SCOTUS - The Good, The Bad, and The Ugly

[LFC]

North Carolina Republicans are looking to SCOTUS to allow them to throw out their own state constitution in order to lock in their political power. Right-wing partisan hack SCOTUS is likely to twist themselves into a pretzel and provide the outcome they already know they want.

A recent decision by the North Carolina Supreme Court suddenly put one of the U.S. Supreme Court’s biggest cases of this term on shaky ground.

The state court, with its brand new Republican majority, announced that it would rehear the redistricting dispute at the heart of Moore v. Harper, an election law case that experts have warned could reshape how American democracy functions. North Carolina’s old, Democratic-majority bench had tossed out gerrymandered maps produced by the state’s Republican legislature just one year ago, and the Supreme Court had heard oral arguments on the case in December 2022.

In response to the state Supreme Court majority’s decision to rehear the case, the two Democratic justices left on the bench penned a blistering response, calling the move a “power grab” and a “radical break with 205 years of history.”

A new decision by the state court may render moot the case the Supreme Court is currently mulling.

North Carolina legislators had asked the state court to rehear the case, prompting court watchers to ask: Why would these Republicans risk removing the case from the Supreme Court’s hands after they’d managed to get the independent state legislature theory before such a favorable bench?

The theory, in its maximal form, empowers state legislatures to control voting laws, election procedures and redistricting to the exclusion of all other state-level entities, including courts, constitutions and even gubernatorial vetoes.

Some surmised that the legislators were predominantly acting out of self interest: perhaps they’re content to take the favorable district maps, and can leave reshaping how American democracy works for another day.

“The state legislators recognized that the state Supreme Court is likely to do exactly what they want,” Doug Spencer, an associate professor at the University of Colorado Law School, told TPM. “They don’t have grand hopes for the independent state legislature theory, they just want their maps passed.”

“Gerrymandering the legislature itself is probably a bigger motivation for them than the independent state legislature theory,” added Carolyn Shapiro, law professor and founder of Chicago-Kent’s Institute on the Supreme Court of the United States.

[LFC]

The Roberts Court will forever be a stain on American history. Roberts himself shares more than enough blame.

Sen. Elizabeth Warren (D-MA) criticized Chief Justice John Roberts’ fixation on the “fairness” of the Biden administration’s student debt relief plan Thursday, which he and his right-wing peers brought up repeatedly during oral arguments earlier this week.

“When Justice Roberts asks about fairness rather than focusing on statutory interpretation or constitutional issues, he’s becoming a super legislator. That’s not his job,” Sen. Elizabeth Warren (D-MA) told TPM. “It is not the role of the United States Supreme Court to make those judgements.”

“And that means this Court is trying to pull more power into itself and away from the elected officials whose jobs it is to make those decisions,” she added. “This is not about a Court that is promoting small government. This is about a Court that is promoting big court.”

Roberts, joined by Justices Samuel Alito and Neil Gorsuch, repeatedly asked the U.S. Solicitor General about the fairness of the plan, with Roberts conjuring up a hypothetical person who forewent college to start a lawn care business to torque up the sympathy.

The liberal justices pushed back.

“Congress passed a statute that dealt with loan repayment for colleges and it didn’t pass a statute that dealt with loan repayment for lawn businesses — so Congress made a choice,” Justice Elena Kagan said, referring to the 2003 law on which the Biden administration’s proposal is based.

[goldenvalley]

Mar 3, 2023 21:50:52 GMT LFC said:

The Roberts Court will forever be a stain on American history. Roberts himself shares more than enough blame.

Sen. Elizabeth Warren (D-MA) criticized Chief Justice John Roberts’ fixation on the “fairness” of the Biden administration’s student debt relief plan Thursday, which he and his right-wing peers brought up repeatedly during oral arguments earlier this week.

“When Justice Roberts asks about fairness rather than focusing on statutory interpretation or constitutional issues, he’s becoming a super legislator. That’s not his job,” Sen. Elizabeth Warren (D-MA) told TPM. “It is not the role of the United States Supreme Court to make those judgements.”

“And that means this Court is trying to pull more power into itself and away from the elected officials whose jobs it is to make those decisions,” she added. “This is not about a Court that is promoting small government. This is about a Court that is promoting big court.”

Roberts, joined by Justices Samuel Alito and Neil Gorsuch, repeatedly asked the U.S. Solicitor General about the fairness of the plan, with Roberts conjuring up a hypothetical person who forewent college to start a lawn care business to torque up the sympathy.

