SCOTUS - The Good, The Bad, and The Ugly

[LFC]

Employer vaccine mandate is killed but the mandate for healthcare workers survived ... for now.

The Supreme Court blocked a Biden administration rule requiring workers at large employers be vaccinated or receive regular COVID-19 tests on Thursday.

But the high court let a separate mandate affecting health care workers stay in force pending further arguments. That ruling affects health care workers at facilities that receive funding from Medicare and Medicaid, a population of around 17 million.

The employer order would have covered 80 million people.

The employer mandate, enacted by the Occupational Safety and Health Administration (OSHA), fell in a 6-3 decision. The health care worker mandate survived in a 5-4 ruling.

In OSHA, the court found that the mandate likely exceeded the agency’s authority.But in keeping the rule from being enforced, the majority — conservative justices — treaded further into vaccine-skeptical language.

The court described the rule as “a significant encroachment into the lives — and health — of a vast number of employees,” without mentioning the lives — and health — of employees working adjacent to the unvaccinated.

The court added that because COVID-19 is so ubiquitous in the United States, it is not OSHA’s place to impose a mandate for a hazard that does not exist solely in the workplace.

“That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases,” the ruling reads. “Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

[jackd]

Their target is the regulatory agency system itself. Trump/McConnell's damage to our governmental system is and will continue to be immense.

[LFC]

Republicans and their corporate owners want the race to the bottom. They're not crazy about the whole insurrection and violence thing since that can blow back but a return to the pre-regulatory 19th century is a wet dream for them.

[LFC]

I don't wish death on people lightly but I hope Neil Gorsuch dies from COVID. He deserves it.

Supreme Court Justice Neil Gorsuch refuses to wear a mask on the bench, even after being asked to by Chief Justice John Roberts in light of Justice Sonia Sotomayor’s underlying condition, according to NPR.

Sotomayor has diabetes, which increases her risk of serious complications should she contract the virus. She started calling into oral arguments from her chambers in recent weeks, and reportedly has been calling into the justices’ weekly conference. She and Gorsuch sit next to each other on the bench.

But hey, he's a "Christian."

[LFC]

This is a good, accessible tear-down of Republicans SCOTUS's ruling on workplace COVID mandates. They really are the activist judges the Republicans used to complain about, creating new and unique justifications for what they want their end ruling to be.

Such is the case with the court’s latest ruling. The six Republican justices could have said to themselves, “Gee, the pandemic is bad. It’s killing a lot of people. Maybe we shouldn’t second guess the people who know what they’re talking about when it comes to public health.”

Nah.

The court instead decided to second guess the Occupational Safety and Health Administration. The White House had tried to implement the president’s vaccine-or-test mandate via OSHA’s statutory authority to regulate workplace safety. The mandate would have affected employers with over 100 workers, or about 100 million people.

The Republicans justices make-believed they were public health experts. The covid, though it continues to rage through the workplace, isn’t an occupational hazard, they said. Why? It exists, like other hazards in life, outside the workplace. Therefore, OSHA doesn’t have the statutory authority the Biden administration says it has.

This is stupid, according to Josh Chafetz, professor of law at Georgetown and author of Congress’s Constitution: Legislative Authority and the Separation of Powers. (“Stupid” wasn’t his word, though.) Air exists outside the workplace. So does water. Yet OSHA regulates them. This is what happens when justices make-believe.

It gets worse.

[jackd]

They are really about tearing down the regulatory agency process.

[goldenvalley]

Jan 19, 2022 1:41:16 GMT jackd said:

They are really about tearing down the regulatory agency process.

Any collection of words will do to further the destruction.  They don't have to have a logical reason.  

[jackd]

To put a cap on it, "Justice" Gorsuch refuses wear a mask at hearings despite Chief Justice Roberts' request to protect Justice Sotomayor, who is diabetic and therefore vulnerable to Covid. Simply stated, he's an asshole.

