Note: Excerpts below are from the authors' words except for subheads and Editor's notes" such as this. This summary of U.S. Supreme Court and other high court cases encompasses news stories and commentary in 2019. For our complete listing of periods extending back to 2018, kindly visit these links: 2018, 2019 and 2020

2019

December 2019

Dec. 31

ny times logoNew York Times, Impeachment Trial Looming, Chief Justice Reflects on Judicial Independence, Adam Liptak, Dec. 31, 2019. In his year-end report on the judiciary, Chief Justice John Roberts issued pointed remarks that seemed to be addressed to President Trump.

john roberts oAs Chief Justice John G. Roberts Jr. prepares to preside over the impeachment trial of President Trump, he issued pointed remarks on Tuesday in his year-end report on the state of the federal judiciary that seemed to be addressed, at least in part, to the president himself.

The two men have a history of friction, and Chief Justice Roberts, right, used the normally mild report to denounce false information spread on social media and to warn against mob rule. Some passages could be read as a mission statement for the chief justice’s plans for the impeachment trial itself.

“We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity and dispatch,” he wrote in the report. “As the new year begins, and we turn to the tasks before us, we should each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”

The nominal focus of the report was the importance of civics education, but even a casual reader could detect a timely subtext, one concerned with the foundational importance of the rule of law.

  •  New York Times, Judge Orders Alex Jones and Infowars to Pay $100,000 in Sandy Hook Legal Fees
  •  New York Times, Judge Dismisses Lawsuit by Ex-Trump Aide Subpoenaed in Impeachment Inquiry

U.S. Politics

Dec. 29

Department of Injustice?

djt william barr doj photo march 2019

Attorney General William Barr. Under him, the Justice Department has been notable for aiding conservative Christians.

ny times logoNew York Times, Opinion: Bill Barr Thinks America Is Going to Hell, Katherine Stewart (author of The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism) and Caroline Fredrickson (president emerita of the American Constitution Society and author of The Democracy Fix), Dec. 29, 2019.  And he’s on a mission to use the “authority” of the executive branch to stop it.

Why would a seemingly respectable, semiretired lion of the Washington establishment undermine the institutions he is sworn to uphold, incinerate his own reputation, and appear to willfully misrepresent the reports of special prosecutors and inspectors general, all to defend one of the most lawless and corrupt presidents in American history? And why has this particular attorney general appeared at this pivotal moment in our Republic?

A deeper understanding of William Barr is emerging, and it reveals something profound and disturbing about the evolution of conservatism in 21st-century America.

Some people have held that Mr. Barr is simply a partisan hack — willing to do whatever it takes to advance the interests of his own political party and its leadership. This view finds ample support in Mr. Barr’s own words. In a Nov. 15 speech at the Federalist Society’s National Lawyers Convention in Washington, he accused President Trump’s political opponents of “unprecedented abuse” and said they were “engaged in the systematic shredding of norms and the undermining of the rule of law.”

Another view is that Mr. Barr is principally a defender of a certain interpretation of the Constitution that attributes maximum power to the executive. This view, too, finds ample support in Mr. Barr’s own words. In July, when President Trump claimed, in remarks to a conservative student group, “I have an Article II where I have the right to do whatever I want as president,” it is reasonable to suppose this is his CliffsNotes version of Mr. Barr’s ideology.

Both of these views are accurate enough. But at least since Mr. Barr’s infamous speech at the University of Notre Dame Law School, in which he blamed “secularists” for “moral chaos” and “immense suffering, wreckage and misery,” it has become clear that no understanding of William Barr can be complete without taking into account his views on the role of religion in society. For that, it is illuminating to review how Mr. Barr has directed his Justice Department on matters concerning the First Amendment clause forbidding the establishment of a state religion.

In these and other cases, Mr. Barr has embraced wholesale the “religious liberty” rhetoric of today’s Christian nationalist movement. When religious nationalists invoke “religious freedom,” it is typically code for religious privilege. The freedom they have in mind is the freedom of people of certain conservative and authoritarian varieties of religion to discriminate against those of whom they disapprove or over whom they wish to exert power.

America’s conservative movement, having morphed into a religious nationalist movement, is on a collision course with the American constitutional system. Though conservatives have long claimed to be the true champions of the Constitution — remember all that chatter during previous Republican administrations about “originalism” and “judicial restraint” — the movement that now controls the Republican Party is committed to a suite of ideas that are fundamentally incompatible with the Constitution and the Republic that the founders created under its auspices.

robert parry new hs

The late Robert Parry, above: On New Year’s Eve 2017, less than a month before he would die, Consortium News founder Bob Parry wrote a manifesto on the remit of journalism and its threatened demise, a chilling forecast of what was to come.

Consortium News, Opinion: An Apology & Explanation, Two Years On, Robert Parry, Dec. 29, 2019 (Originally published on Dec. 31, 2017). For readers who have come to see Consortium News as a daily news source, I would like to extend my personal apology for our spotty production in recent days.

On Christmas Eve, I suffered a stroke that has affected my eyesight (especially my reading and thus my writing) although apparently not much else. The doctors have also been working to figure out exactly what happened since I have never had high blood pressure, I never smoked, and my recent physical found nothing out of the ordinary. Perhaps my personal slogan that “every day’s a work day” had something to do with this.

Perhaps, too, the unrelenting ugliness that has become Official Washington and national journalism was a factor.

It seems that since I arrived in Washington in 1977 as a correspondent for the Associated Press, the nastiness of American democracy and journalism has gone from bad to worse.

In some ways, the Republicans escalated the vicious propaganda warfare following Watergate, refusing to accept that Richard Nixon was guilty of some extraordinary malfeasance (including the 1968 sabotage of President Johnson’s Vietnam peace talks to gain an edge in the election and then the later political dirty tricks and cover-ups that came to include Watergate).

Rather than accept the reality of Nixon’s guilt, many Republicans simply built up their capability to wage information warfare, including the creation of ideological news organizations to protect the party and its leaders from “another Watergate.”

So, when Democrat Bill Clinton defeated President George H.W. Bush in the 1992 election, the Republicans used their news media and their control of the special prosecutor apparatus (through Supreme Court Chief Justice William Rehnquist and Appeals Court Judge David Sentelle) to unleash a wave of investigations to challenge Clinton’s legitimacy, eventually uncovering his affair with White House intern Monica Lewinsky.

Though I don’t like the word “weaponized,” it began to apply to how “information” was used in America. The point of Consortium News, which I founded in 1995, was to use the new medium of the modern Internet to allow the old principles of journalism to have a new home, i.e., a place to pursue important facts and giving everyone a fair shake. But we were just a tiny pebble in the ocean.

The trend of using journalism as just another front in no-holds-barred political warfare continued – with Democrats and liberals adapting to the successful techniques pioneered mostly by Republicans and by well-heeled conservatives.

“The idea had developed that the way to defeat your political opponent was not just to make a better argument or rouse popular support but to dredge up some ‘crime’ that could be pinned on him or her.”

More and more I would encounter policymakers, activists and, yes, journalists who cared less about a careful evaluation of the facts and logic and more about achieving a pre-ordained geopolitical result – and this loss of objective standards reached deeply into the most prestigious halls of American media.

Dec. 27

SCOTUSblog, Decade in review: Citizens United and campaign spending, Edith Robers, Dec. 27, 2019. One of the first blockbuster Supreme Court decisions of the past 10 years will surely affect the election taking place at the beginning of the new decade. In January 2010, the court ruled 5-4 in Citizens United v. Federal Election Commission that corporations and unions have a First Amendment right to engage in independent spending to influence elections, overturning precedent to strike down part of the McCain-Feingold campaign finance law.

anthony kennedy scotus 236x3001Writing for the majority, Justice Anthony Kennedy, right, discounted concerns that campaign spending would lead to corruption. “The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt,” he explained, and “[t]he appearance of influence or access … will not cause the electorate to lose faith in our democracy.” In a 90-page dissent read from the bench, Justice John Paul Stevens countered that “[a] democracy cannot function effectively when its constituent members believe laws are being bought and sold.”

The decision sparked what was then a rare public breach of separation-of-powers etiquette: During his 2010 State of the Union address, President Barack Obama asserted that it would “open the floodgates for special interests — samuel alitoincluding foreign corporations — to spend without limit in our elections,” and Justice Samuel Alito, left, responded by mouthing “Not true” from the audience.

Citizens United, together with an appeals court decision issued in its wake, led to the rise of so-called “super PACs,” political action committees that can raise unlimited funds from individuals, corporations, unions and other groups and can engage in unlimited spending on political campaigns as long as they do not coordinate directly with the candidates. According to the Center for Responsive Politics, super PACs spent $820,000,000 in the 2018 election cycle.

Dec. 19 supreme court headshots 2019

ny times logoNew York Times, Opinion: The Supreme Court’s Final Exam, Linda Greenhouse right (shown on the cover of her memoir, Just a Journalist), Dec. 19, 2019. How the justices rule on three cases involving Trump’s financial records will tell us all we need to know linda greenhouse cover just a journalistabout the court.

When the first two of President Trump’s appeals seeking to shield his financial records from disclosure reached the Supreme Court last month, I predicted that the justices would take their institutional interests into account and turn the cases down.

I was wrong.

And on reflection, now that the court has agreed to hear those two appeals plus a third, I’m glad I was wrong. Here’s why: The eventual decisions, to come in the months after the as-yet unscheduled arguments in late March or early April, will give the country much-needed clarity about the Supreme Court. With the court in the full glare of an election-year spotlight, we will learn beyond any doubt what kind of Supreme Court we have — and whether its evolution into partnership with a president who acts as if he owns it is now complete.

Those of us who have been warning about this evolution are well aware that it’s a contested claim, subject to ready dismissal as overstatement or ideologically driven fearmongering. So I want to make the case here that for the justices to do anything other than affirm the three decisions at issue by two Courts of Appeals would be to vindicate both the warnings and the president’s disturbing assumption.
In none of the three cases now before the court would the president, if he lost, have to lift a finger. He is a plaintiff, not a defendant. In his capacity as a private citizen, he brought the three lawsuits to quash subpoenas issued by three House of Representative committees and the Manhattan district attorney, not to him but to two banks and an accounting firm, for his personal and corporate financial records.

In fact, in one of the two New York cases, Trump v. Deutsche Bank, Judge Jon O. Newman of the United States Court of Appeals for the Second Circuit, noting that the complaint filed by the president’s lawyers stated that “President Trump brings this suit solely in his capacity as a private citizen,” referred throughout his 106-page opinion to the “Lead Plaintiff” rather than President Trump.

Dec. 17

SCOTUSblog, Ask the author: The enduring and controversial legacy of the Warren Court, Ronald Collins, Dec. 17, 2019. The following is a series of questions posed by Ronald Collins to Geoffrey Stone and David Strauss in connection with their new book, “Democracy and Equality: The Enduring Constitutional Vision of the Warren Court” (Oxford University Press, 2020).

Geoffrey Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School. He served as dean of the law school from 1987-1994 and provost of the University of Chicago from 1994-2002. Stone was a law clerk to Supreme Court Justice William J. Brennan Jr. and before that a law clerk to Judge J. Skelly Wright on the U.S. Court of Appeals for the District of Columbia Circuit.

David Strauss is the Gerald Ratner Distinguished Service Professor of Law and Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School. Before joining the law school faculty, he worked as an attorney-advisor in the Office of Legal Counsel at the U.S. Department of Justice and was an assistant to the Solicitor General of the United geoffrey stone david strauss democracy and equality coverStates. Stone and Strauss, along with Yale Law School professor Justin Driver, are the editors of the Supreme Court Review.

Question: “Democracy and Equality” is the 18th book in the “Inalienable Rights” series published by Oxford University Press. As the editor of the series, Geoffrey, congratulations on such an impressive array of books by everyone from Richard Epstein to Laurence Tribe and from Martha Nussbaum to Nadine Strossen. Might you tell us what’s in the works for the next volume or two?

Stone & Strauss: By coincidence, the next two volumes in the series, which will be published in 2020, both deal with the issue of religion. In the 19th volume, Jack Rakove, a Pulitzer Prize-winning historian at Stanford, has written “Beyond Belief, Beyond Conscience,” which explores the evolution of religious freedom from the 16th century to the modern era, focusing especially on history, philosophy and political theory.

In the 20th volume, Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, and Howard Gillman, chancellor of the University of California, Irvine, have written “The Religion Clauses: The Case for Separating Church and State,” which focuses on what the authors see as the troubling directions our conservative justices are now taking insofar as they reject the idea of a wall separating church and state.

Question: The first book in the “Inalienable Rights” series was Richard Posner’s “Not a Suicide Pact: The Constitution in Times of a National Emergency” (2006). In the editor’s note to that volume, Geoffrey and Dedi Felman wrote: “Rights invite discussion: What is a constitutional right? What are the counterbalancing duties?”
In terms of the Warren Court’s civil rights and civil liberties jurisprudence, what do you see as some of the major counterbalancing duties?

Dec. 16

washington post logoWashington Post, Opinion: Don’t assume the Supreme Court will give Trump a resounding victory, Harry Litman (law professor and former federal prosecutor, shown at right), Dec. 16, 2019. President Trump no doubt welcomed the news that harry litman msnbc screenshotthe Supreme Court will review three separate decisions in which lower courts have ruled against him, upholding subpoenas calling for banks and accountants to turn over financial records pertaining to him. He’s taken a shellacking in the federal courts to date, and he’s well aware that the Supreme Court majority that he helped put in place is bullish on executive power.

But it would be a mistake to assume that the court will give Trump a resounding victory, or come close to upholding the extreme propositions that the president has been unsuccessfully advancing in the lower courts.

It is much more likely that the court will first set out principles defining the circumstances — for example, some sort of heightened evidentiary showing — under which the president’s personal records have to be turned over. They probably will be pro-executive branch principles that slant the balance toward future presidents, but Trump needs more than that to keep his taxes from public view.

And the next step after such a holding would be to remand to the lower courts to apply the announced principles, probably during the heat of the election, though possibly after. That is where Trump’s extreme arguments are likely to meet their end.

Dec. 15

Palmer Report, Opinion: Donald Trump freaks out over Supreme Court announcement about his tax returns, Bill Palmer, right, Dec. 15, 2019. On Friday, the Supreme Court announced that it’s bill palmertaking up the case of whether Donald Trump’s accounting firm must give his tax returns to House Democrats and a New York grand jury. While the ruling may not come down until as late as June of 2020, Palmer Report pointed out it’s likely to go against Trump (think John Roberts and Obamacare), and that the ruling will end up coming down just as we’re heading into the 2020 general election cycle.

bill palmer report logo headerWhile it would have been even worse for Donald Trump if the Supreme Court had announced that it wasn’t going to take up the case at all, this is still bad news for him. The only way this could have gone well for him would have been if the high court decided to put off the decision until after the election. Sure enough, Trump is freaking out about it. We know this because he’s suddenly kissing the backside of erratic Supreme Court Justice Brett Kavanaugh.

Trump posted this tweet: “After watching the disgraceful way that a wonderful man, Brett Kavanaugh, was treated by the Democrats, and now seeing first hand how these same brett kavanaughRadical Left, Do Nothing Dems are treating the whole Impeachment Hoax, I understand why so many Dems are voting Republican!” Given the timing, it’s clear that Trump is pandering to Kavanaugh over the tax returns case. Kavanaugh has been voting with the liberals on a number of cases, in the hope that House Democrats won’t refer him for criminal prosecution for perjury once Trump is gone.

Donald Trump is correct to fear that Kavanaugh could end up voting against Trump in order to try to save himself. In any case, if Roberts votes against Trump on Trump’s tax returns, then Kavanaugh’s vote won’t matter. It’s clear that Trump is worried about where this is headed. Not only will the ruling impact the 2020 election, it’ll impact the New York grand jury that’s in the process of criminally indicting Trump on state charges, which will lead to his arrest the minute he’s no longer in office.

Dec. 13

supreme court headshots 2019

washington post logoWashington Post, Supreme Court will take up Trump’s broad claims of protection from investigation,  Robert Barnes, Dec. 13, 2019. The president has mounted a vigorous effort to protect his financial records from prosecutors and Congress. The Supreme Court announced Friday that it will take up President Trump’s broad claims of protection from investigation, raising the prospect of a landmark election-year ruling on the limits of presidential power.

A New York prosecutor and three Democratic-led congressional committees have won lower-court decisions granting them access to a broad range of Trump’s financial records relating to him personally, his family and his businesses.

Unlike other modern presidents and presidential candidates, Trump has not released his tax returns. He and his personal lawyers have mounted a vigorous effort to keep that information private and defeat attempts to obtain the records from financial institutions and his accounting firm.

supreme court graphic

The Supreme Court’s decision to get involved represents a historic moment that will test the justices and the Constitution’s separation-of-powers design. It is the first time the president’s personal conduct has come before the court, and marks a new phase in the investigations that have dogged his presidency.

The court includes two Trump nominees, Justices Neil M. Gorsuch and Brett M. Kavanaugh, and it will draw inevitable comparisons with the dramatic decisions on presidential power the court rendered against Presidents Richard M. Nixon and Bill Clinton. In both cases, justices they had nominated to the court voted against them.

Trump attorney William S. Consovoy has argued that while in the White House, Trump has “temporary presidential immunity” not just from prosecution, but also from investigation. At the appeals court hearing in New York, Consovoy said in response to a judge’s question that the president, for as long as he is in office, could not be investigated even for shooting someone on the streets of Manhattan.

Dec. 5  Noah Feldman, Pamela Karlan, Michael Gerhardt and Jonathan Turley , from left, abc

Law professors Noah Feldman, Pamela Karlan, Michael Gerhardt and Jonathan Turley, left to right (ABC News).

The Nation, Opinion: The Republicans’ Star Impeachment Scholar Is a Shameless Hack, Elie Mystal, Dec. 5, 2019. Jonathan Turley’s testimony was so inconsistent, it contradicted his own previous statements on impeachment. The House Judiciary Committee held something like a national teach-in on impeachment yesterday. Democrats still believe they can counter the Republican strategy of lying to their base with the somber recitation of facts. So they brought in four legal scholars to explain the constitutional process of impeachment and talk about whether President Donald Trump committed impeachable offenses.

Three of the professors agreed that Trump should be impeached: Noah Feldman of Harvard Law School, Pam Karlan of Stanford Law School, and Michael Gerhardt of the University of North Carolina School of Law.

The fourth professor, requested by Republicans on the committee, was Jonathan Turley from George Washington University Law School. Republicans know that all they have to do to outflank the Democrats is serve up talking points Sean Hannity can use on his show. They tapped Turley to do the easy work of poisoning the well with more misinformation.

jonathan turleyTurley, right, did not disappoint. He told Republicans what they wanted to hear right from his opening statement: “I’m concerned about lowering impeachment standard to fit a paucity of evidence and an abundance of anger. I believe this impeachment not only fails to satisfy the standard of past impeachments, but would create a dangerous precedent for future impeachments…. This would be the first impeachment in history where there would be considerable debate, and in my view, not compelling evidence, of the commission of a crime.”

Turley beclowned himself with his remarks, because this is not the first time Jonathan Turley has testified about impeachment. In 1998, testifying in front of the House Judiciary Committee during the Clinton impeachment hearing, Turley said, “No matter how you feel about President Clinton, no matter how you feel about the independent counsel, by his own conduct, he has deprived himself of the perceived legitimacy to govern. You need both political and legal legitimacy to govern this nation, because the President must be able to demand an absolute sacrifice from the public at a moment’s notice.”

It’s impossible to explain the shameless hypocrisy of Turley’s conflicting statements without concluding that his testimony, in both hearings, was offered in bad faith.

Jonathan Turley is punking us. The only dangerous lowering of standards we saw at the hearing was the smuggling of Jonathan Turley onto a panel of experts, the rest of whom were able to testify with academic integrity.

Turley is a paid legal analyst for CBS News. He writes a column for The Hill. And he’s still a tenured professor at George Washington Law. That he was summoned to give such plainly conflicting testimony, and that he was willing to give it even as it directly contradicted his thoughts and writings about prior impeachments, perfectly exemplifies how legal elites and legacy media have failed to meet the challenge of the Donald Trump presidency.

There is simply no professional or societal downside for people like Turley in making these bad, intellectually dishonest arguments. Turley himself was a random environmental law wonk before he made himself famous during the Clinton impeachment years. He made the media rounds then, calling himself a “Democrat” who was willing to speak truth to power about the “serious” nature of Clinton’s misbehavior. Back then, Turley was lauded by people like Rush Limbaugh for demanding that Clinton’s own Secret Service agents be subpoenaed to testify about what they know.

You’ll note that Turley made no such demands yesterday of former national security adviser John Bolton or Acting White House Chief of Staff Mick Mulvaney. Instead of highlighting the fact that Trump is obstructing justice by refusing to allow these people to testify, Turley blamed the Democrats for moving too fast.

You don’t need a law degree to know that everything Jonathan Turley said yesterday was drenched in his own hypocrisy. His testimony was an attempt to distract and dissemble, offered at the behest of the Republican Party, which tapped him likely because it couldn’t find a legal scholar with less partisan baggage to make the same bad-faith arguments. Ken Starr or Jeanine Pirro would have been too obvious for the Republicans’ purposes; Turley’s the hack they call when they don’t want to look like they’re calling in a hack.

Elie Mystal is the executive editor of Above the Law and a contributing writer for "The Nation," as well as the legal editor of WNYC’s "More Perfect."

November

Nov. 27 supreme court headshots 2019

washington post logoWashington Post, As Trump cases arrive, Supreme Court’s desire to be seen as neutral arbiter will be tested, Robert Barnes and Ann E. Marimow, Nov. 27, 2019 (print ed.). The justices will step onto an unwelcome partisan battleground as they confront a long list of cases involving the president. The legal cases concerning President Trump, his finances john roberts oand his separation-of-powers disputes with Congress are moving like a brush fire to the Supreme Court, and together provide both potential and challenge for the Roberts court in its aspiration to be seen as nonpartisan.

The court, composed of five conservatives nominated by Republican presidents and four liberals chosen by Democrats, has little choice but to step onto a fiercely partisan battleground.

It announced Tuesday that it will consider on Dec. 13 whether to schedule a full briefing and argument on the president’s request that it overturn a lower-court ruling giving New York prosecutors access to Trump’s tax returns and other financial records in their investigation of ­hush-money payments in the lead-up to the 2016 election.

washington post logoWashington Post, Editorial: Trump’s lawless intransigence is eviscerated in court, Editorial Board, Nov. 27, 2019. U.S. District Judge Ketanji Brown Jackson on Monday eviscerated the Trump administration’s lawless intransigence in a ruling that was as sharp as it should have been predictable. No, former White House counsel Donald McGahn is not “absolutely immune from compelled congressional testimony.” No, President Trump cannot prevent Mr. McGahn from responding to legal congressional subpoenas. “Compulsory appearance by dint of a subpoena is a legal construct, not a political one, and per the Constitution, no one is above the law,” the judge wrote.

Previous presidents and congressional leaders have found ways to defuse disputes. George Washington and Ronald Reagan turned over documents to congressional investigators. During Barack Obama’s presidency, Congress held then-Attorney General Eric H. Holder Jr. in contempt when he failed to respond to a congressional subpoena in the overhyped investigation of the “Fast and Furious” gunrunning scheme, but the two sides eventually worked out a compromise that prevented lengthy litigation.

Donald Trump announces the nomination of Brett Kavanaugh, right, to join the U.S. Supreme Court (New York Times photo by Doug Mills on July 9, 2018).

Donald Trump announces the nomination of Brett Kavanaugh, right, to join the U.S. Supreme Court (New York Times photo by Doug Mills on July 9, 2018).

washington post logoWashington Post, Opinion: The many ambitions that propelled Kavanaugh to the Supreme Court, Geoffrey R. Stone, Nov. 27, 2019. Geoffrey R. Stone, right, is the Edward H. Levi geoffrey stonedistinguished professor of law at the University of Chicago and former dean. Whose “supreme ambition” is Ruth Marcus referring to in the title of her extraordinarily detailed and highly insightful new book, Supreme Ambition: Brett Kavanaugh and the Conservative Takeover” There are several possibilities.

The first and most obvious, of course, is Kavanaugh, who won a seat on the Supreme Court. Throughout his career — as a law clerk to Justice Anthony Kennedy, as an assistant to special counsel Kenneth Starr, as a lawyer for the George W. Bush campaign during the 2000 Florida recount, as White House staff secretary during the Bush administration, as a judge on the U.S. Court of Appeals for the D.C. Circuit — Kavanaugh kept his eye on the ultimate goal: the highest court in the land.

Another candidate is Kennedy. When candidate Donald Trump released a list of potential Supreme Court nominees during the 2016 presidential campaign — a list prepared by Leonard Leo of the Federalist Society — Kavanaugh’s name was not on it. After Trump’s election, Kennedy made clear to the new president that if he were to retire, he would like to see his former law clerk Kavanaugh succeed him. This caused bitter disagreement between the White House and Leo, whose Federalist friends worried that Kavanaugh was too much of a “Bushie” and might not fulfill their hard-line right-wing ambitions. After a struggle in the White House, Trump and his advisers rejected Leo’s concerns and settled on Kavanaugh, delivering on Kennedy’s ambition.

Nov. 25

ny times logoNew York Times, Can Trump Challenge His Impeachment in the Supreme Court? Adam Liptak, right, Nov. 25, 2019. The president has vowed to ask the justices to intercede, but the adam liptakConstitution and precedents are against him. “If the partisan Dems ever tried to Impeach,” President Trump wrote on Twitter in the spring, “I would first head to the U.S. Supreme Court.”

