New GOP High Court Threatens Massive Public Pain

anthony kennedy oThe resignation of U.S. Supreme Court Justice Anthony Kennedy after a series of controversial pro-conservative court opinions last week is prompting widespread fear that the court is moving in sinister fashion toward radical, activist positions causing public harms unprecedented in recent American history.

Several of the court's recent holdings were by 5-4 all-Republican majorities that overcame all-Democratic minorities in ways that underscored how the court functions at times as a brute-force political operation.

Kennedy's unexpected departure and President Trump's prompt timetable for installing a successor portend concentrated government and private power in ways that have never existed in the United States previously even when the conservative Supreme Court's hostility to New Deal legislation in the Depression-era 1930s was balanced by a reform-minded president and Congress. .

jerrold nadler o SmallThese days?  "We're going to go back to before the New Deal" in terms of economic protections for Americans, no matter what nominees might say publicly, according to U.S. Rep. Jerrold Nadler, a New Yorker who is the top-ranking Democrat on the House Judiciary Committee.

Nadler (shown at right) told CNN during a July 2 interview that all of Trump's prospective nominees have been carefully vetted by the ultra-conservative judicial selection think tanks like the Federalist Society and Heritage Foundation to conform to their agendas, as have their previous picks and their decisions reflected in the latest Supreme Court decisions. 

us supreme court 2017The nine Supreme Court justices, with Chief Justice John Roberts at center, are shown in a 2017 portrait. Each of the nine attended either Yale or Harvard Law School, although Justice Ruth Ginsberg (at left) transferred before graduation to Columbia Law School.

As a general matter beyond the Supreme Court:

American courts, even when staffed by previous generations of conservatives, have always functioned during times when government power was diffused among federal branches and state/local governments.

But a novel and for many in the public a frightening situation now stems from the current concentration of power in an autocratic executive like Trump who uses "national security" as a mantra to assert power with scant pushback.

Targets for Trump and the authoritarians that he is appointing to the courts include voting rights, worker protections, immigrants and the economic safety net of Social Security and Medicare. Trump is using immigration as one of his scare tactics to solidify his base of supporters, many of whom are rightfully resentful of excesses by elites in recent years. But, in ways largely beyond the scope of today's column, Trump's legal initiatives also help protect him and his own cohort of elite backers by underminnig basic American institutions like the courts, Congress, the FBI, the press and ultimately the federal budget and social safety net.

Today's column sets the stage to explore these developments by drawing on recent commentaries about the Supreme Court's just-completed annual term and controversies arising from the Kennedy succession. The material is excerpted below in an extensive appendix. These resources include highlights from two annual seminars that I attended on June 28 that convened leading experts to speaking about the court's term, which extends from the first week of October to the last week of June. 

The Yale Law School Association of Washington, DC sponsored one conferences for alumni and students. The other annual conference was organized by the American Constitution Society, a progressive group whose conservative counterpart the Federalist Society plays a leading role in recommending judges and policy changes to Trump and other Republicans. I am a longtime member of the two rival societies and also hold law degrees from the law schools of both Yale and the University of Chicago.

Following this introduction, we summarize the signficance of Kennedy's resignation and then preview the difficult odds, at least in the short term, of sustaining constitutional checks-and-balances designed more than two centuries ago to limit power-grabs by a president.

These topics are not simple, especially since none of the players or institutions are all-bad or all-good and we do indeed live in an era of "fake news" emanating to some degree from all sides. So, today's column is sets the stage for future reporting, hopefully with your help as readers, tipsters and active citizens. Topics will include the potentially insidious aspects of Kennedy's resignation, as previewed below. 

Court Credibility

Before assessing the immediate implications of the court's decisions last term and the resignation of Associate Justice Kennedy, it's useful to take a broader look at the high court's role and credibility.

Until now, the Supreme Court (which administers a federal system operating largely separately from state and local systems) has retained a relatively decent approval rating. This contrasts with such other major institutions as Congress (often near a 10 percent approval rating), the media or the White House.

earl warrenA period of relatively liberal activism by the court led by Chief Justice Earl Warren (left), a Republican, through the 1950s and 1960s has been followed by an even longer period of dominance by conservative Republican jurists who are reshaping society in major ways that resemble radical, result-oriented activism at times in important cases, often with straight 5-4 party line vote.

Both Warren and one of his longtime judicial allies, Justice John Brennan, were Republicans. They shared the Supreme Court bench for years with Democrat Byron White, who was at times more conservative than they. That crossover helped blur partisan lines in public view.

Republicans have become increasingly focused through the decades in installing justices who will duck tough questions at confirmation hearings and reliably deliver for the party and its backers in the big cases. 

george w. bush wThe court's intervention in the 2000 presidential vote recount in Florida to halt the process and award the presidency to Republican George Bush in a 5-4 vote with scant precedent served as a wake-up call for many Democrats in the public even though their leaders did virtually nothing effective in response.

Several of the court's narrow decisions last week largely along party line voting were especially controversial because they gutted such traditional protections for democracy as voting, union organizing, due process for immigrants, and an employee's right for redress at a jury trial.

Then came Kennedy's resignation, followed by a well-orchestrated rollout by Senate Majority Leader Mitch McConnell (R-KY) and President Trump of their plans to install a new justice by the beginning of October, using if necessary a new Senate mechanism requiring a simple majority of 50 votes for a chamber with 51 current Republicans rather than 60-vote threshold that has long been used by custom.

Kennedy, while a reliable conservative, has occassionally provided a swing vote during his 31 years on the bench, as in his support for gay rights in a major decision.

supreme court buildingHis replacement by Trump raises special alarms. Trump campaigned on a platform of appointing justices who would ban abortion by reversing the Roe v. Wade decision that found a constitutional right in a woman's choice.

One particularly dramatic and unprecedented field will be the new justice's view on whether a president is in effect above the law. That's what Trump and his supporters occasionally claim in response to Special Counsel Robert Mueller's investigation and the civil court lawsuits claiming that Trump and his colleagues have violated laws.

Public confidence in the process is being further undermined by revelations that Trump and Kennedy had a cozy personal relationship, including extensive and largely secret business dealings between their children that may have facilited the plan for a rapid hand-off of Kennedy's seat before adqueate scrutiny.

This next succession shapes up as replacement of a Republican by another Republican. Yet it comes at a time when recent developments and historical trends are inflaming Democrats and some never-Trumpers.

antonin scaliaMany feel that the Republicans "stole" a Supreme Court seat because the Republican-led Senate refused in an unprecedented way to consider a Democratic nominee by President Obama following the death of Justice Antonin Scalia, right. A Democrat has occupied the powerful post of chief justice — presiding over the entire federal court system, not just the Supreme Court — for just seven years out of the last century (Chief Justice Fred Vinson, from 1946 to 1953).

The situation parallels in many ways conditions in pre-Hitler Germany says historian Webster Tarpley, speaking about Kennedy and related topics on the June 30 edition of his weekly World Crisis Radio show. Tarpley likes to recall also that the United States was the top opponent of fascist and other totalitarian powers during the last World War.

franklin d rooseveltAlthough President Franklin D. Roosevelt had his opponents (including a now-little known group of bankers, militarists and fascists who sought to overthrow him with a coup foiled by retired general Smedley Butler in 1933), the American tradition had been anti-fascist on the whole. Helping keep it that way are constitutional protections, including checks-and-balances among three branches and a press freedoms enshrined in the founding documents.

