SCOTUS - The Good, The Bad, and The Ugly

[LFC]

This is a good description of how the right-wing SCOTUS just quietly elevated the right to religious freedom to a level above all other rights.

Although the conservative majority’s decision was unsigned and ran just four pages long, it radically altered the law of religious liberty. Since 1990’s Employment Division v. Smith, the Supreme Court has not interpreted the First Amendment’s free exercise clause to require religious exemptions to laws that don’t discriminate against religion. In Tandon, however, the majority effectively overturned Smith by establishing a new rule, often called the “most favored nation” theory. Under this doctrine, any secular exemption to a law automatically creates a claim for a religious exemption, vastly expanding the government’s obligation to provide religious accommodations to countless regulations. In Tandon, for instance, the Supreme Court held that California had to let people gather indoors for Bible study because it allowed them to gather indoors to get a haircut, eat, or take a bus; if Californians can get pedicure, they must also be permitted to spend hours in close quarters discussing the Bible. And the Supreme Court created this sweeping new rule through its shadow docket—those cases decided with minimal briefing and no oral argument outside the court’s normal procedure.

On Monday, I spoke with University of Texas School of Law Professor Steve Vladeck, a renowned critic of the shadow docket, and Lewis and Clark Law School Professor Jim Oleske, an expert on religious liberty jurisprudence, about Friday’s decision and its departure from all known rules of Supreme Court procedure. Our conversation has been edited for length and clarity.

Mark Joseph Stern: Jim, you’ve said Tandon begins with a “whopper.” What is it?

Jim Oleske: In the very beginning, the court said its prior decisions had “made the following points clear.” It then laid out the “most favored nation” theory of religious exemptions. The principal authority cited is the Roman Catholic Diocese v. Cuomo decision from this past fall—in which the court did not adopt that theory! Instead, the court said that New York had singled out religion for disfavored treatment, which would be consistent with Smith. It was only in separate opinions that various justices talked about “most favored nation” theory explicitly—the same justices who were talking about it in dissents over the summer before Justice Amy Coney Barrett had joined the court.

How does this new theory conflict with Smith?

Oleske: Smith says the free exercise clause of the First Amendment protects against the government targeting religious practice for disfavored treatment, but does not grant a right to exemptions from general law. Almost immediately after Smith, there were efforts to read into it a broader “most favored nation” theory that said: Any time the government grants an exemption to a law, it has an obligation to grant a religious exemption, too, unless the government meets strict scrutiny. But that was not the law of the land until Friday night.

Steve Vladeck: I think Friday night’s ruling drives home exactly why the rise of the shadow docket is so problematic. To be a little nerdy for a second, what the Supreme Court did on Friday was issue an injunction pending appeal. This is an extraordinary form of relief. Unlike when the court issues a stay—where it says, hey, lower courts we’re putting your decision on hold—here the court is acting directly against the government. It’s directly enjoining Gov. Newsom when lower courts have refused to do so.

As the Supreme Court has said for decades, its authority to issue that form of relief is very limited. There’s a very widely cited in-chambers opinion by Justice Antonin Scalia from 1986 where he says the court is only supposed to issue such relief “sparingly, and only in the most critical and exigent circumstances,” where “the legal rights at issue are indisputably clear.” It’s the “indisputably clear” part that makes what Jim said so important. Everyone understands that the court made new law on Friday, that the court changed the scope and meaning and applicability of the free exercise clause. Folks are going to disagree about whether or not this new approach is a good one. My point is, this is not something the court is allowed to do in a shadow docket ruling like this. Its own precedents preclude it from making new law in this context because, by definition, a newly minted right cannot have been “indisputably clear.”

So any law that has any carve out for any group for any reason must also take into account religion above and beyond every other group. Welcome to the theocratic SCOTUS.

[LFC]

Congressional Democrats are going to introduce a bill to expand SCOTUS. With a near zero probability of passage my questions is, why? What do they hope to accomplish?

Congressional Democrats are expected to introduce legislation Thursday to expand the Supreme Court from nine to 13 justices, likely intensifying the debate over the future of the high court and potential for its reform.