Now that impeachment seems virtually certain, it is time to assess Mr. Trump’s vow and ask whether the Supreme Court would entertain his challenge.

The Constitution seems to exclude the court from the impeachment process. It grants the House of Representatives “the sole power of impeachment.” The Senate, similarly, has “the sole power to try all impeachments.” Those are the only provisions of the Constitution that use the pointed word “sole.”

The Supreme Court, too, has been pretty categorical. “The judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments,” Chief Justice William H. Rehnquist wrote for the court in a 1993 opinion that rejected an impeached judge’s objection to the procedures used at his Senate trial.

More than half of the 452 seats in Sunday’s local elections flipped from pro-Beijing to pro-democracy candidates.

Nov. 21

brett kavanaugh nbc sept 27 2018 cropped reuters jim berg

Supreme Court nominee Brett Kavanaugh before Senate Judiciary Committee on Sept. 27, 2018 (Reuters photo by Jim Berg via NBC News)

washington post logoWashington Post, The Kavanaugh vote: Two friends, one judge and a fight for the Senate and Supreme Court, Ruth Marcus, Nov. 21, 2019. Collins and Murkowski were under pressure on Kavanaugh from the start. Then Christine Blasey Ford testified.

Brett M. Kavanaugh, President Trump’s nominee to replace retiring Supreme Court Justice Anthony M. Kennedy, was never going to be confirmed by a wide or comfortable margin. The closely divided Senate, the still-bitter legacy of Senate Majority Leader Mitch McConnell’s decision to block the nomination of Merrick Garland and the once-in-a-generation chance to cement a conservative majority for decades to come — all of these factors augured a nominee who would not win more than a few Democratic votes.

With the Senate split 51 to 49, Republicans had little margin for error; the loss of just two GOP votes would likely doom the nomination. The last-minute emergence of allegations that the nominee had sexually assaulted Christine Blasey Ford at a high school party on a summer night in 1982 threatened to derail the nomination. Wavering senators from both parties demanded an FBI investigation into the allegations by Ford and another woman, Deborah Ramirez, who said she recalled a drunken Kavanaugh exposing himself to her during their freshman year at Yale.

susan collins oIn the last stage of the confirmation battle, as at the start, Kavanaugh’s fate was largely in the hands of just two senators, Susan Collins of Maine, right, and Lisa Murkowski of Alaska, right. With their pro-choice views, they had always been the Republicans most likely to defect and vote against Kavanaugh. Now that volatile issues lisa murkowski oof gender and sexual assault had entered the debate, the pressure on both was even more intense. The two are best friends in the Senate — Collins’s husband, Tom Daffron, served as Murkowski’s chief of staff early in her Senate career — and they tend to vote as a unit. The motto in presidential politics has long been “As Maine goes, so goes the nation.”

In the Kavanaugh fight, the governing assumption was that where Collins went, so would Murkowski. As a result, White House counsel Donald McGahn remained focused on Collins throughout. “The only way ever to convince Don of anything: Does Susan Collins need you to do that?” said one person who worked on the nomination.

In the Kavanaugh fight, the governing assumption was that where Collins went, so would Murkowski. As a result, White House counsel Donald McGahn remained focused on Collins throughout. “The only way ever to convince Don of anything: Does Susan Collins need you to do that?” said one person who worked on the nomination.

washington post logoWashington Post, Justice Kennedy asked Trump to put Kavanaugh on Supreme Court list, book says, Robert Barnes, Nov. 21, 2019. It was a historic moment in April 2017 when Supreme Court justice Anthony M. Kennedy presided over the ceremonial Rose Garden swearing-in for the court’s new member, Neil M. Gorsuch: the first time a sitting justice was joined on the nation’s highest court by one of his former law clerks.

But a secret meeting moments later in the White House was just as significant, according to a new book by Ruth Marcus, a Washington Post deputy editorial page editor.

Kennedy requested a private moment with President Trump to deliver a message about the next Supreme Court opening, Marcus reports. Kennedy told Trump he should consider another of his former clerks, Brett M. Kavanaugh, who was not on the president’s first two lists of candidates.

“The justice’s message to the president was as consequential as it was straightforward, and it was a remarkable insertion by a sitting justice into the distinctly presidential act of judge picking,” Marcus writes in “Supreme Ambition: Brett Kavanaugh and the Conservative Takeover.”

Kennedy announced his retirement 14 months later, after Kavanaugh’s name indeed had been added to Trump’s public list of potential Supreme Court picks. But if the octogenarian Kennedy was envisioning an orderly succession, what the nation got instead was one of the most wrenching, contentious and closest Supreme Court confirmation battles in history.

Kavanaugh’s career-long ambition was nearly derailed by allegations from California professor Christine Blasey Ford that a drunken teenage Kavanaugh had assaulted her at a party in the Washington suburb where both grew up. There were additional reports about Kavanaugh drinking to excess while a student at Yale and exposing himself.

Kavanaugh vehemently denied the accusations and said they were part of a hit job orchestrated by Democrats and liberals desperate to sink his nomination and keep the court from having a conservative majority.

Nov. 18

Palmer Report, Opinion: No, John Roberts and the Supreme Court didn’t just side with Donald Trump on his tax returns, Bill Palmer, Nov. 18, 2019. Supreme Court Chief Justice John Roberts, below left, just announced that he’s putting a hold on the recent U.S. Court of Appeals ruling that Donald Trump’s accounting firm must turn over his financial records and tax returns to the john roberts oHouse impeachment inquiry. This is widely being interpreted as the Supreme Court siding with Trump on the matter. But that’s not what happened today – at all.

The Appeals Court ruling generated a deadline of this Wednesday for Donald Trump’s financial records to be turned over. Trump appealed the ruling to the Supreme Court. Obviously, the Supreme Court isn’t going to be able to figure out before Wednesday how it wants to respond to this appeal.

So, just as things are supposed to work, Roberts announced today that he’s placing a hold on the deadline until the Supreme Court can decide what it wants to do. The next step will be for the Justices to decide if they even want to take up the case. This could still be over within a matter of days.

bill palmer report logo headerThere are some fatalists within the Resistance who decided a long time ago that because there are five conservative Supreme Court Justices, the court will automatically side with Donald Trump on any given ruling. But that’s not how anything works. The dispute over Trump’s financial records is not an ideological matter. There’s no reason to expect that Roberts will side with Trump in this case, and last we checked, Brett Kavanaugh doesn’t get to vote twice. In any case, for now, the upshot is that the Supreme Court has not in any way sided with Trump by making the move it made today. Today’s move was always, and all but automatically, going to happen as a matter of procedure.

Nov. 11

ny times logoNew York Times, How the Trump Administration Eroded Its Legal Case on DACA, Michael D. Shear, Julie Hirschfeld Davis and Adam Liptak, Nov. 11, 2019. When the Supreme Court hears arguments on Tuesday, the administration’s attempts to end the program protecting “Dreamers” could rest on a top aide’s actions in 2017.

The case, one of the most important of the Supreme Court’s term, will address presidential power over immigration, a signature issue for Mr. Trump and one that has divided the nation since he took office. The court’s decision could also have an enormous effect on the lives of the young people in the program, who are known as Dreamers and are broadly seen as sympathetic by large majorities in both parties.

Nov. 8paul friedman graphic

washington post logoWashington Post, Trump ‘violates all recognized democratic norms,’ federal judge says in biting speech on judicial independence, Trump keeps lashing out at judges, Katie Shepherd, Nov. 8, 2019.  In an unusually critical speech that lamented the public’s flagging confidence in the independence of the judicial branch, a federal judge slammed President Trump for “feeding right into this destructive narrative” with repeated attacks and personal insults toward judges he dislikes.

U.S. District Judge Paul L. Friedman of the District of Columbia (shown above) said Trump’s rhetoric “violates all recognized democratic norms” during a speech at the annual Judge Thomas A. Flannery Lecture in Washington on Wednesday.

“We are in unchartered territory,” said Friedman, 75, an appointee of President Bill Clinton. “We are witnessing a chief executive who criticizes virtually every judicial decision that doesn’t go his way and denigrates judges who rule against him, sometimes in very personal terms. He seems to view the courts and the justice system as obstacles to be attacked and undermined, not as a coequal branch to be respected even when he disagrees with its decisions.”

Other judges have raised similar concerns about Trump’s rhetoric and the increasingly partisan interpretation of judicial rulings, but as a senior judge and secretary of the American Law Institute, Friedman’s criticism carries weight.

Trump has denounced judges who have halted some of his administration’s most hotly debated policies, including his threats to withhold federal funds from sanctuary cities and his attempt to end the Deferred Action for Childhood Arrivals (DACA) program, which protects from deportation young undocumented immigrants brought to the United States as children. The president also has attacked judges over rulings that negatively affect him personally.

In 2017, Trump tweeted how a judge’s decision not to imprison Bowe Bergdahl, an Army sergeant who was captured by the Taliban in 2009 after walking away from his battalion in Afghanistan, was a “total disgrace to our Country and to our Military.” On the campaign trail, then-candidate Trump had suggested Bergdahl was a “dirty rotten traitor” who should be sentenced to death.

Trump also attacked U.S. District Judge Gonzalo Curiel, when the federal jurist from the Southern District of California was assigned to preside over a fraud case involving Trump University, a real estate seminar program. Trump suggested Curiel, an appointee of President Barack Obama, could not remain impartial in the case because of his Mexican heritage, despite the fact that the federal judge was born in Indiana and the case had nothing to do with immigration or foreign affairs. Trump ultimately settled the suit, which alleged the seminars used false advertising to ensnare attendees, for $25 million.

 

October

Oct. 21

Inside U.S. Supreme Court

SCOTUSblog, Analysis: Is oral-argument talking time all it’s cut out to be? Adam Feldman, Oct. 21, 2019. Supreme Court oral arguments are not entirely what they seem. Although at first blush they may appear to be an opportunity for attorneys to make their arguments directly to the justices, they often become occasions for the justices to test out their theories of a given case and to gauge other justices’ positions on given topics. That is one of the reasons why the justices almost always direct the flow and tenor of each argument.

Justice Stephen Breyer, for instance, is notorious for his lengthy mid-argument orations. Although attorneys still often speak more than individual justices in each argument, they generally have little time to expound on points they feel are important to the case unless these topics are of equal interest to one or more of the justices. Perhaps for this reason, new Supreme Court Guidelines state: “The Court generally will not question lead counsel for petitioners (or appellants) and respondents (or appellees) during the first two minutes of argument.” These two uninterrupted minutes of speech should give the attorneys an opportunity to make points that otherwise would be lost in the mix of the justices’ questions.

This has potential to be a drastic change from past practice. Last term, the attorney who had the shortest amount of time for opening remarks before a justice interjected was Michael Huston in Smith v. Berryhill. Huston spoke for 11 seconds before Justice Sonia Sotomayor jumped in with her first question. (Timing was measured from oral-argument recordings on Oyez.org.) This point in the transcript is shown below.

There were 33 instances last term in which a merits party’s counsel spoke for 30 seconds or less to open an argument before a justice began with questions. The average amount of speaking time for introductory remarks across the 2018 term was just over 54 seconds. Only five attorneys crossed the two-minute threshold during the term. The longest uninterrupted opening remarks were from Thomas Goldstein in Air & Liquid Systems v. Devries and Cecillia Wang in Nielsen v. Preap (Wang had the longest time to speak to open an argument, at 280 seconds.).

Dr. Adam Feldman is the creator and author of the Empirical SCOTUS blog. He has a law degree from U.C. Berkeley’s Boalt Hall School of Law and practiced law as a trial lawyer for three years before starting a Ph.D. in Political Science from the University of Southern California.

Oct. 13

supreme court headshots 2019

washington post logoWashington Post, The Supreme Court could get a lot more undemocratic, Leah Litman, Oct. 13, 2019. Leah Litman is an assistant professor at the University of Michigan Law School. She represents multiple DACA recipients in "Department of Homeland Security v. Regents of the University of California," a case before the Supreme Court.

Despite the significant power it wields, the Supreme Court is among the federal government’s most undemocratic institutions. Its justices are appointed for life terms, and selected and confirmed by presidents and the Senate — which themselves do not necessarily reflect the will of the public.

For this reason, academics often characterize the court as “counter-majoritarian,” meaning that it has the power to stand against the majority of the public sentiment in setting policy. But as counter-majoritarian as the Supreme Court is by design, it could get even worse. This term, the court will review cases pertaining to weighty topics ranging from LGBTQ rights to protections for undocumented immigrants brought to the United States as children. By the end of next summer, we will have a glimpse into just how undemocratic the new conservative majority on the court is willing to be.

Several cases this term will test the limits of the court’s sociological legitimacy, potentially weakening the court as a legitimate institution in the process. Consider the Title VII cases, which ask the court to decide whether employers can fire their employees for being gay, lesbian, bisexual or transgender. More than 90 percent of Americans believe gays and lesbians should have equal rights in job opportunities; more than half believe that discrimination against the LGBTQ community is a major civil rights issue.

The court’s relative lack of democratic credentials does not mean it is illegitimate. Beyond its constitutional grounding, it has sociological legitimacy, referring to the court’s ability to arrive at results that are generally accepted by the public at large. The court can also claim some moral legitimacy as it meets a minimal threshold of morality and justice.

Or take the cases involving the president’s rescission of the Deferred Action for Childhood Arrivals program. More than 80 percent of Americans want DACA beneficiaries (known as “dreamers”) to be protected. Or consider June Medical Services v. Gee, the new court’s first abortion case. More than half of Americans describe themselves as pro-choice; many more say they support the court’s decision in Roe v. Wade, which recognized a constitutional right for women to end their pregnancies.

And yet, it’s unclear public sentiment will win in any of these cases, potentially sacrificing some of the court’s sociological legitimacy in the process.

Oct. 10

U.S. Supreme Court / Abortion

ny times logolinda greenhouse cover just a journalistNew York Times, Opinion: A Supreme Court Abortion Case That Tests the Court Itself, Linda Greenhouse, right (shown on the cover of her memoir, Just a Journalist), Oct. 10, 2019. What will access to abortion look like under the new conservative majority? Under the rules that normally govern the American judicial system, the Louisiana abortion law at the center of a case the Supreme Court added to its docket last week is flagrantly unconstitutional.

My goal in this column is to make visible not only the stakes in the case but also Louisiana’s strategy for saving its law, the first of a wave of anti-abortion measures to reach a Supreme Court transformed by the retirement of Justice Anthony Kennedy and the addition of two justices appointed by President Donald Trump.

Oct. 8

U.S. Supreme Court

supreme court headshots 2019

Howe on the Court via SCOTUSblog, Argument analysis: Justices divided on federal protections for LGBT employees, Amy Howe, Oct. 8, 2019. Title VII of the Civil Rights Act of 1964 bars employment discrimination “because of … sex.” This morning, in a packed courtroom, the Supreme Court heard oral argument on whether Title VII protects gay, lesbian and transgender employees. Because fewer than half of the 50 states specifically bar discrimination based on sexual orientation or gender identity, the court’s ruling could be significant. And after over two hours of debate, it was not clear how the justices are likely to rule.

The outcome of the two cases could hinge on Justice Neil Gorsuch, who at times appeared sympathetic to the plaintiffs’ argument but also expressed concern about the “massive social upheaval” that he believed would follow from a ruling for them.

The morning was divided into two arguments, involving closely related – but not identical – issues: a pair of cases, argued together, involving whether Title VII bans discrimination based on sexual orientation, followed by a third case in which the justices are considering whether the law prohibits discrimination based on transgender status.

Oct. 4

washington post logoWashington Post, Supreme Court term to begin with blockbuster question: Is it legal to fire someone for being gay or transgender? Robert Barnes, Oct. 4, 2019 (print ed.). It’s among the most consequential issues facing the justices, with more than 70 friend-of-the-court briefs dividing states, religious orders and members of Congress.

washington post logoWashington Post, Supreme Court to review ruling on Louisiana abortion law, Robert Barnes, Oct. 4, 2019. The Supreme Court will review a restrictive Louisiana law that gives the justices the chance to reconsider a recent ruling protecting abortion rights.

The court said Friday it would consider whether the 2014 law requiring doctors at abortion clinics to have admitting privileges at nearby hospitals unduly burdens women’s access to abortion. Clinic owners said the effect of the law would be to close most of the state’s abortion clinics and leave the state with only one doctor eligible to perform the procedure.

September

Sept. 27

Media / Supreme Court

SCOTUSblog, House Judiciary Committee hears testimony on public access to the court, Katie Bart, Sept. 27, 2019. A subcommittee of the U. S. House Committee on the Judiciary held a hearing yesterday on public access to the federal courts – the second hearing on ethics, accountability and transparency in a 21st-century federal judiciary. Chaired by Rep. Hank Johnson, D-Ga., the subcommittee took expert testimony from a variety of witnesses, including two district court judges, an attorney in private practice and several journalists.

A major concern of the committee was the transparency of the Supreme Court and what improvements might be made in public access to oral arguments. Johnson began his opening statement by showing a New York Times photograph of the lines outside the Supreme Court on an argument day. Johnson questioned the fairness of a system in which line-standers are paid $50 an hour to obtain a seat in the courtroom. Invoking Lord Chief Justice of England Gordan Hewert, Johnson said, “It’s not enough that justice is done, the public must also see justice being done.”

The committee generally agreed that more immediate access to audio recordings of Supreme Court oral arguments would be an improvement. On the subject of allowing cameras in the courtroom, many of the members predicted, based on their own institution’s relationship with C-SPAN, that advocates and the justices might “play to the cameras.” Rep. Andy Biggs, R-Ariz., quoted Chief Justice John Roberts’ take: “’I think if there were cameras that the lawyers would act differently. I think, frankly, that some of my colleagues would act differently and that would affect what we think is a very important and well-functioning part of the decision process. I don’t think that are a lot of public institutions, frankly, that have been improved by how they do business by camera.’”

Judge Audrey G. Fleissig, one of the two district court judges at the hearing, chairs a committee on court administration for the Judicial Conference of the United States. Although the Judicial Conference has piloted the use of cameras in select federal courtrooms, Fleissig insisted that the reviews were mixed and that “on balance, it can be very destructive to the integrity of the court process.”

The journalists who made up the second panel in yesterday’s hearing were more favorable toward cameras in the courtroom.

Sunny Hostin, co-host of “The View,” offered a “unique perspective” as a former prosecutor and African American journalist. Hostin’s testimony focused on how the absence of cameras in federal proceedings – and in the Supreme Court, in particular – has a profound effect on African Americans as the most incarcerated people in the world. Hostin said that “there exists no better cure for the fundamental mistrust and perceived illegitimacy of system than the transparency of the courts that define it – in particular, the highest court in the land.”

Sept. 19

National Press Club, New York Times reporters tell NPC audience Justice Kavanaugh asked them to lie in exchange for an interview, Eleanor Herman, Sept. 19, 2019. New York Times reporters Robin Pogrebin and Kate Kelly revealed at a National Press Club Headliners event Wednesday that their new book, “The Education of Brett Kavanaugh: An Investigation,” does not include an interview with the Supreme Court justice because he asked them to lie in exchange for the interview.

Robin Pogrebin, left, and Kate Kelly (Lorin Klaris photo).Shortly before the book went to print, Pogrebin (left) and Kelly said Kavanaugh agreed to speak with them but only on the condition that the book expressly state they had not done so. Unwilling to lie, they canceled the interview, even though they were already on their way to Washington to conduct it.

The reporters said they wrote the book to provide closure to the Supreme Court confirmation process that a year ago so roiled the nation. Ironically, the publication of their book has roiled it even more.

The goal, the reporters said, was to present a thoroughly investigated, fair and balanced exploration of the FBI investigation, which many Americans saw as rushed and incomplete, and of the man himself.

“We tried to establish how to get the two pictures of Brett Kavanaugh, and how to reconcile them,” Kelly said.

robin progrebin kate kelly kavanaugh coverThe reporters described an abbreviated FBI investigation with parameters set by the president. Agents interviewed 10 carefully selected witnesses out of dozens. Some of Kavanaugh’s classmates who called the FBI to provide information found themselves on hold all day.

The most dramatic testimony of last year’s confirmation hearings was that of Dr. Christine Blasey Ford, who testified that a drunken, teenage Kavanaugh had pinned her to a bed and tried to rip off her clothes before she broke free. Pogrebin and Kelly investigated an allegation by fellow Yale student Deborah Ramirez that Kavanaugh had assaulted her at a drunken party in the 1983-84 academic year. They found her allegation to be credible, as it had been discussed by at least seven classmates years before he became a federal judge.

The team also found no allegations of bad behavior after Kavanaugh graduated college. Pogrebin said, “Let’s say he did these things at 17 or 18. Are they disqualifying if he had exemplary conduct ever since? Did he make a conscious effort to improve himself?”

The reporters said they reached no conclusions themselves because they wanted the readers to do so. They added that Kavanaugh was highly respected in legal circles by Republicans and Democrats alike and, over the years, strived to hire, mentor, and promote women.

While researching the book, they uncovered yet another allegation of assault at a drunken party, as reported by a witness. The new controversy erupted last week when Pogrebin and Kelly’s op-ed in the Times did not mention a crucial piece of information: that the alleged victim said she could not remember anything about the assault.

As a result, President Trump last week called for the mass resignations of New York Times staffers for the good of the nation, while some Democrats called for Kavanaugh's impeachment. A New York Times tweet seeming to make fun of sexual assault—which was soon deleted—stirred up yet more controversy.

Kelly explained that the op-ed was a highly condensed excerpt of the book focusing on Ramirez's story, and they thought it made sense to mention the new, similar allegation. Their first draft stated that the victim claimed to have no memory of the event, but an editor, wanting to protect the identity of an alleged sexual assault victim, removed not only her name but the entire sentence.

The full story of the new allegation is in the book, so the reporters said they had no intention of hiding that aspect.

“It’s hard when you put such effort into being balanced and fair and get caught up in taking a line out of an op-ed or a really bad tweet," Pogrebin said. "I hope we can get past it so people will consider it with an open mind.”

Sept. 18

jacob hornberger newFuture of Freedom Foundation, Opinion: Congress Shares the Blame for the Kavanaugh Fiasco, Jacob G. Hornberger, right, Sept. 18, 2019. When the Republican members of Congress voted in a 50-48 partisan vote to confirm Brett Kavanaugh to the Supreme Court, they obviously believed that a quick vote in favor of confirmation would quell the controversy over Kavanaugh’s nomination. The New York Times’s recent publication of an essay raising new evidence of sex-abuse allegations against Kavanaugh has dashed that hope. The article has ignited a firestorm of controversy, with even Democratic presidential candidates making it an issue.

The controversy originated when Christine Blasey Ford, left, a research psychologist at Stanford University, alleged that when she and Kavanaugh were in high school in 1982, he sexually assaulted her during a house party they were both attending. She alleged that he pounced on her on a bed in an upstairs bedroom, attempted to take her clothes christine blasey ford oath uncreditedoff, and held his hand over her mouth to prevent her from screaming.

For his part, Kavanaugh heatedly and indignantly denied the allegation and claimed that it was politically motivated.

Some Kavanaugh supporters claimed that it would be unfair to punish him for what they considered was a minor incident in high school. But that really wasn’t the real issue regarding confirmation. The real issue, instead, was whether Kavanaugh had committed perjury in his confirmation hearings with respect to his sworn denials of wrongdoing.

In other words, let’s assume that Kavanaugh, from the very beginning, had acknowledged that he had done what Ford was alleging, expressed genuine remorse for it, and apologized for it. I think very few people would have supported punishing him for a grave error in judgment as a high school student 25 years ago by denying him a seat on the Supreme Court.

That’s not what happened, however. Instead, once Ford made a prima facie case establishing the assault, Kavanaugh, below right, testified under oath that the allegation was false. That immediately raised the possibility that he was committing perjury, which is a grave offense, especially for a lawyer. The last thing that any ethical and competent lawyers would want is a lawyer serving on the Supreme Court who has just recently committed perjury in an official proceeding.

Corroborating evidence

brett kavanaugh flagOne of the points that Kavanaugh supporters and even some in the mainstream press made throughout the controversy — and are still making — is that there was no corroborating evidence to support Ford’s contention. But that simply is untrue. Ford did, in fact, provide corroborating evidence of her allegation to the confirmation committee.

Ford’s corroborating evidence was in the form of what the law calls “prior consistent statements.” I wrote about this type of corroborating evidence in my October 9, 2018, article, “Christine Ford’s Corroborating Evidence.” Therefore, I won’t repeat what I wrote there except to emphasize the point: under the law, prior consistent statements made by a complainant do constitute corroborating evidence of the allegation.

Ford’s prior consistent statements consisted of statements that she made to several people about the alleged Kavanaugh assault. Such statements dated back several years before her appearance before the confirmation committee. In fact, some of them dated back to before President Trump was even elected president.

Sept. 15Donald Trump announces the nomination of Brett Kavanaugh, right, to join the U.S. Supreme Court (New York Times photo by Doug Mills on July 9, 2018).

Donald Trump announces the nomination of Brett Kavanaugh, right, to join the U.S. Supreme Court (New York Times photo by Doug Mills on July 9, 2018).

washington post logoWashington Post, 2020 candidates demand Kavanaugh impeachment after new allegation, Emily Wax-Thibodeaux, Sept. 15, 2019. Democrats called for a new investigation of Supreme Court Justice Brett M. Kavanaugh in response to a New York Times article that revealed a new allegation of sexual assault.

Democrats called Sunday for a new investigation of Supreme Court Justice Brett M. Kavanaugh in response to a New York Times piece that said Kavanaugh was seen sexually harassing a female student while at Yale.