Never before, however, has there been a president determined to rule by fiat, demonize opponents (including the press) while also presiding over a Supreme Court and congress run by the same party and so far exceedingly reluctant to criticize the administration's powergrabs, suspected election theft and self-dealing to an inner circle of cronies.

Expert Commentary On Cases, Trends

linda greenhouse cover just a journalistLinda Greenhouse, a fellow and lecturer at Yale after a long career as the Supreme Court reporter for the New York Times, moderated the YLS annual forum in Washington, DC, as in the past. Also an author of a recent memoir, she is shown at right. Earlier this month, she published a commentary in the New York Times A Question of Legitimacy Looms for the Supreme Court arguing that if the court reversed precedent to undermine unions, as it did, the court's credibility would be undermined.

The five panellsts were frequent litigants before the court, often on major cases. In general, they described ways that the court's majority has undertaken activist pro-Republican, pro-Trump decision-making, a trend they expected to become enhanced with Kennedy's replacement. 

On immigration decision-making, for example, Georgetown University Law Center professor Martin Lederman said that the U.S. State Department has such a thorough process for granting visas to residents from dangerous countries that there has not been a terrorist crime attributed to any of them.

Under those circumstances, Lederman said of the court's 5-4 ruling on June 26 regarding the case Trump v. Hawaii involving travelers from eight mostly Muslim nations, "The only effect of the travel ban is not to keep out terrorists but to keep out people who have proven that they are not terrorists." 

Paul M. Smith, vice president at the Campaign Legal Center, said the problem of gerrymandered congressional districts is getting much worse in recent years because computers enable legislators to draw districts more carefully to pack rival voters into a few districts and create safe seats for their own parties. Thus, he noted that North Carolina current has 10 Republicans out of 13 seats even though voting is approximately half and half in recent elections for Republicans and Democrats.

paul smith campaign legal centerSmith, shown in a file photo, has argued for reforms three times before the Supreme Court. This year was especially disappointing for him, he said, because plaintiffs he represented had relied on Kennedy's words in a decision 11 years ago and worked since then to create the kind of numerical standards that they thought he sought in order to remove outrageous gerrymanders.

But Kennedy and the rest of the Republicans found technical reasons avoid making substantive decisions this month and instead to remanded to lower courts on a 5-4 party line vote the major gerrymandering case, Abbott v. Perez involving Texas districts, as well as the Wisconsin case, Gill v. Whitford.

The American Constitution Society conference later on June 28 was moderated Supreme Court expert Thomas Goldstein and followed similar lines of discussion. Goldstein has litigated many cases before the court. Also, he co-founded and serves as publisher of SCOTUSblog, an authoritative online archive of decisions, briefs and other materials about the court, which is called "SCOTUS" by insiders.

C-SPAN broadcast and then archived the forum. Details on that discussion can be found at that link under the title Supreme Court Term Review.

Looking Ahead

Much of the discussion in the media and at the two conferences has been on whether supporters of the Roe v. Wade decision can muster support in the Senate to block Trump's campaign promise that his court nominees will reverse the decision. It found that women have a right guaranteed to choose an abortion under most circumstances, much to the anger and dismay of many conservatives,

republican elephant logoLederman, the Georgetown law professor, said, "I don't think that the court will overturn Roe because, for one thing, that could be very bad for the Republican Party. But I don't think they [the new Supreme Court] will find an anti-abortion law that they don't like."

Our next columns on these topics will explore the best strategies for those opposed to a radical activist court that, among things, overturns such settled law. More broadly, we appear be witnessing an internal war between different factions of elites.

As part of our reporting, we shall explore the new allegations that Kennedy's unexpected resignation came from unseemly if not corrupt relationships between his children and the Trump family. These allegations stem primarily but not exclusively from the relationship of Kennedy's son Justin Kennedy to the Trump and robert mueller full face fileKushner families via Justin Kennedy's prominent role in lending funds to the Trump and Kushner families via Deutsche Bank and LNR Property. The federal government has assessed Deutsche Bank billions of dollars for illegal actions. These include some of the same kinds of money laundering operations through luxury real estate that Special Counsel Robert Mueller (shown at left) is reportedly investigating regarding the 2016 probe of the improper foreign influences on the 2016 U.S. presidential election.

Commentator Bill Palmer wrote on the evening of July 1 in Supreme Court’s Anthony Kennedy gets swallowed up by Donald Trump’s Russia scandal:

Just days after Donald Trump took office, regulators in the U.S. and UK busted Deutsche Bank for having laundered ten billion dollars of Russian money into the hands of clients in cities like Donald Trump’s hometown of New York.

Placed in the context of the inexplicably large loans that Deutsche Bank was making to Trump during this same timeframe, Palmer Report pointed out that it was painfully obvious how the Kremlin was funneling money to Trump. However the mainstream media never was willing to connect these dots. Now the scandal has expanded to include a Supreme Court Justice.

This week Anthony Kennedy shocked everyone by announcing that he was abruptly resigning from the Supreme Court, after it had already been widely reported that he’d gone so far has to pick his clerks for the upcoming sessions. This handed Donald Trump the opportunity to pick one of the judges who will ultimately decide his fate, once he begins making desperate and unconstitutional last ditch moves such as trying to pardon himself. Now it turns out it’s a very short and straight line from Kennedy to the Trump-Russia money trail to Donald Trump.

This follows on a report in March 2017 Kennedy, Kushner, and Trump Connection: A Curious Conversation and A Business Deal by C’Zar Bernstein & Gabe Rusk, describing in detail relationships between the Kennedy and Trump families in hours of need involving transactions by their entities involving billions in total investments and/or U.S. government fines and penalties.

Stay tuned.

 Contact the author This email address is being protected from spambots. You need JavaScript enabled to view it.


Recent Major Cases

Issues, Litigants and Decisions

Selected Recent Cases

  1. Arbitration: Epic Systems Corp. v. Lewis, decided 5-4 on May 21, 2018. *
  2. Union Rights: Janus v. American Federation of State, County and Municipal Employees Council 31, decided 5-4 on June 27, 2018. *
  3. Voting Rights: Husted v. A. Philip Randolph Institute, decided 5-4 on June 11, 2018. *
  4. Gerrymandering; Abbott v. Perez decided 5-4 on June 25, 2018 * and Gill v. Whitford, decided 7-2 on June 18, 2018 (with two justices dissenting in part).
  5. Immigration: Pereira v. Sessions decided 8-1 on June 21, 2018 and Trump v. Hawaii, decided 5-4 * on June 26, 2018.
  6. Privacy: Carpenter v. U.S., decided 5-4 on June 22, 2018.
  7. Gays: Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided 7-2 on June 4, 2018.
  8. Sports Gambling: Murphy, v. NCAA decided 7-2 on May 14, 2018 (with Justice Breyer dissenting in part).
  9. Water Rights: Florida v. Georgia, decided 5-4 on June 27, 2018.
  10. State Taxes On Internet Sales: South Dakota v. Wayfair, Inc., decided 5-4 on June 21, 2018.

