The US Supreme Court

[L'Emmerdeur]

The stench has been brewing for years, now time to decant and 'enjoy' it.

'The Supreme Court Did This to Itself'

The Supreme Court is on a collision course with itself, and it’s not clear that the justices even know it. We are now witnessing a five-car pileup of Trump–slash–Jan. 6 cases that will either be heard by the Supreme Court or land on their white marble steps in the coming weeks. The court has already agreed to hear the case of Joseph Fischer, the former Pennsylvania cop accused of taking part in the Jan. 6 storming of the Capitol and assaulting police officers, to determine the scope of prosecutions for obstructing an official proceeding. The court’s already flirting with hearing a direct appeal by special counsel Jack Smith to speedily resolve Trump’s claims to absolute immunity for his actions in attempting to overturn the 2020 election. And a game-changer of a case came out of the Colorado Supreme Court on Tuesday that would knock the former president off of the Republican primary ballot in that state as a consequence of his involvement in the insurrection attempt on Jan. 6, which would also critically apply to the general election ballot next November. That ruling has to be settled by the high court in order to forestall, or affirm, other states’ efforts to do the same thing. Potential appeals of gag orders in criminal suits and doofy immunity claims in the E. Jean Carroll suit are all also winging their way to Chief Justice John Roberts’ workstation, and it’s not even 2024 yet.

In the meantime, the justices cannot seem to catch a break when it comes to being caught behaving terribly. In addition to the bottomless evidence of judicial freebies and junkets that were not disclosed by justices bound by both disclosure and recusal rules, the past few weeks have brought bombshell reporting from ProPublica about the ways in which the body meant to police the court was mostly just laying around the henhouse hoping for a good scratch behind the ears.* Then this week, ProPublica produced another in-depth report of how a bunch of millionaires and conservative activists—afraid that Justice Clarence Thomas might leave the court if he didn’t get a pay raise and nice lifestyle perks—conspired to get him pay raises and lifestyle perks. This effort somehow was blessed by (surprise!) members of Congress; the judiciary’s top administrative official, Senate Minority Leader Mitch McConnell; and others who understood perfectly that you needn’t hate the player, or the game, you really just need to take him on island cruises to Indonesia to keep him in the league.

Added to that, there’s the phenomenally reported New York Times story from last week about the ways in which the Supreme Court’s conservative members manipulated and distorted the outcome in the Dobbs case overturning Roe v. Wade in order to try to keep up appearances, even as they phoned in their work on the case to achieve the partisan outcomes for which they were seated. Even if you fully believed all the nonsense about nonbinding ethics codes that are enforced by mindpower, Cool Whip, and promises of good faith, it just isn’t possible to read the stories about 20 years of partisanship, pay-to-play, and the erosion of norms of judicial humility and restraint on the part of the MAGA wing of the court and still feel confident that this is the body to which one wants to entrust the major electoral outcomes of the coming year.

...

For years, some of the most vocal critics of the court’s ethical lapses, its lack of transparency, and its refusals to take seriously its own brokenness and errors, have warned that the day would come when an election would be decided by a body that has refused to clean house and has blamed the press and the academy for the stench of its own illegitimacy. The worry wasn’t that the court would decide the election; that seems almost inevitable. The worry was that the public, grown weary of the stench, would not abide by their decision.

Lavish world cruises, secret deals with moneyed donors, threats to step down unless someone ponied up with a pay raise, fishing trips with parties who have business before the court, an amicus brief industrial complex wholly bought and paid for by billionaire donations, leaked drafts, and secret speeches are not the stuff of constitutional democracy, or infallibility, or finality. When the hyperpolitical supercharged Trump cases catch up with the court—and that is beginning to happen, right now, this week—all that stench will run headlong into the questions about why the husband of the woman who went to the pep rally for the insurrection and the folks who lied to us all about Dobbs are objective enough to decide the outcome of an election. The same people entrusted with the protecting the reputation of the court have blundered into being wholly responsible for protecting democracy. Not one thing suggests they will take the latter any more seriously than they took the former.