Sen. Kamala D. Harris (D-Calif.), Sen. Elizabeth Warren (D-Mass.) and former housing and urban development secretary Julián Castro, Democratic presidential candidates, pushed for Kavanaugh’s impeachment.

Harris and Warren had voted against Kavanaugh’s confirmation, a process during which Christine Blasey Ford accused Kavanaugh of sexual misconduct while they were high school students in the 1980s.

Kavanaugh vehemently denied the claim during what became a bitter confirmation process, which catapulted the debate over the sexual assault allegations into daily conversation amid the #MeToo movement. It also prompted a backlash among those who felt the Supreme Court nominee was being unfairly judged for something that may or may not have happened over three decades ago.

Those debates were reignited this weekend with the Saturday evening publication of the Times piece. “He was put on the Court through a sham process and his place on the Court is an insult to the pursuit of truth and justice,” Harris said in a tweet. “He must be impeached.”

President Trump, meanwhile, accused the “LameStream Media” and Democrats of working together to scare Kavanaugh “into turning Liberal.”

ny times logoNew York Times, Analysis: Brett Kavanaugh Fit In With the Privileged Kids. She Did Not, Robin Pogrebin and Kate Kelly (reporters with the Times shown at left and right, respectively, in a Loren Klaris photo and authors of the forthcoming book, The Education of Brett Kavanaugh: An Investigation), Sept. 15, 2019 (print ed.). Deborah Ramirez’s Yale experience says much Robin Pogrebin, left, and Kate Kelly (Lorin Klaris photo).about the college’s efforts to diversify its student body in the 1980s.

Deborah Ramirez (shown below at left as a Yale student) had the grades to go to Yale in 1983. But she wasn’t prepared for what she’d find there.

A top student in southwestern Connecticut, she studied hard but socialized little. She was raised Catholic and had a sheltered upbringing. In the summers, she worked at Carvel dishing ice cream, commuting in the $500 car she’d bought with babysitting earnings.

deborah ramirez yale croppedAt Yale, she encountered students from more worldly backgrounds. Many were affluent and had attended elite private high schools. They also had experience with drinking and sexual behavior that Ms. Ramirez — who had not intended to be intimate with a man until her wedding night — lacked.

During the winter of her freshman year, a drunken dormitory party unsettled her deeply. She and some classmates had been drinking heavily when, she says, a freshman named Brett Kavanaugh pulled down his pants and thrust his penis at her, prompting her to swat it away and inadvertently touch it. Some of the onlookers, who had been passing around a fake penis earlier in the evening, laughed.

To Ms. Ramirez it wasn’t funny at all. It was the nadir of her first year, when she often felt insufficiently rich, experienced or savvy to mingle with her more privileged classmates.

Mr. Kavanaugh, now a justice on the Supreme Court, has adamantly denied her claims. Those claims became a flash point during his confirmation process last year, when he was also fighting other sexual misconduct allegations from Christine Blasey Ford, who had attended a Washington-area high school near his.

During his Senate testimony, Mr. Kavanaugh said that if the incident Ms. Ramirez described had occurred, it would have been “the talk of campus.” Our reporting suggests that it was.

At least seven people, including Ms. Ramirez’s mother, heard about the Yale incident long before Mr. Kavanaugh was a federal judge. Two of those people were classmates who learned of it just days after the party occurred, suggesting that it was discussed among students at the time.

We also uncovered a previously unreported story about Mr. Kavanaugh in his freshman year that echoes Ms. Ramirez’s allegation. A classmate, Max Stier, saw Mr. Kavanaugh with his pants down at a different drunken dorm party, where friends pushed his penis into the hand of a female student. Mr. Stier, who runs a nonprofit organization in Washington, notified senators and the F.B.I. about this account, but the F.B.I. did not investigate and Mr. Stier has declined to discuss it publicly. (We corroborated the story with two officials who have communicated with Mr. Stier.)

Other recent books on Kavanaugh:

More On Supreme Court

washington post logoWashington Post, Opinion: The Kavanaugh revelations: Why the Supreme Court is broken, E.J. Dionne Jr., right, Sept. 15, 2019. We focus, rightly, on the damage ej dionne w open neckPresident Trump is doing to our institutions. But the wreckage goes beyond Trump and involves the other two branches of government as well. The right wing’s determination to control the Supreme Court is undermining its legitimacy as well as confidence in the U.S. Senate’s approach to confirming nominees.

The costs of this approach were underscored this weekend by a New York Times report that offers new corroboration for charges by Deborah Ramirez that Kavanaugh exposed himself to her when both were undergraduates at Yale. In denying the charge, Kavanaugh told the Senate that had it been true, the incident would have been “the talk of the campus.” Times reporters Robin Pogrebin and Kate Kelly — drawing on their new book, The Education of Brett Kavanaugh: An Investigation — write tellingly: “Our reporting suggests that it was.”

robin progrebin kate kelly kavanaugh coverHere is the institutionally devastating part of their story: Ramirez’s legal team gave the FBI a list of “at least 25 individuals who may have had corroborating evidence” of her story. The bureau, the authors report, “interviewed none of them.” Nor did the FBI look into Stier’s account.

Now let’s take a step back: If Senate Republicans had declared Kavanaugh’s behavior as a high school and college student off-limits, they would have risked a firestorm, but at least they would have been honest about what they were up to.

However, they could not take this route once they agreed to hear psychology professor Christine Blasey Ford’s four hours of testimony about her charge that Kavanaugh had sexually assaulted her in the early 1980s when both were in high school. Ford’s testimony was so credible — Republican after Republican praised her — that the GOP was forced to agree to a brief FBI investigation.

But it was such a sharply constrained investigation that neither Kavanaugh nor Ford was questioned, and the other allegations against Kavanaugh were ignored. “The process was a sham,” Sen. Amy Klobuchar (D-Minn.), a member of the Judiciary Committee who is seeking her party’s presidential nomination, said Sunday on ABC’s “This Week.” She was not being hyperbolic. In the wake of the new revelations, three other Democratic contenders quickly called for Kavanaugh’s impeachment.

mitch mcconnell elevator getty croppedThis leaves it to journalists to keep exploring questions the Senate refused to settle. And it leaves the court and the country in a terrible place.

Senate Majority Leader Mitch McConnell (R-Ky.), right, had already signaled that court packing took priority over due process when he refused even to hold a hearing on President Barack Obama’s nomination of Merrick Garland to the court in 2016. This opened the way for Trump to name two conservatives to the court, Kavanaugh and Justice Neil M. Gorsuch for the seat Garland was denied.

More On Supreme Court

Palmer Report, Opinion: Donald Trump just gave away something huge about Brett Kavanaugh, Bill Palmer, right, Sept. 15, 2019. Earlier this year, Palmer Report pointed out bill palmerthat Donald Trump had a potentially serious Brett Kavanaugh problem, and a surprising one at that. Despite being a far-right extremist, Kavanaugh was voting with the liberals on some fairly major Supreme Court cases. It felt like he was begging the Democrats in Congress not to impeach him, or have him criminally prosecuted for perjury, once Trump is gone.

bill palmer report logo headerYesterday, the New York Times published a lengthy expose full of damning evidence that Brett Kavanaugh is every bit the serial sexual assaulter that his accusers have claimed. This morning, Donald Trump decided to weigh in on Twitter. At first he urged Kavanaugh to take legal action against his accusers. Then Trump illegally instructed the Department of Justice to target the accusers. But then Trump got to the part of his meltdown that truly mattered.

Here’s what Trump said that gives away the whole thing: “Can’t let Brett Kavanaugh give Radical Left Democrat (Liberal Plus) Opinions based on threats of Impeaching him.” In other words, we weren’t just imagining it. Kavanaugh really has been voting with the liberals on some cases, as a way of trying to convince the Democrats to leave him be. And Trump is not too subtly threatening Kavanaugh when it comes to his upcoming votes. It’s not difficult to parse why.

brett kavanaugh mouth open angry testimonyHouse Democrats are currently fighting numerous legal battles over the testimony and evidence involved in Donald Trump’s impeachment. Some of these cases will likely reach the Supreme Court. Donald Trump appears worried that once this happens, Brett Kavanaugh could vote against him, in the hope of saving himself.

We have no idea what Brett Kavanaugh, right, will end up doing. He could vote in Donald Trump’s favor, in the hope that Trump pardons him on perjury and any other charges, thus keeping him out of prison – but in such case Kavanaugh would surely have to resign. Or Kavanaugh could vote against Trump in the feeble hope that it’ll motivate Democrats to leave him alone – but if this backfires, Kavanaugh goes to prison. In any case, Trump is right to be worried. Kavanaugh is compromised in every way possible, and there’s no telling what he’ll do to try to mitigate his own downfall.

Sept. 14

Palmer Report, Opinion: The Brett Kavanaugh scandal just exploded, Bill Palmer, Sept. 14, 2019. Donald Trump and the Republican Senate knew darn well that they were putting a serial sexual assaulter and unstable violent monster on the Supreme Court when they confirmed Brett Kavanaugh. They didn’t care, because it was their only opportunity to get a far-right conservative extremist on the high court and please their billionaire owners. Predictably, the Kavanaugh scandal has – finally – blown up in their faces.

bill palmer report logo headerThe New York Times published a lengthy new investigative article today which digs into Brett Kavanaugh’s history, and guess what? He’s every bit the serial sexual assaulter we all knew he was. The article helps to confirm some of the accusations against him, and even references at least one additional victim who didn’t previously come forward. You may be wondering if it’s too late for this to matter.

Here’s the thing. Senate Democrats can easily refer Brett Kavanaugh to the Department of Justice for felony perjury, which will result in him being indicted, arrested, and possibly in a position where he has to resign from the Supreme Court as part of his plea deal. But they can’t do it until Donald Trump is gone from office, and his corrupt Attorney General Bill Barr is gone along with him. Even if the Democrats were able to oust Kavanaugh right now, Trump would just replace him with another far-right monster.

The takedown of Brett Kavanaugh will – disturbingly for America and unfairly for his victims – have to wait for another day. But in the meantime, some of the Republican Senators who made a point of supporting Brett Kavanaugh are up for reelection in 2020. susan collins oFor instance, Susan Collins’ (shown at right) odds of reelection probably just dropped in half today. The Democrats will hang Kava-rapist around her proverbial neck. Other GOP Senators running in 2020 will also take a hit for having voted for the violent whack job. You can read the full New York Times expose here (Brett Kavanaugh Fit In With the Privileged Kids. She Did Not).

ny times logoNew York Times, Book Review: ‘The Education of Brett Kavanaugh’ Takes a Hard Look at the Supreme Court Justice and His Accusers, Hanna Rosin, Sept. 14, 2019. Nearly a year after the fateful Supreme Court confirmation hearings, Christine Blasey Ford and Brett Kavanaugh have become martyrs in separate and hostile galaxies — one for #believeallwomen and the other for those who believe Democrats will use any means necessary to take down good and honorable men. So there is a weird satisfaction in rewinding the story more than 30 years, back to the moment when the two lived in suburban Maryland and coexisted as part of a small social circle of teenagers who hung out at country club pools all summer and whose pressing concern was which parents were out of town for the weekend.

robin progrebin kate kelly kavanaugh coverThe Education of Brett Kavanaugh, by Robin Pogrebin and Kate Kelly, two experienced New York Times reporters who helped cover the confirmation hearings, comes with an expectation of bombshells (the galleys are stamped “EMBARGOED” on every page). And the authors do in fact turn up a few new revelations about the assault accusations against Kavanaugh. But their real work is to smooth out the main story, create a fuller picture of Kavanaugh himself, place him in relation to Blasey Ford and put the minor players in motion, so that the confirmation showdown has a kind of cinematic inevitability.

The book places Blasey Ford in the summer of 1982, when, she later said, Kavanaugh tried to rape her. A rising junior at Holton-Arms school, a tall cheerleader with feathered bangs and saddle shoes, she spent her days with friends at the Columbia Country Club pool exchanging the early ’80s equivalent of the eye-roll emoji (“mange-moi” and “Kill Dick”). Kavanaugh, as we know from his infamously meticulous calendar, spent his time mowing lawns and figuring out which of his Georgetown Prep friends was “popping,” the technical term for holding a party when your parents were out of town.

For most of the book the writers take an omniscient Woodwardian tone, staying careful and balanced and not cluttering up every sentence with newspaper-style sourcing. But I couldn’t help reading a lot into the title. On my own copy I idly scribbled “Mis” before the “Education,” since it’s clear that academic enrichment is not what the authors have in mind. In high school and college and even a little into law school, the main thing they portray Kavanaugh learning is how to expertly blend into the background hum of blasé misogyny and clubby competitive drinking.

The picture that emerges of Kavanaugh as an actual student is admirable if indistinct. He works hard, graduates near or at the top in his class. A college friend recalls him having a neat stack of books and papers he would move through like a machine. A couple of people remember him as special but just as many remember him as “straightforward and uncomplicated” — or, as some college friends put it, “ham on white.” My favorite observation about his college years is: “Along with playing and writing about sports, Kavanaugh enjoyed watching them in his downtime.” Really, that could be anyone. In fact, when he got his big break as a clerk for Judge Alex Kozinski, the law professor who recommended him described him as a “good student” and not a “great one,” but added, “I got to know his character from basketball.”

Sept. 12

U.S. Crime, Courts

washington post logoWashington Post, She got 12 years for $31 of pot. Years after her parole, she was jailed for the unpaid court fees, Antonia Noori Farzan, Sept. 12, 2019. Sitting in her jail cell this week, Patricia Spottedcrow couldn’t imagine where she was going to get the money she needed for her release.

In 2010, the young Oklahoma mother, who had been caught selling $31 worth of marijuana to a police informant after financial troubles caused her to lose her home, was sentenced to 12 years in prison. It was her first-ever offense, and the lengthy sentence drew national attention, sparking a movement that led to her early release.

But once she was home free, Spottedcrow still owed thousands in court fees that she struggled to pay, since her felony conviction made it difficult to find a job. Notices about overdue payments piled up, with late fees accumulating on top of the original fines. On Monday, the 34-year-old was arrested on a bench warrant that required her to stay in jail until she could come up with $1,139.90 in overdue fees, which she didn’t have. Nearly a decade after her initial arrest, she was still ensnarled in the criminal justice system, and had no idea when she would see her kids again.

washington post logoWashington Post, Trump’s proposals to tackle California homelessness face local, legal obstacles, Scott Wilson, Sept. 12, 2019. The White House effort has taken state officials by surprise, but the state’s growing homeless problem hasn’t been contained by similar policy initiatives in the past.

President Trump’s emerging plan to address California’s homeless crisis includes ideas that have been tried unsuccessfully before, namely the mass housing of people living on the streets, and proposals that have been ruled illegal by federal courts.

The White House effort has taken state officials by surprise, as the president has shifted from criticizing California’s management of homelessness on social media to proposals that would insert the federal government directly into the crisis, including relocating homeless people living on the street and in tent camps to a federal facility.

But the state’s growing homeless problem hasn’t been contained by similar policy initiatives in the past. It is an unusual crisis stemming in part from the state’s economic success and one where the lack of political will, rather than a lack of public resources, is often the primary obstacle to resolving it.

washington post logoWashington Post, Is the Supreme Court too deferential to Trump — or worried some judges are overstepping their power? Robert Barnes, Sept. 12, 2019. Has the Supreme Court become a soft touch for the Trump administration? Or are the justices sending a message to lower courts not to become a part of the “resistance” to the president’s legitimate powers?

The questions became relevant again Wednesday as the court allowed the administration to begin implementing a dramatic change in asylum rules that would bar requests from most Central American migrants who arrive at the southern border seeking protection in the United States.

The court gave no reason in its one-paragraph unsigned order for effectively dissolving an injunction federal courts had placed on the administration’s new policy. The directive would deny in almost all cases asylum requests from those who had traveled through another country without first seeking protection there.

Wednesday marked the second time since the court adjourned in late June that it approved an emergency request from the Trump administration to overrule a lower court on a border security issue. In July, the justices allowed the administration to proceed in transferring billions of dollars in Defense Department funds to border wall construction.

sonia sotomayor in scotus robe1Justice Sonia Sotomayor, right, perhaps the court’s most liberal member, accused the administration of bypassing the normal process and racing to the Supreme Court when it receives an unfavorable ruling in a lower court.

“Historically, the government has made this kind of request rarely; now it does so reflexively,” wrote Sotomayor, who was joined by Justice Ruth Bader Ginsburg. They were the only two to state how they voted on the request.

Sept. 11

ny times logoNew York Times, Supreme Court Lets Trump Bar Asylum Seekers as Legal Fight Continues, Adam Liptak, Sept. 11, 2019. The policy requires many Central American migrants to be denied asylum in another country before applying in the United States. It was the second time in recent months that the Supreme Court backed a major Trump administration immigration initiative.

The Supreme Court on Wednesday allowed the Trump administration to bar most Central American migrants from seeking asylum in the United States, while the legal fight plays out in the courts.

The Supreme Court, in a brief, unsigned order, said the administration may enforce new rules that generally forbid asylum applications from migrants who have traveled through another country on their way to the United States without being denied asylum in that country.

The court’s order was a major victory for the administration, allowing it to enforce a policy that will achieve one of its central goals: effectively barring most migration across the nation’s southwestern border by Hondurans, Salvadorans, Guatemalans and others. Mexican migrants, who need not travel through another country to reach the United States, are not affected by the new policy.

It was the second time in recent months that the Supreme Court has allowed a major Trump administration immigration initiative to go forward. In July, the court allowed the administration to begin using $2.5 billion in Pentagon money for the construction of a barrier along the Mexican border. Last year, the court upheld President Trump’s ban on travel from several predominantly Muslim countries.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented, saying the court’s action will “upend longstanding practices regarding refugees who seek shelter from persecution.”

The rules reversed longstanding asylum policies that allowed people to seek haven no matter how they got to the United States. A federal appeals court had largely blocked the policy.

Lee Gelernt, a lawyer with the American Civil Liberties Union, which represents the challengers in the new case, stressed that the Supreme Court’s action was provisional. “This is just a temporary step,” he said, “and we’re hopeful we’ll prevail at the end of the day. The lives of thousands of families are at stake.”

The case will almost certainly return to the Supreme Court, but that will take many months.

Sept. 6

U.S. Supreme Court

washington post logoWashington Post, Everything conservatives hoped for and liberals feared’: Neil Gorsuch makes his mark at the Supreme Court, Robert Barnes and Seung Min Kim​, Sept. 6, 2019. In a new book and interview, the Supreme Court justice discusses his strong views on the law and the art of judging.

neil gorsuch circuit portraitSome justices ascend to the Supreme Court quietly, deferring to their elders and biding time before venturing out too far to offer their own views of the law.

Justice Neil M. Gorsuch, right, on the other hand, appears to have been shot from a cannon.

At his inaugural oral argument in April 2017, President Trump’s first choice for the Supreme Court asked 22 questions. In the term just completed, Gorsuch wrote more dissents than any other justice and typed out a whopping 337 pages of opinions. Again, more than anyone else.

Along the way, he has established himself as one of the court’s most conservative justices and a reliable vote for Trump initiatives that have reached the Supreme Court — the travel ban on those from mostly-Muslim countries, adding a citizenship question to the census form and allowing a ban on transgender service in the military to go into effect. He has shown a willingness to overturn precedent and an impatience with more reticent colleagues.

“I’m all in, and I wanted to explain that,” Gorsuch said in a recent interview in his chambers. He was referring to A Republic, If You Can Keep It, a book he has written that goes on sale Tuesday. The title is from Benjamin Franklin’s reported comment when asked what kind of government the Founding Fathers would propose.

washington post logoWashington Post, Opinion: The Supreme Court has become just another arm of the GOP, Sheldon Whitehouse, Sept. 6, 2019. Sheldon Whitehouse, right, a Democrat, represents Rhode Island in the U.S. Senate. Politics is a team sport. We battle, and our courts are supposed to referee our disputes.

sheldon whitehouseBut what if one team spent years and millions of dollars to capture the referees, so the refs could declare that team the winner whenever they fell short on the field? If you were on the other team, you’d cry foul. You’d ask: “Hey, when did the law become a team sport, too?’’
A few weeks ago, several Senate colleagues and I did just that when we filed a friend-of-the-court brief in a case before the Supreme Court in which the National Rifle Association had urged the court to continue its “project” (the NRA’s term) to undermine gun regulations.

We cried foul.

From 2005 through the fall term of 2018, the Roberts court issued 73 5-to-4 partisan decisions benefiting big Republican donor interests: allowing corporations to spend unlimited money in elections; hobbling pollution regulations; enabling attacks on minority voting rights; curtailing labor’s right to organize; denying workers the ability to challenge employers in court; and, of course, expanding the NRA’s gun rights “project.” It’s a pattern.

Of course, in other decisions during that period, such as the 2015 same-sex marriage ruling, a Republican appointed justice joined the liberals. But in its run of 73 partisan 5-to-4 cases, the Republican majority routinely broke traditionally conservative legal principles, such as respect for precedent or “originalist” reading of the Constitution. They even went on remarkable fact-finding expeditions, violating traditions of appellate adjudication.

 

August

Aug. 31

World Crisis Radio, Opinion: Two-Pronged Crisis of Democracy, Webster G. Tarpley, right, Aug. 31, 2019 (74:27 min. audio). This is a very dangerous situation. In Britain, we have coming webster tarpley 2007up the decision on whether an 800-year tradition of Parliament lives or dies. If it doesn't hold up, ladies and gentlemen, you may have a fascist dictatorship.

If Trump sees his little friend Bojo [UK Prime Minister Boris Johnson] get away with trampling on the Parliament and donig things that should only be done by constitutional amendemtnt he made be tempted to imitate it.

We've been trying to illustrate all summer the crimes of Trump. We've had the testimony of Congressman Walsh. We're very much aware of his past crimes. The whole point of getting rid of a fascist regime is you can't be too picky about who you regard as an ally or even an "associate."

The quote from Scaramucci: "I don't think Trump is in early stage dementia. I think he's in early stage fascism." That's a direct quote from Scaramucci (financier and former Trump White House Communications Director) on CNN. We now have the testimony from Mattis. Mattis apparentl, he's somewhat evasive in the syntax but it's something like Trump is a person of limited cognitive ability and of bad character. That covers a multitude of sins.

sheldon whitehouseThe struggle in our country is going to get going again in the next week or so as the the House of Representative, comes back into session.

We will be saying a few things about the Supreme Court. We have the very interesting friend of the court letter [Washington Post, Democrats ignite controversy with brief in gun case before Supreme Court, Aug. 16, 2019] coming from Sen. Whitehouse of Rhode Island, left, and a group of other Democratic senators -- and they are warning the Supreme Court that the racket, the constitutional abuse, the crimes against the state would merit impeachment.

So they have done what I regard as a landmark document coming from senators about the excesses, really the crimes, of the Roberts court, the infamous 5-4 decisions, always partisan, always helping the monied interests. If you constantly legislate from the bench...you can't imagine that 330 million people are going to sit still for a series of reactionary and destructive decisions made by a bunch of, what?, puppets of these reactionary groups.

Aug. 29

SCOTUSblog, Analysis: Battling over mootness, Stephen Wermiel, Aug. 29, 2019. Mootness is not often the stuff of headlines. But a current dispute over Second Amendment rights and a New York City gun regulation has put mootness in the spotlight.

Last January, the Supreme Court agreed to hear a petition, 18-280, by the New York State Rifle & Pistol Association challenging New York City’s curb on transporting licensed handguns outside the home. The New York regulation, which allowed handguns to be transported only to specified shooting ranges within the city, was upheld by a federal district judge in New York and by the U.S. Court of Appeals for the 2nd Circuit. The lower courts rejected claims that the city regulation violates the Second Amendment, that it interferes with interstate commerce and that it impedes the right to travel.

The Supreme Court’s decision to hear the case marked the first time since 2010 that the justices have agreed to tackle a dispute over the scope of gun rights. Although gun-rights groups have filed numerous briefs urging the court to expand Second Amendment rights, the court had so far declined to take up the issue. Commentators have suggested that the replacement of Justice Anthony Kennedy with Justice Brett Kavanaugh last fall may have given the court a majority favoring strengthened rights of gun owners.

In the 2008 case District of Columbia v. Heller, the court ruled for the first time that the Second Amendment confers a right of individuals to possess guns, at least in their homes for purposes of self-defense. Since then, gun-rights groups have hoped to expand the right beyond the home and beyond self-defense; gun-regulation advocates have pressed to limit gun rights or even to overrule the Heller decision. The issues have divided communities, political parties and the nation.

Soon after the court agreed to hear the New York City case, perhaps because of the prospect of a ruling that might expand the scope of Second Amendment rights, New York City officials moved to amend the challenged regulation and then asked the justices to dismiss the case as moot.

What is mootness and when does it apply? As a general matter, a case becomes moot when the parties no longer have an interest that can be resolved by the court’s decision.

The rule is derived from Article III of the U.S. Constitution, which defines “the judicial power” as extending to “cases” and “controversies.” The Supreme Court has long interpreted this language to mean that federal courts have jurisdiction to decide only those cases in which the parties have concrete interests that will be resolved by a judicial decision. Those tangible interests must be present at every stage of the lawsuit, the court has said, from initial filing to final decision.

A principal theory behind the case and controversy requirement – and behind the mootness doctrine, as well – is that courts will reach the best decisions when the cases they decide are litigated in a process that is truly adversarial on behalf of parties who have a real stake in the outcome.

When tangible interests are no longer present for the parties in a dispute, a case may become moot. The theory, again, is that parties to a case may not make the best arguments and engage in zealous advocacy if they no longer have genuine, tangible interests in the outcome.