[LFC]

Jan 19, 2022 1:41:16 GMT jackd said:

They are really about tearing down the regulatory agency process.

The regulatory agency process in charge of stopping externalization of costs. Just wait until they hear regular agency cases where Christianism gets to control other people's lives. Right-wing SCOTUS will be all in.

[LFC]

SCOTUS denied Trump's attempt to keep his records sealed. The vote was 8-1. Want to guess who the one was? Yeah, he's not even trying to justify is rank partisan hackery anymore.

The Supreme Court refused a request on Wednesday from former President Trump to block a Jan. 6 Committee subpoena for records about the Capitol insurrection.

It was a 8 – 1 ruling, with Justice Clarence Thomas the only dissenter.

If the question considered was broader Kavanaugh said he would have sided with creating an entire new presidential right which would provide protection for any lawlessness. What a legal mind.

In a statement, Justice Kavanaugh said that had the court faced Trump’s executive privilege issue, he would have voted to extend that authority to Trump. Justice Thomas did not explain his dissent.

Kavanaugh’s view, if put into practice, would go a long way towards ending accountability for former presidents, effectively allowing them to shield records from investigations examining alleged wrongdoing during their time in office.

[goldenvalley]

Jan 20, 2022 14:58:01 GMT LFC said:

SCOTUS denied Trump's attempt to keep his records sealed. The vote was 8-1. Want to guess who the one was? Yeah, he's not even trying to justify is rank partisan hackery anymore.

The Supreme Court refused a request on Wednesday from former President Trump to block a Jan. 6 Committee subpoena for records about the Capitol insurrection.

It was a 8 – 1 ruling, with Justice Clarence Thomas the only dissenter.

If the question considered was broader Kavanaugh said he would have sided with creating an entire new presidential right which would provide protection for any lawlessness. What a legal mind.

In a statement, Justice Kavanaugh said that had the court faced Trump’s executive privilege issue, he would have voted to extend that authority to Trump. Justice Thomas did not explain his dissent.

Kavanaugh’s view, if put into practice, would go a long way towards ending accountability for former presidents, effectively allowing them to shield records from investigations examining alleged wrongdoing during their time in office.

If the president does it, it's legal!  I think Richard Nixon would have liked this idea.

[pnwguy]

Jan 20, 2022 16:38:24 GMT goldenvalley said:

If the president does it, it's legal!  I think Richard Nixon would have liked this idea.

"I can grab whatever p*ssy in the White House I want.  No Tic Tacs required."

[pnwguy]

If Congress can borrow a guillotine from a French museum, I imagine they would be happy to grant Trump some novocaine.

[LFC]

The anti-abortion wing of SCOTUS continues to support the Texas vigilante law by dragging its feet.

The Supreme Court denied a motion by abortion rights advocates challenging Texas’ restrictive new abortion law Thursday. The motion would have moved the case to federal district court, which advocates had hoped for because a judge there had previously blocked the law and because it would speed up the challenge. As the case now stands, the challenge likely faces months of delays before being heard by the high court. Justice Sonia Sotomayor wrote in her dissent Thursday, “The law immediately devastated access to abortion care in Texas through a complicated private bounty-hunter scheme that violates nearly 50 years of this Court’s precedents.” Texas has banned all abortions beyond six weeks, before many women know they’re pregnant, and deputized private citizens to sue anyone who aids in giving an illegal abortion.

[LFC]

Citizens United apparently didn't go far enough and it appears that right-wing SCOTUS is going to allow candidates to personally profit off their donors through the use of shady "loans." It's also a wide open road to legally bribing officials once they've won their election.

The case is Federal Election Commission v. Ted Cruz for Senate, and it involves a federal law intended to prevent campaign donors from putting money directly into the pockets of elected officials. Specifically, the law permits candidates to loan money to their own campaigns, but forbids the campaign from repaying more than $250,000 of that loan from funds raised after the election takes place.

