written several books about American politics, including “Supreme Power,” the story of Franklin Roosevelt’s failed attempt to pack the Supreme Court.
(NYT Opinion) This term will likely be remembered as the year the Supreme Court, led by its chief justice, ended race-conscious admissions at the nation’s colleges and universities. But the larger story of this term has been one of ethical rot and official indifference. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas drew attention — not for the first time — for their close ties to wealthy benefactors who have business before the court. Reports by ProPublica and in The New York Times show justices accepting gifts and blandishments as monarchs might: free vacations at luxury resorts; undisclosed trips on private jets and yachts; and, in Justice Thomas’s case, largess in the form of private-school tuition for a family member, secret real estate deals and donations to pet projects of the justice and his wife, Virginia Thomas. This is hardly a complete list.
… Republicans like Senator [John Cornyn of Texas] want the chief justice to take the matter in hand before Congress does; the effort to impose an ethics code on the court has gained momentum. No such legislation is likely to make it through the House, but Chief Justice Roberts should take Senator Cornyn’s friendly advice. He should adopt a more assertive posture, and publicly. A chief justice, it is often said, is merely first among equals. But in that role, he can speak for — and to — his court with an authority no associate justice can match. It is well past time to commit himself and his colleagues to clearer, stricter, enforceable standards of conduct. The gravest danger the court faces today is not congressional oversight, but its own sense of impunity.
Supreme Court rejects Biden’s student loan forgiveness plan
The Supreme Court on Friday said President Biden does not have authority for his roughly $400 billion program to forgive student loan debt, the latest blow from a Supreme Court that has been dismissive of this administration’s bold claims of power.
The vote was 6 to 3 along ideological lines, with Chief Justice John G. Roberts Jr. writing for the court’s dominant conservatives. It means that 20 million borrowers who were eligible to have their loan balances completely erased will soon have to start making payments.
Supreme Court’s Samuel Alito Ruled Against EPA as Wife Leased Land to Oil and Gas Firm
The wife of Supreme Court Justice Samuel Alito leased land to a fossil fuel company for oil and gas exploration around the same time the firm stood to benefit from a major environmental case before the Supreme Court. The Intercept reports Justice Alito did not recuse himself from the case, even though his family stood to profit from its outcome.
Supreme Court guts affirmative action in college admissions
The high court struck down race-conscious admissions policies at Harvard and the University of North Carolina.
(Politico) The Supreme Court on Thursday dealt a major blow to affirmative action in higher education, striking down race-conscious admissions programs at Harvard and the University of North Carolina.
In a ruling divided along ideological lines, the high court’s six-justice conservative majority found that the universities discriminated against white and Asian American applicants by using race-conscious policies that benefited applicants from underrepresented backgrounds.
‘This is not a normal court’: Biden blasts affirmative action ruling
The president pledged to direct the Department of Education to analyze practices for promoting diversity within the education system.
Supreme Court rejects theory that would have meant radical changes to election rules
Maintaining the status quo is seen as significant for a court that in recent years has constricted voting and election protections in federal law and the Constitution.
(WaPo) The Supreme Court on Tuesday rejected what would have been a radical change in election law, dismissing the theory that state legislatures have almost unlimited power to decide the rules for federal elections and draw partisan congressional maps without interference from state courts.
The Constitution’s elections clause “does not insulate state legislatures from the ordinary exercise of state judicial review,” Chief Justice John G. Roberts Jr. wrote in a 6-3 decision.
The decision was praised by Democrats and civil rights groups, more for firmly rebuffing what they viewed as an outlandish theory than for establishing new law.
In a separate decision earlier this month, however, the court relied on its previous interpretations of the Voting Rights Act to find the Alabama legislature drew congressional districts that unlawfully diluted the political power of its Black residents. After Tuesday’s decision, voting rights advocates and Democrats said the combined opinions give them hope of being able to successfully challenge some Republican-led redistricting efforts.
Alito’s Reply in a Rival Publication Surprises ProPublica
The Wall Street Journal made the unusual decision to let Justice Samuel A. Alito Jr. pre-empt ProPublica’s article about him in its opinion pages.
