SCOTUS - The Good, The Bad, and The Ugly

[LFC]

May 7, 2022 0:07:51 GMT jackd said:

Be fair, LFC; it isn't just Catholics.

No doubt but I'm thinking about this specific case. And for whatever reason partisan hack SCOTUS seems to be packed with wild-eyed, radical Catholics.

[LFC]

Partisan hack Clarence Thomas is whining that people aren't just accepting partisan hack SCOTUS's decision without criticism or protest because, you know, they're above that shit. Oh, yeah. And he still refuses to recuse himself from cases involving the very treason his own wife encouraged and was part of.

[LFC]

This is a well written opinion on why things are just going to get worse. The need for Republicans and those who make their living in anti-abortion organization need to keep their religious zealots in a froth. Just like everything else Republicans touch they will find ever more political heroin to supply to their junkies.

Just to bring us up to speed on the events of the weekend, Republicans are galloping rapidly toward a national ban on abortion (entirely predicted and predictable) and state efforts to ban birth control in the expectation that those bans will be approved by Republican-heavy federal courts operating in a post-Roe legal environment.

Along those lines, I wanted to share these thoughts sent in last week from a highly knowledgable observer of the elite appellate legal world in Washington, D.C.

Much of the post-Leakgate discussion has focused on what the Democrats will/should do if the leaked opinion or something like it is issued this coming June. And that’s important.

What about the Republicans? They will have achieved the goal they’ve sought for 40 years. But it is that goal that has energized the religious conservatives that are now a key element of the Republican base, and Republicans will have to keep that base engaged and voting if they want to capture the House and Senate and ultimately the Presidency. So that means new goals have to be set.

At first, presumably tougher and tougher state laws: abortion bans, bans on traveling to get an abortion in another state, bans on helping someone travel to another state. (The last category will create an interesting collision with businesses who have promised to provide travel assistance to employees unable to obtain abortions in their home states (and those businesses’ insurers), because they could be liable under the laws being considered that would criminalize or impose civil penalties for assisting individuals in obtaining out-of-state abortions.)

The ultimate goal will be a nationwide ban on abortion, whether through a Supreme Court decision holding that fetuses are protected by the Constitution or a federal law banning abortion throughout the country (the 2024 elections could give the Republicans a close to filibuster proof majority, and a little modification of the filibuster rule could close any gap)

The Republican Party is not the only group for whom these new goals are essential. What about the myriad anti-abortion organizations throughout the country? Are they going to say “mission accomplished,” pay two months’ severance and close up shop. Of course not. They will adopt new agendas and push Republicans to endorse these new goals – and accomplish them.

So Democrats should have a very useful foil in the activities of these groups and Republican candidates, providing a real-time demonstration of what Republicans plan for the post-Roe world. Perhaps Republicans will try to keep things toned down before the midterms, but that seems unlikely given the activity that’s already resulted from just the hope of Roe’s demise.

Moreover, and this is critical, it won’t just be about abortion. There is a reason why John Cornyn and other Republicans raised LGBTQ rights, and gay marriage specifically, at Judge Jackson’s confirmation hearing. They were setting up a new frontier to keep the conservative base engaged. Although the hearing didn’t address contraception availability, that will be swept in as well. (The draft opinion purports to be limited to abortion, but the reason it gives – that abortion involves a “critical moral issue” relating to “potential life” or the life of an “unborn human being” – has nothing to do with the draft’s legal analysis, which rests entirely on historical recognition of a claimed right. It will be very easy to deploy that reasoning to overturn other precedents.)

Some people say Democrats should only focus on abortion for now, but why? It’s clear that this Court plans to dramatically remake American society.

Another decision this June is likely to significantly increase the availability of handguns by further restricting government authority.

Next year, the Court almost certainly will overrule several of its precedents and ban any consideration of race in college admissions. What will that mean for efforts to increase diversity elsewhere – surely the target after that will be efforts to promote diversity in employment. And explicit consideration of race isn’t the only target. Just last month, three Justices voted to set aside a high school admissions plan to promote diversity that did not use any race-conscious methods simply because the purpose was to increase diversity.

Bottom line: the impact of this decision on abortion availability is significant. But recognize that this is just the first step in a sea change in multiple areas of American constitutional law that will dramatically alter our society. We have a Court that wants to do that, and a political party that will be urging it on.

[LFC]

SCOTUS is leaking like a sieve, a sure sign of a dysfunctional court. Why should a Republican run SCOTUS be any more competent and legitimate than anything else Republicans touch?

It would seem that trail of leaks out of the Roberts Court have not only continued but evolved into a de facto comms policy. Politico published a new story overnight which reports that in fact none of the four Justices who initially sided with Alito have changed their position and that no dissenting opinions have yet been circulated. The details are interesting (if entirely unsurprising). But what’s most notable is the continued leaking. There’s no new draft given to the Politico reporters. But we have a continued flow of information about the internal deliberations.

