Supreme Court Watch

[ti-amie]

Anyway, the concept that the SCOTUS is a non political entity is a very hard concept to sell.

It never used to be thought of as a political body until Bush vs Gore. The late Sandra Day O'Connor said publicly that they shouldn't have gotten involved in that situation.

The late RBG thought she was doing the Dems a solid by holding on as long as she did but in the end she ended up giving TFG a pick he shouldn't have had.

Back in the day you would never see the likes of Alina what's her name who is TFG's latest pinup, telling Kavanaugh point blank that he knows they have the goods on him - all of the tips from the public about him went to TFG campaign and not the FBI so they do have all the goods on him - and that he had better vote a certain way.

A SCOTUS justice back in the day would have recused himself and/or resigned from the bench once it was known that his wife was neck deep in planning the January 6 coup attempt. Forget about said justice shaking down backers...

A SCOTUS justice back in the day would never have "allegedly" leaked his own opinion striking down what had been settled law for 50+ years.

The old court ruled strictly on the law - precedents and opinions that had existed for centuries, and not issued opinions that were just that - opinions with no basis in settled law.

Sigh.

[dave g]

"The old court ruled strictly on the law - precedents and opinions that had existed for centuries, and not issued opinions that were just that - opinions with no basis in settled law."

Accept some of those precedents and opinions were pretty ugly, back in their day; most noticable Dread Scott.

[ti-amie]

"The old court ruled strictly on the law - precedents and opinions that had existed for centuries, and not issued opinions that were just that - opinions with no basis in settled law."

Accept some of those precedents and opinions were pretty ugly, back in their day; most noticable Dread Scott.

The Dred Scott decision will always stand in infamy as one of the worst decisions made by the Supreme Court.

The decision of Scott v. Sandford, considered by many legal scholars to be the worst ever rendered by the Supreme Court, was overturned by the 13th and 14th amendments to the Constitution, which abolished slavery and declared all persons born in the United States to be citizens of the United States.

https://www.archives.gov/milestone-docu ... d%20States.

[ponchi101]

I have always disliked the concept of precedent. If that is something you take into consideration, then the status quo will always have an advantage.
And we know how that goes when it comes to discrimination and unfair laws.

[ti-amie]

Justice Sotomayor speaks on frustration following some Supreme Court rulings
By Devan Cole, CNN
Updated 7:27 PM EST, Mon January 29, 2024


CNN
—
Supreme Court Justice Sonia Sotomayor opened up on Monday about the “frustration” she said she experiences daily as the high court’s conservative supermajority continues to move the country further to the right.

“I live in frustration. And as you heard, every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting,” Sotomayor, the court’s senior liberal member, said at an event at the University of California, Berkeley School of Law.

“How can you look at those people and say that you’re entitled to despair? You’re not. I’m not,” she said, responding to a question from the school’s dean about how students there increasingly feel discouraged by the current court and how it’s shaping American law. “Change never happens on its own. Change happens because people care about moving the arc of the universe toward justice, and it can take time and it can take frustration.”

The comments from Sotomayor come as the majority-conservative high court is poised to issue rulings on a number of contentious issues, including gun rights and the power of federal agencies. The court’s liberal members have found themselves on the losing side of numerous blockbuster cases in recent years after former President Donald Trump appointed three conservatives justices, and Sotomayor has often publicly bemoaned her colleagues’ decisions in those matters.

Just last week, after the court cleared the way for Alabama to carry out the first-ever execution of a death row inmate by nitrogen gas, Sotomayor voiced her opposition to the move in a strongly worded dissent that underscored her “deep sadness” over the court’s order.

“Having failed to kill Smith on its first attempt, Alabama has selected him as its ‘guinea pig’ to test a method of execution never attempted before,” she wrote in dissent. “This Court yet again permits Alabama to ‘experiment … with a human life.’”

Liberal Justices Elena Kagan and Ketanji Brown Jackson also publicly dissented from the court’s order that allowed Kenneth Smith’s execution to move forward.

During Monday’s event, Sotomayor waded into other topics related to the court, including the impact of oral arguments on a justice’s vote. At one point, she criticized some criminal defense attorneys who she said have occasionally done a poor job of advocating before the high court.