… ProPublica published its investigation into Justice Alito several hours later on Tuesday, revealing that he took a luxury fishing trip in 2008 as the guest of Paul Singer, a billionaire Republican donor, and had not disclosed the trip nor recused himself from cases since then that involved Mr. Singer’s hedge fund.
Supreme Court Upholds Native American Adoption Law
At issue in the case was whether a law aimed at keeping Native American adoptees within tribes is constitutional.
The Supreme Court on Thursday upheld a 1978 law aimed at keeping Native American adoptees with their tribes and traditions, handing a victory to tribes that had argued that a blow to the law would upend the basic principles that have allowed them to govern themselves.
Justice Amy Coney Barrett, writing for the majority, acknowledged the thorny subjects raised in case, which pitted a white foster couple from Texas against five tribes and the Interior Department as they battled over the adoption of a Native American child.
John Roberts Throws a Curveball
The Supreme Court’s voting rights ruling on Thursday in Allen v. Milligan is as shocking as it is welcome. The Voting Rights Act has lived to see another day, with implications for 2024 and beyond.
By Richard L. Hasen, author of several books about elections and democracy. In 2020, he proposed a 28th Amendment to the Constitution to defend and expand voting rights
(NYT Opinion) The ruling in Milligan disrupts the narrative that the court is relentlessly revolutionary in its conservative jurisprudence. Chief Justice Roberts has long been very much an institutionalist, and he has pushed back in recent public pronouncements to shore up the court’s legitimacy. In this case, his institutionalism seems to have trumped his long-running fight against race-conscious remedies, at least in the election context. A ruling to the contrary would have made many legislative bodies in this country less broadly representative in an increasingly diverse United States, further inflaming a good part of the country against the court.
No matter. A win is a win, and even though it’s a little sad to have to say so, these days, a Supreme Court decision preserving the status quo on voting rights is worthy of celebration.
The Major Supreme Court Decisions in 2023
By Adam Liptak and Eli Murray
The Supreme Court made a lurch to the right a year ago in blockbuster decisions on abortion, guns, religion and climate change.
The court — dominated by a 6-to-3 conservative majority, including three justices appointed by President Donald J. Trump — faces another set of important cases this term, including ones on affirmative action, student loans and civil rights for gay people. Its rulings will help answer questions about whether the move to the right will continue — and whether the court’s decisions are out of step with public opinion.
Top US court curbs government regulations to protect wetlands
Supreme Court says Environmental Protection Agency can only regulate wetlands if they have ‘continuous surface connection’ to another body of water.
(Al Jazeera) The ruling is the second decision in as many years narrowing the reach of federal environmental regulations. The court’s conservative majority boosted property rights over concerns about clean water
Supreme Court Justices Don’t Like Being Criticized in Public, Which Is a Good Reason to Keep Doing It
Stephen I. Vladeck, author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
(NYT) Starting in 2017, there was a great shift in how the conservative majority used unsigned, unexplained orders, especially in the context of applications for emergency relief (to freeze or unfreeze lower-court rulings while a case works its way through the courts). …
In a little-noticed October 2021 ruling refusing to block Maine’s Covid vaccine mandate for health care workers, Justice Amy Coney Barrett wrote a cryptic concurrence (which Justice Brett Kavanaugh joined) suggesting that just because an applicant had made a case for emergency relief from the court didn’t mean the justices had to intervene. Rather, the court should use its discretion, she argued, much as it does in deciding the cases to which it will give full consideration. Justice Barrett didn’t say what would guide that discretion, but her brief concurrence was a turning point. To underscore that, in spring 2022, in an emergency relief case involving environmental regulation, Chief Justice John Roberts strikingly joined a dissent by Justice Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, emphasizing concerns about the procedural shortcuts the other conservative justices had been taking.
Since then, the court has intervened far less often and in ways that have looked far less partisan even when it has granted emergency relief.
Jamelle Bouie: Neil Gorsuch Has Given Himself Away
(NYT) Gorsuch’s denunciation of pandemic restrictions acts as an inadvertent glimpse into his view of the United States. With one notable exception (and it is quite notable) — the history of Native Americans — he is willing to ignore or doesn’t even see our long, peacetime history of repression and internal tyranny. What he seems to see instead is a long history of liberty with some significant exceptions, including our recent experience with the pandemic.