* All-Republican party line majority

Expert Panels

Supreme Court Term, sponsored by the Yale Law School Association of Washington, DC.

Moderator: Linda Greenhouse '78 M.S.L.,The Knight Distinguished Journalist-in-Residence and Joseph Goldstein Lecturer in Law, Yale Law School


Beth S. Brinkmann '85 J.D., Partner, Covington & Burling, Washington, DC

Martin Lederman '88 J.D., Associate Professor, Georgetown University Law Center

Andrew J. Pincus '77 B.A., Partner, Mayer Brown, Washington, D.C.; Visiting Clinical Lecturer in Law and Supervising Attorney, Yale Law School

Paul M. Smith '79 J.D., Distinguished Visitor from Practice, Georgetown University Law Center; Vice President of Litigation and Strategy, Campaign Legal Center

C-SPAN, Supreme Court Term Review: American Constitution Society, June 28, 2018 (100:21 mins). The American Constitution Society hosted a panel of legal experts to review the Supreme Court decisions of the 2017 term. The panelists also talked about the retirement of Justice Anthony Kennedy, the president’s future nominee and what it will do to the balance of the bench.

People in this video:

Caroline Fredrickson President, American Constitution Society for Law and Policy

Thomas C. Goldstein Co-Founder and Publisher SCOTUSblog

Richard L. Hasen Professor, University of California, Irvine->School of Law

Lenese Herbert Professor Howard University School of Law

Ria Mar Senior Staff Attorney, American Civil Liberties Union->LGBT and HIV Project

Benjamin Sachs Assistant General Counsel (Former), Service Employees International Union

Ilya Shapiro Senior Fellow, Cato Institute Constitutional Studies

Shoba S. Wadhia Professor, Pennsylvania State University School of Law (University Park, PA)


Justice Kennedy's Career, Criticques & Succession

(Arranged in reverse chronological order)

July 2

.djt neil gorsuch anthony kenned at white house

President Trump in 2017 with Supreme Court Associate Justice William Kennedy, who swore onto the court his former clerk Neil Gorsuch, center, Bush Ethics Lawyer Richard Painter Calls For Investigation If Kennedy Was Paid To Resign, Leo Vidal, July 2, 2018. Richard Painter, the richard painterformer White House Ethics Attorney for President George W. Bush, has come up with a way to delay hearings for a new Supreme Court justice to replace retiring Justice Anthony Kennedy.

According to Painter (shown in a file photo), there should be no hearings on a replacement for Kennedy until there is a full and complete investigation into the circumstances surrounding Kennedy’s resignation.

In other words, if Kennedy was paid or bought off in some way by Trump or his family, then the American people need to know about it. After Kennedy’s unexpected retirement announcement several stories appeared in the media claiming financial ties between Kennedy and his two sons and Trump and his family. Some people speculated that Kennedy was bought off in some way due to these extensive and longstanding financial connections.

Late last week Painter tweeted his novel theory for why Senate hearings for Kennedy’s replacement should be delayed:

“The circumstances of Justice Kennedy’s resignation must be investigated by the Senate Judiciary Committee before any replacement is considered. The Constitution does not give Trump the power to use underhanded means to induce Supreme Court resignations.”

As Painter points out it would be both unethical and unconstitutional for a president to “induce Supreme Court resignations” by using financial remuneration of some kind.

Soon after Painter’s tweet there was a response from a group he called “the right wing Power Blog” attacking him for his suggestion:

“The right wing Power Line Blog blows a fuse over this, but Sen. Jud. Comm. must investigate the circumstances of the Kennedy resignation before confirmation hearings for ANY new justice. @GovArne agrees."

Painter is a lifelong Republican who is now running for the U.S. Senate in Minnesota — as a Democrat. He is the subject of an in-depth article today at which discusses in detail the transition he has gone through from being in Bush’s White House to being one of Donald Trump’s fiercest critics.

In the article Painter asks the same questions as millions of other Americans:

“Trump admires dictators and authoritarians. His loyalty to Vladimir Putin is clear and he now has a bromance with Kim Jong-un. This is a truly dire situation, but the American people still seem asleep to what is really happening. Where is the outrage? How is Trump able to get away with this?”

Then he adds: “Donald Trump’s conduct is very dangerous for the United States.”

SCOTUSblog, Anthony Kennedy and free speech, Erwin Chemerinsky, July 2, 2018. Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.

Justice Anthony Kennedy will be remembered as a staunch advocate of freedom of speech, but his actual record is more complicated than that. Kennedy wrote the majority opinions, or joined them, in some of the most important cases protecting free speech in the last 30 years.

Yet, he also wrote, or was part of, decisions limiting the free speech rights of government employees, students and prisoners. Perhaps the easiest way to summarize Kennedy’s free speech jurisprudence is that he generally was on the side of freedom of expression except when the institutional interests of the government were involved.

Kennedy’s most important free speech opinion was Citizens United v. Federal Election Commission, in which the court held in 2010 that corporations have the right to spend unlimited sums in independent expenditures from corporate treasuries to have candidates elected or defeated. The court overruled a precedent from seven years earlier, McConnell v. Federal Election Commission. Kennedy believed that spending money in elections is speech protected by the First Amendment and consistently voted to strike down campaign-finance laws, such as in McCutcheon v. Federal Election Commission (2014); Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (2011); and Davis v. Federal Election Commission (2008).

ny times logoanthony kennedy oNew York Times, Trump Talks to 4 Candidates as Staff Focuses on Court Pick, Michael D. Shear, July 2, 2018. President Trump said he spoke with four candidates to replace Justice Anthony M. Kennedy, who is retiring (and shown at right), as the White House raced to meet the president’s deadline to announce a Supreme Court nominee in one week.

Speaking to reporters in the Oval Office, Mr. Trump said he likely would meet with two or three other candidates before making his decision. The president has said he plans to announce his choice next Monday, kicking off a sprint to get the nominee confirmed by the fall.

“I had a very, very interesting morning,” Mr. Trump said as he met with Mark Rutte, the prime minister of the Netherlands. White House officials declined to say which potential judicial nominees Mr. Trump talked with Monday morning, but the short list of candidates is believed to include six federal appeals court judges: Thomas M. Hardiman, William H. Pryor Jr., Amul R. Thapar, Brett M. Kavanaugh, Joan L. Larsen and Amy Coney Barrett.

July 1

washington post logoWashington Post, ‘We have to pick a great one’: Inside Trump’s plan for a new Supreme Court justice, Philip Rucker and Seung Min Kim, July 1, 2018 (print edition). The president, following a methodical course in hopes of avoiding the lurching disorder that so often engulfs his White House, is moving quickly in hopes of replicating last year’s chaos-free pick of Justice Neil M. Gorsuch.

June 29

SCOTUSblog, Analysis: Justice Kennedy: A justice who changed his mind, Daniel Hemel, June 29, 2018. Daniel Hemel is an assistant professor of law at the University of Chicago Law School. Justice Anthony Kennedy’s majority opinion in the online-sales-tax case South Dakota v. Wayfair was his final — and most significant — decision involving the dormant commerce clause doctrine, which prohibits state and local governments from passing laws that discriminate against or unduly burden interstate commerce unless Congress consents. 