One additional detail.

The conspicuous byline on the original report was that of Alex Ward. Ward isn’t a Supreme Court or legal affairs or reproductive rights reporter. He’s a national security reporter. In other words, his beat has no clear nexus to anything related to this case or story. Observers speculated/assumed that that meant that the initial leak came through him. That’s inherently speculative. But I would say it’s the only plausible explanation. It’s almost certainly true. His byline is on the new piece too. So as I said, the leaks, which preceded the Politico bombshell, appear to be continuing and evolving into a de facto communications policy from the right.

This is your legacy, Mr. Roberts. Don't like it? Do something about it.

[LFC]

Alito just telegraphed his decision on stripping away workplace rights for LGBTQ employees. This religious zealot hates the fact that these sinners can't be treated like the moral trash that they are. I expect Florida, Texas, or maybe Alabama (all Republican shitholes) to act now that they already know which way right-wing partisan hack SCOTUS will likely vote.

Justice Samuel Alito is evidentially toting around an old grudge.

At a Thursday night event at the Antonin Scalia Law School at George Mason University, he had harsh words for the two conservative justices who joined the majority in Bostock v. Clayton County.

The 2020 opinion said that the Civil Rights Act of 1964, which prohibits sex-based discrimination, extends to gay and transgender workers. Justice Neil Gorsuch wrote the majority opinion, in which he was joined by the liberals and Chief Justice John Roberts.

Speaking via a video feed Thursday, Alito called Gorsuch a “colleague and friend,” but said that grounding the decision in the text of the 1964 law was “in my view indefensible,” according to the Washington Post.

“It is inconceivable that either Congress or voters in 1964 understood discrimination because of sex to mean discrimination because of sexual orientation, much less gender identity,” Alito said. “If Title VII had been understood at that time to mean what Bostock held it to mean, the prohibition on discrimination because of sex would never have been enacted. In fact, it might not have gotten a single vote in Congress.”

His disdain for the opinion has long simmered.

“The Court’s opinion is like a pirate ship,” he wrote in his dissent. “It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Jus­tice Scalia excoriated — the theory that courts should ‘update’ old statutes so that they better reflect the current val­ues of society.”

Alito wasn’t the only conservative enraged by the decision, and by Gorsuch and Roberts’ defections.

It's awesome that he called out Scalia, a partisan hack whose record includes such great hits as Bush v Gore (States' rights? We don't need no steenking states' rights ... for this case only and don't ever cite it again.) and arguing Schrödinger's ACA Tax, which was apparently both a tax and not a tax depending upon how he looked at it.

[LFC]

Alito is the new Scalia. He and 4 other justices are determined to carve out a privileged status for their religion while trying to wordsmith their opinions to look like they're rooted in law and precedence.

There’s no more pretending that religion doesn’t play a role in the ruling that (at least) five conservative justices are readying to overturn Roe.

In a democracy founded on the separation of church and state, we’ve got a Supreme Court on the cusp of a decision that cements a theological view of abortion that even most Catholics don’t abide by.

All five of the justices who signed onto the draft opinion that would dump Roe (and any ruling associated with it)—plus Chief Justice John Roberts—are progeny of the Federalist Society. Over the past three decades, the legal group’s blessing has become a de facto requirement for Republican presidents who owed their election to white evangelical voters and ran on a promise to deliver an anti-Roe Supreme Court.

“Religion is the elephant in the room,” says Amanda Tyler, executive director of Baptist Joint Committee (BJC), a legal advocacy group for religious freedom that doesn't take a position on abortion. “We are all free to be religious or not, but we expect our government to be secular and to rule for all Americans and not for their religious views. And that principle is being threatened by at least the appearance of what’s going on in this case,” Tyler adds.

She points out that the words “religion” or “religious” do not once appear in Alito’s leaked draft opinion, yet he calls abortion “a profound moral issue”—phrasing that goes beyond the rule of law. “Many people read into the word ‘moral’ a religious objection, even though he’s going out of his way not to use religion,” says Tyler, which is why she calls it the elephant in the room.

Rachel Laser, the CEO for Americans United for Separation of Church and State, is more direct. She calls the leaked draft “religiously based opinion” masking a conservative political agenda—or maybe it’s the other way around. Either way, she says, “It’s frightening that the Court is providing one narrow viewpoint” at a time when some “very Catholic countries have loosened their restrictions,” such as Ireland and Mexico.

She calls the looming decision by five Federalist Society alums “a flagrant violation of the separation of church and state…an assault on the core pillar of our democracy and the DNA of America.”

The ascendancy of conservative, anti-Roe Catholic jurists has been forty years in the making, dating back to the founding of the Federalist Society in 1982.