It is a shocking worldview but not, in the end, a surprising one. A justice like Gorsuch who frequently struggles to see injustice and cruelty in the present — from his votes in favor of capital punishment to his vote to let states curb women’s bodily autonomy — will surely struggle to see injustice and cruelty in the past.
Partisan divide drives Senate hearing on Supreme Court ethics
(NPR) Chief Justice John Roberts last week declined the committee’s invitation to testify, citing “separation of powers concerns and the importance of preserving Judicial independence.” Rather, he released a short letter to that effect, accompanied by a joint statement from all nine current justices reaffirming, apparently for the first time publicly, their voluntary adherence to the code of conduct that applies to lower federal court judges.
GOP Senators Slam Democrats’ ‘Unseemly’ Efforts To Impose Supreme Court Ethics Code
(Forbes) Republican senators came out against Democrats’ push to impose a code of ethics on the Supreme Court during a hearing before the Senate Judiciary Committee Tuesday, painting Democratic lawmakers’ efforts as a partisan attack on conservative justices and likely ensuring the failure of any legislation that would force an ethical code on justices.
Heather Cox Richardson May 1, 2023
…tomorrow the Senate Judiciary Committee will hold a hearing on Supreme Court ethics. Supreme Court justices are the only federal judges that are not explicitly bound by a code of conduct and, aside from the decisions that have made the justices seem to be advancing a political agenda, the court appears to be plagued with ethics scandals. Confidence in the court is draining away.
… The crisis in the Supreme Court is headed for another major test. The court today agreed to hear a case that could gut the government’s ability to regulate business. The court will reconsider the 1984 Chevron v. Natural Resources Defense Council decision, which affirmed that judges should defer to government agencies in their reasonable interpretation of a law if the wording of the law is vague. This court seems likely to reject this idea and to allow judges to rein in regulation according to their own interpretation of the law.
Chief Justice Roberts declines to testify before Senate panel
(NPR) The Senate panel had planned to hold a hearing on May 2 to examine what Durbin called “common sense proposals” to hold Supreme Court justices to the same ethical standards as the rest of the federal judiciary, and Durbin had invited Roberts “or his designate” to take part.
Law firm head bought Gorsuch-owned property
The Supreme Court justice did not report the identity of the purchaser, whose firm has had numerous cases before the court.
Supreme Court rules do not prevent justices from engaging in financial transactions with people with interest in court decisions, but Gorsuch’s dealings with Duffy expose the weakness of the court’s disclosure procedures.
The Supreme Court Stopped Short of a Radical Act
Both the mifepristone ruling and the Wisconsin judicial election suggest the politics of court reform are shifting.
Aziz Huq teaches law at the University of Chicago and is the author of The Collapse of Constitutional Remedies.
(Politico Opinion) The Supreme Court pulled back from the edge. In suspending the district court’s nationwide bar on the abortion pill mifepristone, the high court’s conservative majority (with two exceptions) declined to embrace the radicalism of its ideological allies. The move not only ensures access to a drug long deemed safe by the FDA but may help bolster the court’s increasingly tenuous public credibility.
Supreme Court Ensures, for Now, Broad Access to Abortion Pill
The order halts a sweeping ruling by a federal judge in Texas as an appeal moves forward in a case that could have profound implications for abortion access and the F.D.A.’s regulatory authority.
(NYT) The Supreme Court said Friday evening that the abortion pill mifepristone would remain widely available for now, delaying the potential for an abrupt end to a drug that is used in more than half of abortions in the United States.
The order halted two rulings that had sought to curb the availability of the mifepristone as an appeal in the U.S. Court of Appeals for the Fifth Circuit moves forward: one from a federal judge in Texas who suspended the drug from the market entirely and another from the appeals court that had imposed significant barriers on the pill, including blocking access by mail.
Opinion | The Supreme Court Stopped Short of a Radical Act
Both the mifepristone ruling and the Wisconsin judicial election suggest the politics of court reform are shifting.