Typically, federal law draws a sharp line between money donated to a campaign, which can only be spent on the election effort, and money given directly to a candidate, which is ordinarily not allowed. But loan repayments exist in a gray area between these two kinds of donations. Yes, money repaid to a candidate ostensibly just reimburses that candidate for money they fronted during the campaign. But any dollar given by donors to repay such loans still goes into the pocket of a former candidate who may very well be a powerful elected official by the time they receive the money.

Without a cap on loan repayments, elected officials with clever accountants could profit off of their donors. In 1998, for example, Rep. Grace Napolitano (D-CA) made a $150,000 loan to her campaign at 18 percent interest (though she later reduced that interest rate to 10 percent). By 2009, she’d reportedly raised $221,780 to repay that loan, meaning that she earned at least $71,000 in profits.

Thus, should this challenge to the repayment cap succeed — and it appears overwhelmingly likely to succeed — elected officials could potentially make enormous loans to their campaigns at high interest rates, and then use those loans as a vehicle to accept bribes from lobbyists and other donors who want to trade money for access to the official.

[LFC]

Vox provides some insight into the machinations of the right-wing activist justices. As the subtitle says, "The Court is barely even pretending to be engaged in legal reasoning." Bold mine.

On Thursday, the Supreme Court handed down a pair of unsigned opinions that appear to be at war with each other.

The first, National Federation of Independent Business v. Department of Labor, blocks a Biden administration rule requiring most workers to either get vaccinated against Covid-19 or to routinely be tested for the disease. The second, Biden v. Missouri, backs a more modest policy requiring most health care workers to get the vaccine.

There are some things that differentiate the two cases. Beyond the fact that the first rule is broader than the second, the broader rule also relies on a rarely used provision of federal law that is restricted to emergencies, while the latter rule relies on a more general statute.

But the Court gives little attention to substantive differences between the laws authorizing both rules. Instead, it applies an entirely judicially created doctrine and other standards in inconsistent ways. The result is two opinions that are difficult to reconcile with each other.

The NFIB case relies heavily on something known as the “major questions doctrine,” a judicially invented doctrine which the Court says places strict limits on a federal agency’s power to “exercise powers of vast economic and political significance.” As the NFIB opinion notes, the vaccinate-or-test rule at issue in NFIB applies to “84 million Americans” — quite understandably a matter of vast economic significance.

But, if this manufactured doctrine is legitimate, then it’s not at all clear why it doesn’t apply with equal force in both cases. As Justice Clarence Thomas points out in a dissenting opinion in the Missouri case, the more modest health workers’ rule “has effectively mandated vaccination for 10 million healthcare workers.” That’s still an awful lot of Americans!

What if the Biden administration had pushed out a rule requiring 20 million people to get vaccinated? Or 50 million? The Court does not tell us just how many millions of Americans must be impacted by a rule for it to count as a matter of “vast economic and political significance.” And it’s hard to draw a legally principled distinction between 10 million workers and 84 million.

Similarly, in NFIB, the Court notes that the agency which created the broad rule at issue in that case is the Occupational Safety and Health Administration (OSHA) which, as its name suggests, deals with health threats that arise in the workplace, and Covid-19 is not unique to the workplace. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather,” the majority opinion notes.

But, as the three liberal justices point out in dissent, OSHA regulates threats that exist both inside and outside the workplace all the time, including “risks of fire, faulty electrical installations, and inadequate emergency exits.” It’s not at all clear why Covid-19 is any different. And the only explanation that the majority opinion gives — that a vaccination “cannot be undone at the end of the workday,” unlike the donning of fire-safety gear — applies with equal force to both the OSHA rule and the narrow health worker’s rule that the Court refused to block. Doctors’ vaccinations can’t be undone any more than an office worker’s can be.

The Court, in other words, appears unable to articulate a principled reason why some vaccination rules should stand and others should fall.

And they don't care. Contra Barrett and others they really are "partisan hacks."