“The intersection of the religious right with conservative politics occurred with the anti-abortion agenda, and because evangelicals were lacking a bench of legal scholars, they had to turn to Catholics,” says Randall Balmer, a professor of religion at Dartmouth College. “Political conservatism is baked into Catholic legal scholarship.”

[goldenvalley]

May 13, 2022 20:02:17 GMT LFC said:

Alito is the new Scalia. He and 4 other justices are determined to carve out a privileged status for their religion while trying to wordsmith their opinions to look like they're rooted in law and precedence.

“The intersection of the religious right with conservative politics occurred with the anti-abortion agenda, and because evangelicals were lacking a bench of legal scholars, they had to turn to Catholics,” says Randall Balmer, a professor of religion at Dartmouth College. “Political conservatism is baked into Catholic legal scholarship.”

Ouuu burn the evangelicals. I guess they couldn't churn out enough intellectuals at Liberty University quickly enough.

[LFC]

May 14, 2022 2:01:53 GMT goldenvalley said:

Ouuu burn the evangelicals. I guess they couldn't churn out enough intellectuals at Liberty University quickly enough.

I noticed the term "Catholic legal scholarship" from the part I quoted. With their track record on orphanages, children in general, women, pregnant single women in particular, heretics, belief in demons and exorcism, beliefs on sex, and on and on this should scare the shit out of everybody. I'm not saying they've never brought anything to the table, just that whatever snake they bring to the zoo has the potential of being venomous.

[Bact PhD]

May 14, 2022 2:01:53 GMT goldenvalley said:

May 13, 2022 20:02:17 GMT LFC said:

Alito is the new Scalia. He and 4 other justices are determined to carve out a privileged status for their religion while trying to wordsmith their opinions to look like they're rooted in law and precedence.

“The intersection of the religious right with conservative politics occurred with the anti-abortion agenda, and because evangelicals were lacking a bench of legal scholars, they had to turn to Catholics,” says Randall Balmer, a professor of religion at Dartmouth College. “Political conservatism is baked into Catholic legal scholarship.”

Ouuu burn the evangelicals. I guess they couldn't churn out enough intellectuals at Liberty University quickly enough.

However, once the likes of Liberty did start cranking out their law grads, that accelerated the roll downhill.

[LFC]

While abortion is the big thing right now the Roberts court has shown complete hostility towards anything resembling campaign finance restrictions as they have repeatedly embraced the purchase of politicians. Ted Cruz was just the latest assault. Even before Roberts was appointed it was clear from his record that he would generally break towards money and authority but his disdain for anything that might produce honest elections and politicians is made clear in case after case.

On Monday, thanks to a case brought by Senator Ted Cruz (R-TX), the Supreme Court struck down another aspect of the Bipartisan Campaign Reform Act (BCRA). At issue in this case was a limit on how much a candidate could loan themselves and have donors repay them after an election. The limit had been a generous $250,000. Following yesterday’s ruling, even that fig leaf is gone, leaving elected officials free to ask donors for money that will go right into their own pockets.

The case is FEC v. Ted Cruz for Senate. Senator Ted Cruz loaned $260,000 to his campaign committee and then sought reimbursement from political donors to make himself whole. This was $10,000 over the then-legal limit, suggesting the violation was ginned up as a test case to challenge another aspect of BCRA. (It also undermines any everyman image Cruz might be trying to portray — how many of us could loan anyone, including a political campaign, over $250k?)

The Bipartisan Campaign Reform Act (BCRA) was the brain child of Republican Senator John McCain (AZ) and Democratic Senator Russ Feingold (WI), and it was passed in part as reaction to the implosion of Enron. The Rehnquist Court in 2003 upheld nearly every aspect of the BCRA as constitutional against a facial challenge in McConnell v. FEC.

The Act is now only 20 years old, but it has had a hell of a time before the Roberts Supreme Court. As I wrote about here, the Roberts Supreme Court has been deregulating corruption since its very first term by kicking big holes in campaign finance laws and by making white collar crime harder to prosecute as it lets shady politicians — from Bob McDonnell to Bridget Anne Kelly — off the hook for corrupt acts.

A history of SCOTUS decisions attacking honesty in politics follows. Roberts's record of protecting the wealthy continues.

[LFC]

Right-wing partisan hack SCOTUS is carrying on the legacy Antonin Scalia who argued that as long as the process is filed in capital punishment cases then it's all good.

The ruling is a major defeat for two inmates on death row who said they had compelling claims that their state lawyers failed to pursue.
In addition, it will make it harder for inmates across the country to prevail on claims that they received ineffective counsel at the state court level in post-conviction proceedings.

The 6-3 opinion was penned by Justice Clarence Thomas.

Thomas suggested that allowing such claims to go forward would cause unnecessary delays, and he said that federal courts "must afford unwavering respect to the centrality of the trial of a criminal case in state court."