The liberal justices pushed back.

“Congress passed a statute that dealt with loan repayment for colleges and it didn’t pass a statute that dealt with loan repayment for lawn businesses — so Congress made a choice,” Justice Elena Kagan said, referring to the 2003 law on which the Biden administration’s proposal is based.

Three cheers for Kagan. She hit the nail on the head. And, as I've pointed out to a number of people mouthing off about fairness, law care guy can discharge his loan debt in bankruptcy, but college student borrower cannot.  Another policy choice by Congress. Let's all scream "That's not fair!"

[LFC]

Yet another way that right-wing partisan hack SCOTUS has embraced a judicial theory pulled out of thin air to ignore all precedence that they don't like. They are the ultimate results oriented court with no actual guiding judicial principles, just tools for getting the job done. Here's their latest hackery.

As the Supreme Court weighed the future of President Joe Biden’s student debt relief program, the right-wing justices brought up the same “doctrine” they nearly always do during questions of agency power: the major questions doctrine.

It’s an idea — increasingly embraced and pushed in right-wing legal circles — that courts should require explicit writs of authority delegated by Congress, and not defer to agency interpretation of the laws, when the action the agency wants to take is of “vast economic or political significance.”

If the definition seems squishy, it’s because it is — all the better for a Supreme Court that has handed down decision after decision limiting agency power.

There's a link to a good explanation of the magical appearance of the so-called "major questions doctrine." That sniveling, crying weasel, Brett Kavanaugh, was up to his ears in pushing it.

The Curious Rise of a Supreme Court Doctrine That Threatens Biden’s Agenda

The “major questions doctrine,” promoted by conservative commentators, is of recent vintage but has enormous power and may doom student loan relief and other programs.

It has been only eight months since the Supreme Court first invoked the “major questions doctrine” by name in a majority opinion, using it to limit the Environmental Protection Agency’s power to address climate change. Last week, the court seemed poised to use it again, to kill the Biden administration’s plan to cancel more than $400 billion in student loans.

In dissent in the climate case, Justice Elena Kagan wrote that the majority had engaged in a sleight of hand. When ordinary legal principles fail to thwart disfavored programs, she wrote, “special canons like the ‘major questions doctrine’ magically appear.”

The idea behind the major questions doctrine is that Congress must speak particularly clearly when it authorizes the executive branch to take on matters of political or economic significance. But what makes that idea a doctrine?

A timely new study traces the rapid and curious rise of the major questions doctrine, spurred by conservative scholars and commentators and driven by hostility to administrative agencies.
“The phrase was used just once by any federal judge before 2017, and in only five federal decisions — at any level of court — before 2020,” Allison Orr Larsen, a law professor at William & Mary, wrote in the new study, “Becoming a Doctrine.”

But she added that there had been a lot of other activity aimed at elevating a theory into something concrete and unassailable: a doctrine.

“The word ‘doctrine’ to describe the major questions concept was first used by law professors and then bandied about on blogs, quickly picked up by advocacy groups on Twitter and used as a rallying cry in opinion pieces and programming by those seeking to challenge the administrative state,” she wrote.

“In 2016 — long before it was anointed a ‘doctrine’ by the Supreme Court — the ‘major questions doctrine’ was featured by name in the annual Federalist Society conference,” she wrote, referring to the conservative legal group.

The turning point came in 2017, when Justice Brett M. Kavanaugh, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, used the term in a dissent. “That moment,” Professor Larsen wrote, “seems to have changed the game.”

At Justice Kavanaugh’s Supreme Court confirmation hearings the next year, Senator Amy Klobuchar, Democrat of Minnesota, asked him about the doctrine, calling it “something else that you came up with.”
He responded that the “major questions doctrine is rooted in Supreme Court precedent.” Still, in his 2017 dissent, Justice Kavanaugh conceded that “determining whether a rule constitutes a major rule sometimes has a bit of a ‘know it when you see it’ quality.”

[LFC]

Clarence Thomas continues to prove that he is the most corrupt, unfit Supreme Court justice in modern American history if not all American history.

Conservative Supreme Court Justice Clarence Thomas has been regularly taking luxury trips financed by a billionaire Republican donor for over 20 years, according to a new investigation from ProPublica.