(GZERO) US Supreme Court Justice Clarence Thomas has come under fire for failing to disclose taking luxury trips paid for by a billionaire Republican donor. How big of a problem is this for him, SCOTUS, and the judiciary?
Preet Preet Bharara, former US attorney for the Southern District of New York, says that Thomas probably didn’t violate any actual rule related to conflicts of interest. But the optics are bad — especially coming on the heels of his wife’s involvement with the Jan. 6 insurrectionists. “At a time when confidence and trust in the integrity of the court is low, it’s not a great thing to do,” Bhararara tells Ian Bremmer on GZERO World.
To be sure, there’s no evidence that the gifts influenced how Thomas ruled on cases. After all, the ex-prosecutor says he’s a “dyed-in-the-wool conservative.”
Still, Preet Bharara thinks he should have disclosed the gifts. If he didn’t, it’s likely because Thomas knew how bad it would look.
Diplomats in Robes?
The Supreme Court’s Unwelcome Forays Into Foreign Policy
By Aziz Huq and Mariano-Florentino Cuéllar
(Foreign Affairs) President Joe Biden sought to end the controversial immigration program known as Title 42 which relied on an old public health statute to expel more than 2.4 million migrants, including thousands of unaccompanied minors, at the southern border. But before Biden could end Title 42, a coalition of Republican-led states petitioned the U.S. Supreme Court to step in and block the federal government from winding down the expulsions. Without any hearing, and despite grave doubts about whether these states even had the legal right to lodge such a challenge, the Court summarily agreed: it forced Biden to continue the Trump-era program, which remains in place to this day.
The Court’s ruling reflected a growing judicial habit of embracing aggressive legal interpretations to issue decisions that could significantly limit what the United States can and cannot do in the world. Led by the U.S. Supreme Court, domestic courts are poised to reshape the implementation of a vast array of laws and regulations critical to U.S. foreign policy, affecting migration, the treatment of people detained on terrorism-related grounds, and the authority of government agencies crucial to diplomatic initiatives related to health, environmental, and technology policy.
Supreme Court justices discussed, but did not agree on, code of conduct
(WaPo) The Supreme Court has failed to reach consensus on an ethics code of conduct specific to the nine justices despite internal discussion dating back at least four years, according to people familiar with the matter.
The inertia has frustrated critics, whose demands for reform have intensified. The court’s profile has only increased as a new majority has moved rapidly on a range of polarizing issues. That has also increased scrutiny on the justices, the activities of their spouses and when the court’s members should recuse themselves from cases.
… In recent years, there were bipartisan efforts in Congress to require a code of conduct and enhance financial disclosure requirements for justices. Sen. Sheldon Whitehouse (D-R.I.) and Sen. Lindsey O. Graham (R-S.C.) expressed concern in a 2021 letter to Roberts that justices of “our highest court are subject to the lowest standards of transparency of any senior officials across the federal government.”
Ruth Marcus: Was leaking the Dobbs opinion the perfect crime? It sure looks that way.
The court cannot have thought that this report [on the leak of the abortion ruling], with its coy avoidance of dealing with how the justices themselves were treated, would satisfy anyone, on the right or left. It didn’t, and shouldn’t. The leak was a disaster for the court. This report, predictably inconclusive and grossly inadequate, piles one disaster on another.
A Ritual Returns: Supreme Court Justices Will Explain Their Decisions
By Linda Greenhouse
(NYT opinion) …why do I insist that the hand-downs matter? Because it is in those moments that the Supreme Court meets the public. The courtroom audience may be small, and hardly representative of the public at large, but it is real. This is not the notional public that may eventually read the opinion. It’s not the public that attends the court’s oral argument sessions as spectators to the volleys of questions and answers between the justices and the lawyers. The hand-downs are performances, yes, but what the justices are performing is a kind of accountability. They are showing their faces, explaining themselves. For better or worse, they are owning their work, at the moment of its emergence into the world.
The Supreme Court is poised to issue opinions on a pair of cases about redistricting by the end of June that could dramatically change the landscape. The first, Merrill v. Milligan, concerns Alabama’s map, where challengers sought to have it tossed by alleging it weakened the power of Black voters in the state.