"Serial relitigation of final convictions undermines the finality that is essential to both the retributive and deterrent functions of criminal law," he wrote. In his decision, Thomas emphasized the brutality of the crimes.
He called the "intervention" by federal courts an "affront to the state and its citizens who returned a verdict of guilt" and said that federal courts "years later" lack the "competence and authority to relitigate a state's criminal case."

And now for the human view.

The three liberal justices dissented. In a stinging dissent, Justice Sonia Sotomayor called the decision "perverse" and said that the court had gutted precedent. The majority opinion, she wrote, "reduces to rubble" many inmates' constitutional rights.

"The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel at trial," Sotomayor wrote. "Today, however, the court hamstrings the federal courts' authority to safeguard that right."

She said that while the majority "sets forth the gruesome nature" of the crimes, the "Constitution insists" that no matter "how heinous the crime, any conviction must be secured respecting all constitutional protections."

The inmates involved were not at fault for their lawyers' failure to develop evidence, and they should have been able to get into federal court, Sotomayor said.

"To put it bluntly: Two men whose trial attorneys did not provide even the bare minimum level of representation required by the Constitution may be executed because forces outside of their control prevented them from vindicating their constitutional right to counsel," Sotomayor wrote.

She said the Sixth Amendment's guarantee to the inmates "is now an empty one."

So now not are some constitutional rights more rightly than others (religious "freedom" being the one they're have made premier above all others) but now they're willing to throw away others because they're inconvenient.

[goldenvalley]

May 24, 2022 15:43:50 GMT LFC said:

Right-wing partisan hack SCOTUS is carrying on the legacy Antonin Scalia who argued that as long as the process is filed in capital punishment cases then it's all good.

The ruling is a major defeat for two inmates on death row who said they had compelling claims that their state lawyers failed to pursue.
In addition, it will make it harder for inmates across the country to prevail on claims that they received ineffective counsel at the state court level in post-conviction proceedings.

The 6-3 opinion was penned by Justice Clarence Thomas.

Thomas suggested that allowing such claims to go forward would cause unnecessary delays, and he said that federal courts "must afford unwavering respect to the centrality of the trial of a criminal case in state court."

"Serial relitigation of final convictions undermines the finality that is essential to both the retributive and deterrent functions of criminal law," he wrote. In his decision, Thomas emphasized the brutality of the crimes.
He called the "intervention" by federal courts an "affront to the state and its citizens who returned a verdict of guilt" and said that federal courts "years later" lack the "competence and authority to relitigate a state's criminal case."

And now for the human view.

The three liberal justices dissented. In a stinging dissent, Justice Sonia Sotomayor called the decision "perverse" and said that the court had gutted precedent. The majority opinion, she wrote, "reduces to rubble" many inmates' constitutional rights.

"The Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel at trial," Sotomayor wrote. "Today, however, the court hamstrings the federal courts' authority to safeguard that right."

She said that while the majority "sets forth the gruesome nature" of the crimes, the "Constitution insists" that no matter "how heinous the crime, any conviction must be secured respecting all constitutional protections."

The inmates involved were not at fault for their lawyers' failure to develop evidence, and they should have been able to get into federal court, Sotomayor said.

"To put it bluntly: Two men whose trial attorneys did not provide even the bare minimum level of representation required by the Constitution may be executed because forces outside of their control prevented them from vindicating their constitutional right to counsel," Sotomayor wrote.

She said the Sixth Amendment's guarantee to the inmates "is now an empty one."

So now not are some constitutional rights more rightly than others (religious "freedom" being the one they're have made premier above all others) but now they're willing to throw away others because they're inconvenient.

We have to hold a trial before we hang them!  The content of the trial doesn't matter; you just have to hold one.

[LFC]

SCOTUS is still trying to find out who leaked the partisan hack (alleged) overturning of Roe v Wade.

Tensions inside the Supreme Court are reaching a new high with news that law clerks will be made to hand over cellphone records as part of an investigation to identify the person who leaked a draft opinion overturning Roe v. Wade to the press, CNN reports. The court’s extraordinary move comes after Politico published the draft opinion on May 2—itself an unprecedented breach of the court’s confidentiality—revealing that abortion rights in the U.S. could be about to be restricted. Clerks are also allegedly being made to sign affidavits and some are considering taking on outside legal counsel as part of the inquiry to find the source of the leak. Chief Justice John Roberts is said to have met with the law clerks—young lawyers considered to be among the most promising in the country–in the wake of the leak, but it remains unclear if interviews have yet been conducted.

[goldenvalley]

May 31, 2022 19:38:25 GMT LFC said:

SCOTUS is still trying to find out who leaked the partisan hack (alleged) overturning of Roe v Wade.

