SCOTUS - The Good, The Bad, and The Ugly

[LFC]

All objectivity and seriousness has been exorcised from SCOTUS rulings. The right-wing has achieved what they wanted. SCOTUS is now driven by politics, inconsistencies, rejection of any inconvenient precedent, and even alternative facts.

Beyond just overturning a half-century precedent guaranteeing the right to an abortion, during this term, the justices also gutted a 10-year precedent concerning the right to a competent attorney, a 50-year Establishment Clause precedent, and another 50-year precedent allowing people to sue federal law enforcement officers.

In Shinn v. Ramirez, the court ruled that federal courts are prohibited from considering newly-found evidence of a prisoner's innocence, even if the prisoner has proven his attorneys were incompetent in not discovering that evidence at trial or during appeals. Barry Jones, one of the death row prisoners in that case, is likely innocent. The court did not rule that it found Jones’ innocence claims unpersuasive. Instead, it ruled that to even consider the evidence of Jones’ innocence would undermine the state of Arizona’s sovereignty.

It ought to go without saying, but any justice system that willingly ignores evidence of a death row prisoner’s innocence is, fundamentally, illegitimate.

During oral arguments, several justices—including Chief Justice John Roberts, as well as justices Clarence Thomas and Brett Kavanaugh—acknowledged that to rule for Arizona would effectively overturn that precedent. They voted to do so anyway. Two justices—Roberts and Alito—even reversed their own votes from the precedent case, without explanation.

Justice Thomas’ majority opinion also included a critical factual error. Thomas claimed that Barry Jones’ lawyers conceded Jones would lose his state appeals if he isn't allowed to introduce the new evidence of his innocence. Even the state admits Jones never made that concession. But Thomas’ error will make it yet more difficult for Jones to get Arizona courts to rehear his case. Yet the court has refused to correct the error.

Finally, even as the majority ruled that Jones must pay the price for his attorneys’ mistakes, it gave Arizona prosecutors a pass on their own critical mistake. Prosecutors get leniency. Prisoners must be perfect. And if the court itself makes a mistake, well, the prisoner pays for that, too.

Unfortunately, these sorts of errors in enormously consequential opinions aren't uncommon. Perhaps the worst example is a 2002 opinion in which Justice Anthony Kennedy relied on a discredited pop science article about the recidivism rate of sex offenders. That ruling has since been cited by dozens of lower courts across the country to justify a variety of draconian policies, from residency restrictions to indefinite detention. The court has had several opportunities to correct the mistake. It hasn't.

The court has also relied on provably wrong assertions of fact in rulings on no-knock raids, drug dogs, police checkpoints, prosecutorial misconduct, roadside searches, and police brutality. None of these were ever corrected.

The article has more.

[jackd]

As noted the opinion writing is sloppy and apparently unedited. They don't seem to care what anyone thinks about them although they profess the contrary and Thomas blames "the media" and "critics" for the public's lack of respect.

[LFC]

Jul 21, 2022 22:39:54 GMT jackd said:

They don't seem to care what anyone thinks about them although they profess the contrary and Thomas blames "the media" and "critics" for the public's lack of respect.

A Republican blaming "the media" for reporting on what they've done?

[LFC]

The are power mad and out of control. In this case they didn't even feel like they had to justify their order. They simply blocked the power of the Executive Branch. And then they whine that they aren't partisan hacks. What was that about actions speaking louder than words?

In a low-key, one-page order, the Supreme Court on Thursday levied another blow against the Biden administration’s exercise of agency power.

This time, the topic was immigration. The Court, on a 5-4 split, is letting a lower court decision stand that prohibits the Department of Homeland Security from implementing a deportation policy until the Court hears the case this winter. The order included no explanation of the majority’s decision to deny the stay. The government had asked that the administration be allowed to carry out its policy in the meantime.

Justice Amy Coney Barrett joined the three liberals in dissent; it was Justice Ketanji Brown Jackson’s first involvement in a case since she was sworn in last month.

[LFC]

I like Justice Kagan but she's a year behind the curve.

As public confidence in the Supreme Court plummets, Supreme Court Justice Elena Kagan on Thursday warned of the dangers of the high court losing its legitimacy if its decisions are or appear to be motivated by personal politics.