There are exceptions to the mootness doctrine. Perhaps the most notable exception applies when the case involves circumstances that exist only for a short, fixed time period and that may be over by the time the litigation reaches the Supreme Court. In cases involving pregnancy and abortion, for example, a woman will almost certainly have either terminated the pregnancy or delivered a baby well before the dispute can reach the appellate stages. The Supreme Court has carved out an exception for cases that are “capable of repetition, yet evading review.” In other words, if the issues may arise again and will often or always face timing challenges, the federal courts should not dismiss such cases for mootness and may continue to hear the litigation.

Another exception to mootness occurs when the defendant in the case voluntarily decides to halt the contested practice that is the basis of the lawsuit. Because the defendant’s cessation of activity is voluntary, the theory goes, the defendant could also decide to resume the contested activity after the case is dismissed as moot. Therefore, courts should be cautious in dismissing for mootness in such circumstances.

Enter the New York gun case. When New York amended its regulations, lawyers for the city quickly asked the Supreme Court to dismiss the case as moot.

Not so fast, replied Paul Clement, representing the New York Rifle & Pistol Association. The case is not moot for several reasons, Clement argued. First, the city’s regulatory changes still take the basic position that the city can regulate transport of licensed guns without regard for the Second Amendment. Second, the city could re-impose regulations, although the change in New York State law makes that more difficult. Third, the new regulations still prohibit those transporting guns outside the city from making interim stops, such as at gas stations or coffee shops. The challengers also accused the city of trying to avoid having to file a brief defending the regulations by suggesting mootness.

This passionate level of dispute over mootness is not the norm. Mootness is often seen as a dry, narrow, procedural issue. But throw the scope of Second Amendment gun rights into the mix, and the gloves have come off.

Aug. 28

Supreme Court Scandal?

Palmer Report, Opinion: The story of Donald Trump, Deutsche Bank, and Anthony Kennedy’s son comes back into the spotlight, Bill Palmer, Aug. 28, 2019. This new report about anthony kennedy scotus 236x3001Donald Trump’s Deutsche Bank loans being signed for by Russian oligarchs close to Putin isn’t news to anyone paying attention. Russia has been Trump’s shadow for over 30 years and his attempts to hide that fact in his taxes is completely what we expected.

bill palmer report logo headerWhat’s truly new here is the fact that Deutsche Bank had an internal guideline to hire the children of power brokers, according to the Washington Post. Deutsche Bank hired Supreme Court Justice Kennedy’s son. It now seems clear this deal was an attempt at owning the ultimate power broker, a Justice on the US Supreme Court (shown at right in an official photo).

We don’t know exactly what Kennedy’s son actually did for Trump, but when Russia shows up in one place, it seems to be in all the other places as well. The Kennedy/Deutsche Bank relationship is going to have to be investigated and prosecuted if wrongdoing occurred, which now seems likely.

deutsche bank logoBut the scary part here is if Trump was illegitimately elected President, then he illegitimately seated two justices on the Supreme Court. Since Trump never does anything without a quid pro quo, we have to ask what Brett Kavanaugh did for Trump to get the nomination. We also never heard exactly how Kavanaugh brett kavanaughmanaged to quickly pay off hundreds of thousands of dollars worth of personal loans before being seated on the Court.

Neil Gorsuch may not have the same shady dealings around him, but even if he’s innocent, Donald Trump nominated him in order to get points from someone else. We need these answers. Trump never works without pay, bottom line. The US Supreme Court is the world’s biggest powerbroker and being able to appoint two justices to be seated on it is the ultimate cash prize. So what did Trump & Co. get in payback? We need to know.

Aug. 26

U.S. Civil Rights / Supreme Court

SCOTUSblog, Monday round-up: DOJ on gay rights, Kalvis Golde, Aug. 26, 2019. The Office of the Solicitor General on Friday filed an amicus brief in the consolidated cases Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda, concerning sex discrimination under Title VII of the Civil Rights Act of 1964.

At the Wall Street Journal (via How Appealing), Brent Kendall reports that the brief asks the Supreme Court “to rule that a longstanding federal civil-rights law prohibiting sex discrimination doesn’t protect gay people in the workplace.” At NBC News, Brooke Sopelsa reports the crux of the administration’s logic: “The ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation.”

Aug. 23

Radiation For High Court Justice

washington post logoWashington Post, Ginsburg underwent radiation treatment for tumor on pancreas, Robert Barnes, Aug. 23, 2019. ruth bader ginsburg portraitJustice Ruth Bader Ginsburg, right, completed radiation treatment for a malignant tumor found on her pancreas, the Supreme Court disclosed Friday. It is her second treatment within a year for cancer.

The court said the treatment began earlier this month, and no additional treatment is planned.

“The tumor was treated definitively and there is no evidence of disease elsewhere in the body,” the court’s spokeswoman said in a statement. “Justice Ginsburg will continue to have periodic blood tests and scans. No further treatment is needed at this time.”

Aug. 17

Challenging U.S. Supreme Court

washington post logoWashington Post, Democrats ignite controversy with brief in gun case before Supreme Court, Robert Barnes​, Aug. 17, 2019 (print ed.). In filing an amicus brief, five Democratic senators questioned whether the high court’s conservative majority is motivated by partisan intent and is in the pocket of the National Rifle Association and the Federalist Society.

sheldon whitehouseIt is rare that an amicus brief filed in a Supreme Court case is characterized as both a brassy reality check and unprecedented political bullying.

But such is the controversy that Sen. Sheldon Whitehouse (D-R.I.), left, and four other Democratic senators have ignited with a filing that instructs the Supreme Court to either drop a New York gun case it has accepted for the coming term or face a public reckoning.

“The Supreme Court is not well. And the people know it,” writes Whitehouse, who is listed as the attorney of record on the friend-of-the-court brief. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ ” The phrase is from a poll question with which a majority democratic donkey logoof Americans agreed.

Democratic Sens. Mazie Hirono (Hawaii), Richard Blumenthal (Conn.) Richard J. Durbin (Ill.) and Kirsten Gillibrand (N.Y.) joined the incendiary brief, which questions whether the court’s conservative majority — nominated by three Republican presidents — is motivated by partisan intent and is in the pocket of the National Rifle Association and the Federalist Society, a conservative legal group.

Aug. 15

U.S. Supreme Court On Guns

ny times logolinda greenhouse cover just a journalistNew York Times, Opinion: The Supreme Court’s Second Amendment Appetite, Linda Greenhouse (shown on the cover of her memoir about covering the court), Aug. 15, 2019. Back in January, I devoted my first column of the new year to the growing impatience of some members of the court for a chance to move the boundaries of the Second Amendment from the home — where its 2008 decision in District of Columbia v. Heller had located the amendment’s protection of the right to bear arms — out to the wider world. A few weeks later, the court agreed to hear the first Second Amendment case in nearly a decade.

Heller was a 5-to-4 decision, and Justice John Paul Stevens, who wrote the principal dissenting opinion, indicated in a memoir published shortly before his death last month that Justice Antonin Scalia, the majority opinion’s author, had to compromise to hold his majority.

His opinion deemed the right to keep a handgun at home for self-defense as the “core” Second Amendment right and continued: “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The court thus left undefined both what it was protecting beyond the “core” and how vigorously courts should scrutinize restrictions that extend out from the home or that deal with other kinds of firearms.

Aug. 8

House Panel Seeks Data On Justice Kavanaugh

Palmer Report, Opinion & Analysis: House Judiciary Committee is finally closing in on Brett Kavanaugh, James Sullivan, Aug. 8, 2019. brett kavanaughSupreme Court Justice Brett Kavanaugh, right – one of the least popular justices in recent history – is once again in the news, as the House Judiciary Committee is closing in on him.

Today, they requested the National Archives send all records from the five years he served as White House Counsel from 2001-2006 in the Bush Administration. Only a sliver of these were made available prior to Kavanaugh’s confirmation, with thousands of pages being withheld by a privately hired Republican attorney. While House Republicans are calling harassment, the committee has two specific reasons to see the documents – one of which has nothing to do with Kavanaugh’s love of beer.

bill palmer report logo headerIn fact, the infamous televised hearing from last fall when he melted down before a national audience was likely not the first time Kavanaugh misled senators. He did something similar in 2006, before senators confirmed him to a federal appeals court. During that 2006 hearing, he was asked if he played a role in the Bush administration’s policy on torture. Kavanaugh denied it, but the Washington Post revealed that he was involved in at least one such discussion as White House Counsel. Aside from that, he has 83 misconduct complaints against him – ones initially dismissed when he was confirmed to the Supreme Court.

At present, codes of judicial conduct do not apply to Supreme Court justices – something that Jerry Nadler and the Judiciary Committee are hoping to fix in the near future with upcoming legislation. Whether the legislation will see light any time soon is a different question, but Kavanaugh’s record may come into the spotlight very soon – and it’s likely to cast a number of Republicans in an unfavorable light at the worst possible time.

Aug. 5

Gun "Rights" and U.S. Courts

jeffrey toobinNew Yorker, Politics Changed the Reading of the Second Amendment — and Can Change It Again, Jeffrey Toobin, right, Aug. 5, 2019. In spite of the mass shootings in El new yorker logoPaso and Dayton last weekend, the future of federal gun control looks grim. Yet the lesson of the gun-rights fight is that no victory, or defeat, is permanent.

Notwithstanding the most recent spate of mass shootings, over the past weekend, the prospects for gun-control legislation in Congress appear remote. The reason is no mystery. The National Rifle Association and its allies in the gun lobby maintain a firm grip on the Republican Party, including President Trump, and thus on veto power over the passage, or even the consideration, of measures to curb gun violence.

But the power of the N.R.A. extends beyond its control of the legislative and executive branches of the federal government. It’s less well known that the N.R.A. has also transformed the judiciary and, in the process, rewritten our understanding of the Second Amendment to the Constitution.

For about two hundred years, the meaning of the Second Amendment was clear and mostly undisputed, despite the gnarled syntax of the text itself: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Generations of Supreme Court and academic opinion held that the amendment did not confer on individuals a right “to keep and bear Arms” but, rather, referred only to the privileges belonging to state militias. This was not a controversial view. The late Chief Justice Warren E. Burger said, in 1991, that the idea that the Second Amendment conferred a right for individuals to bear arms was “a fraud on the American public.” Burger was no liberal, and his view simply reflected the overwhelming consensus on the issue at the time.

nra logo CustomBut, starting in the nineteen-seventies, the N.R.A. undertook a patient and extensive effort to change the public, and eventually the judicial, understanding of the Second Amendment. As David Cole recounts in his book Engines of Liberty, the N.R.A. recognized that its path was blocked by binding precedents in the federal courts, so it turned to a state-by-state approach. Embracing and passing gun-rights legislation in the states, Cole writes, “fostered a legal culture in which the right to bear arms enjoyed a privileged place.”

antonin scaliaAt the same time, the N.R.A. sponsored academic research that purported to show that the traditional understanding of the Second Amendment was incorrect. The movement reached its climax in 2008, when the Supreme Court, in Justice Antonin Scalia’s opinion in District of Columbia v. Heller, rewrote its understanding of the Second Amendment, and concluded that the Framers of the Constitution had, after all, intended the Amendment to confer an individual right to bear arms. (As Adam Gopnik recently observed, Justice John Paul Stevens’s dissent had the better argument, but Scalia’s opinion had the five votes.)

Cole, who is now the national legal director of the American Civil Liberties Union, draws an important parallel to the N.R.A.’s effort to transform the meaning of the Second — that is, the movement to guarantee a constitutional right to same-sex marriage. Of course, these two efforts to change the political trajectory of the country went in opposite ideological directions. But the strategies behind them were remarkably similar. In both cases, the legal terrain, especially in the federal courts, was clearly hostile. In both, the movement for change began succeeding at the state level, and, in both, the culmination came at the Supreme Court. With regard to both gun rights and same-sex marriage, the Court ultimately yielded to a political movement that had mobilized legislators, academics, and ordinary citizens.

There is a lesson in these politically divergent victories for the current moment. Though the Supreme Court has been cautious since 2008 in expanding gun rights, there is every likelihood that the new conservative majority will frustrate federal or state legislative efforts to insure gun safety. In other words, even if Congress or states manage to pass laws restricting gun rights — including limits on assault weapons or even requiring universal background checks — there is a real possibility that a majority of the Justices will overturn these laws as violations of the Second Amendment.

But the lesson of the fight over gun rights — like that over the protection of same-sex marriage — is that the Constitution remains a political document that is subject to the ideological forces of the time. No victory, or defeat, is permanent. The Court changed the Second Amendment, and the Court can change it back again, in its original direction. This kind of change takes significant resources and enormous patience. At the moment, the future of gun control looks grim in all three branches of the federal government. Trump is President, the Republicans control the Senate, and conservative appointees dominate the Supreme Court. Control of the elected branches is up for grabs in less than a year and a half. Control of the Supreme Court will, of course, take much longer to change. But even the Court usually bends with public and political opinion over time, and that change may yet happen on guns. The grim lesson of recent weeks is that the need for that transformation has never been greater.

Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002. He is the author of, most recently, “American Heiress” and is at work on a book about Robert Mueller’s investigation.

Aug. 2

Inside DC: Gun Control

Politico, The Next Big Vote on Gun Control May Be in the Supreme Court, Renato Mariotti, Aug. 2, 2019. Congress gave gunmakers immunity from lawsuits. Now the issue is before the Roberts court. After this weekend’s mass shootings in Texas and Ohio, pressure to reform gun laws has focused on Congress — and, as usual, Congress seems stymied about what to do. But with far less attention, an important strand of the debate has now landed in the Supreme Court.

Last week, the gun-maker Remington, which had annual sales of approximately $600 million in 2017, asked the Supreme Court to overturn a Connecticut decision that gave Sandy Hook families the ability to sue the company over the way it marketed the weapon used in the 2012 school massacre.

The ability to bring suits against gun manufacturers would give American citizens a powerful tool to hold gun-makers liable for the damage their weapons cause — much as cigarette companies were vulnerable to suits for the harms of tobacco. It’s not clear whether John Roberts’ court will take the case, and if it does, whether it will side with the families or uphold protections that gun-makers have enjoyed since the Bush administration.

 

July

Border Wall

ny times logoNew York Times, Opinion: Trump’s Wall Gets America Nowhere on Border Security, Editorial Board, July 27, 2019 (print ed.). Immigration reform is long overdue, but it must be based on inclusion and humanity, not on cruel posturing.

SCOTUSblog, Academic highlight: The quiet doctrinal shift (likely) behind the border-wall stay, Stephen I. Vladeck (Professor of law at the stephen vladek university of texas CustomUniversity of Texas), July 27, 2019. By what was effectively a 5-4 vote, the Supreme Court yesterday agreed to fully stay a California district court’s injunction against President Donald Trump’s repurposing of appropriated funds to build part of his “border wall.”

The Supreme Court’s summary order in Trump v. Sierra Club offered one sentence of explanation: “Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005.” But the decision is part of a larger, emerging trend that I explore in a new paper, a draft of which I’ve posted to SSRN — one in which the solicitor general has been unusually aggressive in seeking emergency or extraordinary relief from the justices, and the court, or at least a majority thereof, has largely acquiesced.

As I wrote back in December, the Supreme Court has broad constitutional and statutory authority to issue emergency relief (such as stays of lower-court rulings pending appeals) or extraordinary relief (such as writs of mandamus or certiorari “before judgment”).

Historically, however, the justices have been loath to do so — preferring to follow regular order whenever possible, and requiring showings of true exigency and imperative to justify departures from “normal appellate practice.” And perhaps respecting and reflecting that skepticism, the solicitor general has generally been reluctant to invoke the court’s emergency and extraordinary authorities. Over the 16 years of the George W. Bush and Obama administrations, for example, the government sought a total of eight stays from the Supreme Court, asked for certiorari before judgment in four cases, and sought no extraordinary writs.

In sharp contrast, the Trump administration has repeatedly asked the court to depart from regular order. In two and a half years, the solicitor general has applied for at least 20 stays; has sought certiorari before judgment in 10 different cases, and has sought extraordinary writs against three different district court judges. Numerically, the government’s success rate is something of a mixed bag. Including yesterday’s decision, the Supreme Court has granted nine of the government’s stay applications in full (and three in part); it has granted certiorari before judgment in six of the 10 cases; and it has not granted any of the applications for extraordinary writs.

But the numbers don’t tell the full story. When the government has lost, its applications have often been denied without prejudice, or through orders that have nevertheless nudged the lower courts toward the government’s position. Whether directly or indirectly, the government has generally ended up getting most of what it has wanted — and no justice has identified any impropriety in the frequency with which the government has asked the Supreme Court for such unusual interventions.

Simply put, even if the court hasn’t expressly approved of the government’s aggressive litigation tactics, its actions have largely acquiesced in them — and have left at least the impression that it has no objection.

Where has this uptick come from?

[T]he paper suggests a related but distinct explanation: That, quietly but steadily, the court’s doctrinal standard for emergency relief has more generally shifted toward a view first espoused by then-Justice William Rehnquist — that anytime a government policy is enjoined by a lower court, the government suffers irreparable harm regardless of the other equities involved (and regardless of the scope of the injunction). Rehnquist traced this idea to the “presumption of constitutionality” — the idea that, all things being equal, courts assume the government is acting lawfully, and the burden should be on the plaintiffs to prove otherwise. (Rehnquist was arguably overstating things; the presumption is about statutes, not all executive branch conduct, and is supposed to give way in any event to individual constitutional rights.)

On that view (whatever its merits), the government’s applications for emergency relief in these cases would turn entirely on whether the government has a reasonable likelihood of success on the merits of the entire case—and on the justices’ own predictive judgments of how the court is likely to rule if and when the full case reaches the court. And on that view, it wouldn’t (and doesn’t) matter if, as Justice

The harder question is whether this development is a salutary one. The paper offers four potential objections.....

Finally, and perhaps most alarmingly, the court’s conduct gives rise at least to the appearance of inequity — that the court is willing to suspend regular order whenever the government asks (or, worse, when certain administrations ask), but almost never in any other case, regardless of the circumstances.

July 26

Border Wall

supreme court headshots 2019

ny times logoNew York Times, Supreme Court Lets Trump Proceed on Wall Plans Amid Legal Fight, Adam Liptak, July 26, 2019. The Supreme Court on Friday allowed the Trump administration to move forward with plans to build a wall along parts of the Mexican border while litigation over paying for it proceeds.

A trial judge had prohibited the administration from transferring $2.5 billion from the Pentagon’s budget to fund the effort, and an appeals court had refused to enter a stay while it considered the administration’s appeal.

The Supreme Court entered a stay, allowing construction to proceed while the litigation continues.

The court’s four more liberal justices dissented. One of them, Justice Stephen G. Breyer, wrote that he would have allowed preparatory work but not construction.

In February, President Trump declared a national emergency along the Mexican border. The declaration followed a two-month impasse with Congress over funding to build his long-promised barrier wall, one that gave rise to the longest partial government shutdown in the nation’s history.

July 22

Transitions: Famed NYC Prosecutor Dies

robert morgenthau jfk

President John F. Kennedy, left, greets Robert Morgenthau, a JFK-nominated prosecutor for the Southern District of New York. Below at right, Morgenthau and the Rev. Martin Luther King, Jr. meet in 1962 (file photos).

ny times logoNew York Times, Robert Morgenthau, Longtime Manhattan District Attorney, Dies at 99, Robert D. McFadden, July 22, 2019 (print ed.). robert morgenthau mlk 1962 croppedMr. Morgenthau waged war on crime for more than four decades as the chief federal prosecutor for Southern New York State and as Manhattan’s longest-serving district attorney. From 1975 to 2009, he was the face of justice in Manhattan, a liberal Democrat elected nine times in succession.

In an era of notorious Wall Street chicanery and often dangerous streets, Mr. Morgenthau was the bane of mobsters, crooked politicians and corporate greed; a public avenger to killers, rapists and drug dealers; and a confidant of mayors and governors, who came and went while he stayed on — for nearly nine years in the 1960s as the United States attorney for the Southern District of New York and for 35 more as Gotham’s aristocratic Mr. District Attorney.

July 18

supreme court headshots 2019

ny times logoNew York Times, Opinion: A ‘Train Wreck’ Was Averted at the Supreme Court, but for How Long? Linda Greenhouse (shown on the cover linda greenhouse cover just a journalistof her memoir Just A Journalist), July 18, 2019. While the rule of law prevailed in the census case, it still hangs by a thread.

The poison emanating from the White House in recent days has been so overwhelming that it’s hard to remember that something else held the country in thrall just a week ago: the prospect that President Trump would defy the Supreme Court and insist on adding a citizenship question to the 2020 census.

There’s a strong temptation to extract a triumphalist narrative from the president’s grim-faced and rant-filled surrender last Thursday. After all, didn’t the rule of law prevail — and perhaps even emerge stronger for having been so sorely tested? Didn’t the country dodge a “constitutional train wreck,” as Harry Litman, a former federal prosecutor and Justice Department official in the Clinton administration, wrote in The Washington Post the next day?

SCOTUSblog, First-person Opinion: Justice Stevens: Setting an example for all of us, Jeffrey L. Fisher (professor of law at Stanford Law School, special counsel at O’Melveny & Myers and law clerk to Justice John Paul Stevens in 1998-99), July 18, 2019. Much has been said in john paul stevens scotus photo portraitthe past couple of days about Justice Stevens’ kindness, humility and generosity of spirit. All of it is true.

But perhaps not quite enough has yet been said about the justice’s integrity. Selecting a nominee in the wake of the Watergate scandal, President Gerald Ford was said to be guided by a single objective: to find the “finest legal mind” available. But the need to select a jurist who was above reproach must surely have been foremost in his thinking as well.

The president found that person in Justice Stevens. Never afraid to speak his mind or stand his ground — though never showy about doing so — the justice seemed to prize his independence of thought above all else. He simply endeavored to figure out the best solution to the problem each case posed, period. If he came up with an elegant resolution others had missed, all the better. He would report his discernment to the clerks with a glint in his eye … and then write it up himself. But the idea he might be swayed by some improper influence, or even fail to give due weight to a counterargument, was laughable.

I think this resolute commitment to searching and evenhanded decision-making was at least partly what has always inspired such fierce admiration among his law clerks. It was taken as a given in chambers that none of us could ever hope to live up to the justice’s example. But we could try, when we engaged with the law, to emulate his model—or at least hope we absorbed as much of his aura as possible. What seemed merely second-nature to him has always been a gleaming ideal for all of us.

July 17

ny times logoNew York Times, John Paul Stevens: 1920-2019, A Liberal Champion of the Supreme Court Dies at 99, Linda Greenhouse, July 17, 2019 (print ed.). In 35 years on the Supreme Court, John Paul Stevens transformed from a Republican antitrust lawyer into the ardent leader of the court’s liberal wing. His notable opinions included the 2006 decision that repudiated the plan to put Guantánamo Bay detainees on trial by military commissions.

john paul stevens scotus photo portraitJohn Paul Stevens, whose 35 years on the United States Supreme Court transformed him, improbably, from a Republican antitrust lawyer into the outspoken leader of the court’s liberal wing, died on Tuesday at a hospital in Fort Lauderdale, Fla. He was 99.

The cause was complications of a stroke he suffered the day before, the Supreme Court announced in a statement.

When he retired in 2010 at the age of 90, Justice Stevens was the second-oldest and second-longest-serving justice ever to sit on the court. Oliver Wendell Holmes Jr. was about eight months older when he retired in 1932, and William O. Douglas had served 36 years (1939-75).

Justice Stevens spent much of his service on the court in the shadow of more readily definable colleagues when he emerged as a central figure during a crucial period of the court’s history: the last phase of Chief Justice William H. Rehnquist’s tenure and the early years under Chief Justice John G. Roberts Jr.

ny times logoNew York Times, Justice Stevens was chosen for his legal skills and not for how he was likely to vote, as is common today, July 17, 2019 (print ed.).

July 4

Trump's Edict On Census

ny times logoNew York Times, Justice Dept. Will Look to Add Citizenship Question to Census, Alan Rappeport, Maggie Haberman and Michael Wines, July 4, 2019 (print ed.). Justice Department officials reversed course and said they were hunting for a way to restore the citizenship question on orders of President Trump. A day earlier, the officials said that the census forms were being printed without the question. A day after pledging us census bureauthat the 2020 census would not ask respondents about their citizenship, the Justice Department reversed course on Wednesday and said it was hunting for a way to restore the question on orders from President Trump.

Officials told a federal judge in Maryland that they thought there would be a way to still add the question, despite printing deadlines, and that they would ask the Supreme Court to send the case to district court with instructions to remedy the situation.

President Trump had been frustrated with Commerce Secretary Wilbur Ross for mishandling the White House’s effort to add a citizenship question to the 2020 census, according to an administration official, and said on Wednesday that he was “absolutely moving forward” with plans to add it despite a Supreme Court decision last week rejecting the move.

It was the second time that Mr. Trump said he was directing the Commerce Department to move forward with the plan, which critics contend is part of an administration effort to skew the census results in favor of Republicans. On Tuesday, the Justice Department said that the census forms were being printed without the citizenship question and Mr. Ross said that he was heeding the court’s ruling.

U.S. Courts / Official Corruption

ny times logoNew York Times, Why the ‘Bridgegate’ Scandal Could Backfire On Prosecurors, Nick Corasaniti, July 4, 2019 (print ed.). The Supreme Court will hear an appeal by the defendants convicted in the closing of access lanes to the George Washington Bridge to punish a mayor. That signals justices are open to weakening the ability of federal prosecutors to go after what they determine to be political malfeasance.

Federal prosecutors have often relied on a powerful criminal statute to bring high-profile corruption cases, including the college admissions scandal that ensnared Hollywood celebrities and a string of bribery investigations that targeted college basketball programs.