Tensions inside the Supreme Court are reaching a new high with news that law clerks will be made to hand over cellphone records as part of an investigation to identify the person who leaked a draft opinion overturning Roe v. Wade to the press, CNN reports. The court’s extraordinary move comes after Politico published the draft opinion on May 2—itself an unprecedented breach of the court’s confidentiality—revealing that abortion rights in the U.S. could be about to be restricted. Clerks are also allegedly being made to sign affidavits and some are considering taking on outside legal counsel as part of the inquiry to find the source of the leak. Chief Justice John Roberts is said to have met with the law clerks—young lawyers considered to be among the most promising in the country–in the wake of the leak, but it remains unclear if interviews have yet been conducted.

Are they worried that they look bad? 

[LFC]

Why is SCOTUS, and Alito in particular, once again sticking their noses into how states hold elections? So much for states' rights. Right-wing partisan hack SCOTUS appears to be setting themselves up for deciding future elections. Welcome to the Fascists' Court.

The question in Pennsylvania is whether mail-in ballots without dates on their outside envelopes — ones that nonetheless were cast on time — must still be discarded as invalid.

In the Republican race to become Pennsylvania’s next senator, TV doctor Mehmet Oz has sought to exclude those ballots, while former hedge fund manager David McCormick has sought to have those ballots counted. That dispute is ongoing in state court as the race is being recounted.

The federal Third Circuit Court of Appeals ruled on May 22, in the case of a November 2021 county judicial race, that the missing date was “immaterial” and that “there is no basis on this record to refuse to count undated ballots” that had been set aside in that election.

Responding to an emergency application from a judicial candidate in that race, David Ritter, Alito paused the order Tuesday.

[pnwguy]

Jun 1, 2022 18:21:40 GMT LFC said:

Why is SCOTUS, and Alito in particular, once again sticking their noses into how states hold elections? 

That was a rhetorical question I assume...

Alito wants to call out the Gazpacho Police to oversee the next Pennsylvania election.

[LFC]

Jun 1, 2022 23:57:50 GMT pnwguy said:

Jun 1, 2022 18:21:40 GMT LFC said:

Why is SCOTUS, and Alito in particular, once again sticking their noses into how states hold elections? 

That was a rhetorical question I assume...

Self-answered two sentences later. Partisan hack SCOTUS is itching to hand every close or even bullshit contested election to their side. God(tm) demands it!

[LFC]

Strap in. We're about to hear how hostile right-wing SCOTUS is to democracy. Basically they may lock in minority rule by leveraging both very Republican and highly gerrymandered purple/red states. We may be about to witness the successful overthrow of free and fair elections through the power of packed courts. Moscow Mitch is touching his little turtlehead just thinking about it.

The voting rights legal community is holding its breath these days for the moment when the U.S. Supreme Court formally announces whether it will take a case that could fundamentally transform the way election laws work.

That’s no exaggeration: Election law scholars and litigators have called the debate in question — and its potentially calamitous outcome — the “800-pound gorilla,” “ a point of no return,” “the whirlwind,” and a “Republican blueprint to steal the 2024 election.” If the Court decides the way right-wing politicians would like it to, the result will be a transformed legal landscape for voting rights, affecting everything from gerrymandering to ballot initiatives to challenges over election results.

You may have heard of it before: The so-called “Independent State Legislature” theory, which in its simplest form asserts that state legislatures alone — without the checks and balances of state courts or state executive branch officials like secretaries of state — are in charge of congressional and presidential election rules in their states.

The specific case before the high Court is Moore v. Harper, in which North Carolina’s Republican-controlled legislature argues that the state’s more liberal Supreme Court violated the U.S. Constitution when it struck down some wildly slanted congressional districts.

The U.S. Supreme Court is expected to announce in the next few days whether it will hear the case, which would likely be scheduled for sometime in 2023. The legislature filed unsuccessfully for an emergency pause of the state Supreme Court’s decision earlier this year. And at the time, four justices expressed some openness to the novel legal theory. The idea has popped up in various forms since Bush v. Gore.

The argument relies on a strange reading of the U.S. Constitution’s Elections and Electors clauses, which name “the legislature” as the body deciding certain election rules — even though the state constitutions that created those legislatures have for centuries been interpreted by state courts.

The theory doesn’t have any grounding in American legal history. Combined with its potentially massive impact, the fact that the Supreme Court could validate the theory in a landmark case has left some observers searching for their bearings.

“The notion that the legislature should be construed as something divorced from enforcement of the state constitution — and that it should be the federal courts to protect the state legislature from the nasty state courts enforcing the state constitution — is a really bizarre prospect,” said Jon Sherman, litigation director and senior counsel at the Fair Elections Center, which tracks election administration issues and advocates for voting rights.

The article notes that Alito, now the most obvious fascist on the court, along with Thomas and Gorsuch have already shown that they're itching to get their hands on this one.