[Tero]

Court empowered to block all federal agencies.
https://www.vox.com/scotus/2024/1/10/24 ... s-raimondo
because "air" is not in the constitution. Unless moving air is interstate commerce.

EPA FDA etc would then disappear and state agencies would take over.

Time to back Democrats, deep state! Otherwise we cannot sell and distribute drugs anymore.

[Tero]

Court uses amicus briefs as facts:
In Dobbs, Alito relied on an amicus brief from Professor Robert P. George to make his historical argument that abortion had been a crime for centuries, even before the founding of America. One problem: George isn’t a historian. He studies philosophy and jurisprudence. Another problem: his understanding of the historical record, according to actual factual historians, is wrong. After the Dobbs opinion, 30 different historical associations signed on to a statement saying it was a “flawed and troubling precedent” to have a major historical inaccuracy in such an important court ruling. Alito’s opinion also relied upon an amicus brief from the rabidly anti-choice Lozier Institute to mischaracterize which countries permit abortion past 15 weeks.

https://www.publicnotice.co/p/amicus-br ... -calabresi

[L'Emmerdeur]

Apparently four justices on the court believe that the US Constitution is irrelevant when it comes to what Texas does along the border with Mexico. States' rights!!!

They were in the minority but that could change. One more MAGA justice and things will get more interesting.

The four dissenters included Alito and Thomas, the most prominent proponents of textualism and originalism. Their position in this case unambiguously demonstrates that their true agenda is not faithful adherence to the Constitution (the supposed rationale for textualism and originalism). Textualism and originalism are merely tools used to further an ideological agenda, readily dispensed with when they're inconvenient to that end. They're not 'umpires' (per Chief Justice Roberts) but partisan professional players--bought and paid for. Kavanaugh and Gorsuch are there alongside Alito and Thomas. Impossible to say what Barrett was thinking, and Roberts occasionally gets a little squeamish when it comes to chopping up the Constitution.

'The Supreme Court says no, Texas can’t use razor wire to restrain federal agents'

One of the most well-settled questions in US constitutional law is that duly enacted federal laws overcome all state laws that conflict with them, and that states may not prevent federal officials from performing their official job duties.

This principle is written into the Constitution itself, which provides that federal law “shall be the supreme law of the land; and the judges in every state shall be bound thereby.” The Supreme Court has even held, in In re Neagle (1890), that states may not bring murder charges against a federal official who killed someone while performing his official duties.

Nevertheless, last month a federal appeals court reached the astonishing conclusion that the state of Texas may erect razor wire barriers to prevent federal border patrol officers from doing their jobs, and it ordered the border patrol not to cut these wires except in very limited circumstances. The decision was handed down by the United States Court of Appeals for the Fifth Circuit, a far-right court dominated by MAGA judges, that frequently hands down decisions that are wildly at odds with existing law.

On Monday, the Supreme Court handed down a very brief order in Department of Homeland Security v. Texas blocking this Fifth Circuit order. The order was decided in a 5-4 vote — which means that four justices appear to believe that Texas may use razor wire to restrain federal officials engaged in their official duties.

The four dissenters were Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Chief Justice John Roberts and Justice Amy Coney Barrett, both Republican appointees, crossed over to vote with the Court’s three Democratic justices.

[L'Emmerdeur]

An examination of what Kavanaugh's vote in Department of Homeland Security v. Texas tells us about the direction of his ideological alignment. I think the man has a well-developed ego and wants history to show him in a good light. If history will be written by a triumphant MAGA, then it makes sense to curry its favor. Instead of the role of a (firmly right-aligned but occasionally) centrist he appears to be choosing that of faithful yes-man to Alito and Thomas's zealous autocratic right-wing position.

'What’s Going On With Brett Kavanaugh?'

On Monday, the Supreme Court affirmed the federal government’s supremacy over the states, a principle established explicitly in the Constitution, enshrined by centuries of precedent, and etched into history by the Civil War. The vote was 5–4. Four dissenting justices would have allowed the state of Texas to nullify laws enacted by Congress, pursuant to its express constitutional authority over immigration, that direct federal law enforcement to intercept migrants crossing the border. These justices would have allowed Texas to edge ever closer to a violent clash between state and federal forces, deploying armed guardsmen and razor wire to block the president from faithfully executing the law.

