SCOTUS Review

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News and comment regarding the Supreme Court of the United States (SCOTUS) are shown below.  The links to a sample of significant reports are drawn primarily from major national outlets or from those featuring specialized expertise. They are arranged in reverse chronological order.

Andrew Kreig, J.D., M.S.L. / Justice Integrity Project editor

2018

July

July 14

ny times logoNew York Times, Influential Judge, Conservative Warrior — and D.C. Insider, Scott Shane, Steve Eder, Rebecca R. Ruiz, Adam Liptak, Charlie Savage and Ben Protess, July 14, 2018. The carefully crafted narrative around Brett Kavanaugh, President Trump’s Supreme Court nominee, plays down his legacy as a charter member of elite Washington.

When Judge Brett M. Kavanaugh introduced himself to the American people on Monday, with a beaming President Trump beside him, he had a lot to say about his mother, a former high school teacher and a Maryland judge. He accorded his father strikingly less attention — just 34 words, compared with 132 about his mother — mentioning his “unparalleled work ethic” while not saying exactly what work he did.

john roberts oYet Ed Kavanaugh’s career may shed light on his son’s hostility to government regulation, a major reason conservatives are so enthralled by his nomination to the Supreme Court. He spent more than two decades in Washington as a top lobbyist for the cosmetics industry, courting Congress and combating regulations from the Food and Drug Administration and other agencies. (Among his hires for legal work: John G. Roberts Jr. (shown at right), now the chief justice.)

July 13

ny times logoNew York Times, Opinion: Does Brett Kavanaugh Spell the End of Voting Rights? Ari Berman, July 13, 2018. Mr. Berman is a journalist who specializes in voting rights. If he is confirmed for the Supreme Court, we will see the most extreme court on civil rights since the era of Jim Crow.

john roberts oThe threat of voter disenfranchisement will get worse if Judge Kavanaugh is confirmed to the court. His opinion in the South Carolina case and his record in civil rights matters suggests that he will join with the court’s conservative justices to further roll back voting rights protections and other civil rights laws.

If Judge Kavanaugh is confirmed, Chief Justice John Roberts (shown at right) will become the new swing voter. That’s terrible news for voting rights.

July 12

brett kavanaughSCOTUSblog,Thursday round-up, Edith Roberts, July 12, 2018. The nomination of Judge Brett Kavanaugh to the Supreme Court remains front and center in the news. For The Washington Post, Amy Brittain reports that financial disclosures and information provided by the White House indicate that “Kavanaugh incurred tens of thousands of dollars of credit card debt buying baseball tickets over the past decade and at times reported liabilities that could have exceeded the value of his cash accounts and investment assets.”

For The New York Times, Katie Benner reports that “Rod J. Rosenstein, the deputy attorney general, has asked federal prosecutors to help review the government documents of Judge Brett M. Kavanaugh,” and that the request “was an unusual insertion of politics into federal law enforcement.” For The Washington Post’s Fact Checker column, Salvador Rizzo examines speculation about “a past business relationship between Donald Trump and one of Kennedy’s sons” that some have suggested may have influenced the justice’s recent rulings or his decision to retire, giving the allegations four Pinocchios.

At CNN, Joan Biskupic analyzes Kavanaugh’s record, concluding that “he stands to be more than just a reliable vote for the right” and that “[h]e could powerfully influence the country’s legal agenda for decades.” For The Washington Post, Robert Barnes and Ann Marimow report that “Kavanaugh has only one major abortion ruling in his 12 years on the federal bench, but that forceful opinion will define the coming debate on what his elevation to the Supreme Court would mean for a woman’s constitutional right to the procedure.” At Bloomberg, Sahil Kapur and Greg Stohr report that “senators and activists on both sides of the debate” say “Kavanaugh’s views on gun rights may push the court to expand Second Amendment protections.”

washington post logoWashington Post, What to expect from Brett Kavanaugh's confirmation battle, Amy Brittain, July 11, 2018. Supreme Court nominee Brett M. Kavanaugh incurred tens of thousands of dollars of credit card debt buying baseball tickets over the past decade and at times reported liabilities that could have exceeded the value of his cash accounts and investment assets, according to a review of Kavanaugh’s financial disclosures and information provided by the White House.

White House spokesman Raj Shah told The Washington Post that Kavanaugh built up the debt by buying Washington Nationals season tickets and tickets for playoff games for himself and a “handful” of friends. Shah said some of the debts were also for home improvements.

In 2016, Kavanaugh reported having between $60,000 and $200,000 in debt accrued over three credit cards and a loan. Each credit card held between $15,000 and $50,000 in debt, and a Thrift Savings Plan loan was between $15,000 and $50,000.

washington post logoWashington Post, In major abortion ruling, Kavanaugh offers clues of how he might handle divisive issue, Robert Barnes and Ann E. Marimow, July 12, 2018. Judge Brett M. Kavanaugh issued a strongly worded dissent last fall in a case involving a pregnant immigrant teenager in federal custody.

ny times logobrett kavanaughNew York Times, Democrats Zero In on Nominee’s View of Presidential Power, Sheryl Gay Stolberg, July 12, 2018 (print edition). Democrats thought the weakness of a Supreme Court nominee would be health care and abortion. Then came Brett M. Kavanaugh’s writings on shielding presidents from investigation.

Democrats who once saw health care and abortion as their best lines of attack against Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, are recalibrating their approach to go after him for his view that a sitting president should not have to answer questions in a criminal case, much less face indictment.

Senator Chuck Schumer of New York, the Democratic leader, said in an interview on Wednesday that Judge Kavanaugh’s belief in broad presidential authority was “just off the deep end.”