Kagan, one of the Supreme Court’s liberal justices, discussed the public’s increasingly negative view of the court during a judicial conference in Big Sky, Montana; her first public appearance since her conservative colleagues struck down Roe v. Wade.

The justice said that people lose trust in the Supreme Court if it’s perceived as trying to dictate public policy based on the justices’ political ideology.

“I’m not talking about any particular decision or any particular series of decisions,” Kagan said. “But if, over time, the court loses all connection with the public and the public sentiment, that’s a dangerous thing for democracy.”

“We have a court that does important things, and if that connection is lost, that’s a dangerous thing for the democratic system as a whole,” she continued.

However, the justice made it clear she wasn’t arguing that the Supreme Court ought to simply follow public opinion.

“By design, the court does things sometimes that the majority of the country doesn’t like,” Kagan said.

But if the court does so, then people have to be able to trust that it made its unpopular decision as a non-partisan institution, she argued.

“Overall, the way the court retains its legitimacy and fosters public confidence is by acting like a court, is by doing the kind of things that do not seem to people political or partisan,” Kagan said. “By not behaving as though we are just people with individual political or policy or social preferences.”

Kagan said that people are “rightly suspicious” if one justice gets replaced by another “and all of sudden the law changes on you.”

[LFC]

Time to merge this thread with the one about the sickness of Christian politics? The conservatives worried about John F. Kennedy's Catholicism. Once again we see that the thing they accused the other side of doing (taking their marching orders from their religion) is exactly what they've done.

A former leader of a religious right activist group recently admitted on a podcast that the language that Supreme Court Justice Samuel Alito used in his damning majority opinion overturning Roe v. Wade mirrored rhetoric the Christian group has been pushing on Supreme Court justices for decades.

Rev. Rob Schenck recently appeared on an episode of the State of Belief podcast to discuss his efforts as a former member of the group Faith and Action to, essentially, sway justices’ views on social issues through prayer sessions. The interview is from earlier this month, but Politico surfaced it here. It’s worth a listen if you want to get a better understanding of how these unofficial evangelical lobbying-via-prayer efforts work, but it reinforces a theme we covered earlier this summer when an official at the evangelical organization, Liberty Counsel, was caught on a hot mic bragging about secretly praying with Supreme Court justices.

In the Liberty Counsel situation, Peggy Nienaber, who is an executive director there, was heard claiming at an event celebrating Roe’s overturning that she and others associated with Liberty Counsel routinely go into the Supreme Court building to pray with justices. She claimed that her most recent prayer gathering with members of the high court had taken place as recently as the Monday after the Supreme Court overturned Roe.

The Nienaber situation presents a specific conflict of interest not only because Liberty Counsel routinely brings cases before the Supreme Court, but conservative justices even pointed to the group’s amicus brief as it struck down Roe. But more broadly, Schenck’s remarks on the podcast speak to the strategic campaign brought by evangelical and far-right Christian groups over the last several decades to get Roe overturned. In some ways, it’s another layer of the Southern Strategy and Republicans efforts to wed white evangelical voters to the Republican Party, primarily through supporting anti-abortion (aka “pro-life”) causes and policy platforms.

“I can say with a certain level of certainty I don’t think we would have gotten the decision as it is worded from Justice Alito without the work we did,” said Schenck, who was in charge of Faith and Action (now called Faith & Liberty) for almost 20 years.

Faith and Action is an activist organization that has worked for some time to unofficially try to get the ears of various SCOTUS justices, often under the guise of prayer sessions, to embolden them to be supportive of socially conservative causes. Here’s how he described the group’s tactics:

“We were careful,” he said. “You had to observe boundaries with the justices always and even in your language. So, for example, it would be a big no-no to pray something like: ‘Lord, we pray that same sex marriage will never be legalized in America.’ That, that would be too forward. It would be everything from boorish to a technical violation of their quasi-ethical rules.”

Instead the group members would say something like: “Lord, we thank you that justice so-and-so is on the bench when we must defend the sanctity of marriage and the family,” he said.

[LFC]

Clarence Thomas just resigned from a position for which he was supremely unqualified; teaching constitutional law.