Wayfair, in which the majority overturned decades-old precedents that had prohibited states from collecting sales taxes on their residents’ transactions with out-of-state online and mail-order retailers, was a rare dormant commerce clause case in which Kennedy cast a decisive vote on the states’ side.

June 29

washington post logoWashington Post, Supreme Court prospect has said presidents should not be distracted by legal inquiries, Michael Kranish and Ann E. Marimow​, June 29, 2018. Brett M. Kavanaugh worked on the independent counsel’s team that investigated Bill Clinton, and his views could be a focus of his confirmation hearing if President Trump nominates him to replace Justice Anthony M. Kennedy.

U.S. Circuit Judge Brett M. Kavanaugh, a former clerk for Supreme Court Justice Anthony M. Kennedy who is viewed as one of the leading contenders to replace him, has argued that presidents should not be distracted by civil lawsuits, criminal investigations or even questions from a prosecutor or defense attorney while in office.

Kavanaugh had direct personal experience that informed his 2009 article for the Minnesota Law Review: He helped investigate President Bill Clinton as part of independent counsel Kenneth W. Starr’s team and then served for five years as a close aide to President George W. Bush.

Having observed the weighty issues that can consume a president, Kavanaugh wrote, the nation’s chief executive should be exempt from “time-consuming and distracting” lawsuits and investigations, which “would ill serve the public interest, especially in times of financial or national security crisis.”

ny times logoNew York Times, Washington Girds for Battle Over Kennedy’s Replacement, Michael D. Shear and Thomas Kaplan, June 29, 2018 (print edition). A political war over replacing Justice Anthony M. Kennedy roared to life on Thursday in Washington, the start of an election-season clash over a Supreme Court retirement that will reshape the country’s judicial future.

us supreme court 2017Hours after Justice Kennedy’s announcement on Wednesday that he will step down July 31, conservative organizations were mobilizing to support the Republican-controlled Senate in a quick confirmation of a justice who would be expected to vote against the court’s liberal precedents. One group, the Judicial Crisis Network, has already started a $1 million ad campaign urging people to support the president’s choice.

Democrats and liberal advocacy organizations face enormous challenges if they hope to prevent President Trump and the Republicans from installing a conservative justice who would shift the ideological balance of the court for generations. Mr. Trump has promised to pick from a list of highly conservative jurists, and Republicans control the Senate, which can confirm the president’s choice by a simple majority.

ny times logoadam liptakNew York Times, Inside the White House’s Quiet Campaign to Create a Supreme Court Opening, Adam Liptak (shown at right) and Maggie Haberman, June 29, 2018 (print edition). President Trump singled him out for praise even while attacking other members of the Supreme Court. The White House nominated people close to him to important judicial posts. And members of the Trump family forged personal connections.

Their goal was to assure Justice Anthony M. Kennedy that his judicial legacy would be in good hands should he step down at the end of the court’s term that ended this week, as he was rumored to be considering. Allies of the White House were more blunt, warning the 81-year-old justice that time was of the essence. There was no telling, they said, what would happen if Democrats gained control of the Senate after the November elections and had the power to block the president’s choice as his successor.

There were no direct efforts to pressure or lobby Justice Kennedy to announce his resignation on Wednesday, and it was hardly the first time a president had done his best to create a court opening. “In the past half-century, presidents have repeatedly been dying to take advantage of timely vacancies,” said Laura Kalman, a historian at the University of California, Santa Barbara.

But in subtle and not so subtle ways, the White House waged a quiet campaign to ensure that Mr. Trump had a second opportunity in his administration’s first 18 months to fulfill one of his most important campaign promises to his conservative followers — that he would change the complexion and direction of the Supreme Court.

washington post logojohn roberts oWashington Post, Roberts gets another key role on Supreme Court: Swing vote, Robert Barnes, June 29, 2018 (print edition). Chief Justice John G. Roberts Jr. has been content to move the Supreme Court to the right with small steps. But now, with more conservative colleagues on one side and liberals on the other, he can supply the deciding fifth vote and dictate the terms of the deal.

With Roberts as the median justice, one of the most conservative Supreme Courts in history will almost surely move further to the right. And if the chief justice’s past is prologue, that could mean more restrictions on abortion rights, affirmative action contained or ended, gay rights more closely scrutinized, and states freer to alter voting laws and redistricting without judicial oversight.

washington post logoSusan CollinsWashington Post, ‘Everyone is focused on Lisa and Susan’: Two senators stand out in fight to replace Kennedy, Seung Min Kim, June 29, 2018 (print edition). The Democrats’ hopes for defeating the president’s next Supreme Court pick will probably rest on GOP Sens. Susan Collins of Maine (shown at left) and Lisa Murkowski of Alaska.

washington post logoWashington Post, Opinion: Trump lucks out at the best possible time, Michael Gerson, June 29, 2018 (print edition). For Trump, the retirement of Anthony M. Kennedy (shown at right) could not be better timed. Replacing the Supreme Court’s most prominent swing vote combines every culture war anthony kennedy obattle into a single, all-consuming conflagration. And when hatred is at its height, and civility and comity completely break down, and Americans are at each other’s throats, Trump is in his element.

The result of a Roberts-dominated court, over time, would probably be the weakening of Roe’s pro-choice absolutism. This would allow states more latitude to make incremental restrictions. But before Roe, many states were already moving in a pro-choice direction. And the availability of abortion has become a deeply entrenched social expectation. A democratically determined outcome in most places would probably involve very few restrictions on early abortions, when a fetus is nearer to being a blastocyst, and greater restrictions on late-term abortions, when a fetus is nearer to being a newborn.

If, for example, Trump is wise enough to nominate federal appeals court judge Brett Kavanaugh to the Supreme Court, he will do more than rally his base. Nearly every veteran of the George W. Bush administration will lend their enthusiastic support. Unless Trump blows this nomination with a foolish, impulsive pick (not impossible), he will enter the midterms with a cause that excites his base and unites his party.

June 28

SCOTUSblog, Analysis: Justice Kennedy: The linchpin of the transformation of civil rights for the LGBTQ community, Paul Smith, June 28, 2018. Paul Smith is the vice president of Litigation and Strategy at the Campaign Legal Center. He successfully argued in Lawrence v. Texas for the Supreme Court to overrule "Bowers v. Hardwick."

The jurisprudence that Justice Anthony Kennedy developed over three decades on the Supreme Court is nigh-impossible to pigeonhole ideologically. But one thing is crystal clear. He was personally and deeply committed to the proposition that gay and lesbian Americans deserve full equality.

He was the author of the four most important decisions of the Supreme Court moving the country in that direction — Romer v. Evans (1996), Lawrence v. Texas (2003), United States v. Windsor (2013), and of course Obergefell v. Hodges (2015), which mandated that all states provide full access to marriage for same-sex couples.

In the first two of those cases, he found an ally in Justice Sandra Day O’Connor, and the court struck down state laws that discriminated against gay people by a margin of 6-3. With O’Connor’s departure, Kennedy was the deciding vote in Windsor and Obergefell. Without Kennedy on the court in recent years, we would still be living in a country in which many states refused to grant marriage rights to gay couples.

washington post logojonathan turleyWashington Post, Kennedy’s decisions may not last. It might be his own fault, Jonathan Turley (right), June 28, 2018. For 30 years, one voice has rallied Supreme Court justices on the left and the right : that of Associate Justice Anthony Kennedy.