For Democrats facing an uphill struggle to block Judge Kavanaugh’s confirmation, his protective views of the presidency could prove to be a bright red ribbon. Rather than just playing it safe with a broad swath of voters worried about access to health care and abortion, Democrats now see an opportunity to excite their base by fanning fears that the highest court in the land could turn into a bulwark to protect the man appointing its members.

July 11

ny times logobrett kavanaughNew York Times, Trump Subpoena May Put Nominee’s Legal Theory to the Test, Adam Liptak, July 11, 2018 (print edition). Judge Brett M. Kavanaugh (shown at right) has questioned the wisdom of forcing sitting presidents to answer questions from prosecutors.

ny times logoNew York Times, Democrats Zero In on Nominee’s View of Presidential Power, Sheryl Gay Stolberg, July 11, 2018.  Democrats thought the weakness of a Supreme Court nominee would be health care and abortion. Then came Brett M. Kavanaugh’s writings on shielding presidents from investigation.

Democrats who once saw health care and abortion as their best lines of attack against Judge Brett M. Kavanaugh, President Trump’s Supreme Court nominee, are recalibrating their approach to go after him for his view that a sitting president should not have to answer questions in a criminal case, much less face indictment.

Senator Chuck Schumer of New York, the Democratic leader, said in an interview on Wednesday that Judge Kavanaugh’s belief in broad presidential authority was “just off the deep end.”

For Democrats facing an uphill struggle to block Judge Kavanaugh’s confirmation, his protective views of the presidency could prove to be a bright red ribbon. Rather than just playing it safe with a broad swath of voters worried about access to health care and abortion, Democrats now see an opportunity to excite their base by fanning fears that the highest court in the land could turn into a bulwark to protect the man appointing its members.

washington post logoWashington Post, The elite world of Brett Kavanaugh, Paul Schwartzman and Michelle Boorstein, July 11, 2018. Trump’s nominee to the Supreme Court grew up in Washington and lives in one of its most affluent neighborhoods, among Democrats who avoid talking politics with him.

ny times logoNew York Times, Rosenstein Makes Unusual Request on Court Nominee’s Files, Katie Benner, July 11, 2018.  Rod J. Rosenstein, the deputy attorney general, asked each of the nation’s 93 United States attorneys to provide up to three prosecutors to review the documents of President Trump’s Supreme Court pick.

Former law enforcement officials described Mr. Rosenstein’s directive as a troubling precedent. “It’s flat-out wrong to have career federal prosecutors engaged in a political process like the vetting of a Supreme Court nominee,” said Christopher Hunter, a former F.B.I. agent and federal prosecutor who is running for Congress. “It takes them away from the mission they’re supposed to be fulfilling, which is effective criminal justice enforcement.”

Mr. Rosenstein wrote that he expected to need the equivalent of 100 full-time lawyers to work on Judge Kavanaugh’s confirmation hearing, and that the work would be supervised by the Justice Department’s Office of Legal Policy in Washington. The office typically helps with judicial nominations; most of its staff is made up of career Justice Department lawyers.

July 10

SCOTUSblog, Tuesday round-up: reactions To Kavanaugh Nomination, Andrew Hamm, July 10, 2018 (with links to reports below). Amy Howe has this blog’s coverage; Mark Walsh provides a “view” from the East Room. Additional coverage comes from Nina Totenberg on NPR’s Morning Edition (podcast), Tony Mauro of The National Law Journal and David Jackson and Richard Wolf of USA Today. Commentary comes from Jessica Mason Pieklo of Rewire.News, who writes that “as in all reality TV, there was a clear winner in Trump’s selection process. But unlike on The Bachelorette, the rest of us are the ones who were always going to lose.”

Reporting on Kavanaugh as Washington insider comes from Richard Wolf of USA Today and Joan Biskupic of CNN. Writing for The Economist, Steven Mazie calls Kavanaugh “an unremarkable choice for a Republican president,” notwithstanding that for Trump, “who has departed from so many presidential norms, to have picked someone with close ties to the Washington, DC establishment, may seem surprising for its utter conventionality.”

At The National Law Journal, Tony Mauro lists seven of Kavanaugh’s “more notable rulings that will come into sharp focus now” as his nomination moves forward in the Senate; in a second story at The National Law Journal, Mauro, with Mike Scarcella, compiles “snippets from some of Kavanaugh’s remarks over the years” that could also attract attention. If Kavanaugh is confirmed, it “will not take long before the President’s ambition – to choose a Justice who would vote to roll back constitutional protection for women’s abortion rights – could be fulfilled or frustrated,” reports Lyle Denniston for Constitution Daily. Commentary comes from Bill Blum of Truthdig, who writes that except for Judge Amy Coney Barrett, “Trump could not have chosen a candidate who poses a greater threat to progressive values and causes.”

Reactions to the Kavanaugh nomination

In reaction to President Donald Trump’s nomination of Judge Brett Kavanaugh to the Supreme Court, politicians and interest groups are releasing statements. SCOTUS Watch is tracking “the public statements made by United States senators about how they plan to vote.” This post tracks the statements by interest groups that we have received. We invite you to alert us (nominationstatements [at] gmail [dot] com) to any statements we have missed.