[LFC]

We'll never see it happen but there are calls for Clarence Thomas's impeachment over his wide ranging conflicts of interest. His wife brings in the fat cash for the two of them to enjoy, the issue she fights for comes before SCOTUS, and the long corrupt Clarence rules in an out of step fashion breaking for the cause his wife was paid to lobby for. If this was a liberal justice the Republicans would be calling for their head, and rightly so.

Democrats must take action against Supreme Court Justice Clarence Thomas for flouting judicial ethics as his wife pushes extremist Republican politics.

"In a sane world, Jane Mayer’s excellent piece on Ginni Thomas in The New Yorker would set off a series of events that would lead to her husband Clarence Thomas’s impeachment and removal from the Supreme Court. Ginni is involved with numerous far-right organizations and schemes that take very public positions on Court decisions across a range of social and political issues, such as last week’s 8-1 holding that Donald Trump could not block the release of documents related to the January 6 insurrection," New Republic editor Michael Tomasky wrote. "Thomas was the lone dissenter in that case. His wife sat on the advisory board of a group that sent busloads of insurrectionists to Washington that day. In addition to that, she cheered the insurrection on Facebook."

Tomasky argued that the corruption had been going on for decades.

"They’ve been doing this for years. This first came up back in 2000, in a case Mayer doesn’t even go into, when it was revealed after that election that as a Heritage Foundation staffer, Ginni was screening resumes for the incoming Bush administration while the nation awaited a ruling from the Court on the Florida recount. There was pressure then on Thomas to recuse himself," he wrote.

While the Supreme Court was deciding Obamacare, Ginni Thomas' group Liberty Central was urging the law to be repealed and Clarence Thomas was urged to recuse himself.

"He didn’t do so in either case. And in the first one, he was part of the 5-4 majority in Bush v. Gore, one of the most self-discrediting decisions in the Court’s history," he explained. "So for 20 years, Ginni Thomas has been operating in the white-hot center of far-right activist circles, involved in everything from Obamacare to abortion rights to same-sex marriage to you name it—all issues that have come before her husband. A more honorable man would recuse himself from all such cases, or indeed quietly ask his spouse to find another, less incendiary line of work that has no impact on the appearance of her husband’s ethical standards."

Thomasky wrote that if there were a liberal justice acting in a similar manner, Republicans in Congress would raise the issue and Fox News would turn it "into a symbol of liberal corruption." He suggested the GOP would hold hearings and ultimately impeach the justice.

[LFC]

There's an analysis at Reuters of the partisanship and willingness to ignore previous judicial practices of right-wing SCOTUS. This looks to be the most activist court in our lifetimes.

The court has become increasingly assertive since the addition of former President Donald Trump's third appointee, Amy Coney Barrett, in 2020 gave the nation's top judicial body a 6-3 conservative majority. Her appointment changed the court's dynamics by marginalizing Chief Justice John Roberts, considered an incrementalist conservative.

"This particular six-justice majority seems willing to push ahead in an aggressively conservative direction on multiple fronts, without feeling the need to be moderated by concepts of judicial restraint, stare decisis or incrementalism," said Elizabeth Wydra, president of the liberal Washington-based Constitutional Accountability Center advocacy group.

Stare decisis is the legal doctrine of respecting precedents.

Based on oral arguments held last year, the court's conservatives seem poised, in a case from Mississippi, to undermine or even overturn the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide and, in a case from New York, expand the right to carry firearms in public.

The court's increasingly aggressive stance toward taking up new cases signals an emboldened majority accelerating its rightward shift, court watchers said.

More on the push.

'POLITICAL APPEARANCE'

Four justices are needed in order for the court to take up a case. And it has at least that many who are undeterred by being perceived as political actors, said University of Denver political science professor Joshua Wilson, who specializes in conservative law and politics.

"Given the political appearance of the docket that they're putting together, it's all the more remarkable given that they have to know how much the public is paying attention," Wilson said.