Liberals rejoiced in his decisions barring the execution of minors, recognizing a constitutional right to same-sex marriage, defending free speech and protecting legal abortions. Conservatives revered iconic decisions like Citizens United (protecting the rights of corporate speech) and Gonzales v. Carhart (upholding a federal law that criminalizes partial-birth abortions).

Kennedy’s jurisprudence reflected a unique mix of libertarian and natural-rights elements. To him, the Constitution may not have been the “living” document embraced by his liberal colleagues, but it evolved in its application to new forms of expression and association. That evolution often meant discarding prior doctrines and the time-honored judicial norm of stare decisis — the notion that courts should “stand by things decided.” Absent significant changes in the underlying law or conditions, courts avoid overturning precedent in the interests of institutional consistency and integrity. Kennedy’s cases should rest comfortably within that cocoon of tradition. Indeed, at one time, Kennedy insisted that “the whole object of the judiciary is to ensure stability, continuity, and so we pride ourselves on the fact that there is little change.”

But contained in his long tenure, and in many of his most historic cases, is an occasional disdain for precedent; his most important rulings were built on the ashes of prior decisions. In Lawrence v. Texas, for example, Kennedy tossed out the nearly two-decade-old ruling in Bowers v. Hardwick, citing changes in legal and social views. “Bowers was not correct when it was decided, and it is not correct today,” he wrote. “It ought not to remain binding precedent.”

In June, he advanced his attack on stare decisis even further, authoring a 5-to-4 decision that cavalierly dispensed with a major 1992 tax precedent. Then he signed onto a majority opinion this past week overturning an important 1977 case about union dues.

washington post logoWashington Post, Those 5-to-4 decisions on the Supreme Court? 9 to 0 is far more common, Sarah Turberville and Anthony Marcum, June 28, 2018. Splits get all the attention, but consensus is the rule, and that's how it should be.

Justice Anthony M. Kennedy’s announcement Wednesday that he would be retiring from the Supreme Court led to justifiable hand-wringing about his crucial role as the swing vote in 5-to-4 decisions. But while 5-to-4 decisions — including the Tuesday blockbuster upholding President Trump’s travel ban — draw deserved attention, they obscure an important truth: The court values consensus, and justices agree far more often than they disagree.

The ratio is staggering. According to the Supreme Court Database, since 2000 a unanimous decision has been more likely than any other result — averaging 36 percent of all decisions. Even when the court did not reach a unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up about 15 percent of decisions. The 5-to-4 decisions, by comparison, occurred in 19 percent of cases.

And the court’s commitment to consensus does not appear to be slowing. In the 2016-17 term, 57 percent of decisions were unanimous, and judgments with slim majorities (5 to 3 or 5 to 4) accounted for 14 percent. This term shows a similar trend. Surprisingly firm majorities issued some of the most anticipated decisions.

In Masterpiece Cakeshop — the case concerning a baker’s refusal to bake a wedding cake for a same-sex couple — the court issued a rather narrow ruling on the substance, but it drew seven of the nine justices’ votes. In Gill v. Whitford, the court unanimously agreed that a group of Wisconsin voters did not have standing to challenge their state’s legislative map, and seven justices concurred that the voters could take their case back to district court and try again.

Analysis of Court Decisions

(Arranged in reverse chronological order)

July 2

SCOTUS for law students, Supreme Court mysteries and the justices’ papers, Stephen Wermiel, July 2, 2018. In the month of June, when the Supreme Court issues dozens of decisions to conclude its term, who would not want to be a fly on the wall inside the conference of the justices trying to understand what compromises were made or why cases came out as they did?

Rarely has this been more true than this past month, in which a seemingly large number of the court’s most closely watched cases produced decisions that decided much less than was anticipated by court-watchers and litigants.

What is one to do to satisfy curiosity about why, for example, the court yet again declined to confront questions about the constitutionality of political gerrymandering of legislative districts?

The short answer is wait. Wait for what, you ask? Often, the answers to nagging mysteries about what happened inside the court and why can only be answered by historians who some time in the future get to pore over the papers of justices who have long since retired or died.

How does this process work and what might one learn from the papers of the justices?

The first thing to know is that there is no uniformity of any kind among the justices and their files and records. Justices are free to save or destroy whatever records they choose, to donate them wherever they want, to make them available whenever they want and to include whatever content they like.

This thoroughly unregulated field is in marked contrast to the papers of presidents, which are governed by federal law. Under presidential records statutes, every piece of paper must be saved and preserved. The Supreme Court, however, has no such statute, and so it is up to each justice to decide what to do with his or her files.

What has this meant in recent decades? Justices have spread their papers around the country. The largest single repository of justices’ papers is the Manuscript Division of the Library of Congress, housed in the Madison Building in Washington, D.C. There, one can find the papers, among others, of Chief Justices Earl Warren, Fred Vinson, Harlan F. Stone and William Howard Taft, and Associate Justices William J. Brennan, Thurgood Marshall, Harry Blackmun, Hugo Black, William O. Douglas, Byron White, Arthur Goldberg and many more.

Steve Wermiel is a Fellow in Law & Government at American University Washington College of Law, where he teaches constitutional law and a seminar on the Supreme Court and directs a Summer Institute on Law & Government for lawyers and law students. He is the co-author of “Justice Brennan: Liberal Champion,” published in 2010. He was the Wall Street Journal Supreme Court correspondent from 1979 to 1991 and has been teaching law since 1991.

June 30

  • Union Rights: Janus v. American Federation of State, County and Municipal Employees Council 31, decided 5-4 on June 27, 2018. *
  • Wedding Cake For Gay Couple: Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided 7-2 on June 4, 2018.

ny times logoNew York Times, How Free Speech Is Being Used as a Weapon by Conservatives, Adam Liptak, June 30, 2018. Borrowing arguments that were once the province of liberals, conservatives have used the First Amendment to justify things like campaign spending and attacks on regulating tobacco and guns. As a result, many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.

On the final day of the Supreme Court term last week, Justice Elena Kagan sounded an alarm.

The court’s five conservative members, citing the First Amendment, had just dealt public unions a devastating blow. The day before, the same majority had used the First Amendment to reject a California law requiring religiously oriented “crisis pregnancy centers” to provide women with information about abortion.

Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were “weaponizing the First Amendment.”

The two decisions were the latest in a stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech. Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns.