In support of the nominee:

Alliance Defending Freedom (Michael Farris, president, CEO and general counsel)
Americans United for Life (Catherine Glenn Foster, president and CEO)
Heritage Action for America (Tim Chapman, executive director)
Institute for Free Speech (Bradley Smith, chairman and founder)
March for Life (Jeanne Mancini, president)
National Rifle Association of America, Institute for Legislative Action
Pacific Legal Foundation
The Catholic Association

Against or concerned about the nominee:

Anti-Defamation League (Jonathan Greenblatt, CEO and national director)
Auburn Seminary
Bend the Arc: Jewish Action (Stosh Cotler, CEO)
Brady Campaign (Avery Gardiner, co-president)
Center for Reproductive Rights (Nancy Northup, president and CEO)
Demos (Chiraag Bains, director of legal strategies)
Everytown for Gun Safety (John Feinblatt, president)
Human Rights Campaign
Indivisible Project (Ezra Levin, co-executive director)
Lambda Legal
People for the American Way (Michael Keegan, president)
Democracy for America (Jim Dean, chair)
Freedom From Religion Foundation
Physicians for Reproductive Health (Willie Parker, board chair)

washington post logoWashington Post, Winners and losers from Trump’s second search for a new justice, Amber Phillips, July 10, 2018. President Trump’s nomination process was not without controversy, and not everyone came out ahead. The big winner of President Trump’s second Supreme Court pick is Trump himself. He seized the retirement of Justice Anthony M. Kennedy to remind the Republican Party why it needs him: He has the power to make the Supreme Court lean more reliably conservative for a generation.

washington post logoWashington Post, With Brett Kavanaugh, Georgetown Prep can count two Supreme Court nominees among its alumni, Moriah Balingit​, July 10, 2018. Kavanaugh graduated from the elite prep school in 1983, two years ahead of Justice Neil Gorsuch.

nbc news logoNBC News, How Kavanaugh ruled on gun control, health care, and other hot-button issues, Jessica Spitz, July 10, 2018.  Supreme Court nominee Judge Brett Kavanaugh has written almost 300 opinions on a range of issues over his 12 years serving on the federal appellate court.

Corruption Allegations Against Kennedy, Kavanaugh

djt brett kavanaugh family 7 9 18 SmallWall Street On Parade, The Dark Money Behind Trump’s Supreme Court Pick, Pam Martens and Russ Martens, July 10, 2018. There is something revoltingly un-American about a man who stands with his wife and two young daughters to accept the nomination for the highest court in America, talks about feeding the homeless and coaching girls’ basketball – all the while knowing that a lot of very dirty corporate money lurks in the shadows of his nomination.

We’re talking about the fact that Trump made his Supreme Court nominee selection of Brett Kavanaugh from a list that was pre-approved by the Federalist Society – a receptacle for the dark money that flows from the billionaire Charles Koch’s network of corporate polluters and democracy-killing front groups that got the Supreme Court to rubber stamp unlimited corporate money in political campaigns via the Citizens United decision in 2010.

According to the Desmog, using data compiled by the Conservative Transparency project, Donors Trust and Donors Capital Fund are two of the largest dark money groups contributing to the Federalist Society. Donors Trust has given $13,494,100 in total while Donors Capital Fund has given another $11,366,368. The two nonprofits share the same address: 1800 Diagonal Road, Suite 280, Alexandria, Virginia. The actual contributors behind those large sums remain anonymous as a result of the structure of the groups.

The Federalist Society has received another $4 million in total from the Charles G. Koch Charitable Foundation and another Koch-related group, the Claude R. Lambe Charitable Foundation. In an exclusive report in 2010 we found that Charles Koch’s fingerprints were all over Donors Trust and Donors Capital Fund. We reported the following:

“There are shades of Charles Koch all over Donors Capital and Donors Trust. Two grantees receiving repeat and sizeable grants from Donors Capital are favorites of the Koch foundations: George Mason University Foundation and Institute for Humane Studies. Another tie is Claire Kittle. A project of Donor’s Trust is Talent Market.org, a headhunter for staffing nonprofits with the ‘right’ people. Ms. Kittle serves as Talent Market’s Executive Director and was the former Program Officer for Leadership and Talent Development at the Charles G. Koch Charitable Foundation.

Then there is Whitney Ball, President of both Donors Capital Fund and Donors Trust. Ms. Ball was one of the elite guests at the invitation-only secret Aspen bash thrown by Charles Koch in June of this year, as reported by ThinkProgress.org. Also on the guest list for the Koch bash was Stephen Moore, a member of the Editorial Board at the Wall Street Journal. Mr. Moore is a Director at Donors Capital Fund. Rounding out the ties that bind is Lauren Vander Heyden, who serves as Client Services Coordinator at Donors Trust. Ms. Vander Heyden previously worked as grants coordinator and policy analyst at the Charles G. Koch Charitable Foundation.

“Legal counsel for the Kochs has declined to respond to two emails with a week’s lead time seeking clarification of the relationship the Kochs have to Donors Capital and Donors Trust.”

Our investigation was initiated to root out who had funded the circulation of an anti-Muslim film called “Obsession: Radical Islam’s War Against the West.” Just seven weeks before the 2008 Presidential election between John McCain and Barack Obama, and as a whisper campaign emerged linking Obama to Muslims, 100 newspapers and magazines across the U.S. distributed DVDs of the race-baiting “documentary.” Between the newspapers and a separate direct mail campaign, 28 million DVDs flooded households in swing voter states. Donors Capital Fund paid $17,778,600 to the Clarion Fund to carry out the effort. The funds from Donors Capital Fund represented 96 percent of all funds the Clarion Fund received in 2008.

Palmer Report, Opinion: Exposed: secret corrupt retirement deal between Anthony Kennedy and Donald Trump, Bill Palmer, July 10, 2018. Supreme Court Justice Anthony Kennedy was secretly negotiating with Donald Trump about his replacement, even as he was casting major pro-Trump votes that were out of character with his own judicial record. This comes on top of earlier revelations that Kennedy’s son played a key role at Trump’s favorite Russian money laundering bank. We’re now looking at a full blown scandal that’s getting uglier by the hour.

anthony kennedy oNBC News is now backing off from its earlier implication that Anthony Kennedy (shown at right) only agreed to retire if Donald Trump specifically picked Brett Kavanaugh, and is now reporting that Kennedy provided Trump with five names that would be acceptable to him. Brett Kavanaugh was the only conservative name on the list, so Kennedy would have known that Trump could only pick Kavanaugh. These negotiations reportedly began months ago. This means that Kennedy was secretly negotiating his retirement with Trump while he was casting the swing vote on issues like Trump’s Muslim Ban.