Supreme Court Justice Clarence Thomas has withdrawn himself as an instructor at George Washington University Law School for the fall semester, the school confirmed on Wednesday.

“Justice Thomas informed GW Law that he is unavailable to co-teach a constitutional law seminar this fall,” George Washington University spokesperson Josh Grossman said in a statement. “The students were promptly informed of Justice Thomas’ decision by his co-instructor who will continue to offer the seminar this fall.”

The justice’s withdrawal was first reported by the school’s student newspaper, The GW Hatchet.

It’s unclear if Thomas, who has been teaching at GW Law since 2011, will return to his post after the fall: The school does “not have additional information to share regarding Justice Thomas’ teaching availability,” Grossman said.

The school didn’t offer an explanation for Thomas’ decision.

However, thousands of students have demanded GW Law fire Thomas in the wake of the Supreme Court’s decision to overturn Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization case, in which Thomas wrote an alarming concurring opinion suggesting that the high court should revisit other privacy-related cases, like same-sex marriage and contraception rights.

But university officials rejected calls to remove the justice, telling the school community in an email last month that “just as we affirm our commitment to academic freedom, we affirm the right of all members of our community to voice their opinions and contribute to the critical discussions that are foundational to our academic mission.”

My guess is that the class would have been mostly empty, much like Thomas's written opinions.

[pnwguy]

Jul 28, 2022 14:51:30 GMT LFC said:

Clarence Thomas just resigned from a position for which he was supremely unqualified; teaching constitutional law.

Supreme Court Justice Clarence Thomas has withdrawn himself as an instructor at George Washington University Law School for the fall semester, the school confirmed on Wednesday.

“Justice Thomas informed GW Law that he is unavailable to co-teach a constitutional law seminar this fall,” George Washington University spokesperson Josh Grossman said in a statement. “The students were promptly informed of Justice Thomas’ decision by his co-instructor who will continue to offer the seminar this fall.”

The justice’s withdrawal was first reported by the school’s student newspaper, The GW Hatchet.

It’s unclear if Thomas, who has been teaching at GW Law since 2011, will return to his post after the fall: The school does “not have additional information to share regarding Justice Thomas’ teaching availability,” Grossman said.

The school didn’t offer an explanation for Thomas’ decision.

However, thousands of students have demanded GW Law fire Thomas in the wake of the Supreme Court’s decision to overturn Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization case, in which Thomas wrote an alarming concurring opinion suggesting that the high court should revisit other privacy-related cases, like same-sex marriage and contraception rights.

But university officials rejected calls to remove the justice, telling the school community in an email last month that “just as we affirm our commitment to academic freedom, we affirm the right of all members of our community to voice their opinions and contribute to the critical discussions that are foundational to our academic mission.”

My guess is that the class would have been mostly empty, much like Thomas's written opinions.

It’s just that he will be too busy working to take the country back to the 17th century, minus the part where he would be a slave and hung for defiling a white woman.

[LFC]

Now that he's unleashed Alito may be worse than Thomas.

Just Havin’ Some Laffs

In his first public remarks since authoring the majority opinion striking down Roe v. Wade, Supreme Court Justice Samuel Alito mocked international leaders who had slammed the high court’s decision.

• Speaking at a religious liberty summit in Italy last week hosted by Notre Dame Law School, Alito bragged that he “had the honor” of writing what he called “the only Supreme Court decision in history that has been lambasted by a whole string of foreign leaders who felt perfectly fine commenting on American law.”

• The leaders he called out were: French President Emmanuel Macron, outgoing U.K. Prime Minister Boris Johnson, Prince Harry and Canadian Prime Minister Justin Trudeau.

• Sporting a poorly grown beard, Alito also whined about a “growing hostility” to religion, “or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors.”

"Religious liberty summit." Uh, huh. That means freedom to make Christianity the dominate, powerful, governing religion and if you behave you can have your own little religious belief, just make sure you behave.

[LFC]

Democrats have noticed Alito's little theocratic, chest thumping moment.

Rep. Ted Lieu, D-Calif., called out Alito's remarks at the conference, calling him an "embarrassment to the Supreme Court."

"He doesn't understand there are different religions in America," Lieu tweeted. "What makes America great is that we let you practice your faith, change your faith or have no faith at all. Some religions support abortion, some don't."