It was no surprise that three of these dissenters—Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch—sided with Texas, given their overt hostility to the Biden administration’s immigration policies, which verges on rejecting the president’s legitimate right to govern. It was, however, deeply alarming to see who joined them: Brett Kavanaugh, the justice who expends tremendous energy assuring the nation that he is reasonable, moderate, and inclined toward compromise. Kavanaugh’s vote on Monday was none of those things; it was, rather, an endorsement of a state’s rebellion against federal supremacy.

Really, though, should we be shocked that Kavanaugh sided with the Texas rebels over the U.S. president? Maybe not. After spending his first few years on the bench role-playing as a sometimes-centrist, Kavanaugh appears to be veering to the right: His votes over the past several months have been increasingly aligned with Alito and Thomas rather than his previous ally, Chief Justice John Roberts. This shift is still nascent, but it grows more visible with each passing month. And it bodes poorly for the country as we careen toward an election that Donald Trump openly seems to hope the Supreme Court may rig for him.

Start with that jaw-dropping vote on Monday. It’s difficult to overstate how dire the situation had become in Eagle Pass, Texas, where Gov. Greg Abbott mounted his insurgency against the federal government. Migrants frequently cross over at Eagle Pass, so Border Patrol has a major presence in the area. Federal law grants border agents the right to access all land within 25 miles of the border and requires these agents to inspect and detain unauthorized migrants. Yet Abbott defied these statutes: He ordered the Texas National Guard to erect razor wire at the border, a barrier that ensnared migrants (to the point of near death) and excluded Border Patrol. Federal law enforcement was thus physically unable to perform the duties assigned to it by Congress, or to rescue migrants drowning in the Rio Grande. In response, border agents began cutting through the wire, prompting Texas to sue. The far-right U.S. Court of Appeals for the 5th Circuit dutifully issued an injunction prohibiting any federal destruction of the wire fencing.

The 5th Circuit’s injunction effectively allowed Texas to nullify federal law, in direct contradiction of the Constitution’s supremacy clause. Some of the oldest, most entrenched Supreme Court precedents forbid states from interfering with the lawful exercise of federal authority. It should have been easy for SCOTUS to grant the Biden administration’s emergency request by shooting down the 5th Circuit. Instead, the justices spent a baffling 20 days mulling the case—and, presumably, debating it behind the scenes. In the end, all the court could muster was a 5–4 order halting the 5th Circuit’s injunction, with Roberts and Justice Amy Coney Barrett joining the liberals. There were zero written opinions. The dissenters, including Kavanaugh, felt no obligation to explain their votes.

[Sean Hayden]

Looks like they’re baiting the Feds.

[JimC]

Will Texas secede?

[Sean Hayden]

That’s a world I’ve never lived in. You’re better off asking an expert opinion…

[L'Emmerdeur]

Will Texas secede?

Governor Abbott and co. seem just stupid and venal enough to try something. It's not completely out of the question.

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I think that anybody who's been paying even occasional attention to the antics of the Nazgul (hat-tip to Svartalf!) would have been surprised if Justice Clarence Thomas were to have taken the ethically sound step of recusing himself from Trump insurrection cases. He's pretty much owned the position now: 'You can shove your ethics where the sun don't shine. It's kakistocracy time, baby!'

'Thomas Refusal to Recuse From Trump Case Called a "Giant Middle Finger" to Democracy'

U.S. Supreme Court Justice Clarence Thomas, who once went a full decade without speaking during oral arguments, asked the first question Thursday as the high court heard a case challenging former President Donald Trump's eligibility to run for a second White House term.

But Thomas, whose initial question focused on whether the 14th Amendment is "self-executing," shouldn't even be involved in the case, progressive watchdogs and other observers argued, given his wife Ginni's role in far-right efforts to overturn the results of the 2020 election—an effort that culminated in the January 6, 2021 insurrection.