While Kennedy has sided with conservatives on fiscal issues, he’s often sided with liberals on civil rights issues like gay marriage; his vote in favor of the Muslim Ban was out of character. If Kennedy had voted against Trump on the Muslim Ban, at a time when he was negotiating with Trump over his potential replacement, it likely would have prompted the vindictive Trump to break off those negotiations. Kennedy would have known this – meaning that his final votes can be seen as fully corrupt.

If anyone were tempted to give Anthony Kennedy the benefit of the doubt about the corrupt nature of this secret deal, that goes out the window within the context of the fairly straight line that can be drawn from Kennedy to his son to Donald Trump to Russian money laundering to the Trump-Russia election rigging conspiracy. Kennedy’s legacy is clearly ruined; the only question is whether he’ll end up facing criminal charges. Follow the money.

fox news logo SmallFox News, NBC News reporter deletes tweet claiming Trump, Kennedy were in cahoots over Kavanaugh selection, Brian Flood, July 10, 2018.  NBC News Capitol Hill reporter Leigh Ann Caldwell on Tuesday deleted a tweet that had triggered backlash, claiming President Trump and retiring Supreme Court Justice Anthony Kennedy were in cahoots to get Judge Brett Kavanaugh to fill the seat.

Caldwell initially tweeted, “On Kavanaugh pick… Kennedy and Trump/WH had been in negotiations for months over Kennedy’s replacement. Once Kennedy received assurances that it would be Kavanaugh, his former law clerk, Kennedy felt comfortable retiring, according to a source who was told of the discussion.”

"I’ve deleted this tweet," Caldwell later tweeted, "because it incorrectly implies a transactional nature in Kennedy’s replacement. I am told by a source who was not directly part of the talks that Kennedy provided Pres. Trump/ WH a list of acceptable replacements."

Kavanaugh, 53, formerly clerked for Kennedy and was elevated to the powerful federal appeals court in the District of Columbia by former President George W. Bush, under whom he had also served as a White House lawyer and staff secretary. Trump officially nominated Kavanaugh to fill Kennedy’s seat on the Supreme Court on Monday night.

Politico, How a private meeting with Kennedy helped Trump get to ‘yes’ on Kavanaugh, Christopher Cadelago, Nancy Cook and Andrew Restuccia, July 9, 2018. While he was eager to keep the suspense alive, the president was always leaning toward Kennedy’s former clerk. After Justice Anthony Kennedy told President Donald Trump he would relinquish his seat on the Supreme Court, the president emerged from his private meeting with the retiring jurist focused on one candidate to name as his successor: Judge Brett Kavanaugh, Kennedy’s former law clerk.

Trump, according to confidants and aides close to the White House, has become increasingly convinced that “the judges,” as he puts it, or his administration’s remaking of the federal judiciary in its conservative image, is central to his legacy as president. And he credits Kennedy, who spent more than a decade at the center of power on the court, for helping give him the opportunity.

July 10

jefferson morleyJFKFacts.org, Opinion: On JFK secrecy, Brett Kavanaugh sides with the CIA, Jefferson Morley (right), July 10, 2018. The D.C. Circuit U.S. Court of Appeals ruled 2-1 on Monday that the CIA does not have to pay my court costs incurred in the long-running FOIA lawsuit Morley v. CIA. The split decision was joined by Judge Brett Kavanaugh (below left), who was nominated by President Trump later that day to serve on the the Supreme Court.

brett kavanaughAbout the information I obtained via litigation, the unsigned opinion said, “the public benefit was small.” The decision made no reference to extensive coverage of Morley v . CIA in the New York Times, Fox News, San Diego Union, St. Paul Pioneer Press, CBS News in Dallas, and the New Yorker, among many other news organizations.

The Times and the U.K. Daily Mail, even published a photo, obtained by the lawsuit, of CIA officer George Joannides (show at right below receiving a lifetime award from the CIA) receiving a medal after he stonewalled JFK investigators in 1978. In the majority view, public interest in Morley v CIA is not a measure of its public benefit.

george joannides cia citation 1981 cia photoA strong dissent by Judge Karen Henderson takes a much more balanced and independent view of the case, in my view. Appointed by President George H.W. Bush in 1990, Henderson points out that the court had previously found that I had met the standard of “public benefit” established in case law.

In a 2013 decision the court stated:

“Morley’s request had potential public value. He has proffered — and the CIA has not disputed — that Joannides served as the CIA case officer for a Cuban group, the DRE, with whose officers Oswald was in contact prior to the assassination. Travel records showing a very close match between Joannides’s and Oswald’s times in New Orleans might, for example, have (marginally) supported one of the hypotheses swirling around the assassination. In addition, this court has previously determined that Morley’s request sought information “central” to an intelligence committee’s inquiry into the performance of the CIA and other federal agencies in investigating the assassination. Under these circumstances, there was at least a modest probability that Morley’s request would generate information relevant to the assassination or later investigations.”

“In other words,” Henderson writes, “we held that Morley satisfied the public-benefit factor in this case,”

cia logoBy ignoring this finding, Henderson argues, the majority opinion ultimately depends on the assertion that the CIA responded “reasonably” to my request. Yet, Henderson notes, the ruling also ignores the fact that the appellate court had ruled the agency’s initial response to my FOIA request was deficient on seven different legal points.