The role of Roberts, who has sought to defend the court as an institution and has avoided quick and dramatic moves, has been diminished, with the conservative bloc able to prevail in rulings even if he sides with the liberal justices. Roberts served as the court's swing vote after Kennedy retired in 2018 and before Barrett replaced the late liberal Justice Ruth Bader Ginsburg two years later.

"When Roberts was the median (justice), even the four justices to his right were worried about where he would end up," said John McGinnis, a professor at Northwestern University School of Law in Illinois.

The justices now seem keen to dive in - sometimes even before lower courts have fully considered cases - as they did in multiple challenges to Trump administration policies blocked by lower courts.

[pnwguy]

Justice Breyer is retiring so Biden can get a replacement with a Democratic Senate.

If Sinemanchin f*cks this up, we are doomed. We need to send vitamins to every Democratic senator there is. This is not the time to croak.

[goldenvalley]

Jan 26, 2022 17:33:59 GMT pnwguy said:

Justice Breyer is retiring so Biden can get a replacement with a Democratic Senate.

If Sinemanchin f*cks this up, we are doomed. We need to send vitamins to every Democratic senator there is. This is not the time to croak.

I am unhappy with this decision now because it's an election year and McConnell will announce to his delegation that it's always been the Senate rule to not confirm a Supreme Court justice in an election year.  There will be no hope of any crossover Republican votes for a replacement.  And the two troublemakers will agree with McConnell and vote no on any nominee.  Note: the filibuster no longer applies to judicial appointments.  

PS I hope Biden doesn't nominate Garland.

[LFC]

The court that wants to be "originalist" have the opportunity to return our water pollution laws back to the 1700s. At the heart of the case is a couple who wants to be able to do as they wish with their land but refuse to accept that any and all consequences should remain on their land. Big industry is backing them to the hilt, of course.

The Supreme Court agreed this week to hear a case brought by two Idaho residents who have fought the Environmental Protection Agency for years over a wetland on their property. This isn’t just a simple case of some long-suffering landowners, though; it’s one that is backed by industry interests. And with the Court in an ultra-conservative phase, the case could totally reshape how waterways across the U.S. are protected from pollution.

“There’s a range of outcomes [to the case], all of which are bad,” said Dave Owen, a professor of environmental law at the University of Califonia, Hastings.

The case is centered around the Clean Water Act, a landmark piece of legislation passed in 1972 that regulates water pollution. Under the act, it’s illegal to pollute what it calls “navigable waters” without a permit. The act itself doesn’t define exactly what “navigable waters” are, though. In subsequent years, the term has generated a lot of debate and confusion. A lake is clearly navigable, but what about a wetland? Or a stream that disappears in the dry season but comes raging back with the rainy season?

Science, of course, increasingly shows that all kinds of waters—not just those visibly connected to lakes and streams—are crucial to maintaining water quality. “More and more scientists are realizing that the quality of water and level of flows in bigger waterways is determined to a large degree by what happens in the headwaters, what happens in those upstream streams and wetlands,” Owen said. “Treating them as not part of a larger waterway is like saying that leaves are not part of a tree.”

Three previous Supreme Court cases have challenged the definition of what this terminology means. The most recent one, in 2006, somehow made the issue even more confusing, after the court’s judges issued a split opinion on what makes a “navigable water.” Justice Antonin Scalia authored the conservative justice’s side, while Justice Anthony Kennedy authored an opinion that allowed for a larger protective umbrella.

“The issue for courts ever since has been which of these standards actually applies,” Owen said.

That brings us to the case the court agreed to hear this week, Sackett vs. EPA. In 2007, Chantal and Mike Sackett started construction on their property near Priest Lake, Idaho. The couple subsequently received a notice from the EPA alerting them that the wetland they were filling in was protected under the Clean Water Act. The agency ordered them to stop work and restore the wetland or face heavy daily fines.