Rep. Alexandria Ocasio-Cortez, D-N.Y., said that Alito's leaked opinion ahead of the ruling "paired with his politicized remarks" should be "alarming to anyone."

"The Supreme Court is in a legitimacy crisis," she tweeted, calling on Chief Justice John Roberts to get to the bottom of who leaked the draft opinion.

Roberts sought to save Roe and lobbied fellow conservatives to change their vote until the leak upended his attempts just as anti-abortion activists were growing concerned about his efforts, according to CNN.

Other critics also cited Alito's remarks as further evidence of the politicization of the Supreme Court.

"Alito is not just a partisan hack. He is the leader of this partisan and reckless court, and he is a clear and present danger to our basic system of governance and of justice," wrote Norm Ornstein, an Emeritus scholar at the conservative American Enterprise Institute.

"Alito is so extremist far right," quipped former Obama adviser Ben Rhodes, "that his idea of owning the libs is taking shots at Boris Johnson."

[LFC]

Gee. Right-wing partisan hack SCOTUS left us with a confusing shit-show and no guidance. Who coulda' seen THAT coming. Of course for them and the right-wing anti-abortion folks the confusion is a feature, not a bug.

Over the last 48 hours, federal judges have split on a fundamental question determining when doctors have to perform abortions amid medical emergencies, a dispute that could reach the Supreme Court.

On Tuesday, a Texas judge ruled that Biden administration guidance asserting that doctors must perform abortions in emergencies — regardless of state bans — is illegitimate overreach and that the federal law underlying the guidance does not limit the state’s new trigger ban.

A day later, an Idaho judge ruled just the opposite: that the state’s near-total trigger ban, due to come online Thursday, is in impossible conflict with the federal law underlying the administration guidance. The federal law then wins out under the Supremacy Clause.

The Texas judge, Trump appointee James Wesley Hendrix, blocked the Biden guidance from being enforced in Texas and against members of two anti-abortion physician groups nationwide. The Idaho judge, Clinton appointee B. Lynn Winmill, nixed the Idaho abortion ban in so far as it conflicts with the medical care mandated by the Emergency Medical Treatment and Labor Act (EMTALA).

The dispute is unlikely to be settled on appeal. The Idaho case would go to the Ninth Circuit Court of Appeals, long a liberal stronghold, though former President Donald Trump made some inroads with a clutch of appointments. The Texas case would go to the uber-right wing Fifth Circuit. Barring surprises, the Ninth Circuit is likely to uphold Winmill’s ruling, and the Fifth Circuit to uphold Hendrix’s. That could set up a Supreme Court showdown.

Health and Human Services Secretary Xavier Becerra sent the administration’s guidance on EMTALA in July, shortly after the Supreme Court overturned the constitutional right to an abortion (though the government argues that this memo is very similar to the one it sent out last year).

The crux of the memo is this: “If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment. When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

EMTALA applies to every hospital that has an emergency department and participates in Medicare.

The cult of death with a fetus obsession goose steps on.

[jackd]

One or both of those cases will probably reach the Supremes and then we'll find out what they really think. We probably won't like it.

[pnwguy]

Aug 26, 2022 2:34:13 GMT jackd said:

One or both of those cases will probably reach the Supremes and then we'll find out what they really think. We probably won't like it.

Fetus, Fetus, Über Alles...

[LFC]

Republican partisan hack SCOTUS will soon have a chance to open the door to states completely ignoring a number of federal laws and the people impacted in those states wouldn't be able to sue like they can today. The likes of DeSatanist could do anything he wishes when it comes to federal programs that are administered by the states like SNAP.

There’s a sleeper case on the Supreme Court’s docket that could blow a gaping hole in the social safety net and give states leeway to neglect or end care for tens of millions of the most vulnerable Americans.

“This case is to Medicaid what Dobbs was to abortion,” Sara Rosenbaum, professor of health law and policy at George Washington University’s school of public health, told TPM.

And it’s not just Medicaid, though the program enrolling nearly 90 million Americans is the biggest one at risk. This case could leave all of those who depend on federally funded, state-administered programs — think SNAP (formerly known as food stamps) or WIC, which helps low-income pregnant women and mothers with young children buy food — without any recourse, should states stop providing the benefits they’re required to give.