The court — although seemingly chilly to the state’s argument that a key civil rights law needs to be read in a “race neutral” manner — seems likely to rewrite the test used to determine if a minority group’s voting power is being “diluted.” That will likely result in less voting power for minority groups in Congress. Outside of Alabama, ongoing cases in states like Georgia and Louisiana likely hinge on the court’s decision.
The second major Supreme Court case, Moore v. Harper, originated in North Carolina. There, the state Supreme Court tossed out the map drawn by Republicans as an illegal partisan gerrymander, with a court-drawn map eventually being used in 2022. Republican legislators sought to have the nation’s highest court negate the state court’s map, advancing a once-fringe legal theory called the “independent state legislature” doctrine that argues that state courts have little to no role in checking state legislatures’ power to set the rules around federal elections.
The Supreme Court seems unlikely to adopt the most muscular version of the theory. But depending on where the justices land, it could reopen the redistricting process both in the Tarheel State and elsewhere where state courts waded into the mapmaking process.
There is a path to save the Supreme Court from itself
By Jennifer Rubin
As Maya Wiley, head of the Leadership Conference on Civil and Human Rights, explains, “The Supreme Court is now far out of step with the American mainstream and has, as a result, become the best organizer of its own court reform campaign.” Given the many ongoing scandals, such as leaked opinions and Justice Clarence Thomas’s refusal to recuse himself in cases involving his wife’s activism after the 2020 election, Wiley notes, “More Americans believe term limits, transparency and ethics reform are good ideas.”
The court’s pattern of self-inflicted wounds erodes its credibility and undermines its stature. As the progressive Brennan Center for Justice put it, “The lack of structural democratic accountability is much of the reason why we ended up with a Court so out of step with the public and with mainstream legal thought. But it could also spell a crisis for the Court’s own legitimacy, spurring new attention to the broken system that gave us today’s radical supermajority and garnering momentum for efforts at Court reform.”
Eliminate lifetime tenure for justices
Democracy is not well served when the same pack of out-of-touch Ivy League law school alumni can dominate the bench for decades simply because of Senate gamesmanship and politically timed retirements. Establishing terms limits could ameliorate those practices. It could also help detoxify confirmation hearings and end the unseemly practice of justices purportedly misrepresenting their views simply to be confirmed. … One popular suggestion is to limit justices to 18-year terms — long enough to maintain independence but not to prevent new justices from refreshing the court.
Expand the court
A recent Marquette University Law School national poll showed that 51 percent of Americans (including 72 percent of Democrats) favored expanding the number of justices on the Supreme Court. And unlike term limits, which might require a constitutional amendment to achieve, there is no dispute that Congress has the power to enlarge the court. …
Implement ethics rules for justices
Ethical guardrails already exist for federal courts in the form of the Code of Conduct for U.S. Judges,… But the Supreme Court’s adherence to the code has no means of oversight or enforcement. …
Over the next year or so, [Brian] Fallon’s group [Demand Justice] will hold scores of events with lawmakers and progressive reformers and run digital ads to highlight court scandals. The goal is to try to double co-sponsors for judicial reform legislation in Congress (currently there are about 70).
The Supreme Court Needs Real Oversight
Without an effective system in place, problems like leaks and conflicts will not be adequately addressed, and public confidence in the Court will continue to plummet.
By Glenn Fine
Former evangelical activist says he ‘pushed the boundaries’ in Supreme Court dealings
Right-wing Christian activists sought to work their way into the social circles of conservative-leaning U.S. Supreme Court justices — offering prayers, meals, “warm personal greetings,” and occasionally even travel — in an effort to “embolden” the justices to advance their policy agenda, the former leader of an evangelical nonprofit told members of Congress on Thursday.
(NPR) “Throughout this ordeal, I’ve had to look deeply at what my cohorts and I did at the Supreme Court,” Rev. Rob Schenck testified during a House Judiciary Committee hearing. “I believe we pushed the boundaries of Christian ethics and compromised the high court’s promise to administer equal justice.”