The Sacketts, instead, decided to sue, and their case made it to the Supreme Court. This case wasn’t about the wetland itself, but rather whether or not the couple could challenge the EPA in the first place. The court sided with the Sacketts in 2012. A few years later, the Trump administration handed the Sacketts another piece of good news: the EPA wouldn’t be enforcing its original permit, effectively clearing the way for them to build on their land.

That should have settled it. But the Sacketts decided to keep going, challenging the original EPA order about the wetland on their property—even as the agency said it had no plans to enforce it. “They are in the fight at this point purely for ideological reasons,” Owen said.

Let’s pause to note that a lot of this fuss would have been avoided in the first place, Owen said, if the Sacketts had simply gotten a permit. “Even if a property has wetlands or streams or some other body of water that’s protected by the Clean Water Act, that doesn’t mean you can’t build there,” he said. “If you do it without a permit, that’s when you get hauled into court.”

Last summer, the Ninth Circuit court ruled that the Sacketts’ wetlands were, in fact, protected. The Sacketts appealed because of course they did, and that’s how we ended up here, with Supreme Court getting set to decide whether or not the wetlands on the Sacketts’ property—and, by extension, these types of wetlands as a whole—are protected.

[jackd]

He won't nominate Garland; he is not a Black female.

[LFC]

Here's TPM's coverage of the already contentious nomination. Republicans and the right-wing noise machine are already denouncing Biden's nominee as a left-wing radical. Never mind that they don't have a name or even list of names. Biden said he would nominate a black woman, who have been studiously left out of the running like forever, and that's enough. The fact that the nominee is being named by a Democrat is actually more than enough.

GOPers Preemptively Cast Biden SCOTUS Nom As Antifa BLM Affirmative Action Radical

Unable to do anything but watch Biden fill a SCOTUS vacancy without obstruction, Republicans are unrolling their go-to strategy: paint anything Biden and the Democrats do as Extremely Radical Left Socialism Critical Race Theory. And this time, it’s being paired with a big helping of racism as Republicans suggest that whoever Biden appoints will have only gotten the job because she’s a Black woman. See: Jonathan Turley’s Wall Street Journal op-ed and the National Review’s editorial.

[goldenvalley]

Jan 28, 2022 17:53:11 GMT LFC said:

Here's TPM's coverage of the already contentious nomination. Republicans and the right-wing noise machine are already denouncing Biden's nominee as a left-wing radical. Never mind that they don't have a name or even list of names. Biden said he would nominate a black woman, who have been studiously left out of the running like forever, and that's enough. The fact that the nominee is being named by a Democrat is actually more than enough.

GOPers Preemptively Cast Biden SCOTUS Nom As Antifa BLM Affirmative Action Radical

Unable to do anything but watch Biden fill a SCOTUS vacancy without obstruction, Republicans are unrolling their go-to strategy: paint anything Biden and the Democrats do as Extremely Radical Left Socialism Critical Race Theory. And this time, it’s being paired with a big helping of racism as Republicans suggest that whoever Biden appoints will have only gotten the job because she’s a Black woman. See: Jonathan Turley’s Wall Street Journal op-ed and the National Review’s editorial.

I gotta laugh.  Democrats nominate black and Latino women. That's affirmative action.  But Republicans nominated Clarence Thomas and that wasn't affirmative action?  And by the way the potential nominees the media has talked about so far have Ivy League educations.  Are Reps going the Trump route and demand to see their transcripts, SAT, and LSAT scores?  

[LFC]

Jan 28, 2022 18:18:18 GMT goldenvalley said:

I gotta laugh.  Democrats nominate black and Latino women. That's affirmative action.  But Republicans nominated Clarence Thomas and that wasn't affirmative action?  And by the way the potential nominees the media has talked about so far have Ivy League educations.  Are Reps going the Trump route and demand to see their transcripts, SAT, and LSAT scores?  

Republicans nominate only extremely religious candidates. Isn't that Christianist affirmative action?