June 27

  • Immigration: Trump v. Hawaii, decided 5-4 * on June 26, 2018.

washington post logoWashington Post, Travel-ban ruling could embolden Trump on immigration, David Nakamura​, ​June 27, 2018 (print edition). The Supreme Court's 5-4 decision upholding President Trump's authority to ban travelers from certain majority-Muslim countries could spur Trump to increase efforts to transform his campaign-trail warnings of the threats posed by foreigners who attempt to enter the U.S. into official policy.

washington post logoWashington Post, Many religious liberty groups silent on decision, Michelle Boorstein​, ​June 27, 2018 (print edition). Many prominent legal and advocacy groups focused on religious liberty put out no statements about the travel-ban ruling, despite the arguments raised in the case about religious discrimination.

neil gorsuch louise donald trump jan 31 2017

President Trump announces nomination of U.S. Circuit Judge Neil Gorsuch to the Supreme Court in January 2017 as the latter's wife Louise looks on

  • Wedding Cake for Gay Couple: Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided 7-2 on June 4, 2018.

ny times logoNew York Times, G.O.P. Blockade of Obama Nominee Pays Off in Rulings, Elizabeth Dias and Sydney Ember, June 27, 2018 (print edition). The consequences of President Trump’s nomination of Neil M. Gorsuch to the Supreme Court — and the Republican blockade of President Barack Obama’s nomination of Merrick B. Garland (shown at left below) in 2016 for that seat — became powerfully clear on Tuesday after the court’s conservative majority handed down major decisions to uphold Mr. Trump’s travel ban and in favor of abortion rights opponents.

merrick garlandSocial conservatives cheered the court’s ruling that a California law requiring “crisis pregnancy centers” to provide abortion information likely violates the First Amendment. Some conservatives also viewed the ruling — their latest win to advance their anti-abortion cause since Mr. Trump has taken office — as another opportunity to energize their base ahead of the November elections.

neil gorsuch kissinger quote yearbookGorsuch had long espoused right-wing views, as indicated in a yearbook page in which he cited former Secretary of State Henry Kissinger's flip praise for "unconstitutional" actions.

The travel ban decision drew more conflicting reactions from conservative voters and religious groups, with some criticizing it as anti-immigrant. Several groups supporting immigrants deemed the travel ban decision “shameful” and “hateful.” And many Democratic leaders denounced both rulings.

What many partisans on both sides agreed on, though, was that Justice Gorsuch — who voted with the 5-to-4 majorities in both cases — was an especially key figure in Tuesday’s decisions, because he wouldn’t have been on the court if Mr. Obama had been successful with the original nomination of Judge Garland.

  • Union Rights: Janus v. American Federation of State, County and Municipal Employees Council 31, decided 5-4 on June 27, 2018. *

ny times logoNew York Times, Analysis: Unions May Become Smaller and Poorer, but Not Weaker, Noam Scheiber, June 27, 2018. The ruling could cost public-sector unions more than a million members. But the ones who stay could make labor more powerful. With the Supreme Court striking down laws that require government workers to pay union fees, one thing is clear: Most public-sector unions in more than 20 states with such laws are going to get smaller and poorer in the coming years.

Though it is difficult to predict with precision, experts and union officials say they could lose 10 percent to one-third of their members, or more, in the states affected, as conservative groups seek to persuade workers to drop out.

The court’s decision is the latest evidence that moves to weaken unions are exacting a major toll. Beyond the dropout campaigns aimed at members, conservatives have also backed state legislation making it harder for unions to operate — like requiring authorization to deduct part or all of workers’ dues from their paychecks — and are bringing lawsuits to retroactively recover fees collected by unions from nonmembers.

In the five years after Michigan passed a law ending mandatory union fees in 2012, the number of active members of the Michigan Education Association dropped by about 25 percent, according to government filings, a much faster attrition rate than before. Its annual receipts fell by more than 10 percent, adjusting for inflation.

Still, the more interesting question is whether the unions, whatever the blow to their ranks and finances, will be substantially weaker. 

  • Water Rights: Florida v. Georgia, decided 5-4 on June 27, 2018.

USA Today, Supreme Court sides with Florida in decades-long dispute with Georgia over water rights, Ledyard King, June 27, 2018.  The Supreme Court Wednesday handed Florida an unlikely victory in its decades-long fight with Georgia over water rights, ruling a court-appointed special master was "too strict" in determining that no remedy in the court's power would boost water flow into the Apalachicola River and help the region's beleaguered oyster industry.

The 5-4 decision remands the case, known officially as Florida v. Georgia, back to Special Master Ralph Lancaster Jr., who sided with Georgia in a decision issued last year that Florida later appealed to the nation's highest court.

Lancaster found that Florida had suffered harm from the decreased water flow in the Apalachicola-Chattahoochee-Flint River basin but had not proven that limiting the amount of water Georgia consumed would provide the relief it sought. That was largely because the U.S. Army Corps of Engineers, the agency in charge of federal water projects, is not a party to the lawsuit.

But the justices Wednesday said Florida made a "sufficient showing" to both the special master and the high court itself that capping consumption by Georgia would provide a direct benefit to Apalachicola Bay.

June 25

  • Gerrymandering; Abbott v. Perez decided 5-4 on June 25, 2018 * and Gill v. Whitford, decided 7-2 on June 18, 2018 (two justices dissenting in part).

washington post logoWashington Post, Supreme Court largely upholds maps in Texas case on racial gerrymandering, Robert Barnes, June 25, 2018. A lower court ruled last summer that the Texas congressional and legislative districts discriminated against black and Hispanic voters. But justices said the panel was wrong in how it considered the challenges.

samuel alitoThe Supreme Court on Monday largely upheld Texas congressional and legislative maps that a lower court said discriminated against black and Hispanic voters. The lower court was wrong in how it considered the challenges, Justice Samuel A. Alito Jr. [right, part of the court's Republican-nominated 5-4 majority] wrote in the 5 to 4 decision. The majority sided with the challengers over one legislative district.

Justice Sonia Sotomayor wrote a dissent that was longer than Alito’s majority decision. She said the decision “does great damage to the right of equal opportunity. Not because it denies the existence of that right, but because it refuses its enforcement.”

Alito was joined in the outcome by the court’s most consistent conservatives — Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Neil M. Gorsuch.

 washington post logoWashington Post, Supreme Court sends case on North Carolina gerrymandering back to lower court, Robert Barnes​, June 25, 2018. The case centered on whether Republicans drew the state’s congressional districts to give the party an unfair advantage. Justices said a lower court must decide whether the plaintiffs had the proper legal standing to bring the case.

us supreme court 2017North Carolina’s Republican-led legislature has implemented a map under which Republicans hold 10 of the 13 congressional seats. The GOP’s domination of the congressional delegation belies North Carolina’s recent history as a battleground state. It has a Democratic governor and attorney general, who have declined to defend the maps.

washington post logoWashington Post, Opinion: Rigged Supreme Court upholds rigged electoral maps, Paul Waldman, June 25, 2018. The Republican majority on the Supreme Court just delivered another victory to the broad and deep GOP effort to make sure that American elections are rigged in conservatives’ favor.

SCOTUSblog, Analysis: Texas scores near-complete victory on redistricting, Amy Howe, June 25, 2018. This morning the Supreme Court ruled in favor of Texas in a dispute alleging that the state’s lawmakers had drawn redistricting maps to discriminate against some of the state’s black and Hispanic residents. By a vote of 5-4, the justices threw out almost all of a ruling by a three-judge federal district court that would have invalidated the maps, agreeing with the lower court only that one state legislative district was a racial gerrymander. Today’s ruling means that elections this year will likely go forward using the existing maps.

The decision came in the two cases known as Abbott v. Perez, which date back to 2011, when Texas’ Republican-controlled legislature began to redistrict after the 2010 census.

The legislature’s federal congressional and state legislative maps never took effect, because a three-judge district court (which normally hears redistricting cases) barred the state from using the maps and created its own plans instead. But the U.S. Supreme Court threw out the court-created maps in 2012, telling the lower court to use the state legislature’s maps as a “starting point” for new maps. The district court did so, and in 2013 the state legislature adopted the maps for permanent use.