But now, a key theory of that statute could be gutted because of a challenge by two defendants in another well-known case — “Bridgegate,” the September 2013 closing of access lanes to the George Washington Bridge, which connects Manhattan and New Jersey, to punish a mayor for refusing to offer a campaign endorsement.

The United States Supreme Court, in a decision that surprised legal experts, last week agreed to hear an appeal of the defendants’ corruption convictions in a move that could significantly weaken the ability of prosecutors to go after what they determine to be political malfeasance.

The court’s decision to take on the appeal by the defendants, Bridget Anne Kelly and Bill Baroni, suggests that the justices are open to overturning their convictions, legal experts said, and follows other rulings that have chipped away at federal corruption laws. At issue in the case is a fraud theory used to prosecute under the mail and wire fraud statutes known as a “right to control.” It rests on the idea that the owner of an asset is defrauded when somebody uses that asset and lies about what they are using it for. In the college admissions scandal, for example, prosecutors said offers of acceptance to universities were misused.

 

June

June 30

U.S. Supreme Court

supreme court building

washington post logoWashington Post, Analysis: Newest justices shift high court, but with big differences, Robert Barnes, June 30, 2019 (print ed.). Data shows that Justices Neil M. Gorsuch and Brett M. Kavanaugh have disagreed more than any pair of new justices chosen by the same president in decades.

neil gorsuch headshotPresident Trump’s nominees shifted the Supreme Court during their first term together but hardly transformed it, and their differences were on display as much as their famous similarities.

On the big issues, it turned out, Justices Neil M. Gorsuch, left, and Brett M. Kavanaugh, right, were ready to move the court as far to the right brett kavanaugh.judgeLas Chief Justice John G. Roberts Jr. would abide — and then some.

Because of them, the court finally and forcefully disavowed any role in policing partisan gerrymandering, a decades-long goal of conservative justices. Both were ready to approve the Trump administration’s desire to put a citizenship question on the 2020 Census, even as Roberts said, hold up.

June 28

Major Supreme Court Decisions

supreme court headshots 2019

ny times logoNew York Times, Analysis: Two Rulings Have Vast Implications for U.S. Politics, Michael Wines, June 28, 2019 (print ed.). The Supreme Court handed Republicans a key victory on gerrymandering and gave Democrats a potential win by delaying the addition of a citizenship question to the census. The two bitterly contested cases addressed a fundamental issue: how the political system allocates power.

The rulings by the Supreme Court on Thursday in bitterly contested battles over partisan gerrymandering and the addition of a citizenship question to the 2020 census grappled with issues fundamental to the nation’s democracy: How power is allocated, and ultimately, how us census bureaumuch of a voice the American people have in selecting their leaders.

But far from settling these questions, the court has unleashed even higher-pitched and partisan struggles over once-settled aspects of the country’s governance, placing greater pressures on the nation’s political system.

Gerrymandered maps were once part of an unspoken agreement between rivals that pressing for political advantage was, within limits, part of the electoral game. But in recent years Republicans, aided by sophisticated mapmaking software, have given themselves near-unbreakable power across the country.

Now, with a green light from the justices, the party has an opportunity to lock in political dominance for the next decade in many of the 22 states where it controls both the legislature and the governor’s office.

The decision will almost certainly force Democrats, who control 14 statehouses, to reconsider their belated crusade against gerrymandered maps and begin drawing their own — an eat-or-be-eaten response to Republican success in gaming the redistricting process.

“Expect the abuse to be supercharged,” said Justin Levitt, an associate dean at Loyola Law School and a Justice Department official during the Obama administration. “Now the answer will be, ‘It happens everywhere.’ Expect the disease to spread.”

[Read about how states could now make gerrymandering more extreme.]

The justices also did not resolve what to do about adding a citizenship question to the census, which until recently was regarded as a nonpartisan ritual every 10 years for the country to obtain an accurate

ny times logoadam liptakNew York Times, Analysis: Chief Justice Takes Charge, Irking Both Sides, Adam Liptak, right, June 28, 2019. A pair of stunning decisions on Thursday showed that Chief Justice John G. Roberts Jr. is the new swing vote. Chief Justice John G. Roberts Jr., below left has sat in the center seat on the Supreme Court bench since his arrival in 2005. But only this term did he assume true leadership of the court.

He made clear his influence in a pair of stunning decisions on Thursday, joining the court’s liberal wing in one and his fellow conservatives in the other. In providing the decisive votes and writing the majority opinions in cases on the census and partisan gerrymandering, he demonstrated that he has unquestionably become the court’s ideological fulcrum after the departure last year of Justice Anthony M. Kennedy.

john roberts oThe key parts of both decisions were decided by five-justice majorities, and the chief justice was the only member of the court in both.

The two rulings, one a rebuke to the Trump administration and the other a boon to Republicans, was consistent with Chief Justice Roberts’s insistence that politics should play no role in judging. “We don’t work as Democrats or Republicans,” he said in 2016.

Conservatives expressed bitter frustration on Thursday about what they saw as the chief justice’s unreliability, if not betrayal.

“Chief Justice John Roberts disappointed conservatives today — to a degree not seen since he saved Obamacare in 2012 — when he sided with the court’s four liberals to second-guess the Trump administration’s reasons for adding a citizenship question to the census,” Curt Levey, the president of the Committee for Justice, a conservative activist group, said in a statement. “The census decision will surely deepen the impression that Roberts is the new Justice Kennedy, rather than the reliable fifth conservative vote that liberals feared and conservatives hoped for.”

On the horizon next term are significant cases — on the Second Amendment, on whether a federal law prohibits discrimination against gay and transgender workers and very likely on abortion — that will help bring Chief Justice Roberts’s new role into sharper focus. But he may not retain the decisive vote indefinitely.

The court’s two oldest members — Justice Ruth Bader Ginsburg, 86, and Justice Stephen G. Breyer, 80 — are members of its liberal wing. If President Trump gets the chance to replace one of them, the court would shift decisively to the right.

SCOTUSblog, Video: Tom Goldstein and Sarah Harrington recap OT2018 with Casetext, Jon Levitan, June 28, 2019. Earlier today, Tom Goldstein and Sarah Harrington hosted a webinar with Casetext discussing the major cases of October Term 2018, including yesterday’s decisions in the partisan-gerrymandering and census-citizenship cases. A recording of the webinar is available here .

adam feldmanSCOTUSblog, Analysis: Final Stat Pack for October Term 2018, Adam Feldman, right, June 28, 2019. The Supreme Court term is now complete, resolving cases that had generated months of speculation. Chief Justice John Roberts wrote majority opinions in two of the most anticipated decisions of the term, Department of Commerce v. New York and Rucho v. Common Cause, bringing his total majority-opinion authorship count to seven. Other justices wrote six to eight majority opinions each. The justice who wrote the most total opinions this term was Justice Clarence Thomas with 28, including eight majority opinions, 14 concurrences and six dissents.

With Justice Brett Kavanaugh joining the Supreme Court in October, much of the discussion this term has centered on how the new justice would fit in on the court and mesh with the other sitting justices. If finding agreement was his goal, Kavanaugh seems to have done an effective job. Kavanaugh had the highest frequency in the majority of the justices, at 91 percent. Roberts was second highest at 85 percent. Kavanaugh and Roberts also shared the highest agreement level for any justice pairing this term, at 94 percent. The second-highest agreement level was between Justices Ruth Bader Ginsburg and Sonia Sotomayor, who agreed in 93 percent of their votes.

While Kavanaugh shared high agreement levels with several of the other more conservative justices on the Supreme Court, his agreement levels with some of the more liberal justices were on the high side as well. Kavanaugh’s votes aligned with Justice Samuel Alito’s 91 percent of the time and his agreement level with Thomas was at 80 percent. Below this, Kavanaugh agreed equally often with Justices Stephen Breyer, Elena Kagan and Neil Gorsuch, at 70 percent apiece. Kavanaugh’s agreement level with Gorsuch was on the very low end of the scale when we look at agreement levels between two justices appointed by the same president in their first full term together over the last half century.

Going into the 2019 term, the Supreme Court has already granted 50 cases, which, when certain cases are consolidated, will lead to 41 oral arguments. This includes Carpenter v. Murphy, which was set for reargument in the fall. Many of these cases raise important issues of public concern, including the newly granted cases addressing Deferred Action for Childhood Arrivals, or DACA, and a case reviewing a provision of the Affordable Care Act.

SCOTUSblog, Gerrymandering symposium: Court to foxes — Please guard henhouse, Benjamin D. Battles (the Vermont solicitor general. Vermont, along with 20 other states and the District of Columbia, submitted an amicus curiae brief in Rucho v. Common Cause), June 28, 2019. The Supreme Court has declared the federal judiciary closed for business when it comes to partisan gerrymandering. Federal courts are now powerless to stop state officials from drawing electoral maps designed to keep themselves and their parties in power, at least so long as the districts created meet basic apportionment standards and can be justified on non-racist grounds. But many questions remain.

supreme court census decision ny daily news june 28 2019 CustomIs extreme partisan gerrymandering legal? Can it be stopped? How? And by whom? Although Congress could potentially provide some answers, most will come from the states — through maps drawn by state officials, laws passed by state legislatures, decisions issued by state courts under state laws and constitutions and votes cast in state elections. For better or worse, those rightfully concerned by the growing potency and sophistication of partisan districting efforts (a group that seemingly includes everyone except incumbent politicians) must now focus their concerns on these state political and legal processes.

In a 5-4 opinion written by the chief justice, the Supreme Court held that federal courts lack jurisdiction to resolve partisan-gerrymandering claims. In so doing, the court overruled—without acknowledgement—a six-justice majority’s holding in Davis v. Bandemer that partisan-gerrymandering claims are justiciable. As an aside, this treatment of Bandemer was somewhat surprising given the heated debates about stare decisis seen in this term’s earlier decisions in Franchise Tax Board of California v. Hyatt and Knick v. Township of Scott. Indeed, Paul Clement, representing the North Carolina defendants in Rucho v. Common Cause, frankly stated at oral argument — in response to a question from the chief justice — that finding in the state’s favor on justiciability would require overruling Bandemer. In any event, no majority of the court has ever agreed on the correct standard to review partisan-gerrymandering claims, in Bandemer or any case since, and it was this failure that led the majority to conclude that no workable standard exists. The court accordingly held that both Rucho and Lamone v. Benisek presented nonjusticiable political questions and ordered the cases dismissed for lack of jurisdiction.

Two things the court’s opinion did not do are worth noting. First, the court did not in any way bless the maps North Carolina and Maryland officials created in these cases. Rather it described them as “highly partisan, by any measure” and “blatant examples of partisanship driving districting decisions.”

Second, the court did not hold that extreme partisan gerrymandering is constitutional. Although it rejected the standards the lower courts applied, it did not seriously question the harms those standards sought to address. Instead, the court noted that excessive partisanship in districting leads to “unjust” results and is “incompatible with democratic principles.” In her dissenting opinion, Justice Elena Kagan argued forcefully—and the majority did not dispute—that these statements implicitly acknowledge that extreme partisan gerrymandering violates the constitution. But, she continued, “[f]or the first time in this Nation’s history, the majority declares it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.” So what next? As both the majority and the dissent observed—with different degrees of enthusiasm—any remedy for the harms caused by partisan gerrymandering must now come from either Congress or the states.

SCOTUSblog, Census symposium: Roberts Court stops the census citizenship question … for now, Andrew Pinson, Gerrymandering symposium: Time to find someone else to solve partisan gerrymandering, June 28, 2019. Andrew Pinson is the Solicitor General of Georgia. Georgia joined nine other states in filing an amicus brief in support of the appellants in Rucho v. Common Cause.

In the coming days, commentators will describe the Supreme Court’s decision in Rucho v. Common Cause and Lamone v. Benisek as one that will let “politicians pick their voters.” But that assigns the decision far too much blame. Politicians have been “picking their voters” with varying degrees of success since the dawn of our republic. The court only decided that you can’t make a federal case out of it. Far from blessing partisan gerrymandering, the court merely made clear — finally — that it’s a problem someone other than federal courts will have to solve.

The first question a federal court has to answer when parties come before it is whether the court has the power to hear their dispute. That power comes from Article III of the Constitution, which gives federal courts just one job: decide the “Cases” and “Controversies” that reach them. That language has long been understood as not just a grant of power to federal courts, but also a limitation, permitting them to address only those disputes “historically viewed as capable of resolution through the judicial process.” If a dispute presents a case or controversy, the federal court’s obligation to decide it is virtually unflagging. But if not, the court has to let it go.

In Rucho and Benisek, the Supreme Court concluded in an opinion authored by Chief Justice John Roberts that the Constitution does not give federal courts the power to resolve partisan-gerrymandering claims. The court formally grounded this holding in the political-question doctrine, an aspect of Article III’s case-or-controversy requirement that precludes federal courts from deciding disputes that have been committed to the political branches, or that do not involve “judicially enforceable rights.” That doctrine is admittedly amorphous, but the court’s reasoning is straightforward: The Constitution nowhere provides federal courts with authority to resolve the question partisan-gerrymandering claims pose — that is, whether state legislatures’ districting maps are sufficiently “fair” to particular political parties.

This conclusion followed in part from what little the Constitution says about districting. The elections clause provides that state legislatures may prescribe the “Times, Places and Manner of holding Elections,” and Congress has the power to check them by making laws that override their choices. In the court’s words, “[t]he only provision in the Constitution that specifically addresses the matter assigns it to the political branches.” This tells us at the least that the Constitution permits, even invites, political considerations in districting. And although the court rejected the argument that the elections clause removes federal courts from the districting arena altogether, without question it fails to carve out a role for courts or supply any limits on partisanship they can enforce.

Nor could the court discern judicially enforceable limits on partisan gerrymandering elsewhere in the Constitution. In the court’s view, partisan-gerrymandering claims bottom on intuitions about the unfairness of the practice that don’t square with any of the specific legal rights the Constitution’s text affords. The clearest example: Any description of partisan gerrymandering inevitably points out that the challenged map skews a party’s representation well past (and the other party’s well short of) its statewide numbers. (In Rucho, for instance, Republicans in North Carolina won 9 of 13 seats in 2012 with only 49 percent of the statewide vote.) But the court has long been clear that proportional representation — a political party being able to elect a percentage of representatives similar to its percentage of statewide support — is not something the Constitution requires. So no matter how parties package such claims (equal protection, free speech, freedom of association, etc.), none can stick, because their fundamental objection doesn’t describe any legal right the Constitution guarantees.

There is much more to the Supreme Court’s opinion, but in the end, the court was persuaded that, stripped of their trappings, partisan-gerrymandering claims really “ask courts to make their own political judgment about how much representation particular political parties deserve — based on the votes of their supporters — and to rearrange the challenged districts to achieve that end.” That, the court held, is not something federal courts are equipped or authorized to do, which left it with no choice but to dismiss these cases for lack of jurisdiction.

That result is no doubt unsatisfying for those who had held out hope that the court’s decades of hand-wringing about partisan gerrymandering would ever translate into meaningful limits enforceable by federal courts. And the concerns that animated that hope are not unfounded. The very idea of our elected representatives manipulating districts to choose voters who will keep them in power is unseemly, and the court is unanimous in its view that gerrymandering is “incompatible with democratic principles.” The practice might have begun as a tolerated feature of our democratic system, but the advance of technology may have transformed it into a latent bug, capable of real damage to democracy. And many fear that yesterday’s decision leaves that danger unchecked, because surely the political branches who benefit from gerrymandering won’t soon put a stop to it.

But these policy concerns, however well founded, do not in and of themselves provide federal courts with the power to solve them. The Constitution gives federal courts a lot of power, but only in the context of deciding disputed claims of legal right for the parties before them. Federal courts do not have the discretion to swoop in whenever they see bad policy or general unfairness, however fundamental the issue. And it should go without saying that a declaration that “no one else is going to fix it” does not provide federal courts with the power to resolve a dispute, even if it’s true.

Anyway, it’s not so clear that this decision will usher in a new era of increasingly extreme gerrymanders. As the court took pains to explain in Rucho and Benisek, its conclusion that federal courts cannot resolve partisan-gerrymandering claims does not “condemn complaints about districting to echo into a void.” At the federal level, Congress has express constitutional power to override state legislatures with respect to the “Time, Places and Manner” of holding elections. Congress was once active in this area; perhaps with hopes of federal courts doing that job for them now dashed, it will be again. As for the states, many are trying out a variety of ways to push back against partisan districting through legislation and referenda. It’s not so hard to imagine this very decision galvanizing people to seek change. And of course, being cases about federal courts’ power, Rucho and Benisek have nothing to say about state courts or state constitutions and any role they may have in this field.

Like the court, I “express no view on” the merits of any of these ideas. Rather, I include them only to sharpen the point that the court’s decision in these cases is not about whether or to what extent partisan gerrymandering can continue. Instead, it’s about who has the power to make that decision. After decades of back-and-forth, and in a show of restraint that is increasingly rare for federal courts today, the Supreme Court finally answered, “not us.”

washington post logoWashington Post, Opinion: John Roberts said there are no Trump judges or Obama judges. Clarence Thomas didn’t get the memo, Editorial Board, June 28, 2019.  Last November, President Trump, irate at a federal district court ruling contrary to his administration’s attempt to stop some migrants from seeking asylum at the border, blasted the judge, Jon S. Tigar, as a biased “Obama judge.”

Standing up for the integrity of the federal judiciary, of which he is the titular head, Chief Justice John G. Roberts Jr. issued an extraordinary statement contradicting Mr. Trump, albeit without naming him. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Mr. Roberts said . “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

clarence thomas w new officialSome of Mr. Roberts’s colleagues on the Supreme Court did not get the memo. Or so it would seem from the innuendo Justice Clarence Thomas aimed at U.S. District Judge Jesse Furman in an opinion dissenting from the court’s Wednesday ruling that upheld Mr. Furman’s decision to block a Trump administration plan to ask the citizenship of census respondents. Joined by Justices Brett M. Kavanaugh and Neil M. Gorsuch, Mr. Thomas blasted Mr. Furman’s finding — affirmed not only by Mr. Roberts but also four other justices — that Commerce Secretary Wilbur Ross had unlawfully misstated his true reasons for adding the question. Mr. Thomas went well beyond disputing Mr. Furman’s legal reasoning to questioning the district judge’s good faith, accusing him of “transparently” applying “an administration-specific standard.” He portrayed Mr. Furman’s presentation of evidence that Mr. Ross acted on a pretext as akin to “a conspiracy web,” that could be woven by “a judge predisposed to distrust the Secretary or the administration.”

Though couched in the indirect language of a legal opinion and its accompanying specialized notations, this was unmistakably a Trump-like insinuation that Mr. Furman, elevated to the federal bench by President Barack Obama in 2011, had ruled on his personal preferences rather than the law. Coming from a justice of the nation’s highest court, Mr. Thomas’s sour words regarding a lower-court colleague were not only destructive and unfounded. They were also self-contradictory, given that, elsewhere in the very same opinion, he faulted the court majority for “echoing the din of suspicion and distrust that seems to typify modern discourse.” For Mr. Kavanaugh and Mr. Gorsuch to join such an opinion was a lapse in self-awareness on their part, given how readily Democratic partisans accuse them of bias in favor of the president who appointed them — Mr. Trump.

Mr. Thomas’s ill-considered language undermined the defense of the judiciary that the chief justice had previously attempted to mount. And to what end? Mr. Thomas and his two colleagues could have made precisely the same legal argument without it. “The law requires a more impartial approach,” Mr. Thomas protested, referring to Mr. Furman’s ruling and the Supreme Court’s decision in favor of it. Actually, that admonition applies to him.

U.S. Courts, Crime

ny times logoNew York Times, Pregnant Alabama Woman Who Was Shot Is Charged in Fetus’s Death, Sarah Mervosh, June 28, 2019 (print ed.).
Marshae Jones was five months pregnant when she was shot in the stomach. The police say she started the fight that led to the shooting.

June 27

Court Permits Extreme Gerrymandering 

supreme court headshots 2019

Roll Call, Supreme Court won’t step in to partisan gerrymandering cases, Todd Ruger, June 27, 2019. Ruling will affect how congressional districts are redrawn after 2020 census.

A divided Supreme Court ruled 5-4 Thursday that federal courts can’t rein in politicians who draw political maps to entrench a partisan advantage, a decision that will influence the redrawing of congressional districts after the 2020 census.

The justices instead said that was a political question and gave that task to Congress and the states, pointing to efforts from House Democrats to require independent commissions to oversee redistricting in each state, as well as the handful of states where voters did the same through ballot initiatives.

The decision keeps the current congressional maps in North Carolina and Maryland. It bodes poorly for similar partisan gerrymandering challenges in Ohio and Michigan, where lower court judges had ordered new congressional districts.

Critics say the decision gives a green light to the state officials and lawmakers to carve up their states in a way that strips voters of the ability to choose who represents them in Congress or the statehouse.

ny times logoNew York Times, Supreme Court Leaves Citizenship Question on Census in Doubt, Adam Liptak, June 27, 2019. In a major setback for the White House, the Supreme Court on Thursday sent back to a lower court a case on whether the census should contain a citizenship question, leaving in doubt whether the question would be on the 2020 census.

john roberts oChief Justice John G. Roberts Jr., right, writing for the majority, said the explanation offered by the Trump administration for adding the question — asking whether a person is a citizen — was inadequate. But he left open the possibility that it could provide an adequate answer.

“The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public,” the chief justice wrote. “Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

us census bureauThe practical impact of the decision was not immediately clear. While the question is barred for now, it is at least possible that the administration will be able to offer adequate justifications for it. But time is short, as the census forms must be printed shortly. The decision was fractured, but the key passage in the chief justice’s majority opinion was joined only by the court’s four-member liberal wing.

Government experts predicted that asking the question would cause many immigrants to refuse to participate in the census, leading to an undercount of about 6.5 million people. That could reduce Democratic representation when congressional districts are allocated in 2021 and affect how hundreds of billions of dollars in federal spending are distributed.

The administration’s stated reason for adding the question — to help enforce the Voting Rights Act of 1965 to protect minority voters — has been questioned by three federal judges. Recently discovered evidence from the computer files of a Republican strategist undermined the administration’s rationale and suggested that the true reason for the question was to help “Republicans and non-Hispanic whites.”

The case — United States Department of Commerce v. New York, No. 18-966 — has its roots in the text of the Constitution, which requires an “actual enumeration” every 10 years, with the House to be apportioned based on “the whole number of persons in each state.”

But the government has long used the census to gather information beyond raw population data. In 2020, for instance, the short form that goes to every household will include questions about sex, age, race and Hispanic or Latino origin. Some of those questions may discourage participation, too.

SCOTUSblog, Analysis:  A small win for James Kisor; a big loss for the Constitution, Corbin K. Barthold and Cory L. Andrews (counsel at the Washington Legal Foundation, which filed an amicus brief in support of the challenger in Kisor v. Wilkie), June 27, 2019. The question in Kisor v. Wilkie is whether a court must defer to an administrative agency’s plausible interpretation of its own ambiguous regulation. Auer v. Robbins says it must. Arguing that agencies shouldn’t be allowed both to write and authoritatively interpret their own rules, Kisor asked the Supreme Court to overrule Auer.

The ambiguous regulation in Kisor’s case is a rule that allows the Department of Veterans Affairs to retroactively grant a benefits claim after obtaining “relevant” records that existed, but were never considered, when the claim was denied.

Kisor argued that some papers documenting his combat experience are such “relevant” records. The government contended they aren’t, because whether Kisor partook in combat wasn’t a point of contention when the VA first denied his claim. According to the government, “relevant” doesn’t mean “relevant to an element of the veteran’s claim” but “relevant to the outcome of the dispute.” Concluding that the word “relevant” is ambiguous, the U.S. Court of Appeals for the Federal Circuit deferred to the government’s interpretation and affirmed the denial of retroactive benefits.

In a long, fragmented opinion with no dissents, the Supreme Court has vacated the judgment below and remanded the case for reconsideration. According to the majority, the Federal Circuit “jumped the gun” in declaring the VA’s rule ambiguous. What’s more, the appeals court shouldn’t have assumed that the VA’s interpretation implicated its substantive expertise in a “fair and considered judgment.”

With the wind at his back, Kisor may well go on to win the VA benefits he deserves. But his fight to abolish Auer deference — and to check the administrative state — is lost, at least for now.

Justice Elena Kagan (joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor), refuses to overrule Auer. Doing so would wipe out “a long line of precedents … going back 75 years or more.” And abandoning Auer would “cast doubt on many settled constructions of rules.” Besides, Congress is always free to alter or repeal Auer, if it so desires.

While reinforcing sound limits on the exercise of Auer deference (nearly all of which are grounded in earlier precedents), the majority insists that Auer “retains an important role in construing agency regulations.”

June 25

washington post logoWashington Post, Democrats say new interviews undercut Ross’s defense of census citizenship question, Felicia Sonmez and Tara Bahrampour, June 25, 2019. House Oversight Chairman Elijah E. Cummings (D-Md.) said evidence “points to a partisan and discriminatory effort” behind the push to add the question to the 2020 Census.

 ny times logoNew York Times, Reopened Legal Challenge to Census Citizenship Question Throws Case Into Chaos, Michael Wines, June 25, 2019. The battle over whether to add a citizenship question to the 2020 census was thrown into turmoil on Tuesday, just as the Supreme Court was expected to issue a ruling on the dispute this week.

us census bureauBy allowing a district judge to reopen a case related to the origin of the question, a federal appeals court raised the prospect that the federal government might be unable to meet a deadline for completing census questionnaires that include it, regardless of the Supreme Court’s ruling.