“I can’t tell you how often I’ll look at (Justice) Neil Gorsuch and I’ll send him a note and say, ‘I want to kill that lawyer.’ Because he or she didn’t give up that case. Because by the time you come to the Supreme Court, it’s not about your client anymore. It’s not about their case,” she said. “It’s about how that legal issue will affect the development of law and how you pitch it – if you pitch it too broadly, you’re gonna kill the claims of a whole swath of people.”


https://edition.cnn.com/2024/01/29/poli ... index.html

[ti-amie]

The Supreme Court’s “Unanimous” Trump Ballot Ruling Is Actually a 5–4 Disaster
BY MARK JOSEPH STERN
MARCH 04, 202411:56 AM

On Monday, the Supreme Court unanimously reversed a Colorado Supreme Court decision removing Donald Trump from the ballot because of his engagement in an insurrection on Jan. 6. But that top-line holding is where the unanimity ended because five conservative justices just couldn’t help themselves: They went much further than the case required, announcing an entirely new rule that Congress alone, through “a particular kind of legislation,” may enforce the constitutional bar on insurrectionists holding office. As the three liberal justices pointed out, in a separate opinion that glows white-hot with indignation, the majority’s overreach “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” They are, of course, correct. After this decision, it is impossible to imagine a federal candidate, up to and including the president, ever being disqualified from assuming office because of their participation in an insurrection.

Monday’s case, Trump v. Anderson, is proof positive that the Supreme Court can act at rapid speed to resolve a dispute of national importance—at least when Trump’s own interests are under threat. The Colorado Supreme Court disqualified Trump on Dec. 19. SCOTUS took up the case on Jan. 5 and heard arguments on Feb. 8. Now, less than a month later, the justices have resolved the case in Trump’s favor. The court’s ultra-accelerated consideration of Anderson sits in sharp contrast with its treatment of Trump’s claim of absolute immunity in his criminal trial over Jan. 6, which the justices have, by comparison, slow-walked to the point that it appears unlikely the former president could face trial before November. This disparity alone may provide a clue that there is something other than law afoot in these cases.

Anyone in need of another clue can look to the majority’s unsigned opinion in Anderson shielding Trump from removal by the states. This case involved a genuinely difficult dispute: Section 3 of the 14th Amendment, enacted in the wake of the Civil War, bars former insurrectionists from reclaiming office but does not explain how this bar should operate. A group of voters urged the Colorado courts to enforce the amendment on their own, under a state law that lets voters challenge any candidate’s legal qualifications for office. The Colorado Supreme Court heeded the call and dumped Trump from the ballot. All nine justices have now agreed that states may not unilaterally disqualify a presidential candidate. Doing so, they reasoned, would allow a handful of states to effectively determine the outcome of a presidential election, undermining the inherently national nature of both the election and the presidency itself. The Constitution’s division of authority between the federal and state governments cannot permit a state’s go-it-alone effort to disqualify a federal candidate who’s running to represent the entire country.

That, however, is where the agreement ends. Five justices—Chief Justice John Roberts, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—went further: They declared that only Congress may enforce the insurrection clause against federal candidates. How, exactly? The majority says that Congress must “prescribe” specific procedures to “ascertain” when an individual is disqualified under the 14th Amendment. Such procedures, of course, do not exist today. And without them, the majority insists—in just a few paragraphs of sparse reasoning—the insurrection clause cannot be enforced against office seekers. It derives this conclusion from two primary sources: “Griffin’s Case,” an 1869 opinion written by Chief Justice Salmon Chase, acting as a circuit judge, and Section 5 of the 14th Amendment, which says, “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

The three liberal justices wrote a separate opinion, authored jointly, to explain why this reasoning fails. First, Griffin’s Case was, until Monday, widely discredited as the political handiwork of a chief justice plotting to run for the presidency as a great conciliator between North and South. It is “a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge,” as the liberal justices wrote. Moreover, Sen. Lyman Trumbull, an author of the 14th Amendment, resisted the logic of Griffin’s Case, declaring that while congressional legislation might provide a “more efficient and speedy remedy” for disqualifying a candidate, it is the 14th Amendment itself that “prevents a person from holding office.”

Second, it is bizarre to claim that the insurrection clause requires enabling legislation by Congress when the remainder of the 14th Amendment—indeed, all three amendments ratified after the Civil War—is “self-executing” (meaning it does not require congressional action for enforcement). Everyone agrees that Congress need not pass a law to ensure that all persons have due process, equal protection, and freedom from enslavement. Why, the liberals wondered, did the majority create “a special rule” for the insurrection clause alone? They added that the clause does mention congressional action, but only to say that Congress may lift a disqualification by two-thirds vote: “It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation.”