The effort to expand the Supreme Court comes after Senate Republicans filled three vacant seats on the court with conservative justices under former President Donald Trump, including one who was confirmed just days before the 2020 election.

Led by Sen. Ed Markey (D-MA) and House Judiciary Chair Rep. Jerry Nadler (D-NY), the bill likely won’t see much movement in the Senate with strong Republican opposition and some moderate Democrats who have opposed court expansion.

[Bact PhD]

Apr 15, 2021 15:17:17 GMT LFC said:

Congressional Democrats are going to introduce a bill to expand SCOTUS. With a near zero probability of passage my questions is, why? What do they hope to accomplish?

Perhaps the same reason the RW folks do what they do—performance art for the respective base. Stay relevant in the news cycle. After all, “no publicity is bad publicity,” amirite?

[LFC]

Brett Kavanaugh is proving himself to be the corrupt mental midget we all kind of expected him to be. In a vote of 6-3 the right-wingers obliterated previous precedent to allow life without parole for juveniles to be handed down by a judge with no independent review. But to make it worse Kavanaugh's opinion doesn't argue against the precedent, it virtually ignores it even exists. I believe the right-wing called people like this "activist judges."

From out of the recently Trumpified Supreme Court came yet another decision that murdered precedent. Delivering the death blow was Justice Brett Kavanaugh. This was a major flex for the carceral state and a major hit to criminal justice reform. It not only closed off future improvements in that regard, but also undercut what few accomplishments already exist.

The case was Jones v. Mississippi. Over the years, the courts began to look askance at the idea of handing juveniles sentences of life without parole, essentially warehousing individuals for decades in the horrors of the American penal system for crimes they committed as minors. Twice since 2012, the Supreme Court has decided that such sentences were in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. With a single decision, Kavanaugh, good Jesuit-educated lad that he is, and six of his colleagues decided that, instead, such sentences were both just and commonplace. It is yet another example of the current majority’s enthusiasm for gutting precedent while pretending that it’s not, and it is a monstrous legal offense against humanity.

Sotomayor ripped apart Kavanaugh's opinion and shoved his own previous rulings up his pudgy, frat-boy nose. That entitled partisan hack of a man-child makes me sick. He's shown once again that he's not even fit to sit on the People's Court. Allowing such human garbage on the high court is a disgrace.

In dissent, Justice Sonia Sotomayor proved she can see a church by daylight. Edging right up to the limits of intramural politesse, Sotomayor called Kavanaugh out for the heartless, soulless gombeen this decision has revealed him to be.

The Court simply rewrites Miller and Montgomery to say what the Court now wishes they had said, and then denies that it has done any such thing. The Court knows what it is doing. It admits as much.

At which point, Sotomayor impales Kavanaugh on his own previous decisions.

How low this Court’s respect for stare decisis has sunk. Not long ago, that doctrine was recognized as a pillar of the “ ‘rule of law,’ ” critical to “keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.” Ramos, 590 U. S., at ___–___ (opinion of KAVANAUGH, J.) … Given these weighty interests, the Court “usually re- quire[d] that a party ask for overruling, or at least obtain[ed] briefing on the overruling question,” and then “carefully evaluate[d] the traditional stare decisis factors.” Barr v. American Assn. of Political Consultants, Inc.… Now, it seems, the Court is willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification. It is hard to see how that approach is “founded in the law rather than in the proclivities of individuals.” Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.)

Note to self: do not get Justice Sotomayor angry with you. Never do that.

And the final joke of it all is that Mississippi, in its limitless capacity for judicial savagery, had already invented a workaround: simply sentence juvenile offenders to 100 years—and they don’t even have to have killed anyone, either. Here’s to the state of Mississippi, goddamn.

[goldenvalley]

This is an interesting thing...we don't usually think of the equivalent of a campaign for a Supreme Court nominee being run.  A hearing involving the Americans for Prosperity group (Koch Industries affiliated) claiming a 1st Amendment right not to disclose an IRS donor list to California authorities is scheduled for Monday.