[goldenvalley]

Jun 8, 2022 15:50:57 GMT LFC said:

Strap in. We're about to hear how hostile right-wing SCOTUS is to democracy. Basically they may lock in minority rule by leveraging both very Republican and highly gerrymandered purple/red states. We may be about to witness the successful overthrow of free and fair elections through the power of packed courts. Moscow Mitch is touching his little turtlehead just thinking about it.

The voting rights legal community is holding its breath these days for the moment when the U.S. Supreme Court formally announces whether it will take a case that could fundamentally transform the way election laws work.

That’s no exaggeration: Election law scholars and litigators have called the debate in question — and its potentially calamitous outcome — the “800-pound gorilla,” “ a point of no return,” “the whirlwind,” and a “Republican blueprint to steal the 2024 election.” If the Court decides the way right-wing politicians would like it to, the result will be a transformed legal landscape for voting rights, affecting everything from gerrymandering to ballot initiatives to challenges over election results.

You may have heard of it before: The so-called “Independent State Legislature” theory, which in its simplest form asserts that state legislatures alone — without the checks and balances of state courts or state executive branch officials like secretaries of state — are in charge of congressional and presidential election rules in their states.

The specific case before the high Court is Moore v. Harper, in which North Carolina’s Republican-controlled legislature argues that the state’s more liberal Supreme Court violated the U.S. Constitution when it struck down some wildly slanted congressional districts.

The U.S. Supreme Court is expected to announce in the next few days whether it will hear the case, which would likely be scheduled for sometime in 2023. The legislature filed unsuccessfully for an emergency pause of the state Supreme Court’s decision earlier this year. And at the time, four justices expressed some openness to the novel legal theory. The idea has popped up in various forms since Bush v. Gore.

The argument relies on a strange reading of the U.S. Constitution’s Elections and Electors clauses, which name “the legislature” as the body deciding certain election rules — even though the state constitutions that created those legislatures have for centuries been interpreted by state courts.

The theory doesn’t have any grounding in American legal history. Combined with its potentially massive impact, the fact that the Supreme Court could validate the theory in a landmark case has left some observers searching for their bearings.

“The notion that the legislature should be construed as something divorced from enforcement of the state constitution — and that it should be the federal courts to protect the state legislature from the nasty state courts enforcing the state constitution — is a really bizarre prospect,” said Jon Sherman, litigation director and senior counsel at the Fair Elections Center, which tracks election administration issues and advocates for voting rights.

The article notes that Alito, now the most obvious fascist on the court, along with Thomas and Gorsuch have already shown that they're itching to get their hands on this one.

Yeah right the state legislatures can do anything they vote yes on.  The concept of checks and balances among the branches of government don't apply to states.  This is up there with the unitary president theory.  Any theory will do as long as the "right people" hold the offices.  If they don't, then it's time for anarchy.

[LFC]

Jun 8, 2022 16:01:21 GMT goldenvalley said:

Yeah right the state legislatures can do anything they vote yes on.  The concept of checks and balances among the branches of government don't apply to states.  This is up there with the unitary president theory.  Any theory will do as long as the "right people" hold the offices.  If they don't, then it's time for anarchy.

It's even more insane than that. The argument is that it is unconstitutional to create checks and balances in a state. The state legislatures have a constitutional right to trample the very state constitution and laws they passed. It is utterly nonsensical on the very face of it but this is now the state of conservative judicial "scholarship." All that's left of it is "what excuse can we make to retain power." Oh, yeah. And 250 years of precedence is for pussies. They know what the Founders really meant.

[LFC]

In a 6-3 decision right-wing SCOTUS just overturned yet another precedent and has provided police who violate somebody's constitutional rights near total immunity from lawsuits. In fact the only recourse for the victim is to report it for investigation by ... yep, you guessed it, the police. American fascism goose steps on.

On Wednesday, the Supreme Court abolished individuals’ ability to sue Customs and Border Protection agents who violate their constitutional rights. In the process, the conservative supermajority came close to smothering lawsuits against all federal officers who defy the Constitution, granting them near-impenetrable immunity. The liberal justices, in dissent, took the extraordinary step of identifying the cause of this disturbing development: the addition of new justices appointed by Donald Trump.

Wednesday’s case, Egbert v. Boule, is the latest and most thorough attack on accountability for federal agents who break the law. The decision arises from a loophole in the federal statute that lets individuals sue law enforcement for damages. This statute authorizes suits against state law enforcement officers who infringe on civil rights. Sheriffs, local cops, highway patrol—all can be sued in federal court for constitutional violations. But the statute does not authorize such suits against law enforcement officers who work for the federal government. If the courts do not provide some measure of accountability, these officers can flout the law with near impunity.