Thomas “virtually every year” has accepted rides on private jets, stays at private resorts, and invitations to hang out on superyachts owned by real-estate mogul Harlan Crow. He hasn’t disclosed any of it, which ethics experts spoken to by ProPublica say could violate a federal law requiring justices to disclose most gifts.

Meanwhile, Thomas has been one of the most conservative justices on a court dominated by conservatives. When the Supreme Court overturned Roe v. Wade last year, Thomas wrote a concurring opinion arguing it should reconsider rulings that established the right to contraception and same-sex marriage. He also made controversial rulings about the 2020 election results while his wife, Ginni Thomas, was pushing conspiracy theories and aggressively lobbying for the results to be overturned.

Crow has given $10 million in public political contributions, ProPublica notes, but there’s no telling how much undisclosed dark money he’s ferried to conservative causes. He’s been a driving force behind the right-wing Club for Growth and sits on the board of multiple conservative groups. He also gave $500,000 to Liberty Central, the Tea Party group founded by Ginni Thomas. Crow claimed in a statement to ProPublica that the hospitality he’s offered Thomas over the years is “no different” than what he has “extended to our many other dear friends.”

[jackd]

When they say his failure to report "could violate a federal law" requiring reporting of gifts, they should have pointed out that there is a substantial argument about whether that law can constitutionally be applied to Supreme Court justices, an issue which would ultimate be decided by the court itself

[goldenvalley]

Apr 6, 2023 16:51:43 GMT jackd said:

When they say his failure to report "could violate a federal law" requiring reporting of gifts, they should have pointed out that there is a substantial argument about whether that law can constitutionally be applied to Supreme Court justices, an issue which would ultimate be decided by the court itself

The Court has no code of ethics. And compliance or noncompliance with disclosure laws is a “technicality” when it comes to an expresident trying to tap dance around his failure to comply. At least to his apologists it is. The same reasoning will apply to Thomas. Anyone could forget to include that in his paperwork…many years in a row.

[LFC]

Apr 6, 2023 17:21:46 GMT goldenvalley said:

 Anyone could forget to include that in his paperwork…many years in a row.

Even someone who "forgot" to report that his wife made $300,000 lobbying against the ACA, which he then decided he could vote on because there was no conflict of interest.

Crooked dirtbags, the both of 'em.

[LFC]

After being caught at not reporting huge luxury gifts of travel and lodging, Thomas turned around and lied about the need to report them.

In a rare public statement, Supreme Court Justice Clarence Thomas responded Friday to a ProPublica report that revealed that Thomas has, for decades, accepted luxury travel from billionaire Republican megadonor Harlan Crow and failed to disclose it.

Thomas’ brief statement acknowledges joining Crow and his wife, who he described as among his “dearest friends,” on “a number of family trips” over the years. He also defended his failure to disclose them.

“Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas said in the statement. “I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.”

But seven legal ethics experts consulted by ProPublica, including former ethics lawyers for Congress and the White House, said the law clearly requires that gifts of transportation, including private jet flights, be disclosed. If Thomas is arguing otherwise, the experts said, he is incorrect.

A Supreme Court spokesperson did not immediately respond to questions for Thomas about the specifics of the advice he was given or who he consulted.

[LFC]

More on the most corrupt and compromised judge in modern American history and perhaps all of American history. This makes it his third failure to disclose money and/or gifts coming from the right-wing.

[LFC]

The legal theory bullshit fascist maneuver of the Independent State Legislature Theory sounds like it may be a bridge to far even for this partisan hackery of a court.

It is often difficult, if not impossible, to tell what the Supreme Court is thinking about a case from the questions the justices ask counsel. But the argument in Moore v. Harper, heard by the Court in early December, was different. By the end, it was clear the Supreme Court has no appetite for the independent state legislature theory—and that offers hope for the future of America’s democracy.

The theory—that state legislatures have the unreviewable power to set the rules of their state’s federal elections—is a dangerous one. The case began when the North Carolina legislature redrew the congressional-districts map that would apply in federal congressional elections and the North Carolina Supreme Court invalidated that map under the state constitution. The state legislators appealed that decision to the U.S. Supreme Court, claiming, under the independent state legislature theory, that the legislature has exclusive power to regulate federal congressional elections, without oversight from the state supreme court under the state’s constitution.