New hearings in the reopened case would stretch well beyond July 1, which is the deadline for printing the questionnaire and other forms. The Census Bureau has said that meeting that deadline is essential to conducting the national head count on time.

The case had appeared to be on a fast track to a resolution — until documents on the computer backups of a deceased Republican strategist, Thomas B. Hofeller, emerged last month. Those documents revealed new details about the genesis of the question, casting additional doubt on the Trump administration’s rationale for asking 2020 census respondents whether they are citizens.

June 24

USA Today, Supreme Court limits access to government records in loss for Argus Leader, part of the USA TODAY Network, Jonathan Ellis and Richard Wolf, June 24, 2019. The Supreme Court limited public and media access to government records Monday by expanding a federal law's definition of what can be deemed confidential.

At issue was whether confidentiality, as used in a section of the Freedom of Information Act, means anything intended to be kept secret or only information likely to cause harm if publicized. The high court adopted the broader definition.

Associate Justice Neil Gorsuch wrote the 6-3 decision, with Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor dissenting.

A retailers trade group, the Food Marketing Institute, and the federal government had argued for a broad definition that would leave ample room to keep data from the public. Media organizations and public interest groups favored a more narrow definition requiring harm, which would make confidentiality apply to fewer FOIA requests. In 2011, the case began with a request that the Argus Leader newspaper made under the Freedom of Information Act. The Sioux Falls, S.D., newsroom is part of the USA TODAY Network.

June 23

supreme court headshots 2019

washington post logoWashington Post, Supreme Court’s liberals, conservatives clash over keeping precedents, Robert Barnes, June 23, 2019 (print ed.). A lengthy back-and-forth between John G. Roberts Jr. and Elena Kagan seemed inspired by the liberal justices’ fear that the court’s increasingly conservative majority is on a campaign to remake the court’s precedents.

washington post logoWashington Post, Retropod: This security guard discovered the Watergate break-in, but few remember him, Host Mike Rosenwald, June 17, 2019 (3:14 mins). The man who called the police on the Watergate burglars never received the credit he deserved.

June 22

ny times logoNew York Times, What if People Who Can’t Vote Stop Counting Politically? Emily Badger, June 22, 2019. The resulting maps would tend to shift power to areas with more residents that are white and older.

Three years ago, before the Trump administration moved to add a citizenship question to the census, and before many experts even imagined what that might mean, the Supreme Court considered a case that raised a related question.

Democratic and Republican Campaigns DecodedTwo Texas voters had sued the state, saying their votes were diluted by a state redistricting map that gave equal weight to areas with fewer people allowed to vote. Political power, the plaintiffs claimed, should be divided only among the voting population, not among everyone.

us census bureauTheir preferred method, shared by a number of conservative politicians, would erase from state political maps not only noncitizens, but also children — two groups that aren’t evenly distributed across states. The resulting maps would tend to shift power from the places where children and noncitizens are more plentiful to places where there are more older and white residents. At the state level, such maps would also strip from these groups a principle as old as the Constitution: that even someone who cannot vote still deserves representation.

In that 2016 case, Evenwel v. Abbott, the court unanimously ruled that Texas could draw legislative districts by total population, the method every state has long used. But the justices left open the question of whether states must do this, or if — and this is where the citizenship question comes in — they can draw maps that count only voting-age citizens.

June 21

ny times logoNew York Times, Excluding Black Jurors Violated Constitution, Supreme Court Rules, Adam Liptak, June 21, 2019. A white Mississippi prosecutor violated the Constitution by excluding black jurors from the sixth trial of Curtis Flowers. Mr. Flowers, a death row inmate in Mississippi, has been tried six times by a white prosecutor with a record of striking black potential jurors.

A white Mississippi prosecutor violated the Constitution by excluding black jurors from the sixth trial of Curtis Flowers, a black man who was convicted of murdering four people in 1996 in a furniture store, the Supreme Court ruled on Friday.

brett kavanaughJustice Brett M. Kavanaugh, right, writing for a seven-justice majority, said the prosecutor, Doug Evans, had run afoul of the court’s 1986 decision in Batson v. Kentucky.

“Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process,” Justice Kavanaugh wrote. “Enforcing that supreme court graphicconstitutional principle, Batson ended the widespread practice in which prosecutors could (and often would) routinely strike all black prospective jurors in cases involving black defendants.”

Chief Justice John G. Roberts’s decision to assign the majority opinion in a high-profile case to the court’s newest member may have been prompted by Justice Kavanaugh’s longstanding interest in race discrimination in jury selection. When he was a law student at Yale, Justice Kavanaugh wrote an article in Yale Law Journal calling for vigorous enforcement of the Batson decision.

That ruling carved out an exception to the centuries-old rule that peremptory challenges during jury selection — ones that do not require giving a reason — are completely discretionary and cannot be second-guessed.

The New Yorker, Analysis: Clarence Thomas’s Astonishing Opinion on a Racist Mississippi Prosecutor, Jeffrey Toobin, June 21, 2019.  Justice Clarence Thomas filed a dissenting opinion new yorker logoon the Flowers v. Mississippi case, regarding its racially biased prosecutor.

clarence thomas w new officialA Mississippi prosecutor went on a racist crusade to have a black man executed. Clarence Thomas thinks that was just fine.

That’s the message of an astonishing decision today from the Supreme Court. The facts of the case, known as Flowers v. Mississippi, are straightforward.

As Justice Brett Kavanaugh put it, in his admirably blunt opinion for the Court, “In 1996, Curtis Flowers (shown below left) allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials.”

Flowers was convicted in the first three trials, and sentenced to death. On each occasion, his conviction was overturned by the Mississippi Supreme Court, on the grounds of misconduct by the prosecutor, Doug Evans, mostly in the form of keeping African-Americans off the juries. Trials four and five ended in hung juries. In the sixth trial, the one that was before the Supreme Court, Flowers was convicted, but the Justices found that Evans had again discriminated against black people, and thus Flowers, in jury selection, and they overturned his conviction. (The breathtaking facts of the case and its accompanying legal saga are described at length on the American Public Media podcast “In the Dark.”)

curtis flowersAs Kavanaugh recounted in his opinion, Evans’s actions were almost cartoonishly racist. To wit: in the six trials, the State employed its peremptory challenges (that is, challenges for which no reason need be given) to strike forty-one out of forty-two African-American prospective jurors. In the most recent trial, the State exercised peremptory strikes against five of six black prospective jurors. In addition, Evans questioned black prospective jurors a great deal more closely than he questioned whites. As Kavanaugh observed, with considerable understatement, “A court confronting that kind of pattern cannot ignore it.“

But Thomas can, and he did. Indeed, he filed a dissenting opinion that was genuinely outraged — not by the prosecutor but by his fellow-Justices, who dared to grant relief to Flowers, who has spent more than two decades in solitary confinement at Mississippi’s notorious Parchman prison. Thomas said that the prosecutor’s behavior was blameless, and he practically sneered at his colleagues, asserting that the majority had decided the Flowers case to “boost its self-esteem.” Thomas also found a way to blame the news media for the result. “Perhaps the Court granted certiorari because the case has received a fair amount of media attention,” he wrote, adding that “the media often seeks to titillate rather than to educate and inform.”

ny times logoadam liptakNew York Times, The Supreme Court’s Biggest Decisions in 2019, Adam Liptak, right, and Jason Kao, June 21, 2019. The Supreme Court was transformed this term by the departure of Justice Anthony M. Kennedy, its longtime swing vote, and the arrival of his more conservative successor, Justice Brett M. Kavanaugh. Here are some of the term's most important cases, ones that will help chart the future of a court in transition.

June 20

ny times logoNew York Times, Opinion: The Supreme Court Is Showing an Instinct for Self-Preservation, at Least Until Next Year’s Election, Linda Greenhouse, June 20, 2019. The court has passed on contentious cases about abortion and the rights of same-sex couples. Will it now drop the census case?

As the world knows, the deeply contested question of the validity of the Trump administration’s plan to ask about citizenship has become even more fraught with revelations us census bureaufrom the computer files of a recently deceased Republican redistricting specialist, Thomas Hofeller.

The documents appear to validate the conclusion reached by Federal District Judge Jesse Furman, whose ruling against the Trump administration is before the justices, that the administration’s purported good-government reason for adding the citizenship question was a pretext.

The real reason, the documents indicate, was to provide a statistical basis for entrenching Republican power by disregarding noncitizens in the population counts for future redistricting.

washington post logoWashington Post, Supreme Court rules that ‘Peace Cross’ honoring military dead may remain on public land, Robert Barnes​, June 20, 2019. The Supreme Court ruled Thursday that a 40-foot cross erected as a tribute to war dead may continue to stand on public land in Maryland, rejecting arguments that it was an unconstitutional endorsement of religion.

The vote was 7 to 2, but the ruling prompted an outpouring of individual opinions as the court struggled to explain what should be done with public displays that feature religious imagery.

Justice Samuel A. Alito Jr. wrote the main opinion and said history and tradition must be taken into account when judging modern objections to monuments on public land.

“The cross is undoubtedly a Christian symbol, but that fact should not blind us to everything else that the Bladensburg Cross has come to represent,” Alito wrote. “For some, that monument is a symbolic resting place for ancestors who never returned home. For others, it is a place for the community to gather and honor all veterans and their sacrifices for our Nation. For others still, it is a historical landmark.

June 17

nbc news logoNBC News, Supreme Court declines to change double jeopardy rule in a case with Manafort implications, Pete Williams, June 17, 2019. Trump's former campaign manager might have been helped if the case involving an Alabama man on gun and robbery charges had been overturned. The Supreme Court declined on Monday to change the longstanding rule that says putting someone on trial more than once for the same crime does not violate the Constitution's protection against double jeopardy — a case that drew attention because of its possible implications for President Donald Trump's former campaign chairman, Paul Manafort.

The 7-2 ruling was a defeat for an Alabama man, Terance Gamble, convicted of robbery in 2008 and pulled over seven years later for a traffic violation. When police found a handgun in his car, he was prosecuted under Alabama's law barring felons from possessing firearms. The local U.S. attorney then charged Gamble with violating a similar federal law. Because of the added federal conviction, his prison sentence was extended by nearly three years.

June 16

washington post logoWashington Post, After assuring that the Supreme Court is apolitical, chief justice faces major test, Robert Barnes, June 16, 2019. Chief Justice John Roberts will play a pivotal john roberts orole in two of the most politically consequential decisions in years. Chief Justice John G. Roberts Jr., right, began the Supreme Court’s term last fall seeking to assure the American public that his court does not “serve one party or one interest.”

He will end it playing a pivotal role in two of the most politically consequential decisions the court has made in years.

us census bureauOne initiative is to include a citizenship question in the 2020 Census, which has fueled a partisan showdown on Capitol Hill. The other could outlaw the partisan gerrymandering techniques that were essential to Republican dominance at the state and congressional level over the past decade.

The politically weighted decisions, by a court in which the five conservatives were chosen by Republican presidents and the four liberals were nominated by Democrats, threaten to undermine Roberts’s efforts to portray the court as independent.

ny times logoNew York Times, Opinion: Trump’s Abuse of Executive Privilege Is More Than a Present Danger, Neal K. Katyal (shown at right and former U.S. Solicitor General), June 17, neal katyal o2019. He’s probably making it harder for future presidents to govern. President Trump has been on an executive privilege extravaganza. In the past month, he’s asserted it to block Congress from obtaining documents about the census citizenship question, invoked it to try to bar the full Mueller report from being given to Congress, and used it to bar his former White House counsel, Don McGahn, from providing documents to Congress.

Executive privilege has a legitimate core, but Mr. Trump’s attempts are going to wind up undermining that core, and make it harder for future presidents to govern. He is essentially saying that he will not turn over information to Congress about potential wrongdoing — the absolute weakest claim to executive privilege along the spectrum of possible claims.

Our constitutional system is defined by a balance between the public’s need for transparency and the government’s need to have a zone of secrecy around decision making. Both are important, yet they are mutually exclusive. The Constitution erred on the side of transparency, with no mention whatsoever of executive privilege in its original text. But the experience of constitutional government (what some might call a “living Constitution”) is that presidents over time have found a need for their advisers to give them frank information without fear of embarrassment, and the privilege has been used for these sorts of routine matters, by both Democratic and Republic presidents alike.

June 10

SCOTUSblog, Analysis: FAQs -- Announcements of orders and opinions, Amy Howe, June 10, 2019. This post — which is an updated version of posts that we have published in earlier terms — addresses some of the questions about orders and opinion announcements that we have commonly received during our live blogs. If you have a question that you don’t see answered here, please feel free to ask it during today’s live blog.

Question: What opinions will the court issue today?

Answer: Unlike some other courts, the Supreme Court doesn’t announce in advance which cases will be decided on a particular day. So normally, we don’t know which opinions we will get on a particular day. The only time we have a good sense is the very last day, when the court issues its final rulings.

Question: How many opinions will the court issue?

Answer: The court also does not announce in advance how many opinions it expects to release on any particular day.

Question: What’s the last day the court will issue opinions?

Answer: We don’t know what the last day of the term will be. Monday, June 24, is currently the last day that the justices are scheduled to sit on the bench, but if they haven’t released all of their opinions by then, they could add additional decision days.

June 7

Huffpost, Ruth Bader Ginsburg Talks Census Case, Suggests 5-4 Supreme Court Rulings To Come, Antonia Blumberg, June 7, 2019. Supreme Court Justice Ruth Bader Ginsburg suggested on Friday that the high court would soon be announcing several close rulings. In prepared remarks delivered at the Second Circuit Judicial Conference, Ginsburg discussed several prominent cases argued this term in which decisions have yet to be released, including one on the hotly contested 2020 census.

ruth bader ginsburg newer photo unsourcedThe census case revolves around the Trump administration’s effort to add a question on the 2020 form asking every American household to identify the citizens and non-citizens among them. The administration has argued it needs to ask the question in order to compile better data to enforce the 1965 Voting Rights Act.

Ginsburg, shown left in a file photo, noted that the high court has yet to announce its rulings in 27 cases, all of which will likely be coming out this month.

Among the other closely watched cases will be the court’s ruling on the constitutionality of partisan gerrymandering, a practice by which lawmakers set boundaries for electoral districts to ensure their party’s candidates win more races.

June 4

U.S. Supreme Court / Census / Elections

Howe on the Court, Government responds in census citizenship case, Amy Howe, June 4, 2019. Last week the challengers in the dispute over the decision to include a question about citizenship on the 2020 census notified the Supreme Court about new evidence. The new evidence, the challengers argued, indicated that a Republican redistricting strategist played a key role in the decision, which was intended to create an advantage for whites and Republicans in future elections. Yesterday the Trump administration pushed back, calling the challengers’ accusations “meritless” and an “eleventh-hour” effort to “derail the Supreme Court’s resolution of this case.”

us census bureauThe government’s contentions came in its response to the challengers’ motion, made in a federal district court in New York, suggesting that the government should be sanctioned because the new evidence contradicts testimony and representations by government officials in the case. The response was attached to a letter sent to the Supreme Court yesterday by Noel Francisco, the U.S. solicitor general.

In the five-page, single-spaced response, the government dismisses as “false” the challengers’ claim that a senior Department of Justice official, John Gore, relied on a 2015 study by the Republican strategist, Thomas Hofeller, when Gore drafted a 2017 letter asking the Department of Commerce to include the citizenship question. “There is no smoking gun here,” the government stresses; “only smoke and mirrors.”

If the 2017 letter resembles anything, the government suggests, it is “friend of the court” briefs filed in a 2016 case in which the Supreme Court had been asked to decide whether total population or the number of eligible voters should be used to determine whether state legislative districts have equal populations. (Nathaniel Persily, the Stanford law professor who was the author of one of the briefs cited by the government, described himself as “outraged” that his work was “being misrepresented” by the government.)

 

May

May 30

GOP Vote Suppression Scandal

washington post logoWashington Post, Evidence suggests citizenship question crafted to benefit white Republicans, Tara Bahrampour and Robert Barnes​, May 30, 2019. Files discovered by the estranged daughter of a late GOP redistricting strategist indicate that plans to add the citizenship question to the census date to 2015 and then were pushed after President Trump took office.

Just weeks before the Supreme Court is expected to rule on whether the Trump administration can add a citizenship question to the 2020 Census, new evidence emerged Thursday suggesting the question was crafted specifically to give an electoral advantage to white Republicans.

The evidence was found in the files of the prominent Republican redistricting strategist Thomas Hofeller after his death in August. It reveals that Hofeller “played a significant role in orchestrating the addition of the citizenship question to the 2020 Decennial Census in order to create a structural electoral advantage for, in his own words, ‘Republicans and Non-Hispanic Whites,’ ” and that Trump administration officials purposely obscured Hofeller’s role in court proceedings, lawyers for plaintiffs challenging the question wrote in a letter to U.S. District Judge Jesse M. Furman. Furman was one of three federal judges who ruled against the question this year.

The letter drew on new information discovered on hard drives belonging to Hofeller, which were found accidentally by Hofeller’s estranged daughter. Stephanie Hofeller Lizon then shared them with the organization Common Cause for a gerrymandering lawsuit it is pursuing in North Carolina.

The American Civil Liberties Union filed a motion in district court Thursday morning for “sanctions and any other relief the court deems appropriate, because of apparently untruthful testimony” by Trump administration officials in the earlier trials, said Dale Ho, who argued the case at the Supreme Court on behalf of the ACLU.

It is unclear how the information might affect deliberations at the Supreme Court. The ACLU Thursday afternoon filed a letter with the court to “respectfully inform” it of the motion filed in the New York district court and that a hearing was scheduled for next week.

May 29

More Supreme Court  Packing?

washington post logoWashington Post, McConnell says he would fill a Supreme Court vacancy even if it comes during an election year, Reis Thebault, May 29, 2019. The Senate Majority Leader mitch mcconnell2held up a nomination by President Obama in 2016, saying then that “the American people should have a voice in the selection of their next Supreme Court Justice.” When President Obama nominated Judge Merrick Garland to the Supreme Court in 2016, Senate Majority Leader Mitch McConnell (R-Ky.), right, refused to consider him, blocking the nominee until after the year’s presidential election.

He said then that “the American people should have a voice in the selection of their next Supreme Court Justice.” The tactic cost Garland his spot on the court.

With his party now in the White House, McConnell said Tuesday he’d try to push through any nomination that President Trump might make to the high court — even if it comes during an election year. Some saw that stance, which McConnell has signaled before, as disingenuous.GOP

May 28

washington post logoWashington Post, Supreme Court ruling on Indiana abortion law keeps issue off its docket, Robert Barnes​, Robert Barnes, May 28, 2019. The court said a part of the law dealing with disposal of the “remains” of an abortion could go into effect. But it did not take up the prohibition on abortions when tests revealed an abnormality.

The court said a part of the law dealing with disposal of the “remains” of an abortion could go into effect. But it did not take up a part of the law stricken by lower courts that prohibited abortions because tests revealed an abnormality. The court indicated it would wait for other courts to weigh in before taking up that issue.

May 25

washington post logoWashington Post, New electoral maps for Ohio and Michigan can wait, Supreme Court says, Robert Barnes, May 25, 2019 (print ed.). While they consider the question of partisan gerrymandering, the justices put lower-court decisions finding those states’ maps unconstitutional on hold. The Supreme Court on Friday put on hold lower-court decisions that said Ohio and Michigan had to come up with new electoral maps because of unconstitutional partisan gerrymandering.

The decision was not surprising, because the justices are currently considering whether judges should even have a role in policing partisan gerrymandering. There were no noted dissents in the orders for either state.

supreme court graphicThe Supreme Court in March heard arguments in similar cases from North Carolina, where judges found that Republicans had manipulated congressional maps to their advantage, and from Maryland, where Democratic lawmakers redrew a district that resulted in a loss for a longtime Republican congressman.

While the Supreme Court regularly examines redistricting plans for signs of racial gerrymandering, it has never found a state’s plan so infected with partisan politics that it violates the rights of voters. The decision in the North Carolina and Maryland cases are expected before the end of June.

With the decisions from Ohio and Michigan, federal courts in five states have struck down maps as partisan gerrymanders. The courts in the Ohio and Michigan decisions ordered the states to come up with new maps that could be used in the 2020 elections.

But lawyers for the states argued that would be foolhardy until the Supreme Court has ruled. Lawyers for Ohio told the court that the legislature there should not have to “waste its time on a difficult legislative activity likely to prove entirely unnecessary.”

May 22

Covert U.S. Justice System Controls

washington post logoWashington Post, Investigation: A conservative’s campaign to remake U.S. courts, Robert O'Harrow Jr. and Shawn Boburg, May 22, 2019 (print ed.). Few people outside government have more influence over judicial appointments than Leonard Leo, right, an unofficial adviser to President Trump who has helped nonprofits raise $250 million from leonard leomostly undisclosed donors to promote conservative judges and causes.

For two decades, Leo has been on a mission to turn back the clock to a time before the U.S. Supreme Court routinely expanded the government’s authority and endorsed new rights such as abortion and same-sex marriage. Now, as President Trump’s unofficial judicial adviser, he told the audience at the closed-door event in February that they had to mobilize in “very unprecedented ways” to help finish the job.

At a time when Trump and Senate Majority Leader Mitch McConnell are rapidly reshaping federal courts by installing conservative judges and Supreme Court federalist society logojustices, few people outside government have more influence over judicial appointments now than Leo.

He is widely known as a confidant to Trump and as executive vice president of the Federalist Society, an influential nonprofit organization for conservative and libertarian lawyers that has close ties to Supreme Court justices. But behind the scenes, Leo is the maestro of a network of interlocking nonprofits working on media campaigns and other initiatives to sway lawmakers by generating public support for conservative judges.

The story of Leo’s rise offers an inside look into the modern machinery of political persuasion. It shows how undisclosed interests outside of government are harnessing the nation’s nonprofit system to influence judicial appointments that will shape the nation for decades.

May 16

washington post logoWashington Post, Opinion: The obsession with redaction is hiding the obvious: Trump committed crimes, Walter Dellinger, May 16, 2019 (print ed.). Walter Dellinger, 78, shown at right in a 1996 file photo, was head of the Office of Legal Counsel from 1993 to 1996 and acting solicitor general from 1996 to 1997. I have become increasingly concerned about how the walter dellinger 1996country has received the Mueller report. The Republican talking point is that it exonerated the president. The message from the Democratic House, meanwhile, is that the report is inconclusive. Those responses, one mendacious, one tepid and both erroneous, have shaped public understanding. They have not only allowed the president falsely to claim vindication but also left the public without a clear understanding of just how damning the report is.

Most Americans, understandably not having read the 448-page (redacted) report, may be influenced by how the principal parties have responded. If the report were, as the Republicans insist, an exoneration, one might demand to know how this unwarranted investigation got started in the first place, which is exactly how the GOP has proceeded to turn the conversation.

And if you thought the report was merely inconclusive, your natural reaction would be that you need to know more. You would say something like what many House Democrats are repeating endlessly: “We need to see the redactions” and “hear from witnesses” — suggesting that there is as of yet no sufficient basis for judging President Trump’s conduct.

The more I review the report, the more absurd and misleading the we-need-to-know-more response seems to be. And the more it seems to have contributed to public misunderstanding. How different would it have been if a unified chorus of Democratic leaders in Congress and on the campaign trail had promptly proclaimed the actual truth: This report makes the unquestionable case that the president regularly and audaciously violated his oath and committed the most serious high crimes and misdemeanors.

washington post logoWashington Post, Democrats adhere to Pelosi’s no-impeachment strategy despite Trump’s defiance, Rachael Bade and Mike DeBonis, May 16, 2019 (print ed.). Several rank-nancy pelosiand-file lawmakers want to begin impeachment proceedings. President Trump, who is refusing to cooperate with more than 20 congressional investigations, instructed current and former aides Wednesday to ignore a House committee’s request for documents in the latest act of defiance that has prompted Democrats to declare that the nation is facing a constitutional crisis.

But House Speaker Nancy Pelosi (D-Calif.), right, told Democrats in a closed-door caucus meeting Wednesday morning to stick to their policy agenda ahead of the 2020 election rather than initiate impeachment proceedings. And not a single lawmaker challenged her, according to a person in the room who spoke on the condition of anonymity to discuss the private meeting.

May 13

U.S. Supreme Court

washington post logoWashington Post, Abortion extremists make fools of Kavanaugh defenders, Jennifer Rubin, right, May 13, 2019. During the confirmation fight for Justice Brett M. Kavanaugh, abortion jennifer rubin new headshotrights activists warned that with his ascension to the Supreme Court, abortions would be criminalized, putting at risk the health and lives of thousands of women who, like their grandmothers’ generation, would be forced to resort to back-alley abortions if they did not have the means to travel hundreds or thousands of miles to a state where abortion was legal.

Kavanaugh’s defenders called such claims hysterical and disingenuous. Although Kavanaugh was put on a list blessed by pro-life groups and had questioned the jurisprudence behind Roe v. Wade, his defenders argued that he wouldn’t approve state laws that went so far as to ban abortion. On the other side, women’s susan collins official Smallgroups pointed to pro-lifers’ decades-long commitment to ending legal abortions based on equating any abortion with murder.

Sen. Susan Collins (R-Maine), left, risked her decades-long reputation as a pro-choice Republican and her prospects for reelection in 2020 by voting to confirm Kavanaugh and spouting the pro-lifers’ line that legal abortion wasn’t really at risk.