  • Wedding Cake for Gay Couple: Masterpiece Cakeshop v. Colorado Civil Rights Commission, decided 7-2 on June 4, 2018.

The Hill, Supreme Court throws out case against florist who refused to do arrangement for gay wedding, Lydia Wheeler, June 25, 2018. The Supreme Court on Monday threw out a lower court ruling which found a Washington florist had intentionally discriminated against a same-sex couple for refusing to make flower arrangements for their wedding.

June 22

  • Privacy: Carpenter v. U.S., decided 5-4 on June 22, 2018.

washington post logous supreme court 2017Washington Post, Supreme Court rules that warrant is generally needed to access cell tower records. Robert Barnes, June 22, 2018. The case is seen as an important moment in determining the government’s ability to access to the ever-increasing amount of private information about Americans available in the digital age.

The Supreme Court on Friday put new restraints on law enforcement’s access to the ever-increasing amount of private information about Americans available in the digital age.

In the specific case before the court, the justices ruled that authorities generally must obtain a warrant to gain access to cell-tower records that can provide a virtual timeline and map of a person’s whereabouts. Chief Justice John G. Roberts Jr. wrote the 5 to 4 decision, in which he was joined by the court’s liberal members. Each of the dissenting conservatives wrote separate opinions.

Roberts said the decision was a narrow one and a cautious approach to providing constitutional protections against unlawful searches and seizures to evolving technology.

The justices ruled for Timothy Carpenter, who is serving a 116-year sentence for his role in armed robberies in 2010 and 2011 at RadioShack and T-Mobile stores in and around Detroit. He was accused of being the ringleader of a gang stealing smartphones. One of the men arrested said Carpenter typically organized the robberies, supplied the guns and acted as a lookout. Authorities asked his cellphone carrier for 127 days of records that would show Carpenter’s use of his phone.

Such records indicate where a cellphone establishes connections with a specific cell tower and give a fair representation of the vicinity of the user. In Carpenter’s case, the mass of information showed his phone at 12,898 locations, including close to where the robberies occurred when they took place.

Carpenter’s attorneys said that the government’s actions violated their client’s rights under the Fourth Amendment, which protects against unreasonable searches. Authorities should have had to convince a judge that there was probable cause to get the records, they said.

“This is a groundbreaking victory for Americans’ privacy rights in the digital age,” said ACLU attorney Nathan Freed Wessler, who argued on Carpenter’s behalf before the court in November. “The Supreme Court has given privacy law an update that it has badly needed for many years, finally bringing it in line with the realities of modern life.”

June 21

us supreme court 2017

The 2017 U.S. Supreme Court, with Republican anti-union activist and Associate Justice Samuel Alito shown in the top row, second from the left.

ny times logoNew York Times, Opinion: A Question of Legitimacy Looms for the Supreme Court, Linda Greenhouse, June 21, 2018. Linda Greenhouse, shown at linda greenhouse cover just a journalistright on the cover of her recent memoir, is a Yale Law School graduate who covered the Supreme Court for many years for the New York Times.

Any day now, perhaps as soon as Thursday, the Supreme Court will issue a decision that more than any other case this term will reveal to us the heart and soul of the Roberts Court at the end of Chief Justice John G. Roberts Jr.’s 14th year.

The case is Janus v. American Federation of State, County and Municipal Employees. It presents the question of whether the court will adhere to its 41-year-old precedent under which states can require public employees who object to joining a union to nonetheless pay their fair share of the union’s costs of the collective bargaining from which all employees benefit.

The basic argument in Janus is that the First Amendment should be interpreted to shield workers who don’t like their union from having to associate with it or lend support to its activities.

The Supreme Court rejected that argument in 1977 when it decided Abood v. Detroit Board of Education, and it has rejected analogous arguments in other compulsory-fee situations, including state bar dues for lawyers and mandatory student association fees on public campuses. The underlying argument in support of these mandatory fees is the greater common good; the specific rationale in the labor context is that the presence of free riders, who enjoy the benefits of having a union while refusing to pay for the bargaining efforts that won them, is a threat to peace in the workplace.

The path of the Janus case to the Supreme Court exemplifies the politics of the issue. The case was initially filed in 2015 in Federal District Court in Illinois not by an Illinois public employee but by the newly elected Republican governor, Bruce Rauner. He is a former private equity executive with a personal fortune of $500 million who spent millions on a campaign in which opposition to organized labor played a substantial part.

So is it possible that just as the Supreme Court is about to take a hammer to the teachers’ unions, teachers are back in favor? A Supreme Court decision, needless to say, is not a popularity contest, nor should it be. At the same time, the court necessarily skates on thin ice when it comes as close as it has here to serving an agenda that is not the public’s but its own — and by a 5-to-4 vote.

  • State Taxes On Internet Sales: South Dakota v. Wayfair, Inc., decided 5-4 on June 21, 2018.

ny times logoNew York Times, Court Clears Way for Sales Taxes on Internet Merchants, Adam Liptak, June 21, 2018. Internet retailers can be required to collect sales taxes in states where they have no physical presence, the Supreme Court said. States have said that they were missing out on tens of billions of dollars in revenue under a 1992 ruling that helped spur the rise of internet shopping.

us supreme court 2017Internet retailers can be required to collect sales taxes in states where they have no physical presence, the Supreme Court ruled on Thursday. Brick-and-mortar businesses have long complained that they are disadvantaged by having to charge sales taxes while many of their online competitors do not. States have said that they are missing out on tens of billions of dollars in annual revenue under a 1992 Supreme Court ruling that helped spur the rise of internet shopping.

On Thursday, the court overruled that ruling, Quill Corporation v. North Dakota, which had said that the Constitution bars states from requiring businesses to collect sales taxes unless they have a substantial connection to the state.

amazon logo smallShares in Amazon were down just 1 percent in morning trading after the ruling, at $1,731.59. But other e-commerce companies suffered far tougher blows: Shares in Etsy, the marketplace for artisanal crafts, fell 4.5 percent, to $42.21, while those in Wayfair, a popular home goods seller, were down 3.2 percent, at $112.42.

  • Immigration: Pereira v. Sessions decided 8-1 on June 21, 2018

WBUR-FM (Boston), Supreme Court Rules In Favor Of Martha's Vineyard Man In Immigration Case, Shannon Dooling, June 21, 2018. The U.S. Supreme Court decided Thursday in favor of a Martha's Vineyard man in an immigration case that has the potential to affect thousands of other immigrants living in the country without authorization.

In the 8-1 opinion, the court decided that if an unauthorized immigrant's "notice to appear" in immigration court doesn't designate the specific time or place of the non-citizen's removal proceedings, then it's not a "notice to appear" and it doesn't stop the clock on the non-citizen's "continuous physical presence" in the U.S.

Here's why that matters: If you're an immigrant living in the country without authorization, a clock starts ticking the moment you enter the U.S. If your clock — your time in the country — hits 10 years, then under certain circumstances, you could be eligible to apply for what's called a 10-year cancellation of removal. The government, however, says once a "notice to appear" is issued, it triggers a so-called "stop-time" rule and this clock no longer accrues more time.