Democratic members of the House and Senate Judiciary committees are asking U.S. Supreme Court Justice Amy Coney Barrett to recuse herself from participating in a case involving a conservative nonprofit with ties to a group that gave at least $1 million to fund a "national campaign" to win Senate confirmation of her Supreme Court nomination.

At her confirmation hearing, Barrett refused to answer questions about whether she would recuse in the case, which was then pending before the court, but had not been granted review. At the time, she said it would "not be appropriate for me as a judicial nominee to offer an opinion about such abstract issues or hypotheticals."

But after she was confirmed, the court agreed to review the case, and there was no indication of a Barrett recusal.

The case, which is to be argued next week, was brought by the Americans for Prosperity Foundation, created by the conservative Koch brothers. It challenges a California law, similar to those in other states, that requires tax-exempt nonprofits to attach to their state tax filing an IRS form that discloses the identity of their large donors. The foundation is seeking a broad constitutional ruling that would keep its donor identities secret.

The Democratic lawmakers' letter to Barrett notes that "just minutes after your nomination by former President Trump last September," the Americans for Prosperity Foundation's sister organization, Americans for Prosperity, announced in a press release it was mounting a "Full Scale Campaign to Confirm Judge Amy Coney Barrett to the Supreme Court." The campaign was characterized as "a significant national ad campaign focusing on eleven states" and that the organization would spend "in the seven figures" — in other words, at least $1 million.

[LFC]

Here comes the end of abortion rights as we know them in America.

The anti-abortion activists who spent big to help former President Trump put three justices on the Supreme Court will finally get to see the value of that investment.

The Supreme Court announced Monday that it was reviewing a legal challenge to Mississippi’s ban on abortions after 15 weeks of pregnancy. An appeals court previously struck the ban down.

In an order, the court said it was considering only one of the three questions Mississippi had asked the justices to review in its request that they reinstate the ban: “Whether all pre-viability prohibitions on elective abortions are constitutional.”

Though the justices have sought to limit the scope of the case, it still presents an opportunity for the court’s newly-emboldened conservative wing to rewrite the jurisprudence of abortion law and open the door to a flood of new restrictions on the procedure.

In granting the case, the Court teed up the possibility that the conservative majority will chip away at or eliminate altogether the line drawn by the landmark 1973 decision Roe v. Wade protecting a women’s right to an abortion before the fetus was viable.

[pnwguy]

Gilead, here we come!

If SCOTUS tramps on Roe, Mitch McConnell will get rehabilitated in the eyes of the MAGAts. And the theocrats will feel ever more worship for Trumpism as the divine salvation of the US.

[LFC]

The NCAA just went down in flames with a 9-0 loss on student compensation.

A unanimous Supreme Court said on Monday that student athletes could receive education-related payments, in a case that could reshape college sports by allowing more money from a billion-dollar industry to go to the players.

College sports raise billions of dollars from ticket sales, television contracts and merchandise, and supporters of the students say the players are being exploited and barred from the opportunity to monetize their talents. In 2016, for example, the NCAA negotiated an eight-year extension of its broadcasting rights to March Madness, worth $1.1 billion annually.

Justice Neil Gorsuch delivered the opinion of a unanimous court targeting the education-related benefits at issue in the case. But in a concurring opinion, Justice Brett Kavanaugh said the NCAA is essentially acting "above the law" in how it treats athletes and questioned if more spending limits should fall.

"Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate," Kavanaugh wrote. "And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law."

"It is our hope that this victory in the battle for college athletes' rights will carry on a wave of justice uplifting further aspects of athlete compensation. This is the fair treatment college athletes deserve," Steve Berman, managing partner of Hagens Berman which represented students in the case, said in a statement on Monday.

The ruling is the first time in decades the Supreme Court has considered the issue and is a dramatic win for a class of students who said that they were being exploited. The NCAA had argued that the spending caps at issue were necessary to preserve a distinction between amateur and pro sports.

A district court preserved limits on compensation unrelated to education, but ruled that caps on some education-related benefits violate anti-trust laws. The ruling was largely upheld by the 9th US Circuit Court of Appeals, although the schools did not make immediate changes waiting for the legal process plays out.