These disagreements matter a great deal. As the liberals point out, the majority’s sweeping Congress-only approach “forecloses judicial enforcement” of the insurrection clause—in, for instance, the context of a criminal trial involving an insurrectionist. It also bars future enforcement on the basis of “general federal statutes” that compel “the government to comply with the law,” since the majority says any congressional enforcement must be “tailored” to the insurrection clause. And it even empowers the Supreme Court to prevent Congress from disqualifying an insurrectionist in the future, because the court can claim that any enabling legislation did not adhere to the made-up rules in Monday’s opinion. By blocking off these pathways, the liberals wrote, the majority “foreclose future efforts to disqualify a presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.” They continued:

Section 3 serves an important, though rarely needed, role in our democracy. The American people have the power to vote for and elect candidates for national office, and that is a great and glorious thing. The men who drafted and ratified the Fourteenth Amendment, however, had witnessed an “insurrection [and] rebellion” to defend slavery. They wanted to ensure that those who had participated in that insurrection, and in possible future insurrections, could not return to prominent roles. Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.

Notably, the liberals actually had Justice Amy Coney Barrett on their side too. She authored a separate opinion expressing her disapproval of the majority’s overreach but declining to say more because “the court should turn the national temperature down, not up.” So, in effect, Anderson is a 5–4 decision, with a bare majority effectively repealing the insurrection clause for federal officeholders. The liberals’ disapproving citations to Bush v. Gore and Dobbs give a sense of how disastrously they believe the majority went astray.

It should go without saying that Congress will not enact legislation enforcing Section 3. The Republican Party is about to renominate the alleged insurrectionist in this case as its candidate for the presidency in 2024. The party is complicit in the violent events of Jan. 6. It will not allow any insurrection-related laws to clear the Senate filibuster. The whole point of a written constitution is that it can protect individual rights and democracy even when the democratic process itself is corrupted or compromised. SCOTUS has backtracked from that guarantee just when American democracy needs it most.

In their incandescent opinion, the liberal justices walk right up to the line of accusing the majority of doing a special favor for Trump. They are right to do so, and they would have been justified to cross it. The majority had no reason to nullify the insurrection clause other than an obvious desire to ensure that no other federal candidates are nixed from the ballot because of their participation in Jan. 6. An optimist might say that by doing so, the majority was just trying to inject stability into the upcoming election. But close court-watchers know that every time this Supreme Court waves the flag of stability, it does so on behalf of Trump and his allies. Anderson’s bottom-line outcome is certainly defensible. But the rest of it serves as an unwarranted gift to Donald Trump and the oathbreakers who violently assisted his efforts to overturn a free and fair election.

https://slate.com/news-and-politics/202 ... aster.html

[ti-amie]

Supreme Court Inadvertently Reveals Confounding Late Change in Trump Ballot Ruling
BY MARK JOSEPH STERN
MARCH 04, 2024 4:58 PM

The Supreme Court’s decision on Monday to keep Donald Trump on Colorado’s ballot was styled as a unanimous one without any dissents. But the metadata tells a different story. On the page, a separate opinion by the liberal justices is styled as a concurrence in the judgment, authored jointly by the trio. In the metadata of the link to the opinion posted by the court, however, this opinion is styled as an opinion concurring in part and dissenting in part, authored not by all three justices but by Sonia Sotomayor alone. Even a techphobic reader can discern this incongruity through careful copying and pasting, piercing the facade of unanimity that the conservative justices sought to present.

What happened? Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. The court, after all, scheduled the opinion’s release only one day earlier, on Sunday afternoon, evidently to hand it down before Tuesday’s Colorado primary. Moreover, the justices did not take the bench to announce the opinion, as they usually do—probably because they had not all planned to be in D.C.—further proving that it was a last-minute release. The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?

We cannot know with any real certainty. We may never. But we can certainly speculate!

First, a recap: The Supreme Court ruled that an individual state may not disqualify a presidential candidate from the ballot under Section 3 of the 14th Amendment, which bars insurrectionists from regaining public office. All nine justices agreed with this bottom line. Five justices went further, however, declaring that only Congress may enforce Section 3 against federal candidates. In a brief opinion, Justice Amy Coney Barrett said the court should not have reached this broader question about congressional authority. Sotomayor made the same point in a longer, more acerbic opinion joined by Justices Elena Kagan and Ketanji Brown Jackson. Her opinion was styled as a concurrence, but we now know that it was actually, probably until late in the drafting process, labeled a dissent. We also know that the opinion was originally ascribed only to Sotomayor.