The echoes of Dobbs are eerie.

Here too, the Court’s decision to take up the case surprised and alarmed experts in equal measure. There was no circuit court split, no raging lower court controversy to settle. It was a fairly run-of-the-mill case, not unlike hundreds that had come before. A red state, eyeing the right-wing composition of the Court, calculated that the time was ripe to lodge a bigger ask, to use a pedestrian vehicle to do away with a broader right it opposes. And the justices quietly took it up — dragging behind them a paper trail peppered with their inclination to overturn 50 years of precedent.

Even if it was still a 5-4 split we know that Roberts has a looooong history of deferring to power over individual rights. It's a judicial stance that practically defines him and was well known and discussed when he was still a nominee.

[goldenvalley]

Sept 2, 2022 16:02:50 GMT LFC said:

Republican partisan hack SCOTUS will soon have a chance to open the door to states completely ignoring a number of federal laws and the people impacted in those states wouldn't be able to sue like they can today. The likes of DeSatanist could do anything he wishes when it comes to federal programs that are administered by the states like SNAP.

There’s a sleeper case on the Supreme Court’s docket that could blow a gaping hole in the social safety net and give states leeway to neglect or end care for tens of millions of the most vulnerable Americans.

“This case is to Medicaid what Dobbs was to abortion,” Sara Rosenbaum, professor of health law and policy at George Washington University’s school of public health, told TPM.

And it’s not just Medicaid, though the program enrolling nearly 90 million Americans is the biggest one at risk. This case could leave all of those who depend on federally funded, state-administered programs — think SNAP (formerly known as food stamps) or WIC, which helps low-income pregnant women and mothers with young children buy food — without any recourse, should states stop providing the benefits they’re required to give.

The echoes of Dobbs are eerie.

Here too, the Court’s decision to take up the case surprised and alarmed experts in equal measure. There was no circuit court split, no raging lower court controversy to settle. It was a fairly run-of-the-mill case, not unlike hundreds that had come before. A red state, eyeing the right-wing composition of the Court, calculated that the time was ripe to lodge a bigger ask, to use a pedestrian vehicle to do away with a broader right it opposes. And the justices quietly took it up — dragging behind them a paper trail peppered with their inclination to overturn 50 years of precedent.

Even if it was still a 5-4 split we know that Roberts has a looooong history of deferring to power over individual rights. It's a judicial stance that practically defines him and was well known and discussed when he was still a nominee.

Medicaid combined with Obamacare provisions have allowed millions of people to have health insurance.  Many of them live in red states.  What is with these red state people who want to end it?  Do they like having the worst health outcomes in the country?

Krugman in NYT asks the question "Can you drown the government in a bathtub if you can’t even fill the bathtub?" in reference to Jackson MS break down of water treatment.  Seemed apropos to mention it here.

[LFC]

SCOTUS is still bent out of shape about their assault on Roe being leaked. I guess the most political majority that SCOTUS has seen in my lifetime hates it when political maneuvers go both ways.

Stay Tuned

The Supreme Court’s investigation into the stunning leak of SCOTUS’ opinion draft dismantling Roe is still underway, Supreme Court Justice Neil Gorsuch told attendees at a judicial conference yesterday.

• Gorsuch said the findings of the investigation will be outlined in an official report that’ll hopefully be completed “soon.”

• The justice didn’t say whether the report would be released publicly.

• Gorsuch also echoed other justices’ suggestion that the leaker was trying to manipulate the final decision in the Dobbs case. We’ll almost certainly never know for sure whether the leaker did meaningfully impact the high court’s final decision, but the leak did reportedly scuttle Supreme Court Chief Justice John Roberts’ (long-shot) efforts to convince justices Brett Kavanaugh and Amy Coney Barrett not to kill Roe entirely.

[goldenvalley]

Sept 9, 2022 17:41:59 GMT LFC said:

SCOTUS is still bent out of shape about their assault on Roe being leaked. I guess the most political majority that SCOTUS has seen in my lifetime hates it when political maneuvers go both ways.