Gorsuch said that the lower court had laid out the correct "fact specific" test that judges should use to assess restrictions and he rejected a more lax standard put forward by the NCAA.

"So, once more, if the NCAA believes certain criteria are needed to ensure that academic awards are legitimately related to education, it is presently free to propose such rules -- and individual conferences may adopt even stricter ones," Gorsuch wrote.

The lower court also said that the NCAA must also permit student athletes to receive unlimited non-cash "education-related benefits" including post-eligibility internships. The students can also receive annual payments up to $6,000 if they maintain academic eligibility.

[goldenvalley]

Never did I expect a 9-0 decision out of this Court.

[jackd]

Why not. it's about money?

[LFC]

Here's a free speech case that was ruled 8-1. The only interesting part is that Thomas is the only defector.

The U.S. Supreme Court on Wednesday ruled that a Pennsylvania high school violated the First Amendment rights of a former cheerleader by punishing her for saying “fuck school” on Snapchat. The decision potentially restricts schools’ ability to regulate students’ off-campus speech.

In an 8-1 decision upholding a lower court’s ruling, the Supreme Court found that Mahanoy Area High School overstepped its powers to police the speech of students when coaches suspended then-14-year-old Brandi Levy from the school’s cheerleading squad for a year over two Snapchat posts she published in 2017 from her own phone, off school grounds, and on her own time.

“B. L.’s posts are entitled to First Amendment protection,” Justice Stephen Breyer wrote in the Court’s opinion. “The statements made in B. L.’s Snapchats reflect criticism of the rules of a community of which B. L. forms a part. And B. L.’s message did not involve features that would place it outside the First Amendment’s ordinary protection.”

“Fuck school fuck cheer fuck softball fuck everything,” Levy wrote on a Snapchat photo of herself and a friend giving the middle finger after she failed to make the varsity cheerleading team, according to the ACLU. The snap was posted on a Saturday and disappeared 24 hours later—before the beginning of the school week—but it eventually circulated through the school and made its way to the cheerleading squad’s coaches.

Schools have a strong legal precedent in the 1969 Tinker v. Des Moines ruling to restrict the speech of students in cases that involve bullying or harassment, threats, or other speech that significantly impacts the learning environment. It is because of these expansive powers to limit students’ free speech that the Court found it necessary in this case to set a high bar for instances when these powers may be employed. Further, the Court found that the school simply overreacted.

[LFC]

Interesting unanimous decision concerning pursuit of a person into their home over a misdemeanor.

The U.S. Supreme Court ruled Wednesday that police cannot always enter a home without a warrant when pursuing someone for a minor crime.

The court sent the case back to the lower court to decide if the police violated the rights of a California man by pursuing him into his garage for allegedly playing loud music while driving down a deserted two-lane highway late at night.

Writing for the unanimous court, Justice Elena Kagan said police had no right to enter the man's home without a warrant for such a trivial offense.

"On many occasions, the officer will have good reason to enter — to prevent imminent harms of violence, destruction of evidence, or escape from the home," she wrote. "But when the officer has time to get a warrant, he must do so — even though the misdemeanant fled."

The court's ruling came in the case of Arthur Lange, who was playing loud music in his car late one night, at one point honking his horn several times. A California highway patrol officer, believing Lange was violating a noise ordinance, followed him, and when the motorist slowed to enter his driveway, the officer put on his flashing lights.

Lange, who later said he didn't notice the police car, drove into his garage. The officer, in "hot pursuit," got out of his car and put his foot under the closing garage door sensor to force the door open again. He had no warrant to enter the home, but once inside, he said, he smelled liquor on Lange's breath and arrested him, not only for the noise violation, but also for driving under the influence.

Lange appealed all the way to the Supreme Court, contending that the officer had no right to enter his home without a warrant and that the DUI evidence had been illegally obtained.

The Supreme Court has long held that police may conduct a warrantless search when pursuing a fleeing felon. The question in Lange's case was whether police are free to do the same thing when pursuing someone suspected of a minor offense like playing loud music.