Henderson again:

“The majority discusses five in its opinion. It acknowledges that the CIA: (1) missed the 20-day statutory deadline to respond, Maj. Op. 7; (2) incorrectly referred Morley to NARA rather than responding to his FOIA request itself, Maj. Op. 7-11; (3) failed to search its operational files, Maj. Op. 11; (4) submitted an incomplete Glomar response, Maj. Op. 11-12; and (5) relied on an interpretation of Exemption 2 that was later overruled, Maj. Op. 12. It addresses these errors of law seriatim and labels them “incorrect legally,” Maj. Op. 9, but not “unreasonable.” To me, the CIA’s multiple flawed legal positions suggests that it was “recalcitrant” in declining to produce any documents before being sued. Davy IV, 550 F.3d at 1162. At the least, the errors collectively undermine the district court’s conclusion that the fourth factor “weighs heavily against Morley.” Morley X, 245 F. Supp. 3d at 78 (emphasis added).”

Henderson concludes:

“In sum, I believe the district court erred on two levels: it erred in evaluating each of the four factors individually and abused its discretion in weighing them against one another. Accordingly, this case does not call for “[d]eference piled on deference.” Maj. Op. 11. It calls for an adherence to Davy IV and our four earlier Morley opinions. Because I believe the district court ignored our mandate and misapplied our precedent, I would vacate the district court order a fifth time and remand with instructions to award Morley the attorney’s fees to which he is entitled.”

Unfortunately, the majority, meaning Kavanaugh and Trump appointee Judge Gregory Katsas, disagreed. I have 45 days to appeal.

July 9

Roll Call, Opinion: GOP Should Beware of Roe v. Wade Becoming the Fight, Patricia Murphy, July 9, 2018. Republicans could lose the war for female voters for a generation. Now that we know President Donald Trump has settled on Judge Brett Kavanaugh as his next choice for the Supreme Court, Senate Republicans are poised to deliver on a promise they have been making to conservatives for decades.

In Kavanaugh, the GOP has both its biggest opportunity to move the court to the right for a generation as well as its biggest danger — months of unscripted moments when abortion, reproductive rights and women will be at the center of a heated debate that Republicans have proved uniquely terrible at navigating over the years.

With a slim GOP majority in the Senate and nearly a dozen Democratic senators up for re-election in red states this fall, the chances are good that Kavanaugh will make it through his confirmation process fairly easily, even if it isn’t pretty.

But the chances are equally high that in the process of winning the confirmation battle, Republicans could also lose the war for female voters for a generation as the fight over the future of the court becomes a debate over Roe v. Wade, and whether women or the government should decide when, or even whether, a woman carries a pregnancy to term.

July 9

djt brett kavanaugh family 7 9 18 Small

President Trump introduces Supreme Court nominee Brett Kavanaugh and his family on July 9 at the White House

washington post logoWashington Post, Trump picks Judge Kavanaugh for Supreme Court, Robert Costa, Robert Barnes and Felicia Sonmez​, July 9, 2018. Conservative stalwart has deep ties to the Republican establishment. Brett Kavanaugh, 53, served on the U.S. Court of Appeals and worked in George W. Bush’s White House before moving to the federal bench. Democrats are preparing for a prolonged confirmation showdown on Capitol Hill — determined to rally in defense Roe v. Wade and all areas of the law they fear could be ruptured by the court.

The Intercept, Chuck Schumer Warns Senate Democrats: Fight Brett Kavanaugh Or Pay the Price From the Base, Ryan Grim, July 9, 2018. Senate Minority Leader Chuck Schumer is warning Democrats in the chamber that if they don’t put up a brutal fight over the next Supreme Court justice, there will be hell to pay from the Democratic base, according to senior Senate aides briefed on Schumer’s message.

Democratic leadership’s response in the two weeks since Justice Anthony Kennedy announced his retirement has been in stark contrast to Senate Majority Leader Mitch McConnell’s firm, across-the-board rejection of any Obama nominee sent up in 2016. McConnell, flexing the power of a majority leader, announced within an hour of the news of the February 2016 death of Antonin Scalia that under no circumstances would the Senate consider a nominee before the November election.

What that fierce opposition will look like, and how broad it will be, remains to be seen, as Schumer lacks the full authority over the Senate that McConnell wielded in 2016. But as a major political party just two seats shy of a majority, Democrats are not as powerless as they sometimes let on.

washington post logoWashington Post, A more conservative high court could step, not lurch, to the right, Robert Barnes​, July 9, 2018. President Trump’s nominee and fellow conservatives on the bench can achieve right-of-center goals without overturning rulings such as Roe v. Wade.

washington post logoWashington Post, Kavanaugh has endorsed robust views of presidential powers, Ann E. Marimow, July 9, 2018. ​The record of the federal appeals court judge suggests he would be more to the right than retiring Justice Anthony M. Kennedy.

ny times logoNew York Times, Opinion: If the Supreme Court is Nakedly Political, Can It Be Just? Lee Epstein and Eric Posner, July 9, 2018. President Trump was always going to pick a conservative for the Supreme Court. The only question has been whether to replace Justice Anthony Kennedy with a “business conservative” or a “religious conservative.”

But we wonder whether a Supreme Court that has come to be rigidly divided by both ideology and party can sustain public confidence for much longer.

In the past 10 years, however, justices have hardly ever voted against the ideology of the president who appointed them. Only Justice Kennedy, named to the court by Ronald Reagan, did so with any regularity. That is why with his replacement on the court an ideologically committed Republican justice, it will become impossible to regard the court as anything but a partisan institution.

Ms. Epstein is a political scientist and law professor at Washington University. Mr. Posner is a professor at the University of Chicago Law School.