Stay Tuned

The Supreme Court’s investigation into the stunning leak of SCOTUS’ opinion draft dismantling Roe is still underway, Supreme Court Justice Neil Gorsuch told attendees at a judicial conference yesterday.

• Gorsuch said the findings of the investigation will be outlined in an official report that’ll hopefully be completed “soon.”

• The justice didn’t say whether the report would be released publicly.

• Gorsuch also echoed other justices’ suggestion that the leaker was trying to manipulate the final decision in the Dobbs case. We’ll almost certainly never know for sure whether the leaker did meaningfully impact the high court’s final decision, but the leak did reportedly scuttle Supreme Court Chief Justice John Roberts’ (long-shot) efforts to convince justices Brett Kavanaugh and Amy Coney Barrett not to kill Roe entirely.

I'm surprised.  One of their own did it...someone within the Court or who works for the Court and has access to draft opinions.  Are they going on offense thinking to pin it on Sotomayor or Kagan?

[LFC]

TPM covered 5 big cases coming up before SCOTUS that can allow the partisan hack wing to destroy yet more precedents. They really are bent on recreating the entire American judicial system in their own image.

[LFC]

The praying coach case is even worse than I realized. Alito continues to be a louder version of Clarence Thomas, completely results oriented and totally dismissive of not just the law and precedent but, as this case shows, even the most basic facts of a case. This is what religious zealotry yields. People who lie and are fundamentally dishonest for Jeebus.

It’s an increasingly surreal situation for the Bremerton schools. They were ordered to “reinstate Coach Kennedy to a football coaching position,” according to court documents. But the now-famous coach is out on the conservative celebrity circuit, continuing to tell a story about “the prayer that got me fired” — even though Bremerton never actually fired him.

In 2015, he was put on paid leave near the end of the season after holding a series of prayer sessions on the field with students and state legislators. He still got paid for his full assistant coach contract, about $5,000. High school assistants often work on yearly deals, and Kennedy, at odds with the head coach and aggrieved by what had happened, never reapplied to work the 2016 season.

“He was not terminated,” Bevers said. The head coach at the time had moved on, as did most of the coaching staff.

This did not stop Kennedy’s lawyers from telling the Supreme Court repeatedly that he was fired.

“The record is clear that Coach Kennedy was fired for that midfield prayer,” lawyer Paul Clement told the nine justices in the first 15 seconds of the oral arguments of the case in April. The words “fired,” “fire” or “firing” were used 16 times in the hour and a half session.

It wasn’t true though. The district’s lawyers tried to correct the record, to no avail.

“You can’t sue them for failing to rehire you if you didn’t apply,” one lawyer, Mercer Island’s Michael Tierney, argued during a lower court session. “The District didn’t get an application from him, had four positions to fill and filled them with people who had applied. It didn’t fail to rehire him.”

The Supreme Court simply ignored this inconvenient fact — along with a host of others. At one point during oral arguments, as a different school district attorney was saying the narrative that had been spun didn’t fit with the facts — that the coach’s prayers were neither silent nor solitary, nor was he fired — Justice Samuel Alito interrupted him, saying “I know that you want to make this very complicated.”

Alito persisted in asking about the coach being fired — six times he said it, to the point that the lawyer finally corrected him. Which is a touchy thing to do with a Supreme Court justice.

“It’s not a question of firing, and in fact, he was put on paid leave,” the lawyer pleaded, fruitlessly, to Alito.

In the end, it all was too complicated. The effect of the court’s order is that Bremerton has to reinstate someone who didn’t apply for the job then and doesn’t appear eager for it now. It’s as if the justices wanted to script an ending for a Christian redemption movie. But real life isn’t cooperating.

[LFC]

Right-wing partisan hack SCOTUS may be lining up to destroy all oversight of block grants to states. At that point block grants will be nothing more than complete and total (as compared to partial) political slush funds.

House Speaker Nancy Pelosi (D-CA) and other high-profile Democrats filed an amicus brief in Health and Hospital Corporation of Marion County v. Talevski Friday, the case barrelling towards oral arguments that could leave beneficiaries of major programs like Medicaid with little recourse should states neglect their care.