We now are seeing the full impact of confirming a justice who could eviscerate Roe. The very type of legislation Kavanaugh defenders claimed were not in the cards was passed in Georgia and is poised to pass in Alabama. State lawmakers are now emboldened to pass laws effectively outlawing abortion with the hope that this Supreme Court will now uphold them.

washington post logoWashington Post, Supreme Court’s conservative justices overturn 41-year-old precedent, Robert Barnes​, May 13, 2019. The Supreme Court’s conservative majority overturned a 41-year-old precedent Monday, prompting a pointed warning from liberal justices about “which cases the court will overrule next.”

clarence thomas w new officialThe issue in Monday’s 5 to 4 ruling was one of limited impact: whether states have sovereign immunity from private lawsuits in the courts of other states. In 1979, the Supreme Court ruled that there is no constitutional right to such immunity, although states are free to extend it to one another and often do.

But the court’s conservative majority overruled that decision, saying there was an implied right in the Constitution that means states “could not be haled involuntarily before each other’s courts,” in the words of Justice Clarence Thomas, right, who wrote Monday’s decision.

Thomas acknowledged the departure from the legal doctrine of stare decisis, in which courts are to abide by settled law without a compelling reason to overrule the decision.

ny times logoNew York Times, Trump’s Justices, With Much in Common, Take Different Paths, Adam Liptak, May 13, 2019 (print ed.). Justice Neil M. Gorsuch, below left, and Justice Brett M. brett kavanaughKavanaugh, right, President Trump’s Supreme Court appointees, were widely expected to be jurisprudential twins. Both justices lean right, but they are revealing themselves to be different kinds of conservatives in both style and substance.

President Trump’s two Supreme Court appointees went to the same Jesuit high school in the Washington suburbs — at the same time. After attending Ivy neil gorsuch headshotLeague colleges and law schools, they worked as law clerks on the Supreme Court — for the same justice, in the same term.

They served as appeals court judges for more than a decade, turning out opinions that captured the attention of conservative legal groups like the Federalist Society and the Heritage Foundation. They were confirmed by tight votes, mostly along party lines.

On the Supreme Court, they were widely expected to be jurisprudential twins. But it turns out that there is more than a little daylight between Justice Neil M. Gorsuch, who joined the court in 2017, and Justice Brett M. Kavanaugh, who started in October after facing accusations of sexual assault, which he denied, at his confirmation hearings.

 washington post logoWashington Post, Supreme Court rules against Apple, allowing lawsuit targeting App Store to proceed, Tony Romm and Robert Barnes, May 13, 2019. Apple suffered a significant defeat at the Supreme Court on Monday, when the justices ruled that consumers could forge ahead with a lawsuit against the tech giant over the way it manages its App Store.

apple logo rainbowThe 5-4 decision allows device owners to proceed with a case that alleges Apple has acted as a monopoly by requiring iPhone and iPad users to download apps only from its portal while taking a cut of some sales made through the store.

The ruling could have serious repercussions for one of Apple’s most lucrative lines of business, while opening the door for similar legal action targeting other tech giants in Silicon Valley. But the court’s opinion — led by conservative Justice Brett M. Kavanaugh, who joined its liberal justices in the majority — did not rule on the merits of the lawsuit itself.

ny times logoNew York Times, Accused of ‘Terrorism’ for Putting Legal Materials Online, Adam Liptak, May 13, 2019. After Carl Malamud posted Georgia’s annotated laws, the state sued for copyright infringement. Both sides have asked the Supreme Court to step in. 

Carl Malamud believes in open access to government records, and he has spent more than a decade putting them online. You might think states would welcome the help.But when Mr. Malamud’s group posted the Official Code of Georgia Annotated, the state sued for copyright infringement. Providing public access to the state’s laws and related legal materials, Georgia’s lawyers said, was part of a “strategy of terrorism.”

A federal appeals court ruled against the state, which has asked the Supreme Court to step in. On Friday, in an unusual move, Mr. Malamud’s group, Public.Resource.Org, also urged the court to hear the dispute, saying that the question of who owns the law is an urgent one, as about 20 other states have claimed that parts of similar annotated codes are copyrighted.

The issue, the group said, is whether citizens can have access to “the raw materials of our democracy.”

The state, through a legal publisher, makes the statutes themselves available online, and it has said it does not object to Mr. Malamud doing the same thing. But people who want to see other materials in the books, the state says, must pay the publisher.

This is part of a disturbing trend, according to a new law review article, “Who Owns the Law? Why We Must Restore Public Ownership of Legal Publishing,” by Leslie Street, a law professor and librarian at Mercer University in Macon, Ga., and David Hansen, a librarian at Duke. It will be published in The Journal of Intellectual Property Law.

States have struck deals with legal publishers, the article said, that have effectively privatized the law.

May 11

U.S. Courts Transformation

The Guardian, All the president’s judges: how Trump can flip courts at a record-setting pace, Tom McCarthy, May 11, 2019. As the Senate confirms nearly 40 circuit court nominees and counting, the third circuit has already moved rightward – which can change the US for decades.

mike pence oMike Pence’s eyes twinkled with the applause line he was about to deliver. Speaking in Washington on Wednesday at an annual conference of the Federalist Society, the conservative legal group, the vice-president had great news to share. Earlier that day, the Senate had confirmed yet another circuit court judge nominated by Donald Trump, bringing his grand total to 38, neatly doubling the 19 judges at that level that Barack Obama saw confirmed by the same stage of his presidency.

But Pence, shown at right, had an even juicier number to boast of: the week before, thanks to a flurry of activity in the Senate engineered by the majority leader, Mitch McConnell, the number of confirmed Trump appointees to federal judgeships had hit triple digits. “This president has actually appointed more than 100 men and women to our federal courts, including more circuit court judges than any president in American history,” said Pence, slowing his pace to deliver the kicker: “And they are all conservatives who are committed to the principles enshrined in the constitution of the United States!”

Pence was drowned in applause before he could finish the sentence. But watchdog groups warn that by “conservative,” Pence was referring to more than just a particular flavor of jurisprudence. He meant judges eager to see through fundamental changes in American life, from the criminalization of abortion to the gutting of LGBTQ rights and environmental protections, the reversal of healthcare reform, the sidelining of workers and the endorsement of religious discrimination.

Dissenting View: “These nominees have records of working tirelessly to undermine access to healthcare, access to reproductive rights for women, who want to undermine critical protections for workers, for clean air and clean water that consumers rely on,” said Daniel Goldberg, the legal director at the Alliance For Justice.

“The people who are going to suffer are the millions of people around the country who rely on these critical, essential legal rights and protections that for the next three or four decades are going to be seriously eroded.”

May 6

Harvard Law Today, Book Review: A Precarious State -- A new book warns that institutional corruption is corroding our nation, Lewis Rice, May 6, 2019. Think of an honest used car salesperson. The very idea might seem like an oxymoron. That’s not because no honest people ever sell cars. It’s because the profession as a whole is not considered trustworthy by the public.

What if that sense of mistrust were not limited to the used car lot but had spread to institutions the public relies on every day?

larry lessigIt has, according to Harvard Law School Professor Lawrence Lessig, left, and he sounds the alarm about the damage it is doing to the nation in his new book, “America, Compromised.”

Lessig has previously written on what he calls the “institutional corruption” of Congress, whereby members are most responsive to the needs of a small cadre of funders rather than their constituents. In this book, he contends that corruption also pervades finance, the media, the academy and the law.

“Those institutions fail to the extent that people have a deep mistrust of [them],” Lessig said in an interview. “This dimension of public trust is an essential part of what I set out as the problem of institutional corruption.”

The book came out of Lessig’s experience directing Harvard’s Edmond J. Safra Center for Ethics, where he launched a related project, and is based on a lecture series he gave about the results. As he makes clear, his labeling an institution as corrupt does not mean that he believes the people within it are evil. In fact, he argues that the problem of evil people doing bad deeds is dwarfed by the problem of good people who are compromised, typically by a financial influence that skews the intended purpose of the institution.

That could mean prosecutors who make deals with corporations rather than prosecuting them in order to be considered for a much higher-paying job in the future with a white-collar defense firm; academic researchers who publish more favorable results when funded by an industry that would benefit from that conclusion; journalists whose coverage is driven by what would be most profitable rather than what would inform the citizenry; or financial rating agencies that offer favorable ratings instead of objective analyses in order to secure business.

These kinds of compromises weaken the effectiveness of the institutions and contribute to a national decline, Lessig contends. He offers potential remedies to the problem, ranging from increased regulation of finance to establishing a general pooled fund for academic researchers so they would not know who was funding their work.

Lessig has long called for public financing of political campaigns, and he explored a presidential run in the last election to make that his central plank (he dropped out when the Democratic National Committee wouldn’t allow him to participate in the candidates’ debate). He hasn’t decided whether he will pursue a run in 2020 but doesn’t see any other candidate who would prioritize campaign finance reform.

April

April 28

supreme court building

washington post logoWashington Post, Trump sees Supreme Court as ally, sowing doubt about its independence, Robert Barnes and Josh Dawsey, April 28, 2019 (print ed.). The president’s tweet john roberts oon impeachment exacerbates a dilemma facing Chief Justice John G. Roberts Jr., right, who took the unprecedented step of publicly admonishing President Trump last year.

The morning after the Supreme Court reviewed his administration’s most important case of the term, President Trump informed the justices he might have another task for them.

“I DID NOTHING WRONG,” Trump tweeted Wednesday. “If the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court.”

Constitutional experts immediately derided Trump’s faulty legal analysis. But the more striking message, the day after the court considered the administration’s plan to put a citizenship question on the 2020 Census, seemed to be Trump’s consistent theme that he views the nation’s highest court as an ally, and safeguard against lower court defeats and congressional opponents.

His administration’s lawyers have tried to leapfrog the legal process to seek the high court’s quick review of adverse rulings and nationwide injunctions by lower courts, which they say handicap Trump’s initiatives in numbers that can’t be defended. They are ready, too, to go to court as the president resists demands from congressional Democrats investigating his conduct, business dealings and personal finances .

April 21

washington post logoWashington Post, Supreme Court will examine high-stakes census case this week, Robert Barnes, April 21, 2019.  The administration’s controversial plan to include a citizenship question on the 2020 form could affect the size of each state’s congressional delegation and how federal aid is distributed.

The Supreme Court this week takes up the most consequential Trump administration initiative since last term’s travel ban, with the justices considering whether a question about citizenship can be added to the 2020 Census.

The restrictions on travelers from certain majority-Muslim countries was approved last June by a five-member conservative majority deferential to President Trump’s power to decide who enters the country. And the administration has been anxious to move to the high court the legal battle over another issue that reflects its hard-line immigration policies.

A coalition of Democratic-led states, cities and civil rights organizations oppose the effort, saying the question is a political move that will intimidate households with ties to noncitizens and result in an undercount that will harm the nonpartisan goal of getting an accurate tally of everyone in the country.

April 14

Immigration Justice Realities

washington post logoWashington Post, Opinion: I’m an immigration judge. Here’s how we can fix our courts, Dana Leigh Marks, April 14, 2019 (print ed.). Dana Leigh Marks has been a sitting immigration judge in San Francisco since 1987 and is writing this in her capacity as president emerita of the National Association of Immigration Judges.

Every day, in 60 courts throughout the country, roughly 400 immigration judges sit to decide the fates of thousands of people. Our courtrooms can be almost anywhere: in Immigration and Customs Enforcement detention facilities, in federal courthouses or in leased commercial office spaces — like mine in the heart of the financial district in San Francisco. Walking by, you wouldn’t know what is going on inside.

What occurs in immigration courts is probably the most mysterious of all legal processes in our country. The reason: These are administrative courts, part of the Justice Department rather than the judicial branch. The rules we operate under are written by political appointees, not by judges, and often favor the government.

Our courts’ decisions are life-changing. We rule on whether a person is a U.S. citizen, whether a noncitizen can qualify for a status that allows him or her to remain in this country, or whether a person has violated our laws and must be forced to leave. Our decisions may cause the separation of parents and children or husbands and wives, because the law gives judges no discretion to allow someone to remain in our country based solely on hardship or humanitarian reasons.

And, at times, the decisions can amount to a death sentence, such as when we deny an application for asylum because the law does not protect all those who find themselves in harm’s way back home.

The volume of work can be overwhelming. Some of our judges carry caseloads of 5,000 cases or more, usually with limited support staff. Because we work for the Justice Department, we are directed how to arrange our dockets and micromanaged about how much time we spend on cases. Beginning in October of last year, judges were ordered to complete 700 cases each year or risk a less-than-satisfactory performance evaluation, which can cost a judge his or her job. This is not how a court should be run. Attorney General William P. Barr told Congress this week that he is hoping to boost the number of judges in our courtrooms from around 425 to 535 over the next few years and for a commensurate boost in lawyers and clerks. We desperately need the help.

April 13

Federal Judge Blasts Trump

carlton reeves university of virginia sanjay suchak

U.S. District Judge Carlton Reeves argued for federal courts’ need to defend marginalized groups at a University of Virginia School of Law event on April 11. (University of Virginia School of Law)

Washington Post, You can hear the Klan’s lawyers’: Federal judge likens Trump’s attacks on judiciary to KKK, Reis Thebault, April 13, 2019. Federal judge compares Trump’s attacks on judiciary to KKK, segregationist attacks on black judges. President Trump has attacked the judiciary like few U.S. leaders before him, disparaging judges and their rulings as “dangerous,” “horrible” and “a complete and total disgrace.” Some of his supporters and fellow Republicans applaud and parrot him, but U.S. District Judge Carlton Reeves said he hears something sinister: echoes of a time when the Ku Klux Klan and the architects of the Jim Crow South attacked the courts for chipping away at segregation and racism.

In a speech to the University of Virginia School of Law on Thursday, Reeves criticized Trump’s aggressive responses to his administration’s losses in court and the lack of diversity in his judicial appointments — an extremely rare rebuke from a sitting federal judge. Though Reeves, whose court is in Jackson, Miss., never mentioned Trump by name, he quoted the president more than a dozen times and compared him to a stridently racist Alabama governor.

“When the executive branch calls our courts and their work ‘stupid,’ ‘horrible,’ ‘ridiculous,’ ‘incompetent,’ ‘a laughingstock,’” Reeves said, drawing from Trump’s Twitter feed, “you can hear the slurs and threats of executives like George Wallace, echoing into the present.”

Take Trump’s insults of Judge Gonzalo Curiel, Reeves said. Trump said Curiel should not hear a lawsuit against Trump University because Trump’s hard-line immigration polices presented a conflict of interest for Curiel, who is of Mexican descent.

“I know what I heard when a federal judge was called ‘very biased and unfair’ because he is ‘of Mexican heritage.’ When that judge’s ethnicity was said to prevent his issuing ‘fair rulings,' when that judge was called a 'hater’ simply because he is Latino,” Reeves said, “I heard those words and I did not know if it was 1967 or 2017.”

The White House declined to comment on the speech, which was first reported by BuzzFeed News. Reeves, through his law clerk, said he wouldn’t make any further comments.

Half a century later, Reeves said, Americans are “eyewitnesses to the third great assault on our judiciary.”

“When politicians attack courts as ‘dangerous,’ ‘political,’ and guilty of ‘egregious overreach,’ you can hear the Klan’s lawyers, assailing officers of the court across the South,” he said.

carlton reevesIt’s not that courts should be exempt from criticism, Reeves (shown in a file photo) said. He maintained that debating judicial decisions ultimately improves the courts.

“But the slander and falsehoods thrown at courts today are not those of a critic seeking to improve the judiciary’s search for truth,” he said. “They are words of an attacker, seeking to distort and twist that search toward falsehood.”

Trump’s broadsides may be loud, but it’s his appointments that may end up having the most lasting effect, Reeves said. As of April 1, more than three-quarters of confirmed appellate and district court nominees were white, according to Alliance for Justice, a left-leaning advocacy group. More than 90 percent were male.

“That’s not what America looks like,” Reeves said. “That’s not even what the legal profession looks like. . . . There is no excuse for this exclusion of minority experiences from our courts.”

Judges, especially at the federal level, typically try to eschew partisan tangles, particularly with presidents.

When Trump was a candidate, Supreme Court Justice Ruth Bader Ginsburg told the New York Times that she “can’t imagine what this place would be . . . with Donald Trump as our president.”

“For the country, it could be four years,” she said. “For the court, it could be — I don’t even want to contemplate that.”

Days later, Ginsburg apologized, calling her comments “ill-advised.”

Reeves, however, has drawn national attention before. In 2018, he issued a strongly worded decision striking down Mississippi’s law banning abortions after 15 weeks of pregnancy, chastising the state for choosing to “pass a law it knew was unconstitutional.”

In 2015, Reeves gave another stirring speech, that time a 2,500-word address from the bench, aimed at three white men who were sentenced in the killing of a black man — a hate crime, he said, that in the past would have been written off as “acceptable racially inspired pranks.” Instead he handed down sentences between seven and 50 years.

Reeves gave his speech Thursday as he accepted the university’s Thomas Jefferson Foundation Medal in Law, one of its highest awards. He began by addressing the third U.S. president’s complicated history — a mix of “genius,” “curiosity” and “industry,” along with well-documented racism.

“I must stand up and speak about that pairing,” he said. “How corrosive it has been since the days of Jefferson, who we all agree, was a man of his time. How often that pairing has been embraced throughout our history, by men of their times. And why we must defend against its poison when spewed today, by men of our time.”

Trump Watch

April 9

washington post logoWashington Post, ‘Kick Kavanaugh off campus’: Students decry George Mason’s decision to hire Supreme Court justice, Isaac Stanley-Becker, April 9, 2019. Supreme Court Justice Brett M. Kavanaugh will beat the Washington heat this summer and head for Runnymede, England, a bucolic borough 20 miles from London along the River Thames. At the site where the Magna Carta was sealed 804 years ago, laying the groundwork for constitutional democracy, the judge will teach a course on the origins of the U.S. Constitution to students at George Mason University’s Antonin Scalia Law School — 3,600 miles from the Arlington, Va., campus.

brett kavanaughHe will be joined in the English countryside by Jennifer Mascott, an assistant professor of law at George Mason. One of Kavanaugh’s former clerks on the U.S. Court of Appeals for the D.C. Circuit, Mascott came to his defense when his nomination was threatened last year by allegations of sexual misconduct, which he vehemently denied. “He has acted with the utmost character and integrity,” she told “PBS NewsHour.”

Some students at the university’s main campus in Fairfax City see matters differently. After news of his hire surfaced at the end of March in the undergraduate newspaper, the Fourth Estate, survivors of sexual assault mobilized to demand that he be terminated.

The judge (right), who was first nominated to the federal bench by President George W. Bush and to the nation’s top court by President Trump, used to teach at Harvard Law School. But administrators in Cambridge, Mass., informed students last fall that he had decided not to return this year to teach his course, “The Supreme Court Since 2005.” The announcement followed calls on Harvard, by hundreds of its students and alumni, to revoke his status as a lecturer.

The contest over Kavanaugh’s nomination became a flash point in the #MeToo movement, as well as an illustration of the polarization and distrust poisoning American politics. Now, the dispute at George Mason has become the latest front in the campus culture wars, reflecting broader upheaval over sexual violence, political correctness, free speech and sensitivity.

 

March

March 31

Covert Politics At U.S. Supreme Court

geoffrey stonewashington post logoWashington Post, Book Review: Chief Justice Roberts’s delicate seat at the center of a divided Supreme Court, Geoffrey R. Stone (right, distinguished professor of law and former provost at the University of Chicago), March 31, 2019 (print ed.). The Supreme Court sits at the center of fundamental disagreements about various crucial issues — campaign finance, affirmative action, abortion, gun control, voting rights and the constitutionality of some of President Trump’s most controversial actions — and the stakes are as high as they have ever been. At the center of it all is conservative Chief Justice John G. Roberts Jr.

As Joan Biskupic observes in her book The Chief: The Life and Turbulent Times of Chief Justice John Roberts, after Republicans’ refusal to confirm President Barack Obama’s Supreme Court choice, Merrick Garland, and Trump’s appointment of two fiercely conservative justices, Neil M. Gorsuch and Brett M. Kavanaugh, the Supreme Court is “now Roberts’s in name and reality.”

joan biskupic john roberts the chiefAlthough Roberts consistently maintains that the court is not a political body, and although he insists publicly that “the justices do not advance political positions,” Biskupic concludes that, in his decision-making in the most important and ideological cases, Roberts has all too often “engaged in the partisanship he claimed to abhor.” Moreover, although Roberts’s public persona seems very easygoing and congenial, Biskupic reveals that his top-down style has often “rankled” his colleagues on the court.

Like Biskupic’s previous books about Justices Sandra Day O’Connor, Antonin Scalia and Sonia Sotomayor, The Chief offers an extraordinarily insightful, thoughtful and accessible analysis of Roberts’s personal life, professional career, judicial experience and approach to constitutional interpretation. It is essential reading for anyone who truly wants to understand this pivotal moment in Supreme Court history.

Biskupic, who has known Roberts for more than 20 years, sat down with him for seven interviews totaling 20 hours for her book. She was therefore well-positioned to offer often stunning insight into Roberts’s life and thinking both on and off the court.

joan biskupic pbsRoberts leads the Supreme Court at a critical moment. For the first time in history, the court is divided 5 to 4 not only along ideological lines, but along partisan lines as well. That is, all five justices in the highly conservative majority were appointed by Republican presidents, and all four justices in the more liberal minority were appointed by Democratic presidents. Thus, there is a serious danger that on all the issues that have bitterly divided the justices over the past half a century, the court will divide sharply along partisan lines.

Such a state of affairs will seriously undermine the fundamental integrity of the court itself. The whole point of relying on judges and justices to decide fundamental questions of law is that they are doing their best to apply the law in a neutral and fair-minded manner. Although they may disagree sharply about questions of constitutional interpretation, their disagreements should be on intellectual rather than partisan lines.

djt brett kavanaugh amy coney barrett

Axios Sneak Peek, Scoop — Trump "saving" Judge Barrett for Ginsburg seat, Jonathan Swan, March 31, 2019. As he was deliberating last year over replacing Supreme Court Justice Anthony Kennedy, President Trump told confidants he had big plans for Judge Amy Coney Barrett (shown above in a graphic from last summer).

"I'm saving her for Ginsburg," Trump said of Barrett, according to three sources familiar with the president's private comments. Trump used that exact line with a number of people, including in a private conversation with an adviser two days before announcing Brett Kavanaugh's nomination.

Barrett is a favorite among conservative activists, many of whom wanted her to take Kennedy’s spot.

• She's young and proudly embraces her Catholic faith.
• Her past academic writings suggest an openness to overturning Roe v. Wade.
• Her nomination would throw gas on the culture-war fires, which Trump relishes.

But Trump chose to wait. Yes, but: There's no guarantee Trump will get another Supreme Court pick. It's very unlikely Ginsburg will retire while he’s in office. And though she's 86 and has had 3 bouts with cancer, she's on the bench now and appears healthy.

Why it matters: Trump has already pulled the court well to the right. If he gets to replace Ginsburg, especially with Barrett, he would cement a young, reliably conservative majority that could last for decades.

March 30

washington post logobrett kavanaugh.judgeLWashington Post, Brett Kavanaugh pivots as Supreme Court allows one execution, stops another, Robert Barnes, March 30, 2019. The court took different stances in cases involving Muslim and Buddhist death-row inmates. It’s difficult to say with certainty why the Supreme Court on Thursday night stopped the execution of a Buddhist inmate in Texas because he was not allowed a spiritual adviser by his side, when last month it approved the execution of a Muslim inmate in Alabama under the almost exact circumstances.

But the obvious place to start is new Justice Brett M. Kavanaugh, right, who seemed to have a change of heart. Ilya Somin, a law professor at the Antonin Scalia Law School at George Mason University and a sharp critic of the court’s decision in Dunn v. Ray, said the most logical explanation is the court was stung by the barrage of criticism it received from the left and the right.

The justices “belatedly realized they had made a mistake; and not just any mistake, but one that inflicted real damage on their and the court’s reputations,” Somin wrote on the Volokh Conspiracy blog.

March 18

NY Times Probes Trump-Troubled Bank

ny times logoNew York Times, A Mar-a-Lago Weekend and an Act of God: Trump’s History With Deutsche Bank, David Enrich, March 19, 2019 (print ed.). As a developer, Donald Trump borrowed more than $2 billion from Deutsche Bank. Once he was president, employees were told not to utter his name. Now Mr. Trump’s financial ties with the bank are the subject of investigations by two congressional committees and the New York attorney general.

Mr. Trump and Deutsche Bank were deeply entwined, their symbiotic bond born of necessity and ambition on both sides: a real estate mogul made toxic by polarizing rhetoric and a pattern of defaults, and a bank with intractable financial problems and a history of misconduct.

deutsche bank logoMr. Trump used loans from Deutsche Bank to finance skyscrapers and other high-end properties, and repeatedly cited his relationship with the bank to deflect political attacks on his business acumen. Deutsche Bank used Mr. Trump’s projects to build its investment-banking business, reaped fees from the assets he put in its custody and leveraged his celebrity to lure clients.

Over nearly two decades, Deutsche Bank’s leaders repeatedly saw red flags surrounding Mr. Trump. There was a disastrous bond sale, a promised loan that relied on a banker’s forged signature, wild exaggerations of Mr. Trump’s wealth, even a claim of an act of God.

But Deutsche Bank had a ravenous appetite for risk and limited concern about its clients’ reputations. Time after time, with the support of two different chief executives, the bank handed money — a total of well over $2 billion — to a man whom nearly all other banks had deemed untouchable.

Palmer Report, Analysis: Anthony Kennedy and his son were even more deeply involved in Donald Trump’s Russia scandal than we Anthony Kennedy official SCOTUS portraitthought, Bill Palmer, March 18, 2019. Last year, even as Donald Trump’s presidency seemed to be on its last legs, and the Republican Party seemed to be inching away from him, something happened that caused the GOP to rush back into his arms and buy him significant time.