The Supreme Court addressed this problem in 1971’s Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which involved a claim of excessive force against federal narcotics agents. While “the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages,” a majority held, it is “well settled” that “federal courts may use any available remedy to make good the wrong done.” In other words, a right without a remedy is no right at all, so the courts have an obligation to craft one when Congress fails to do so.

Conservative justices have been gunning for Bivens for decades, arguing that it runs afoul of the separation of powers between Congress and the judiciary. In recent years, they’ve come close to victory. The court has insisted that the precedent applies only when the facts of a case are nearly identical to Bivens. So, in theory, when federal agents use excessive force, they can still be sued. But if that force takes place in some “new context” with “special factors”—say, some connection to national security—the suit will fail. And because there is invariably some distinction between two cases, courts usually had an excuse to toss out Bivens claims.

In Egbert, Justice Clarence Thomas replaced this standard with an even more stringent one. Judges hearing Bivens claims, he wrote for the court, should now simply ask “whether there is any reason to think that Congress might be better equipped to create a damages remedy.” He then explained why Congress is always better equipped for this task because it implicates a “range of policy considerations.”

By moving the goalposts, Thomas was able to avoid the reality that this case actually does mirror Bivens in every relevant way. The plaintiff, Robert Boule, owned a bed-and-breakfast (cheekily named the Smuggler’s Inn) on the U.S.-Canada border. He served as an informant for U.S. Immigration and Customs Enforcement, reporting individuals who illegally crossed the border near his property. The defendant, a CBP agent named Erik Egbert, allegedly walked onto Boule’s property without a warrant to investigate a guest. When Boule refused consent to a search, Egbert allegedly lifted him up, threw him against an SUV, then violently threw him to the ground, inflicting serious injuries.

[LFC]

SCOTUS ruled 8-0 on a very narrow claim concerning forced arbitration as a requirement of employment. They avoided and left behind a mess they could have cleaned up.

The Supreme Court handed down an extraordinarily narrow victory for an equally narrow subset of American workers on Monday. The upshot of the Court’s decision in Southwest Airlines v. Saxon is that workers who “frequently” load and unload cargo for airlines can sue their employers.

But it’s worth emphasizing again how narrow the Saxon decision is. Justice Clarence Thomas’s 8-0 opinion for the Court (Justice Amy Coney Barrett was recused from this case) benefits workers who load and unload cargo for airplanes that travel across state lines — and it may benefit no one else. And, if anything, it reaffirms a previous line of anti-worker decisions lionizing a practice known as “forced arbitration,” which allows companies to strip their employees of their right to sue the employer.

In the workplace, forced arbitration occurs when an employer requires its workers to give up their right to sue the company as a condition of their employment. Under the Court’s decisions in Circuit City v. Adams (2001) and Epic Systems v. Lewis (2018), most employers can order their workers to give up this right under pain of immediate termination.

Workers forced into arbitration may still bring any dispute they may have with their employer before a privatized arbitration system, but this system overwhelmingly favors corporate parties. A 2015 study of forced arbitration in the workplace found that workers are about half as likely to prevail before an arbiter as they are to prevail in litigation. And when workers do prevail in arbitration, they are typically awarded about a fifth as much money as a worker who prevails before a judge.
Economic Policy Institute

The decisions enabling forced arbitration in the workplace were wrongly decided. The Federal Arbitration Act of 1925 does require courts to enforce some contracts that provide for arbitration, but not employment contracts with forced arbitration provisions. As the late Justice Ruth Bader Ginsburg explained in a 2015 dissent, the law was enacted to counter “the reluctance of some judges to enforce commercial arbitration agreements between merchants with relatively equal bargaining power.”

Not only was this law never intended to allow employers to force their workers into arbitration, it was never intended to apply to employment contracts at all. The Arbitration Act explicitly exempts employment contracts involving “workers engaged in foreign or interstate commerce.”

Nevertheless, in Circuit City, the Court held that the Arbitration Act applies to nearly all workers — even most workers who are engaged in foreign or interstate commerce, under the Court’s current understanding of “commerce.”

That said, Circuit City did hold that “transportation workers” are exempt from forced arbitration, and the Saxon decision holds that workers who “load and unload cargo” for airlines are transportation workers. So, good for those workers. If you happen to be a worker whose job is to handle cargo for an airline, you should now have the right to sue your employer if they violate your legal rights.

But Saxon gave the Court the opportunity to revisit Circuit City more broadly — and it didn’t take that chance. Circuit City, with its egregious misreading of the Arbitration Act, remains good law. That means that the overwhelming majority of workers may still be victimized by forced arbitration.

Read on about the Circuit City decision. Per the author it effectively successfully argued that there were two separate definitions of "commerce" in the Arbitration Act. W...T...F?