If the U.S. Supreme Court were to adopt this theory, it would foreclose state-supreme-court review of congressional-redistricting maps and other federal-election regulations enacted by the state legislatures, causing mayhem in the state-administered federal elections. Before the argument in Moore, I wrote in The Atlantic that the independent state legislature theory has literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding. And it is antithetical to the Framers’ intent, and to the text, fundamental design, and architecture of the Constitution. This was painfully evident for the proponents of the theory during the three-hour argument before the justices.

The Court seems poised to reject the misnamed independent state legislature theory and hold that redistricting maps are reviewable by the state courts for compliance with their state constitutions, as they have been since the nation’s founding. If the Court attempts to constrain the state supreme courts at all, which it ought not, it will do so by setting a standard of review for those courts to follow when reviewing state election laws. That standard will almost certainly be highly permissive of the state supreme courts, in recognition of the Court’s exceedingly limited role in reviewing state-supreme-court interpretations of their constitutions in the context of elections-clause challenges to state-enacted federal-elections laws.

[LFC]

FFS, this ass clown is corrupt.

Justice Clarence Thomas failed to disclose a 2014 real estate deal he made with a GOP megadonor, according to a ProPublica report published Thursday.

The deal involved the sale of three properties in Savannah, Georgia, that were owned by Thomas and his relatives to the megadonor, Harlan Crow, according to ProPublica, which said that tax and property records showed that Crow made the purchases through one of his companies for a total of $133,363.

But Thomas “never disclosed his sale of the Savannah properties,” the report said, noting that ethics law experts told the outlet that his failure to report it “appears to be a violation of the law.”

“The transaction marks the first known instance of money flowing from the Republican megadonor to the Supreme Court justice,” ProPublica said in its report.

Thursday’s report comes on the heels of a bombshell investigation published last week by ProPublica that detailed Thomas and his wife’s luxury travel with the Crows, which included trips on the donor’s yacht and private jet. The justice also did not disclose that travel, and he later defended the decision not to, saying in a rare statement last week that he was advised at the time that he did not have to report it.

CNN has reached out for comment from the Supreme Court and Thomas.

Crow said in a statement to CNN that he purchased the properties to “one day create a public museum at the Thomas home dedicated to telling the story of our nation’s second black Supreme Court Justice.”

He added that he made the purchases at “market rate based on many factors including the size, quality, and livability of the dwellings.”

Though two of the properties were later sold by Crow, according to his statement, the real estate magnate still owns the property on which Thomas’ elderly mother lives. Citing county tax records, ProPublica said one of Crow’s companies pays the “roughly $1,500 in annual property taxes on Thomas’ mother’s house,” which had previously been paid by the justice and his wife, Ginni.

Experts told ProPublica that Thomas’ failure to disclose the 2014 deal raises more questions about his relationship with Crow.

“He needed to report his interest in the sale,” Virginia Canter, a former government ethics lawyer who now works for Citizens for Responsibility and Ethics in Washington (CREW), told the outlet. “Given the role Crow has played in subsidizing the lifestyle of Thomas and his wife, you have to wonder if this was an effort to put cash in their pockets.”

[LFC]

[LFC]

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[LFC]

I guess we’ll find out what kind of Chief Justice John Roberts really is, one who protects enormous ethical violations and blatant corruption, or one who stands up for the court and Constitution he claims to revere. Will he be man enough to address this head on or will he cower behind his black robe. I guess we’ll find out.

talkingpointsmemo.com/news/durbin-invites-john-roberts-to-sen-ethics-hearing-in-wake-of-dem-calls-to-impeach-thomas

[goldenvalley]

Apr 22, 2023 1:56:51 GMT LFC said:

I guess we’ll find out what kind of Chief Justice John Roberts really is, one who protects enormous ethical violations and blatant corruption, or one who stands up for the court and Constitution he claims to revere. Will he be man enough to address this head on or will he cower behind his black robe. I guess we’ll find out.

talkingpointsmemo.com/news/durbin-invites-john-roberts-to-sen-ethics-hearing-in-wake-of-dem-calls-to-impeach-thomas

Roberts put himself in a tough spot.  He clearly has an agenda to narrow governmental authority especially in the area of voting rights, but he also wants to be a respected jurist.  The current composition of the Court makes it hard to look and act like a respectable jurist these days.

[LFC]

Apr 22, 2023 16:07:40 GMT goldenvalley said:

Roberts put himself in a tough spot.  He clearly has an agenda to narrow governmental authority especially in the area of voting rights, but he also wants to be a respected jurist.  The current composition of the Court makes it hard to look and act like a respectable jurist these days.