"

ursuit of a misdemeanant does not trigger a categorical rule allowing a warrantless home entry," Kagan wrote.

[LFC]

The Christianists and MAGAts must feel devastated. Bashing trans people was one of their key "principles" and now SCOTUS declined to weigh in on a case that didn't turn out the way they wanted. (Paywalled)

As anti-trans rights laws pop up in GOP-led state legislatures across the country, fueling one of Republicans’ top culture wars in the Biden era, the majority conservative Supreme Court decided to not take up a key transgender rights case today, a surprising victory for LGBTQ rights.

The SCOTUS-punting leaves in a place a lower court’s 2020 ruling that found a Virginia school board had violated a transgender student’s rights by not allowing him to use the bathroom of his gender identity. The high court’s rebuffing leaves the 4th U.S. Circuit Court of Appeals’ ruling in place and represents a win for transgender student Gavin Grimm. The lower court ruling doesn’t set a national precedent on the issue.

Grimm sued the Gloucester County School Board back in 2015 after he was banned from using the bathroom that corresponds with his identity and was forced to use private, single stall restrooms instead, his American Civil Liberties Union lawyers told the court. The Richmond-based appeals court ruled in Grimm’s favor, citing an Obama-era Education Department letter that said schools “generally must treat transgender students consistent with their gender identity.”

The Trump administration later rescinded the Obama-era Department of Education guidance on bathroom access for transgender students, Reuters reported. (Trump attempted to roll back rights for transgender people in other ways as well — including his announcement of a transgender military ban at the beginning of his presidency. The Biden administration has reversed several of the Trump administration’s anti-LGBTQ policies and a 2020 SCOTUS ruling found that transgender people are protected under federal law that bans sex-based discrimination in the workplace.)

This led to a messy legal battle involving a SCOTUS decision to not take up the case and vacate the appeals court’s ruling. Grimm refiled his suit and won again in lower courts, which led to today’s appeal.

SCOTUS today declined to take up the case without comment, but the order did note that conservative Justices Clarence Thomas and Samuel Alito wanted to take up the case.

Bathroom usage for transgender youth and transgender adults has been a bizarre flashpoint of culture war outrage for conservatives for some time. In recent months, 30-plus GOP-led state legislatures have taken up bills that would curb the rights of transgender people, targeting everything from access to medical care to bathroom use to the youth sports teams.

[goldenvalley]

I realize that this whole transgender phobia is a political ploy that is based on some people’s visceral revulsion to the concept. But I don’t get this bathroom thing. Is it that they think men will claim to be transgender so that they can go into girls restrooms and locker rooms to assault them?

[Bact PhD]

Jun 28, 2021 19:33:36 GMT goldenvalley said:

I realize that this whole transgender phobia is a political ploy that is based on some people’s visceral revulsion to the concept. But I don’t get this bathroom thing. Is it that they think men will claim to be transgender so that they can go into girls restrooms and locker rooms to assault them?

Exactly. There was a HUGE stink about that very “possibility” about 15 years ago when a nondiscrimination ordinance was proposed (and eventually passed) here. Since then, the number of times such a thing has been reported?

ZERO. That’s right, none. Zip.

But why let something like real-world data get in the way of an indignant argument, right?

[andydp]

Jun 28, 2021 19:48:07 GMT Bact PhD said:

Jun 28, 2021 19:33:36 GMT goldenvalley said:

I realize that this whole transgender phobia is a political ploy that is based on some people’s visceral revulsion to the concept. But I don’t get this bathroom thing. Is it that they think men will claim to be transgender so that they can go into girls restrooms and locker rooms to assault them?

Exactly. There was a HUGE stink about that very “possibility” about 15 years ago when a nondiscrimination ordinance was proposed (and eventually passed) here. Since then, the number of times such a thing has been reported?

ZERO. That’s right, none. Zip.

But why let something like real-world data get in the way of an indignant argument, right?***

** never let facts get in the way of a good rant

I had a friend who was all into the "male stalkers in the ladies' room" opinion.