July 7

raymond kethledgeSCOTUSblog, Potential nominee profile: Raymond Kethledge, Amy Howe, July 7, 2018. Like Thomas Hardiman, another potential nominee on the president’s shortlist, [U.S. 6th Circuit Court of Appeals] Judge Raymond Kethledge (right) would bring educational diversity to a bench on which all of the current justices attended Ivy League law schools:

He received both his undergraduate and law degrees from the University of Michigan. He has returned to the law school as a lecturer to teach classes on legal writing and advocacy. (While he is there, he could bump into another potential nominee on Trump’s shortlist, Michigan Supreme Court Justice Joan Larsen, who has also taught there.)

During a decade on the bench, Kethledge has compiled an extensive body of opinions but has not weighed in on several high-profile and potentially divisive issues, including abortion and affirmative action. Conservative commentator Hugh Hewitt has nonetheless dubbed Kethledge “Gorsuch 2.0,” “in the mold of Antonin Scalia.”

July 4

djt brett kavanaugh amy coney barrett

ny times logoadam liptakNew York Times, A Rift on the Right, Shown by Two Potential Court Picks, Adam Liptak (shown at right), July 4, 2018 (print edition). The fight over who should replace Justice Anthony M. Kennedy on the Supreme Court is far from over, and there are still a half-dozen plausible candidates in the mix.

But the stark contrast between two of the leading contenders — Judge Brett M. Kavanaugh and Judge Amy Coney Barrett — reflects the division on the right between the conservative legal establishment, which is hostile to government regulation and the administrative state, and social conservatives, who are focused on issues like abortion and religious freedom.

Other candidates, notably Judges Raymond M. Kethledge and Amul R. Thapar, both of the Sixth Circuit, in Cincinnati, have had cordial meetings with President Trump, and a White House spokesman said Mr. Trump interviewed three more possible choices on Tuesday. See also "Facebook Ads Offer Peek at Looming Supreme Court Fight."

amy coney barrett headshot notre dame photoSCOTUSblog, Potential nominee profile: Amy Coney Barrett, Amy Howe, July 4, 2018. In November 2017, President Donald Trump released a revised list of potential Supreme Court nominees. The November 2017 list was an expanded version of two earlier lists, announced during the 2016 presidential campaign, from which then-candidate Trump pledged, if elected, to pick a successor to the late Justice Antonin Scalia, who died on February 13, 2016. First on the new list – because it was in alphabetical order – was Amy Coney Barrett (right), a Notre Dame law professor (and former Scalia clerk) who had recently been confirmed to a seat on the U.S. Court of Appeals for the 7th Circuit. She is shown in a Notre Dame photo.

Barrett’s confirmation hearings had received considerable attention after Democrats on the Senate Judiciary Committee – most notably, Senator Dianne Feinstein of California – grilled her on the role of her Catholic faith in judging. Feinstein’s criticism did not stop Barrett from being confirmed, and since then there has been speculation that it may have in fact strengthened her case to fill the seat that will be vacated by the retirement of Justice Anthony Kennedy.

The 46-year-old Barrett grew up in Metrairie, Louisiana, a suburb of New Orleans, and attended St. Mary’s Dominican High School, a Catholic girls’ school in New Orleans. Barrett graduated magna cum laude from Rhodes College, a liberal arts college in Tennessee affiliated with the Presbyterian Church, in 1994. (Other high-profile alumni of the school include Abe Fortas, who served as a justice on the Supreme Court from 1965 to 1969 and Claudia Kennedy, the first woman to become a three-star general in the U.S. Army.) ....

Barrett then held two high-profile conservative clerkships, first with Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit, from 1997-1998 then with the late Justice Antonin Scalia, from 1998-1999. After leaving her Supreme Court clerkship, she spent a year practicing law at Miller, Cassidy, Larroca & Lewin, a prestigious Washington D.C. litigation boutique that also claims former U.S. solicitor general Seth Waxman, former deputy attorney general Jamie Gorelick, and two regular contributors to this blog – John Elwood and editor Edith Roberts – as alums.

Barrett was confirmed to the 7th Circuit by a vote of 55 to 43. Three Democratic senators – her home state senator, Joe Donnelly, Virginia’s Tim Kaine, and Joe Manchin of West Virginia – crossed party lines to vote for her, while two Democratic senators (Claire McCaskill of Missouri and Robert Menendez of New Jersey) did not vote.

Because Barrett has spent just eight months on the 7th Circuit, she has compiled a relatively small body of opinions, most of them fairly uncontroversial.

One case that would almost certainly draw attention if she were nominated came shortly after she took the bench: EEOC v. AutoZone, in which the federal government asked the full court of appeals to reconsider a ruling against the EEOC in its lawsuit against AutoZone, an auto parts store. The EEOC had argued that the store violated Title VII of the Civil Rights Act, which bars employees from segregating or classifying employees based on race, when it used race as a determining factor in assigning employees to different stores – for example, sending African-American employees to stores in heavily African-American neighborhoods. A three-judge panel (that did not include Barrett) ruled for AutoZone; Barrett joined four of her colleagues in voting to deny rehearing by the full court of appeals.

July 3

washington post logoWashington Post, There’s no conspiracy between Trump and Kennedy. There’s just the swamp, David Litt, July 3, 2018. A surprising number of progressives are dusting off Glenn Beck-style chalkboards, connecting the dots in a web with Supreme Court Justice Anthony M. Kennedy’s son in the center. But the search for a shadowy conspiracy surrounding the Kennedy and Trump families obscures a far greater scandal taking place right in front of us: the dangerous concentration of wealth and political power in the United States.

deutsche bank logoThe theory, for the record, goes something like this: Justin Kennedy worked at Deutsche Bank. Deutsche Bank was the only Wall Street firm willing to lend money to Donald Trump. In 2017, Deutsche Bank was fined $630 million for its involvement in a Russian money-laundering scheme. After his first address to Congress, President Trump told Kennedy, “Say hello to your boy,” to which the justice replied, “Your kids have been very nice to him.” Now, the court’s swing justice is retiring, giving President Trump the chance to cement a far-right court for a generation.