[goldenvalley]

Jun 9, 2022 16:59:47 GMT LFC said:

In a 6-3 decision right-wing SCOTUS just overturned yet another precedent and has provided police who violate somebody's constitutional rights near total immunity from lawsuits. In fact the only recourse for the victim is to report it for investigation by ... yep, you guessed it, the police. American fascism goose steps on.

On Wednesday, the Supreme Court abolished individuals’ ability to sue Customs and Border Protection agents who violate their constitutional rights. In the process, the conservative supermajority came close to smothering lawsuits against all federal officers who defy the Constitution, granting them near-impenetrable immunity. The liberal justices, in dissent, took the extraordinary step of identifying the cause of this disturbing development: the addition of new justices appointed by Donald Trump.

Wednesday’s case, Egbert v. Boule, is the latest and most thorough attack on accountability for federal agents who break the law. The decision arises from a loophole in the federal statute that lets individuals sue law enforcement for damages. This statute authorizes suits against state law enforcement officers who infringe on civil rights. Sheriffs, local cops, highway patrol—all can be sued in federal court for constitutional violations. But the statute does not authorize such suits against law enforcement officers who work for the federal government. If the courts do not provide some measure of accountability, these officers can flout the law with near impunity.

The Supreme Court addressed this problem in 1971’s Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which involved a claim of excessive force against federal narcotics agents. While “the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages,” a majority held, it is “well settled” that “federal courts may use any available remedy to make good the wrong done.” In other words, a right without a remedy is no right at all, so the courts have an obligation to craft one when Congress fails to do so.

Conservative justices have been gunning for Bivens for decades, arguing that it runs afoul of the separation of powers between Congress and the judiciary. In recent years, they’ve come close to victory. The court has insisted that the precedent applies only when the facts of a case are nearly identical to Bivens. So, in theory, when federal agents use excessive force, they can still be sued. But if that force takes place in some “new context” with “special factors”—say, some connection to national security—the suit will fail. And because there is invariably some distinction between two cases, courts usually had an excuse to toss out Bivens claims.

In Egbert, Justice Clarence Thomas replaced this standard with an even more stringent one. Judges hearing Bivens claims, he wrote for the court, should now simply ask “whether there is any reason to think that Congress might be better equipped to create a damages remedy.” He then explained why Congress is always better equipped for this task because it implicates a “range of policy considerations.”

By moving the goalposts, Thomas was able to avoid the reality that this case actually does mirror Bivens in every relevant way. The plaintiff, Robert Boule, owned a bed-and-breakfast (cheekily named the Smuggler’s Inn) on the U.S.-Canada border. He served as an informant for U.S. Immigration and Customs Enforcement, reporting individuals who illegally crossed the border near his property. The defendant, a CBP agent named Erik Egbert, allegedly walked onto Boule’s property without a warrant to investigate a guest. When Boule refused consent to a search, Egbert allegedly lifted him up, threw him against an SUV, then violently threw him to the ground, inflicting serious injuries.

Next up...repeal the Miranda decision?  Cops hate that one too.

[LFC]

Partisan hack SCOTUS continues to destroy America in their quest for a fascist, Christianist state.

The U.S. Supreme Court further reduced the separation of church and state in a ruling on Tuesday endorsing more public funding of religious entities as its conservative justices sided with two Christian families who challenged a Maine tuition assistance program that excluded private religious schools.

In the latest in a series of decisions in recent years expanding religious rights, the justices overturned a lower court ruling that had rejected the families' claims of religious discrimination in violation of the U.S. Constitution, including the First Amendment protection of the free exercise of religion.
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The court's conservative justices were in the majority in the 6-3 ruling authored by Chief Justice John Roberts, with its liberal members dissenting. The decision built upon the court's 2020 ruling in a Montana case that paved the way for more taxpayer dollars to flow to religious schools.

[goldenvalley]

Jun 21, 2022 22:23:36 GMT LFC said:

Partisan hack SCOTUS continues to destroy America in their quest for a fascist, Christianist state.

The U.S. Supreme Court further reduced the separation of church and state in a ruling on Tuesday endorsing more public funding of religious entities as its conservative justices sided with two Christian families who challenged a Maine tuition assistance program that excluded private religious schools.

In the latest in a series of decisions in recent years expanding religious rights, the justices overturned a lower court ruling that had rejected the families' claims of religious discrimination in violation of the U.S. Constitution, including the First Amendment protection of the free exercise of religion.
Advertisement · Scroll to continue

The court's conservative justices were in the majority in the 6-3 ruling authored by Chief Justice John Roberts, with its liberal members dissenting. The decision built upon the court's 2020 ruling in a Montana case that paved the way for more taxpayer dollars to flow to religious schools.

The idea of public school was not just that tax $$ paid for it.  It was that the school was free to all and that it be public, not part of any private secular or otherwise project.  I just don't get why Maine isn't creating high schools in these rural areas.  I guess it seemed easier to cut a check and send the students off to whatever school might be around.