Schenck, who until 2018 led a group known then as Faith and Action, now describes himself as a “dissenting evangelical.” He said he recruited and trained “stealth missionaries” for a project called Operation High Court.
They worked to bolster the justices’ conservative views on issues including abortion and same-sex marriage, he said, sometimes achieving a rare level of access and intimacy with the judges.
Jamelle Bouie: The Case for Supreme Court Term Limits Just Got a Lot Better
…what if lifetime tenure, rather than leading judges away from temptation, makes it easier to tempt them?
The most striking detail in the recent investigation by The New York Times into another potential Supreme Court breach is not the evidence that Justice Samuel Alito or his wife may have leaked information to conservative friends in 2014 about the outcome of Burwell v. Hobby Lobby Stores, which extended “religious liberty” to the actions of family-owned corporations.
No, the most striking detail is the extent to which a number of Republican justices, Alito included, appear to have been the targets of a sophisticated and well-funded influence operation designed to notch as many legal and constitutional victories for moneyed and conservative interests as the justices were willing to give. …
The framers of the Constitution wanted an independent judiciary — strong enough to resist corruption as well as the influence of public opinion. As such, federal judges enjoy tenure during “good behavior.” Barring impeachment, they cannot be removed.
Most Americans today support Supreme Court term limits. Their reasons vary, but one of the more popular ones is that term limits can help lower the temperature of confirmation battles and reduce the nearly existential stakes of any given appointment.
Senior Democratic lawmakers demand answers on alleged Supreme Court leak
Whitehouse and Johnson warn chief justice that if he won’t investigate, Congress will.
The lawmakers said their latest missive to Roberts was triggered in part by a report Saturday in the New York Times about a former anti-abortion activist’s claim that he got advance word about the outcome in 2014 of a case of acute interest to social conservatives. The case, Burwell v. Hobby Lobby, led to a ruling written by Justice Samuel Alito that religious owners of closely held businesses did not have to comply with all of the Affordable Care Act’s requirements for contraception coverage.
Former Anti-Abortion Leader Alleges Another Supreme Court Breach
Years before the leaked draft opinion overturning Roe v. Wade, a landmark contraception ruling was disclosed, according to a minister who led a secretive effort to influence justices.
Mr. Schenck’s allegation creates an unusual, contentious situation: a minister who spent years at the center of the anti-abortion movement, now turned whistle-blower; a denial by a sitting justice; and an institution that shows little outward sign of getting to the bottom of the recent leak of the abortion ruling or of following up on Mr. Schenck’s allegation.
Justices raise doubts on race-conscious college admissions
(AP) — The survival of affirmative action in higher education appeared to be in serious trouble Monday at a conservative-dominated Supreme Court after hours of debate over difficult questions of race.
The court is weighing challenges to admissions programs at the University of North Carolina and Harvard that use race among many factors in seeking a diverse student body.
The court’s six conservative justices all expressed doubts about the practice, while the three liberals defended the programs, which are similar to those used by many other private and public universities.
Supreme Court’s new ‘class photo’ includes number of firsts
(AP) — The group photo of the Supreme Court’s nine members is a long-standing ritual. But it has never looked quite like the one taken on Friday.
The new image includes Justice Ketanji Brown Jackson, the first Black female justice, who joined the court in June. With her addition, the court marks a number of firsts. It’s the first time white men don’t hold a majority on the court and the first time four women have served together. It’s also the first time the court has had two Black justices.
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.
The Next Presidential Election Is Happening Right Now in the States
State-legislature elections could decide the fate of democracy.
(The Atlantic) Another potential Supreme Court decision has spiked Democratic fears to a new level. The justices in the term that begins this month will hear arguments in Moore v. Harper, an election-law case that legal experts say could dramatically reshape how ballots are cast and counted across the country. Republican litigants want the high court to affirm what’s known as the independent-state-legislature theory, which posits that the Constitution gives near-universal power over the running of federal elections to state legislatures. A ruling adopting that argument—and four conservative justices have signaled that they are open to such an interpretation—would allow partisan legislative majorities to ignore or overrule state courts and election officials, potentially granting legal legitimacy to efforts by Donald Trump’s allies to overturn the will of voters in 2024.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.