Supreme Court Justice Anthony Kennedy, right, abruptly announced he was retiring, thus allowing Trump to nominate his replacement. This was suspicious beyond words, because Kennedy’s son was an executive at Deutsche Bank, which was at the financial center of Donald Trump’s Russia scandal.

bill palmer report logo headerThis set off a million theories about how Donald Trump might have used Trump-Russia dirt on Justin Kennedy as leverage to force Anthony Kennedy into retirement. The trouble was that, while it all made sense, it was all vague and circumstantial. But that’s no longer the case. Tonight the New York Times published a verty lengthy expose about the mutually corrupt relationship between Trump and Deutsche Bank over the years – and both the older and younger Kennedy play a role in the story.

deutsche bank logoThe NY Times article confirms, once and for all, what had long been suspected: Justin Kennedy was indeed the Deutsche Bank senior executive who kept making the decision to loan large amounts of money to Donald Trump for bad real estate deals, even after every other bank in the world had sworn off lending money to Trump. Oh, and there’s this sentence: “Occasionally, Justice Kennedy stopped by Deutsche Bank’s offices to say hello to the team.”

U.S. Courts

joan biskupic john roberts the chiefTHE CHIEF: The Life and Turbulent Times of Chief Justice John Roberts
By Joan Biskupic
421 pp. Basic Books. $32.

ny times logoNew York Times, Book Review: The ‘Enigma’ Who Is the Chief Justice, Adam Cohen, March 18, 2019. Joan Biskupic’s “The Chief” examines John Roberts’s life and his career on the Supreme Court.

When the Supreme Court upheld the Affordable Care Act in 2012, Chief Justice John Roberts provided the critical fifth vote, enraging conservatives and delighting liberals. Ever since, questions have swirled around his vote. How could a jurist who was so carefully vetted for ideological purity have turned apostate on such a defining issue, saving Obamacare from oblivion?

In The Chief, her assiduously reported and briskly written biography, Joan Biskupic, a CNN analyst who has long covered the court, offers new behind-the-scenes details. Roberts was, she says, initially inclined to strike down a key part of the law, the individual mandate, which required people to have insurance or pay a penalty. But during the opinion-drafting process he joined the liberals in affirming it.

joan biskupic pbsWhile Biskupic (shown in a file photo) sheds light on when and how Roberts made that decision, she is less illuminating on why. She ticks off leading theories: He was wary of overturning the elected branches of government on such an important issue, or reluctant to throw the national health care system into chaos, or worried about the court’s reputation. It is not clear, however, which of these, if any, explains why he came out as he did.

The difficulty of understanding that historic vote is emblematic of something larger: just how hard it is to figure out who Roberts really is. With his square-jawed, no-hair-out-of-place looks and icy smile, he often resembles an animatronic version of a chief justice, with the dial set firmly to the right.

Who Roberts is and what he stands for are more important than ever since Anthony Kennedy retired last year and Brett Kavanaugh, who is more conservative, took his seat. Roberts is now both chief justice and the court’s swing justice — which means that, increasingly, the law is likely to be what he says it is.

Adam Cohen, a former member of The Times’s editorial board, is the author of “Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck.”

Palmer Report, Opinion: Senate Republicans are trying to hurry up and finish their dirty work before Donald Trump is ousted, Isabel Stamm, March 18, 2019. On March 12, the Senate confirmed Paul Matey as an appointee to the Third U.S. Circuit Court of Appeals in a vote that came down strictly along party lines. As a consequence, this court now has a 7—6 majority of Republican appointees, with one more pending vacancy.

bill palmer report logo headerThe next day, Senate Judiciary Committee Chairman Lindsey Graham conducted hearings for two Trump nominees to the Ninth Circuit against objections from the candidates‘ home state senators, Kamala Harris and Dianne Feinstein.

kamala harris portraitOn this occasion, Senator Harris, right, tweeted out: "Here’s what’s happening right now in the Senate Judiciary Committee: Neither @SenFeinstein nor I have returned blue slips for the two Ninth Circuit nominees from CA before us today. Republicans are disregarding this 100 year old tradition to push extreme & ideological nominees."

In the Senate, blue slips are a convention which allows the senators from the state of residence of a federal judicial nominee to give an opinion on the candidate which is then taken into account in the confirmation process.

There is no enforceable rule that obliges the Judiciary Committee to reject a nominee if one or both home state senators return a negative blue slip or fail to return blue slips altogether, but it is nevertheless a tradition that in the past both parties have had mitch mcconnell2the decency to uphold.

However, the current Senate under the leadership of Mitch McConnell, left, has chosen to ride roughshod over this tradition, as Senator Dianne Feinstein pointed out in a tweet referencing the confirmation of Paul Matey: "No Democratic majority has EVER held a hearing or confirmed a judicial nominee over the objection of a home-state Republican senator – NEVER. Matey will be the SEVENTH circuit court judge confirmed under President Trump over the objection of home-state Democratic senators."

As of March 13, the number has risen from seven to eight, since on that day the Senate Judiciary Committee also confirmed Neomi Rao as replacement for Brett Kavanaugh on the powerful D.C. Circuit Court, the second most important court in the country. Rao shares a number of characteristics with other Trump appointees in that she is controversial, young and has no experience when it comes to practicing law in a courtroom.

All these new judges who are strong on partisan ideology rather than having a proven record of impartially serving the American people now have lifetime appointments and the ability to influence the judicial system for decades to come. This will be the legacy of a presidency that never should have happened. But Republicans are obviously grimly determined to squeeze the last bit of juice out of Donald Trump’s incumbency before supporting him becomes too politically costly

March 12

ny times logoNew York Times, Reparations, Court-Packing: 2020 Democrats Debate Once-Fringe Issues, Sydney Ember and Astead W. Herndon, March 12, 2019. As the Democratic field moves to the left, grass-roots organizers see openings to push more niche issues like reparations, court-packing and eliminating the filibuster.

It was a made-for-social-media moment for Pete Buttigieg. In Philadelphia last month on his book tour, Mr. Buttigieg, the mayor of South Bend, Ind., and a Democratic candidate for president, fielded an unlikely question from the audience: “Would you support a packing of the courts to expand the Supreme Court by four members?”

The inquiry elicited titters from the politics-hungry crowd that appeared surprised by the question. But not from Mr. Buttigieg.

supreme court graphic“I don’t think we should be laughing at it,” he said. “In some ways it’s no more a shattering of norms than what’s already been done to get the judiciary to where it is today.”

His response drew immediate praise from liberal news outlets; ThinkProgress declared him the only Democratic candidate that seemed “serious about governing.” But if Mr. Buttigieg’s remarks were off-the-cuff, the question was not: It had been posed by a person involved with Pack the Courts, a liberal activist group that favors adding judges in order to flip the ideological tilt of the high court — known as court-packing.

February

Feb. 20

ny times logoadam liptakNew York Times, Supreme Court Puts Limits on Police Power to Seize Private Property, Adam Liptak (right), Feb. 20, 2019. Civil forfeiture is a popular way to raise revenue, and its use has been the subject of widespread criticism across the political spectrum. Justice Ruth Bader Ginsburg wrote that excessive fines have played a dark role in this nation’s history.

Siding with a small time drug offender in Indiana whose $42,000 Land Rover was seized by law enforcement officials, the Supreme Court on Wednesday ruled ruth bader ginsburg portraitthat the Constitution places limits on civil forfeiture laws that allow states and localities to take and keep private property used to commit crimes.

Civil forfeiture is a popular way to raise revenue, and its use has been the subject of widespread criticism across the political spectrum.

The Supreme Court has ruled that the Eighth Amendment, which bars “excessive fines,” limits the ability of the federal government to seize property. On Wednesday, the court ruled that the clause also applies to the states.

Justice Ruth Bader Ginsburg (left), writing for eight justices, said the question was an easy one. “The historical and logical case for concluding that the 14th Amendment incorporates the Excessive Fines Clause is overwhelming,” she wrote.

Feb. 19

ny times logoNew York Times, Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling, Adam Liptak, Feb. 19, 2019. Justice Clarence Thomas on Tuesday called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it hard for public officials to prevail in libel suits. He clarence thomas w new officialsaid the decision had no basis in the Constitution as it was understood by the people who drafted and ratified it.

New York Times and the court’s decisions extending it were policy-driven decisions masquerading as constitutional law,” Justice Thomas wrote.

Justice Thomas, writing only for himself, made his statement in a concurring opinion agreeing that the court had correctly turned down an appeal from Kathrine McKee, who has accused Bill Cosby of sexual assault. She sued Mr. Cosby for libel after his lawyer said she had been dishonest.

An appeals court ruled against Ms. McKee, saying that her activities had made her a public figure and that she could not prove, as required by the Sullivan decision, that the lawyer had knowingly or recklessly said something false. Ms. McKee asked the Supreme Court to review the appeals court’s determination that she was a public figure.

Feb. 14

linda greenhouse cover just a journalistny times logoNew York Times, Opinion: When Judges Defy the Supreme Court, Linda Greenhouse (shown on the cover of her memoir Just A Journalist), Feb. 14, 2019. The chief justice faces a time of great testing, both of himself and of the institution he heads, as the lower courts move rapidly even to his right. No, I wasn’t surprised last week, as most people apparently were, when Chief Justice John Roberts cast the deciding fifth vote to preserve access to abortion in Louisiana for at least a little while longer. In fact, I had predicted it (and I have witnesses).

The voluminous commentary on what happened at the court last week has for the most part not fully conveyed the blatant nature of the lower court’s decision, on which the Supreme Court put a temporary hold to afford the plaintiffs — an abortion clinic and its doctors — the chance to file a formal appeal.

The court is the United States Court of Appeals for the Fifth Circuit, based in New Orleans and covering Texas and Mississippi along with Louisiana. Not surprisingly given its territory, it has been the location of numerous legal battles over abortion. The Trump administration has been spectacularly successful in filling seats on the Fifth Circuit. Five of the 16 active judges are Trump appointees. That places the Fifth Circuit at the leading edge of the coming wave of Trump judges (sorry, Chief Justice Roberts, I’m afraid that’s what they are), so it’s important to understand what is going on there.

bill yeomans afj cropped CustomAlliance For Justice, Opinion: Brown, Upside-Down, Bill Yeomans (right), Feb. 14, 2019. Neomi Rao is the latest Trump judicial nominee to refuse to say whether she thinks Brown v. Board. of Education was correctly decided. She joins a growing list of Trump picks who refuse to endorse this iconic Supreme Court decision.

The stated reason is that they don’t want to start down a slippery slope of endorsing and rejecting decisions. That explanation is nonsense, since there are many sticky footholds along the descent from Brown to cases now pending in the courts. The more credible reason is that they don’t want to have to embrace or reject Roe v. Wade. Nor do they want to have to explain why they would endorse Brown, but refuse to opine on Roe, thereby consigning Roe to a less secure class of decisions.

alliance for justice logoBut, other recent, high profile Republican nominees, including Brett Kavanaugh, Neil Gorsuch, John Roberts, and Samuel Alito have been willing to praise Brown as an example of the Supreme Court at its best. They all faced the same concerns about Roe, yet plowed ahead on Brown. If they could do it, why not circuit court nominees Rao, Chad Readler, or Andrew Oldham, or a series of district court nominees? Is there something more that is pushing them away from Brown or that makes its embrace no longer politically necessary?

The truth is that conservatives never fully embraced Brown. The Court’s decision striking down laws requiring racial segregation of schools was met with massive resistance by people living in affected states, conservative politicians, and conservative intellectuals. President Eisenhower was no fan. Barry Goldwater opposed the decision. William F. Buckley rejected the Court’s reasoning.

Appeals to resisters of Brown lay at the core of Nixon’s southern strategy. The drive to appoint ideologically conservative judges was born, in significant part, out of reaction to Brown and Roe v. Wade.

Supreme court 2018 Mandel Ngan/AFP)

With another Supreme Court vacancy, or two, President Trump’s record and influence on the future of the country will look even more secure. (photo: Mandel Ngan/AFP)

jeffrey toobinNew Yorker, Is Clarence Thomas Ready to Go? Jeffery Toobin (right), Feb. 14, 2019. No one tells a Supreme Court Justice when to retire. But there are currently two new yorker logoretirement dramas under way at the Court — one semi-public and the other semi-private — and they both have the potential to reshape the meaning of the Constitution for decades.

The public story is that of Ruth Bader Ginsburg, the Court’s senior liberal. Late last year, she fell and broke three ribs and, when she was being treated, doctors discovered that she had lung cancer, her third bout with cancer. She underwent surgery, apparently successfully, and the Court released word that she would need no further treatment. But, in January, she missed oral arguments for the first time in twenty-five years on the Court, and there is no guarantee that she will be there when the Justices next hear cases, on February 19th. Still, the retirement drama regarding Ginsburg is straightforward. She will hang on for as long as she can, in the hopes that a Democratic President will appoint her successor after the 2020 election.

clarence thomas HRThe more complex drama involves Clarence Thomas, who is seventy years old and the longest-tenured Associate Justice on the Court. With fifty-three Republicans now in the Senate (and no filibusters allowed on Supreme Court nominations), President Trump would have a free hand in choosing a dream candidate for his conservative base if Thomas were to retire this year. The summer of 2019 would seem an ideal time to add a third younger conservative to the Court (along with Neil Gorsuch, who is fifty-one, and Brett Kavanaugh, who is fifty-four). It’s true that Mitch McConnell, the Senate Majority Leader, would likely violate his Merrick Garland rule and try to push through a nominee in 2020, an election year, but 2019 would be much easier to navigate. So, many conservatives are asking, why shouldn’t Thomas leave now?

It seems that the President may have had the same thought. Trump has shown unusual solicitude for Justice Thomas and his wife, Ginni, a hard-right political activist. The President and the First Lady had the Thomases to dinner, and then Trump welcomed Ginni and some of her movement colleagues to the White House for an hour-long discussion.

djt brett kavanaugh amy coney barrettBut will Thomas retire? Over the years, he has made little secret of the fact that he doesn’t enjoy the job very much. With a conservative future of the Court secure, why wouldn’t he call it a day after twenty-eight years? Because, according to his friends, he feels an obligation to continue doing the job for as long as he is able, regardless of the political implications of his departure. Of course, no one except Thomas knows for sure what he will do, and that leaves his decision open to speculation.

There seems little doubt, however, about what would happen if either he or Ginsburg leaves in the next year or two. The President would likely nominate as a replacement Amy Coney Barrett, a forty-seven-year-old judge on the Seventh Circuit. A former professor at Notre Dame Law School, Barrett was nominated to the appeals court by Trump, in 2017, and she has already been considered for a Supreme Court seat — the one that went to Kavanaugh. (Barrett and Kavanaugh are shown together in a graphic last summer before Kavanaugh's nomination.).

Feb. 8

U.S. Supreme Court: Abortion, Trends

ny times logoNew York Times, Supreme Court Blocks Louisiana Abortion Law, Adam Liptak, Feb. 8, 2019 (print edition). The Supreme Court on Thursday blocked a Louisiana law that its opponents say could have left the state with only one doctor in a single clinic authorized to provide abortions.

john roberts oThe vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing to form a majority. That coalition underscored the pivotal position the chief justice has assumed after the departure last year of Justice Anthony M. Kennedy, who used to hold the crucial vote in many closely divided cases, including ones concerning abortion.

The court’s brief order gave no reasons, and its action — a temporary stay — did not end the case. The court is likely to hear a challenge to the law on the merits in its next term, which starts in October. Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh said they would have denied the stay. Only Justice Kavanaugh published a dissent, taking a middle position that acknowledged the key precedent and said he would have preferred more information on the precise effect of the law.

ny times logoNew York Times, With Abortion in Spotlight, a Flurry of Legislation Across the Country, Julia Jacobs and Matt Stevens, Feb. 8, 2019. The Supreme Court on Thursday blocked a Louisiana law that its opponents say would leave the state with a single doctor authorized to perform abortion, the latest development in the national legal fight over the fate of abortion law under a conservative-leaning court.

brett kavanaughLouisiana’s law, which requires that doctors performing abortions have admitting privileges at nearby hospitals, was enacted in 2014. But in recent days and weeks, there has been a flurry of new state legislation that could prove important if the nation’s highest court rules on more abortion-related cases.

Since the nomination of Brett M. Kavanaugh (left) to the Supreme Court in July, abortion rights groups have warned of a threat to Roe v. Wade, the landmark 1973 ruling that made abortion legal nationwide, prompting some states to try to shore up access to the procedure. Anti-abortion groups have been pushing for more restrictions.

Here is the status of some recent state abortion legislation.

washington post logoWashington Post, Opinion: The biggest losers in the Supreme Court’s abortion ruling, Jennifer Rubin (right), jennifer rubin new headshotFeb. 8, 2019. States are passing new abortion laws in a test of the Supreme Court's new majority. The Supreme Court on Thursday in a 5-4 decision blocked a Louisiana law that would have, in effect, barred most abortions. Chief Justice John G. Roberts Jr. sided with the four Democratic-appointed justices; the other Republican-appointed justices, including Neil Gorsuch and Brett M. Kavanaugh, voted to uphold the law.

The decision was a triumph for abortion rights advocates in several respects. Ilyse Hogue, head of NARAL Pro-Choice America, tweeted:

susan collins oHogue told me, “Susan Collins (left) gaslighted millions of Americans claiming we were hysterical in believing that Justice Kavanaugh would vote to overturn precedent ... His decision in the Louisiana case proves us correct.” She added, “Senator Collins, you broke it, you bought it.” (In fact, the Republican senator from Maine voted for both Gorsuch and Kavanaugh, creating a huge political problem for her should she run for reelection in 2020.)

The ruling is especially significant since abortion rights opponents swore up and down that eradicating Roe v. Wade wasn’t on the table. It certainly was, and their credibility has taken a hit.

Most important is what the decision tells us about the Supreme Court’s shifting alliances. Increasingly concerned about the Supreme Court’s credibility and the appearance of partisanship, Roberts joined up for the first time to protect abortion rights, something previously unimaginable. Should Roberts follow course on other issues, in essence stepping into the Justice Anthony Kennedy role as a persuadable justice, President Trump’s effort to refashion the court for a generation will be diminished.

Feb. 7

washington post logoWashington Post, Barr’s attorney general nomination clears Senate panel. If confirmed, he would oversee Mueller probe, Matt Zapotosky​, Feb. 7, 2019. The procedural step sets the stage for William P. Barr’s confirmation vote next week before the entire Senate.

The Senate Judiciary Committee voted Thursday along party lines to advance William P. Barr’s nomination to become attorney general, a procedural step that sets the stage for his confirmation vote next week before the entire Senate.

Because Republicans control the Senate, Barr is likely to be confirmed easily — though potentially without any Democratic support. At the Judiciary Committee’s hearing richard blumenthal portraitThursday, all 10 panel Democrats voted against moving the nomination forward, while all 12 Republicans voted to advance it.

Democrats said they were particularly concerned that Barr would not specifically commit to letting the public see whatever report results from the special-counsel investigation into President Trump’s campaign.

“They paid for it,” said Sen. Richard Blumenthal (D-Conn., right), who has co-sponsored a bill requiring the findings be released. “They deserve to see everything that’s in it.”

washington post logoWashington Post, Whitaker says he won’t testify before House panel unless Democrats drop subpoena threat, Karoun Demirjian and Devlin Barrett, Feb. 7, 2019. The House Judiciary Committee voted to give its chairman the authority to subpoena the acting attorney general, should he fail to appear or answer lawmakers’ questions.

Acting Attorney General Matthew G. Whitaker said he will not appear before Congress on Friday without assurances that he won’t be subpoenaed — giving Democrats a deadline of 6 p.m. Thursday to respond.

Whitaker’s move came shortly after the House Judiciary Committee voted along party lines to give its chairman the authority to subpoena Whitaker’s testimony, should he not appear or answer lawmakers’ questions.

[Read the Justice Department’s letter to the House Judiciary Committee]

The confrontation highlights efforts by Democrats to assert their newfound control of the House of Representatives as a check on the Trump administration’s power, and the administration’s determination to push back against congressional investigations decried by the president. However the Whitaker subpoena standoff ends, it may set the tone for months or years more of wrangling between the White House and congressional Democrats.

Alliance for Justice, Opinion on Justice in the Trump Era, H.R. 1 and Brett Kavanaugh, Bill Yeomans, Feb. 7, 2019. Democrats are kicking off the new Congress with hearings on H.R. bill yeomans afj cropped Customalliance for justice logo1, the For the People Act of 2019. The bill contains a blueprint for strengthening democracy through reforms in voting, campaign finance, and ethics in all three branches of government. It is massive, ambitious and long overdue. The bulk of the bill addresses access to the ballot and how to make those votes meaningful.

Buried deep in the lengthy proposal, however, there appears a longstanding proposal, discussed in excellent testimony, to subject Supreme Court justices to a code of conduct for the first time. That provision provides the occasion for a crucial examination of the health of the Supreme Court, including the challenges raised by its newest member.

brett kavanaugh.judgeLBrett Kavanaugh (left) was confirmed by a Senate in which partisan fealty and a commitment to radically conservative ideology steamrolled concern about the integrity of the Court. The severely truncated process installed a nominee who was credibly accused of sexual assault. He lied to the Senate Judiciary Committee about a range of other matters, from his denial that he knowingly received memos stolen from Democratic Judiciary Committee staffers to the meaning of entries in his high school yearbook.

His hearing proceeded without production of 90% of his official paper trail and the FBI was not permitted to conduct a full probe of the sexual assault allegations against him. His second appearance before the committee featured angry, partisan, injudicious attacks – by the nominee. The process left a bitter aftertaste for anyone concerned about the future of the Court.

H.R. 1 offers the opportunity to put that aftertaste to work. Kavanaugh serves as the poster child for reforms to the Court’s ethics. Kavanaugh’s confirmation cemented the image of the Court as a profoundly political institution. It continued the decades-long alliance between conservative politicians and the conservative legal movement to stock courts – and particularly the Supreme Court – with judges and justices who would apply conservative legal ideology to implement a conservative political agenda.

January

Jan. 22

 Supreme Court / Transgender

washington post logoWashington Post, Supreme Court allows Trump restrictions on transgender troops to go into effect as legal battle continues, Robert Barnes and Dan Lamothe​, Jan. 22, 2019. In a 5-to-4 decision, the justices lifted nationwide injunctions that had kept the administration’s policy from being implemented.

Jan. 5

washington post logoWashington Post, How the Federalist Society became much more than the conquerors of the courts, David Montgomery, Jan. 5, 2019. The conservative and libertarian society for law and public policy studies has reached an unprecedented peak of power and influence. Brett brett kavanaughKavanaugh (right), whose membership in the society dates to his Yale Law School days, has just been elevated to the Supreme Court; he is the second of President Trump’s appointees, following Neil Gorsuch, another justice closely associated with the society.

They join Justice Clarence Thomas (who said last spring he’s “been a part of the Federalist Society now since meeting with them … in the 1980s”), Chief Justice John Roberts (listed as a member in 1997-98) and Justice Samuel Alito (a periodic speaker at society events).

The newly solidified conservative majority on the court will inevitably decide more cases in line with the society’s ideals — which include checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning. In practice, this could mean fewer regulations of the environment and health care, more businesses allowed to refuse service to customers on religious grounds, and denial of protections claimed by newly vocal classes of minorities, such as transgender people.

Jan. 4

washington post logoWashington Post, Supreme Court to hear cases on partisan gerrymandering, Robert Barnes, Jan. 4, 2018. The justices will review rulings from lower courts that found congressional maps in North Carolina and Maryland so infected with politics that they violated voters' rights.

The Supreme Court once again will take up unresolved constitutional questions about partisan gerrymandering, agreeing Friday to consider rulings from two lower courts that found congressional maps in North Carolina and Maryland so extreme that they violated the rights of voters.

The North Carolina map was drawn by Republicans, the Maryland districts by the state’s dominant Democrats.

While the Supreme Court regularly scrutinizes electoral districts for racial gerrymandering, the justices have never found a state’s redistricting map so infected with politics that it violates the Constitution. Such a decision would mark a dramatic change for how the nation’s political maps are drawn.

Jan. 2

supreme court building

SCOTUSblog, Wednesday round-up, Edith Roberts, Jan. 2, 2018. On Monday evening, Chief Justice John Roberts released his year-end report on the federal judiciary. Amy Howe writes for this blog that the report “focus[ed] on the judiciary’s response to allegations of sexual misconduct in the workplace.”

At Law.com, Tony Mauro notes that “[i]t was the second annual report in which Roberts discussed the need for the judiciary to take steps to end sexual harassment in the workplace and to make it easier for court employees to report improper conduct without running afoul of strict confidentiality rules.” For The Wall Street Journal, Jess Bravin reports that “[t]he Supreme Court itself isn’t bound by the federal laws and codes of conduct that apply to lower courts,” and “[t]he report gave no indication that the justices were prepared to accept the obligations expected of lower courts.” Bill Mears reports for Fox News that “[w]hat was noteworthy in the 15-page report was a topic Roberts chose not to discuss: the ongoing criticism by President Trump of judges and courts that have ruled against him, especially on his immigration policies.”

Lydia Wheeler reports for The Hill that although the “Supreme Court’s 2018-2019 term got off to a sleepy start, … there are a number of potential blockbusters on the docket for the new year”; she takes “a look at the top five cases to watch.” In an op-ed for Fox News, John Yoo and James Phillips explain why “[t]he year ahead has the potential to be historic for the U.S. Supreme Court.”

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