The Democratic members include House Majority Leader Steny Hoyer (D-MD), Rep. Jim Clyburn (D-SC) and Sens. Sherrod Brown (D-OH), Bob Casey (D-PA), Patty Murray (D-WA) and Dick Durbin (D-IL), many of whom serve on committees with authority over programs like Medicaid.

“Disturbing this Court’s Section 1983 doctrine more broadly—by curtailing Congress’ ability to permit private enforcement of Spending Clause legislation and the programs established by that legislation—would have disastrous consequences,” they write.

Section 1983 is the federal statute under which beneficiaries can sue in federal court if states violate their rights under spending programs like Medicaid.

They add that it would leave federal-state programs with “modest oversight” and would “egregiously undermine Congress’ purpose in enacting these statutes.”

“Neither federal nor state authorities have sufficient resources to provide complete oversight over the funding funneled into state programs,” the Democrats write. “Instead, their attention must often be dedicated to remedying systemic abuses, while preserving the option for aggrieved persons to seek individual remedies in federal court.”

The Democrats also frame the case as a potential impingement on the separation of powers, along with an overturning of 40 years of precedent.

“The Court should recognize that Congress—not the Court—has responsibility for legislating the enforcement and oversight of Spending clause statutes,” they write, adding that it would create an enormous administrative burden if the Court were to nix 1983 actions.

The conservative majority, in recent cases, has often argued that Congress wasn’t clear enough in its legislation — an extension of the increasingly in-vogue conservative theories of the major questions and nondelegation doctrines, which require granular specificity from Congress when granting authority to agencies.

[LFC]

Great job, right-wing partisan hack SCOTUS! Not that you really care other than not liking the fact that people aren't afraid to call you out on your bullshit. And Alito can go f*** himself.

SCOTUS’ Crumbling Legitimacy By The Numbers

Americans’ trust in the Supreme Court is plummeting to historic lows, according to a new Gallup poll, which notes that people’s opinions of the high court overall in terms of trust, job approval and confidence are “the worst they have been in 50 years of polling.”

• 47 percent say they have a “great deal” or “fair amount” of trust in SCOTUS, the lowest number recorded. It’s a staggering 20-point drop from 2020.

• SCOTUS’ job approval figures are astonishingly terrible too: Disapproval is at 58 percent, an all-time high.

• People are seeing the right-wing partisan hackery that’s infected the high court: A record high number of Americans say SCOTUS is “too conservative.”

• But don’t you dare suggest the high court is losing its legitimacy, or else Supreme Court Justice Samuel Alito will wag his finger at you for crossing what he calls “an important line.”

[LFC]

Right-wing partisan hack SCOTUS is at it again, trying to destroy minority voting rights while ignoring actual originalism. Alito is, as usual, the head of the "nothing anybody before me ever decided matters" brigade. KBJ shoved his hypocrisy into his smug little face, but since he has no ethics or morality I'm sure it won't remotely budge him.

Read the whole thread but here she is in action. Sotomayor followed up.

Justice Jackson tells the Alabama solicitor general that the Framers of the 14th Amendment did NOT intend it to be “race neutral or race blind,” so taking race into account to protect minority voting rights is perfectly constitutional. Progressive originalism at work.

More KBJ: The 14th Amendment "was drafted to give a constitutional foundation for a piece of legislation" that used "race-conscious" remedies to make Freedman equal to white citizens. So how could the Voting Rights Act's race-conscious remedies possibly be unconstitutional?

For decades, conservative justices insisted the 14th Amendment demands a "color blindness," prohibiting race-conscious remedies designed to help racial minorities.

KBJ just directly challenged this claim on originalist grounds, arguing that it gets the history dead wrong.

Justice Sotomayor, gloves off: "Justice Alito gave the game away ... The point that he's making turns Section 2 [of the VRA] on its head because there's no such thing as racial neutrality in Sec. 2. It's explicitly saying that a protected group must be given equal participation."

[goldenvalley]

Oct 5, 2022 0:53:00 GMT LFC said:

Right-wing partisan hack SCOTUS is at it again, trying to destroy minority voting rights while ignoring actual originalism. Alito is, as usual, the head of the "nothing anybody before me ever decided matters" brigade. KBJ shoved his hypocrisy into his smug little face, but since he has no ethics or morality I'm sure it won't remotely budge him.