Wescley Pereira, a native of Brazil, is the man at the heart of the SCOTUS case, Pereira v. Sessions. Pereira overstayed his visa and has been living and working on Martha's Vineyard for 16 years.

June 11

supreme court building

  • Voting Rights: Husted v. A. Philip Randolph Institute, decided 5-4 on June 11, 2018. *

ny times logoadam liptakNew York Times, Supreme Court Upholds Ohio’s Aggressive Purge of Voting Rolls, Adam Liptak (right), June 11, 2018. In a major voting rights case, the court ruled that a state may kick people off the rolls if they skip a few elections and fail to respond to a notice from state election officials. The vote was 5 to 4, with the more conservative justices in the majority.

new yorker logoNew Yorker, The Supreme Court’s Husted Decision Will Make It More Difficult for Democrats to Vote, Jeffrey Toobin, June 11, 2018. Major Supreme Court opinions exercise a kind of hydraulic effect on the future of the law. The results in the individual case matter, of course, but the greater significance comes from the signals that the Justices send about what they will allow in the future.

That’s why Monday’s decision in Husted v. A. Philip Randolph Institute matters so much. By a vote of 5–4, the Justices upheld Ohio’s purge of less-frequent voters from its rolls. That ruling is bad enough on its own terms, but what makes Justice Samuel Alito’s opinion so chilling is the way that it invites other states to continue and to expand this anti-democratic practice.

It’s often possible to read thousands of words in a Supreme Court opinion and be lulled by the legalese into missing what’s really at stake in the case. This is especially true of Alito’s opinion in Husted and even, to an extent, of Justice Stephen Breyer’s dissent, which was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. As described by both these opinions, the case was essentially just a matter of statutory interpretation, in this instance, of the National Voter Registration Act, better known as “Motor Voter Act,” which passed in 1993.

That law was intended to make it easier for people to register to vote, but it included a provision to keep voter rolls accurate, which requires states to “conduct a general program that makes a reasonable effort to remove the names” of voters who are ineligible “by reason of” death or change of residence. In Alito’s bland phrasing, the Husted case concerns a challenge to “an Ohio law that aims to keep the State’s voting lists up to date by removing the names of those who have moved out of the district where they are registered. Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved.” Ohio sends a postcard to those who haven’t voted in two years. If they return it, they stay on the rolls; if they don’t, and don’t vote in the next two elections, they are removed.

With the facts in the case phrased in this way, one might reasonably ask, who cares? Isn’t this just a dispute over bureaucratic record-keeping? That’s pretty much how Alito’s opinion describes it.

But Alito’s anodyne recitation seems to intentionally avoid the partisan heart of the dispute. Since Republicans took control of many major states, including Ohio, in the G.O.P. landslides of 2010, one of their principal objectives has been to lock in their electoral advantage through the manipulation of election law.

Specifically, the dominant Republicans in these states have tried in a variety of ways to make it more difficult for poor people and minorities and the young (all overwhelmingly Democratic groups) to vote. In most of the relevant states, again including Ohio, this has included establishing strict I.D. requirements at the polls, and limiting early and absentee voting.

But the most pernicious attempt has been the one at issue in the Husted case: the purging of eligible voters. As the Republican lawmakers in Ohio well know, Democrats tend to vote more sporadically than Republicans, often sitting out midterm elections. For a variety of reasons associated with their socioeconomic circumstances, Democrats may encounter difficulties in record keeping and may miss postcard reminders to re-register.

This law, in other words, is a cynical device to remove Democrats from the voting rolls. That’s a feature of the law, not a bug. (Even worse, for voting-rights advocates, tracking the effects of voter purges, which target individual citizens, is a much more difficult and painstaking process than identifying the results of voter-I.D. or early-voting laws.)

In a separate dissenting opinion, Sotomayor pierces the artifice underlying the case. Displaying a bracing familiarity with the real world, Sotomayor notes that “low voter turnout rates, language-access problems, mail delivery issues, inflexible work schedules, and transportation issues, among other obstacles, make it more difficult for many minority, low-income, disabled, homeless, and veteran voters to cast a ballot or return a notice, rendering them particularly vulnerable to unwarranted removal.” Not surprisingly, then, she observes that Ohio’s purge “has disproportionately affected minority, low-income, disabled, and veteran voters.” Again, feature, not bug.

What makes the Ohio law especially odious is that it’s a cure for which there is no disease. Some people don’t vote in off-year elections, or in every Presidential-election year. That’s no indication of voter fraud, nor a reason to punish them with disenfranchisement. But that’s what this law does; indeed, that’s the whole point of it.jon husted o

According to Jon Husted, the Republican (shown at right) who is Ohio’s secretary of state, “Today’s decision is a victory for election integrity. This decision is validation of Ohio’s efforts to clean up the voter rolls and now with the blessing nation’s highest court, it can serve as a model for other states to use.” In this, he’s right. Lawmakers in Republican-controlled states will see the Husted decision as an invitation, hydraulic in its force, to launch even more invasive purges of disfavored voters. It’s an invitation that many are likely to accept.

Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.

  • Arbitration: Epic Systems Corp. v. Lewis, decided 5-4 on May 21, 2018. *

The Atlantic, An Epic Supreme Court Decision on Employment, Garrett Epps, May 22, 2018.  The 5-4 ruling in Epic Systems Corp. v. Lewis could weaken workplace protections—and the justices on both sides knew it.

False dichotomy, meretricious piety, and pay-no-attention-to-that-man-behind-the-curtain misdirection are vital arrows in the quiver of any lawyer or judge, no matter of what persuasion. These tricks were on particularly egregious display in Epic Systems Corp. v. Lewis, a 5-4 decision announced Monday in which the Supreme Court’s conservative majority continued its drive to narrow protection for employee rights. (The opinion, written by Justice Neil Gorsuch, was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito; the dissent, by Justice Ruth Bader Ginsburg, was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.)

The issue in Epic Systems was this: Can an employer require its employees, as a condition of keeping their jobs, to submit to individual arbitration of wage-and-hour and other workplace-condition claims—not only without an option to go to court, but without an option to pursue even private arbitration in common with other employees making the same claim? Employees’ objection to a “no group arbitration” clause is that individual arbitration may concern amounts too small to make pursuing them worthwhile. Thus, these clauses make it easier for employers to maintain unfair or even unlawful employment structures and salary systems.

Garrett Epps is a contributing editor for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is "American Justice 2014: Nine Clashing Visions on the Supreme Court."

  • Sports Gambling: Murphy, v. NCAA decided 7-2 on May 14, 2018 (with Justice Breyer dissenting in part).

SCOTUSblog, Analysis: Justices strike down federal sports gambling law, Amy Howe, May 14, 2018. The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies.

Today the justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine. Their decision not only opens the door for states around the country to allow sports betting, but it also could give significantly more power to states generally, on issues ranging from the decriminalization of marijuana to sanctuary cities.

The federal law at issue in the case is the Professional and Amateur Sports Protection Act, which dates back to 1992. The law, known as PASPA, bans most states from (among other things) authorizing sports gambling; it carved out an exception that would have permitted New Jersey to set up a sports-betting scheme in the state’s casinos, as long as the state did so within a year. But it took New Jersey 20 years to act: In 2012, the state legislature passed a law that legalized sports betting.