"The Supreme Court is facing its most significant electoral test since Bush v. Gore. The stakes are high, and the American people should be able to trust that this case will be decided without outside influence," Tishan Weerasooriya, senior associate of policy and political affairs at Stand Up America, said in a statement shortly before oral arguments kicked off Thursday.

"Justice Thomas should recuse himself from this monumental case," Weerasooriya added. "Ginni Thomas' involvement in the seditious conspiracy that led to the January 6 insurrection is a bald-faced conflict of interest. If Thomas refuses, it will not only be a blatant denial of impartial review but also a rejection of Chief Justice [John] Roberts' recently issued Code of Conduct."

That code states that "a justice should disqualify himself or herself in a proceeding in which the justice's impartiality might reasonably be questioned." A University of Massachusetts at Amherst survey released Wednesday found that 64% of U.S. voters believe Thomas should recuse from any case related to the 2020 election given his wife's role in trying to subvert the results.

Will Bunch, a columnist for the Philadelphia Inquirer, argued that Thomas' failure to recuse from the case on Trump's eligibility "is a giant middle finger to American democracy."

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[Tero]

Thomas won't matter much in the Colorado case. It is lost.

If the court claims a president has absolute immunity, then we have lost them for years. They need to establish some credibility.

[Tero]

John Oliver figures out the best way to get Clarence Thomas off the Supreme Court. Outbid the billionaires who are bribing him.
He offers a real contract for $1 million a year plus a $2.4 million RV in exchange for Thomas to retire.

https://www.threads.net/@david.heath.wr ... 3hz0jfAHFk

[Brian Peacock]

Thomas won't matter much in the Colorado case. It is lost.

If the court claims a president has absolute immunity, then we have lost them for years. They need to establish some credibility.

If the court determines a president has absolute immunity Biden should banish Trump to Gitmo within an hour of the verdict.

[L'Emmerdeur]

Rosin the miniature bow and fiddle a wistful tune on the tiny violin for the decline of Western Civilization. Justice Alito has a sad.

'Samuel Alito Is Mad You Can’t Be Bigoted Toward Gay People Anymore'

Supreme Court Justice Samuel Alito is complaining that people who oppose homosexuality were being unfairly branded as bigots, despite that being a dictionary definition of bigotry.

The Supreme Court on Tuesday declined to hear a case about whether it is legal to exclude potential jurors based on their religion. The case stemmed from a lawsuit filed by Jean Finney, who is lesbian, against her longtime employer, the Missouri Department of Corrections, for workplace discrimination and retaliation due to her sexuality. During jury selection for the trial, which Finney won, her lawyer asked the judge to remove three jurors who had expressed beliefs that homosexuality is a sin. Finney’s lawyer argued their religious beliefs would bias them against LGBTQ people.

The state of Missouri appealed the decision, arguing that the jury selection process had been discriminatory on religious grounds. An appeals court sided with Finney, ruling the jurors had been eliminated due to their beliefs about homosexuality, not because they were Christians. Missouri appealed that decision to the Supreme Court, which declined Tuesday to hear the case.

In a statement, Alito said he agreed with the decision not to hear the lawsuit, but warned he felt the case was a harbinger of greater danger.

The appeals court ruling “exemplifies the danger that I anticipated in Obergefell v. Hodges,” Alitio wrote, referring to the landmark 2015 Supreme Court ruling that legalized marriage equality.

“Namely, that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government,” he said. “The opinion of the Court in that case made it clear that the decision should not be used in that way, but I am afraid this admonition is not being heeded by our society.”

As pointed out elsewhere, it seems unlikely that Alito would bemoan the exclusion of people with a religious objection to the death penalty from serving on a death penalty jury.

[Brian Peacock]

There's probably a short pamphlet to be written on how "traditional religious beliefs about homosexual conduct" are actually a reflection of broader beliefs which inevitably preference and enable the systematic patriarchal domination of women and children.

[JimC]

Yeah, belief systems often seem to come in constellations of related beliefs...