The implication is that Kennedy was coerced, via bribery, blackmail or something similarly sinister, into giving up his seat before the election. But the line between cause and effect remains hazy. In a tweet that accumulated more than 35,000 likes, @ProudResister summed it up as follows: “THAT’S WAY TOO MANY ‘COINCIDENCES.’ ”

There are, it must be said, a few problems with this all-caps logic. First, coincidence does not equal conspiracy. Democrats and progressives have long stood for science, facts and rational argument. Abandoning a commitment to the truth isn’t beating Trump at his own game; it’s surrendering the field. Second, you don’t need a tortured rationale to explain Kennedy’s actions. He’s a conservative. At 82 years old, he’s ready to retire, and he’d rather be replaced by another Neil M. Gorsuch than another Sonia Sotomayor.

But there’s a third and far more important reason to look past the convoluted speculation around Kennedy and his son Justin. It distracts us from a relationship that is legal but outrageous, nonetheless.

The existence of a personal connection between a conservative Supreme Court justice and a real estate billionaire turned president seems to shock some political observers. It shouldn’t. Of course the Trumps and Kennedys know each other: Both families belong to the most exclusive circle of America’s elite. This upper-upper crust has members from across the country, but it functions as a kind of a gated community, one in which personal and professional relationships inevitably intertwine. America’s super-elite sends its kids to the same schools. They bump into each other at Davos or Aspen or the Alfalfa Club in Washington. They socialize. They do business. They donate. They raise money. They take one another’s calls.

ny times logoNew York Times, Why Court Pick May Affect Gay Marriage as Well as Abortion, Liam Stack and Elizabeth Dias, July 3, 2018. In the week since Justice Anthony M. Kennedy announced his retirement, the future of Roe v. Wade has dominated the conversation among both liberals and conservatives, becoming a flash point in the partisan battle over President Trump’s pick to fill the seat.

The effect Justice Kennedy’s retirement could have on lesbian, gay, bisexual and transgender rights has received less attention. The prospect of a more conservative justice, though, has L.G.B.T. rights groups worried about legal challenges from conservative groups that oppose gay marriage, who may see an opportunity to challenge rulings that have established its legality.

L.G.B.T. groups have made great advances in recent years thanks largely to a string of Supreme Court decisions written by Justice Kennedy, including cases that legalized gay sex and established a right to same-sex marriage.

washington post logobrett kavanaughWashington Post, Leading contender to be Trump’s Supreme Court pick faces scrutiny from social conservatives, Robert Costa and Josh Dawsey​, July 3, 2018. An intensifying debate over Judge Brett M. Kavanaugh, a front-runner in President Trump’s search for a Supreme Court nominee, gripped Republicans on Tuesday, with conservative critics highlighting past rulings and his links to GOP leaders while his allies — including inside the White House — forcefully defended him.

The sparring over Kavanaugh, one of four federal appeals court judges who met with the president Monday, underscored the challenges facing Trump as he aims to pick a successor to retiring Justice Anthony M. Kennedy by his own July 9 deadline. Even as Trump mulls a shortlist that has been carefully cultivated by influential Republican lawyers, frictions in the conservative legal community and on Capitol Hill threaten to disrupt the search process.

The political moment for Trump remained fragile as a president devoted to his base weighed what a Kavanaugh selection could mean for him, unfolding amid a flurry of op-eds and phone calls praising the 53-year-old judge as well as a clamor from those who see him as out of step on health care and abortion, or too tied to George W. Bush’s White House.

July 2

Salon, Donald Trump, Anthony Kennedy and the “boy” at Deutsche Bank: Not just about the money, Jesse Kornbluth, July 2, 2018. There’s a tangled web linking the Trump and Kennedy families. But financial corruption isn’t the whole story.

As a way of looking at a presidency that is enamored of every possible felony -- self-dealing, conflicts of interest, emoluments, collusion with foreign governments and domestic corporations -- crime-breeds-crime is a reasonable way to look at any Trump-related event.

But the resignation of a Supreme Court justice? Because Trump cares so much about money, that’s been suggested. And there’s smoke: the links between Trump, Kennedy and Kennedy’s son Justin. In years past we’d call that the League of White Men, taking care of their own, behind the scenes, The Way It Is. Today we tend to call it something else: collusion.

Here’s why. On the surface, Kennedy’s resignation looked textbook: He’ll leave effective July 31, at the end of the Supreme Court term, as is traditional. But he announced it on June 27. Hand-delivering his letter to the Oval Office was no surprise to the White House, which had a list of candidates ready to roll out. Trump says he’ll announce his nominee on July 9.

If Kennedy had waited a few weeks, some analysts believe Trump couldn’t have gotten his successor approved before the midterm elections. If the Democrats did well in November, it’s at least conceivable they could have blocked any conservative nominee. Approving a nominee before November means our likely future has the court killing Roe v. Wade, giving more power to corporations, turning the poor and minorities into serfs, exiling or detaining Others the president might choose to torture. That’s huge. But let’s consider the bottom line: For Donald Trump, the only real issue of interest is . . . himself. If a 4-4 Court had to rule on a difficult question -- Does the president have the power to pardon himself? -- it might not go well for Trump.

deutsche bank logoWhat started the speculation about dirty money connecting Trump, Kennedy and his son is the revelation that Kennedy and Trump have had a longstanding relationship through their children and their children’s success. We knew about Trump’s dealings with Deutsche Bank, the only bank willing to do business with him. (It’s also, perhaps not coincidentally, the bank that seems to have the longest illegal relationship with laundered Russian money. In January 2017, it was fined $425 million by New York regulators to settle allegations that it helped Russian investors launder as much as $10 billion through its branches in Moscow, New York and London.) But we’re just finding out about the Trump relationship with Justin Kennedy, the justice’s son, who worked at Deutsche Bank for a decade.