Read the whole thread but here she is in action. Sotomayor followed up.

Justice Jackson tells the Alabama solicitor general that the Framers of the 14th Amendment did NOT intend it to be “race neutral or race blind,” so taking race into account to protect minority voting rights is perfectly constitutional. Progressive originalism at work.

More KBJ: The 14th Amendment "was drafted to give a constitutional foundation for a piece of legislation" that used "race-conscious" remedies to make Freedman equal to white citizens. So how could the Voting Rights Act's race-conscious remedies possibly be unconstitutional?

For decades, conservative justices insisted the 14th Amendment demands a "color blindness," prohibiting race-conscious remedies designed to help racial minorities.

KBJ just directly challenged this claim on originalist grounds, arguing that it gets the history dead wrong.

Justice Sotomayor, gloves off: "Justice Alito gave the game away ... The point that he's making turns Section 2 [of the VRA] on its head because there's no such thing as racial neutrality in Sec. 2. It's explicitly saying that a protected group must be given equal participation."

Wow KBJ is an originalist too! She, Sotomayor, and Kagan will be writing great dissents that will reassure some of us that real brains and talent can exist in the judicial world.  

[LFC]

From the Atlantic:

There Is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory

Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.

The Supreme Court will decide before next summer the most important case for American democracy in the almost two and a half centuries since America’s founding.

In Moore v. Harper, the Court will finally resolve whether there is a doctrine of constitutional interpretation known as the “independent state legislature.” If the Court concludes that there is such a doctrine, it would confer on state legislatures plenary, exclusive, and judicially unreviewable power both to redraw congressional districts for federal elections and to appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the states. It would mean that the partisan gerrymandering of congressional districts by state legislatures would not be reviewable by the state courts—including the states’ highest court—under their state constitutions.

Such a doctrine would be antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution.

The independent-state-legislature theory gained traction as the centerpiece of President Donald Trump’s effort to overturn the 2020 presidential election. In the Supreme Court, allies of the former president argued that the theory, as applied to the electors clause, enabled the state legislatures to appoint electors who would cast their votes for the former president, even though the lawfully certified electors were bound by state law to cast their votes for Joe Biden because he won the popular vote in those states. The Supreme Court declined to decide the question in December 2020. The former president and his allies continued thereafter to urge the state legislatures, and even self-appointed Trump supporters, to transmit to Congress alternative, uncertified electoral slates to be counted by Congress on January 6.

That as many as six justices on the Supreme Court have flirted with the independent-state-legislature theory over the past 20 years is baffling. There is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature that would foreclose state judicial review of state legislatures’ redistricting decisions. Indeed, there is overwhelming evidence that the Constitution contemplates and provides for such judicial review.

This is nothing more than a nakedly partisan attack on states from going purple or, God(tm) forbid, allowing a majority to turn a state blue. There's nothing more to it than that.

[LFC]

So much for not causing chaos right before an election.

To hear them tell it, the Supreme Court justices are very concerned about injecting chaos into an election cycle by upending or approving changes to how voting operates just before people head to the polls.

It’s called the Purcell principle, and it’s been cropping up a lot lately. See Justice Brett Kavanaugh in striking down a lower court order that the Alabama legislature must produce a replacement for its racially gerrymandered congressional maps well over three months before the primaries:

“Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates, political parties, and voters, among others,” Kavanaugh wrote. “It is one thing for a State on its own to toy with its election laws close to a State’s elections. But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election.”

Such concern did not seem to influence the justice, or most of his colleagues, in their decision to nullify a lower court ruling from May with direct bearing on the upcoming elections.

The majority on Tuesday voted to moot a ruling from the United States Court of Appeals for the Third Circuit that Pennsylvania absentee ballots missing a date from their outer envelopes must still be counted. Justices Sonia Sotomayor and Ketanji Brown Jackson would not have granted the writ of certiorari, per the order.

The high court’s decision will fling wide the doors to lawsuits in the days before Pennsylvania hosts high-stakes Senate and gubernatorial elections. Based on prior behavior, and the fact that Pennsylvania Democrats voted by mail much more than their Republican counterparts did in the 2020 election, Republicans will likely try to block undated ballots from being counted, while Democrats will fight to have them included.