Sort of like when John Boehner was trying to look like a sane politician.

[AnBr]

Apr 23, 2023 22:12:25 GMT LFC said:

Sort of like when John Boehner was trying to look like a sane politician.

And after he gave up on such a silly notion:

 

[LFC]

Thomas isn't the only one hiding financial connections. Neil Gorsuch sold a property he had on the market for two years just 9 days after being confirmed by the Senate. He disclosed the profit but not the buyer, who just happens to be the CEO of a law firm that often argues cases before the court. As always, if it's Republican you know it's corrupt.

Now, a new story shows that Thomas isn’t the only one who’s been less than forthcoming on his disclosure forms. Politico reports that Justice Neil Gorsuch, nominated by Donald Trump in 2017, sold a massive property he co-owned to the CEO of a law firm that often argues cases before the court.

The 40-acre Colorado property—including a 3,000 square foot house—had been on the market since 2015, and Greenberg Traurig CEO Brian Duffy bought it just nine days after Gorsuch was confirmed by the Senate. Gorsuch reported making between $250,001 and $500,000 from the sale, but he didn’t disclose the identity of the buyer. The justice has previously disclosed the names of people who’ve given him things like a pair of cowboy boots and a fishing rod, but no name this time. Huh!

Politico went through court records after the sale and found that Gorsuch has been asked to weigh in on at least 22 cases involving the law firm run by the guy who bought his property. And they don’t even know exactly how many times Gorsuch sided with Greenberg Traurig, because not every vote is public, like the votes whether or not to accept a case:

Since then, Greenberg Traurig has been involved in at least 22 cases before or presented to the court, according to a POLITICO review of the court’s docket.

They include cases in which Greenberg either filed amicus briefs or represented parties. In the 12 cases where Gorsuch’s opinion is recorded, he sided with Greenberg Traurig clients eight times and against them four times.

Why is this a problem? Kedric Payne, director of ethics at the nonpartisan Campaign Legal Center, told Politico that he believes “investments in LLCs require more details than the justice includes in his financial disclosures.” Payne added: “This transaction appears to also require naming the buyer. The public has a right to know that justices will fully comply with disclosure rules instead of providing only a tiny peek into their financial disclosures.”

I will state once again that Supreme Court Justices don’t have to follow the same code of ethics that every other federal judge does, and it’s 100 percent their call on whether they recuse themselves from a cases, with no way to appeal a failure to recuse.

It would be a great time for Senate Democrats to do literally anything about this.

[fercer]

I appreciate the time you spent finding that information for me.

[LFC]

Apr 25, 2023 19:39:38 GMT fercer said:

I appreciate the time you spent finding that information for me.

Sadly it requires little research. Just step into the stream and the turds come floating by.

[AnBr]

Bot

[LFC]

John Roberts proved himself to be the coward we all fully expected him to be when it came to testifying about ethics in front of a Senate committee. He whines about people respecting the court but he has done much himself, and his fellow right-wingers even more, to tear that down. The "Roberts Court" will go down in history as wildly radical and brimming with poor decisions and there's nothing he can do to stop that now. This could have gone a little way but he's too cowardly to even stop up and say the obvious, that the behavior of Thomas and Gorsuch should be unacceptable.

[goldenvalley]

Apr 28, 2023 17:23:47 GMT LFC said:

John Roberts proved himself to be the coward we all fully expected him to be when it came to testifying about ethics in front of a Senate committee. He whines about people respecting the court but he has done much himself, and his fellow right-wingers even more, to tear that down. The "Roberts Court" will go down in history as wildly radical and brimming with poor decisions and there's nothing he can do to stop that now. This could have gone a little way but he's too cowardly to even stop up and say the obvious, that the behavior of Thomas and Gorsuch should be unacceptable.

Go

gotta love the Monty Python reference.

I think Roberts was supposed to be the spear head of the Neo-con movement starting in the Bush era.  But then the astro turf Tea Party and later the Trump Cult took power, Trump and Fed Soc were placing judges all over the federal judiciary and on the USSC.  Roberts is out of step with that, still believing in the dignity of the Court which entails not being so obvious about their anti-democratic tendencies.  He is Chief in name only.  He won't work with Kagen and Sotomayor...hurts his conservative soul...and Alito and crew have no use for him and probably won't be guided by him.