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

PoliticusUSA.com, 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 Salon.com 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.

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.

SCOTUSBlog, Potential nominee profile: Judge Thomas Hardiman, a close second to Gorsuch and a shortlister again, Amy Howe, July 2, 2018. When President Donald Trump was searching for a nominee in 2017 to fill the vacancy created by the 2016 death of Antonin Scalia, he reportedly narrowed the field to two candidates: then-Judge Neil Gorsuch, of the U.S. Court of Appeals for the 10th Circuit, and Judge Thomas Hardiman (right) of the U.S. Court of Appeals for the 3rd Circuit.

On January 31, 2017, Trump nominated Gorsuch, and the rest is history. But with Justice Anthony Kennedy’s announcement last week that he would step down from the Supreme Court bench, Hardiman’s name has resurfaced as a potential nominee. The 52-year-old Hardiman (who will turn 53 on July 8, the day before Trump is expected to announce his new nominee) has a solidly conservative background and a champion in the president’s sister, Maryanne Trump Barry, who served with Hardiman on the 3rd Circuit and has been described as “high on Hardiman.”

In some ways, Hardiman has more in common with Justice Sonia Sotomayor than with Justice Anthony Kennedy, whom he would replace: The Massachusetts-born Hardiman became the first person in his family to go to college when he went to the University of Notre Dame, and he financed his law degree at the Georgetown University Law Center by driving a taxi. (If nominated and confirmed, Hardiman would also bring educational diversity to a court on which all of the other justices attended Ivy League law schools.)

After his law school graduation, Hardiman worked for two years in the Washington office of Skadden Arps before moving to Pittsburgh, where he practiced law until 2003. At the age of 37, Hardiman became a federal district judge; he was unanimously confirmed to the 3rd Circuit in 2007, at the age of 41. Taking the bench at a young age is yet another similarity with Sotomayor, who also became a district judge at the age of 37 and who took her seat on the U.S. Court of Appeals for the 2nd Circuit at the age of 44. But the comparisons with Sotomayor largely end there. Hardiman is a solid, although hardly knee-jerk, conservative who was active in Republican politics before joining the federal bench, and his jurisprudence as a Supreme Court justice likely would be closer to another justice who hails from the 3rd Circuit: Justice Samuel Alito.

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

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 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.

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.

stephanie ruhleMSNBC, Justin Kennedy and Deutsche Bank Trump Loans, Part I and Part II, Stephanie Ruhle (shown at right in a file photo), June 29, 2018. "I worked I worked with Justin Kennedy," Ruhle wrote on Twitter. "I read the stories -- reached out to some former colleagues for their reaction. Here’s some broader context/perspective -- Neither of which fit in 240 characters."

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.

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)

SCOTUSblog, Potential nominee profile: Brett Kavanaugh, Edith Roberts, June 28, 2018. When then-candidate Donald Trump released his first two lists of potential Supreme Court nominees in May and September of 2016, the omission of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit drew comment. Kavanaugh had served for 10 years on a bench known as a springboard to the Supreme Court. With his impeccable academic credentials and sterling reputation in conservative political and legal circles, he seemed like an obvious choice. And his name was eventually added to the roster of possible nominees, on November 17, 2017.

No one else on the president’s current list can rival Kavanaugh for Washington credentials. He was even born in Washington, where his mother was a public-school teacher, on February 12, 1965. After graduating from Yale College in 1987 and Yale Law School in 1990, Kavanaugh spent two years as a law clerk, for Judge Walter Stapleton of the U.S. Court of Appeals for the 3rd Circuit and Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit. He followed a one-year fellowship in the office of U.S. Solicitor General Kenneth Starr with a clerkship for Justice Anthony Kennedy during October Term 1993.

Kavanaugh went on to join Starr at the Office of the Independent Counsel, where Kavanaugh led the investigation into the death of Vince Foster, an aide to President Bill Clinton, and helped write the 1998 Starr Report to Congress, which outlined 11 grounds for Clinton’s impeachment. Kavanaugh was later a partner at the law firm Kirkland & Ellis, where he specialized in appellate law. He moved to the White House after President George W. Bush was elected and worked in the West Wing for five years, first as a counsel to the president and then as staff secretary to the president.Bush first nominated Kavanaugh to the D.C. Circuit on July 25, 2003, but the nomination was stalled in the Senate for nearly three years, with Democratic senators charging that Kavanaugh’s government track record revealed him to be overly partisan.

During Kavanaugh’s second confirmation hearing, in May 2006, Sen. Chuck Schumer (D-N.Y.) observed, “From the notorious Starr report, to the Florida recount, to the President’s secrecy and privilege claims, to post-9/11 legislative battles including the Victims Compensation Fund, to ideological judicial nomination fights, if there has been a partisan political fight that needed a very bright legal foot soldier in the last decade, Brett Kavanaugh was probably there.” Despite similar objections from other Democratic senators, Kavanaugh was eventually confirmed by the Senate on May 26, 2006, by a vote of 57-36.

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), http://www.wbur.org/news/2018/06/21/marthas-vineyard-immigrant-supreme-court" target="_blank" rel="noopener">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.