I kept asking him for number and ACTUAL cases. Never did respond. All I kept saying was show me data of a transgender doing that. (I sent him a link to the Larry Craig incident.)

[jackd]

I thought they were worried about the cis females checking out the boys' equipment.

[LFC]

Republican SCOTUS voted unanimously to protect voter suppression. This is no shock. This was expected of Roberts and Alito when they joined the court and the subsequent crop was expected to be even more partisan.

The Supreme Court’s 6-3 conservative majority ruled Thursday that two restrictive voting policies in Arizona did not violate the Voting Rights Act. The majority opinion, written by Justice Samuel Alito laid out the “guideposts” for courts to consider in deciding whether a state’s election rules have the effect of discriminating against minority voters.

The court’s opinion was not a full-on gutting of the relevant VRA provision, as some voting rights advocates feared, but nonetheless will likely weaken the power of the voting rights law. The court’s three liberals dissented in the case, while Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurring opinion.

Alito’s opinion said the court was declining to lay out a specific test for courts to use when weighing challenges to election regulations brought under Section 2 of the Voting Rights Act, a provision that has been used more frequently in voting rights cases after the Supreme Court in 2013 gutted another section of the law.

[jackd]

Lest one thought there was some hope for this court's neutrality.

[Deleted]

Discrimination explicitly based on race: no go.

Discrimination based on a pretext about race: kosher.

Savvy?

[LFC]

Apparently it was a double whammy, both attacking voting rights and protecting dark money in politics. Welcome to the subtle support of fascism.

At last! On the final day of the term, having saved Obamacare and only slightly abridged LGBTQ equality, the Supreme Court’s conservative majority did what the Federalist Society, Donald Trump, and a coterie of dark money funders put them there to do: degrade American democracy.

In two cases, both split 6-3 along ideological lines, the Supreme Court allowed states to make it harder to vote while prohibiting them from unmasking ‘dark money’ groups. What’s more, it did so in broad, expansive terms, giving a green light both to the wave of voter suppression initiatives in Republican-controlled states and to the mysterious, anonymous donors who are funding them.

Today’s news is a gigantic win for the Republican party. Its secretive billionaire donors—one of the cases was brought by the Koch family front group, Americans For Prosperity—now have a blank check to write more checks. And its efforts to reduce turnout among Democratic-leaning voters—primarily Black and other voters of color—can proceed full speed ahead.

The voting rights case, Brnovich v. Democratic National Committee, concerned two Arizona voting restrictions. One bans “ballot harvesting” (which despite its sinister name is simply the practice of volunteers gathering sealed ballots and dropping them off at a polling place), and the other requires that ballots cast at the wrong precinct be thrown away, rather than rerouted to the correct precinct and counted.

The court found that neither rule violates the Voting Rights Act.

By 2021 standards, these restrictions are fairly tame. They absolutely hit lower-income and less-engaged voters more, and those voters tend to be predominantly non-white and Democrat-leaning. And the rules are based, like all Republican “ballot integrity” measures, on no evidence whatsoever. Republicans have been making voter fraud claims for decades now, and have never, not once, shown that there is a significant problem here to solve.

But, compared with closing voting locations in predominantly Black areas and banning people from passing out water in long poll lines, these two rules are pretty milquetoast.

Let's not forget how the Texas governor only allowed one drop-off box per county regardless of its population. Got to everything you can to water down the power of the urban areas.

[jackd]

The story I read said the Biden administration conceded that the rule regarding gathering ballots was not in violation and were disputing some language as to what, hypothetically, would be a violation. The court didn't try to lay down a general rule and said they would consider violations on a case by case basis. The court's inclination is clear enough. I'm not sure it would sustain new legislation. The case for stacking the court continues to build.

[goldenvalley]

It seems the Roberts Court likes to avoid sweeping decisions and instead engages in subtle line drawings and claims that the fact pattern and evidence presented don't allow it to make sweeping decisions. Death by a thousand cuts. Hints as to what might be decided in the future are dropped, thus encouraging more and more litigation to follow a trail of bread crumbs.

[Deleted]

Take the hint, Steve.

[jackd]

Can't do that. Would be admitting I'm old!