Now the speculation: We can guess that the bulk of this opinion was authored by Sotomayor herself. It bears some of the justice’s trademarks, including a realpolitik assessment of the majority’s handiwork and stormy rhetoric about its consequences for democracy. In addition, during oral arguments last month, Sotomayor sounded the most skeptical of Trump and his various legal theories. Perhaps, after arguments, the court convened to vote on the case, and a majority settled on a sweeping rationale in Trump’s favor. Sotomayor then moved forward with a dissent faulting the majority’s overreach. At some point, that dissent turned into the opinion “concurring in the judgment” that we saw on Monday.

Which leads to a second question: Why did a stand-alone Sotomayor dissent transform into a three-justice concurrence? Here, the most rational intuition is that Kagan and Jackson were keeping their votes fluid in the hopes of striking a bargain to avert a gratuitously broad opinion effectively repealing the insurrection clause. This bargain may have been simple; the two justices might have joined with Barrett to seek a fifth vote for a narrow holding, presumably from Roberts. All the while, Sotomayor worked on the fallback option: a partial dissent chastising the majority’s overreach. When Kagan and Jackson realized they couldn’t nab a fifth vote for the narrow position, they teamed up with Sotomayor, making a few changes and signing their names as authors in a show of force and agreement within the progressive bloc. (The description of presidential elections as “a great and glorious thing,” for example, sounds like the work of Kagan or Jackson, not Sotomayor.)

Broaden the scope of the potential negotiations, though, and things get more interesting. After oral arguments, many smart court watchers mused that the justices might reach a grand bargain that tied this case to a separate dispute involving Trump’s claim of immunity from criminal prosecution for election subversion. The liberal justices might agree to keep Trump on the ballot if the court also refused to take up the immunity case. There would be an exchange of votes: Trump stays on the ballot but gets no immunity from prosecution. He could run in all 50 states but would also have to contend with a criminal trial that would likely conclude before the election.

That, of course, didn’t happen: The court sided with Trump on the ballot issue and took up his immunity case last week on a less-than-speedy timeline, helping him run out the clock to November. But maybe Kagan and Jackson were working behind the scenes to strike this grand bargain. Maybe they were withholding their votes in both cases, scrambling to find two conservative justices who would rule narrowly for Trump in one case and swiftly against him in the other. If so, that didn’t happen. But it would still make sense for Kagan and Jackson to withhold their votes in both cases until they got confirmation that no compromise lay on the horizon in either dispute.

Then there is the least interesting possibility: that Sotomayor’s opinion was going to be a partial dissent until Roberts and Barrett prevailed upon her to call it a concurrence—in a bid to look unanimous and “turn the national temperature down” (in Barrett’s words). It’s frankly difficult to see Sotomayor, an independent-minded and principled jurist, buying into this stratagem if she got nothing out of it. And this theory doesn’t explain why the other two liberals signed on as authors apparently so late in the game.

But there is always another bargain to seek, another compromise to pursue. Who knows what these three justices might have received in exchange for removing the word dissent from this opinion. Maybe they needed to call the opinion a concurrence to wrench a separate opinion out of Barrett, one she might not have offered otherwise, criticizing the majority. Barrett strived to frame the outcome as a reflection of friendly unanimity; perhaps she threatened to paper over her disagreement unless the liberals dropped the word dissent to keep up the facade of cross-ideological agreement. Or maybe Barrett was on the fence about whether to grant Trump a full stay in his immunity case and push the case onto next term’s docket, instead of hearing it on a marginally expedited basis this term. If so, perhaps the “concurrence” language was the price of her vote there. Whatever the liberals were able, or not, to eke out of the conservative justices, it appears to have been thin gruel indeed.

Such guesswork is ultimately somewhat of a fool’s errand, but it’s irresistible when the Supreme Court leaves such a big clue dangling in the metadata. (I asked the court for comment on Monday but have not yet received a response.) Whatever happened behind the scenes, the final product is plenty fractured on its own terms. The liberal justices can call their opinion whatever they want. At the end of the day, it reads exactly like what it is: a furious and fearful dissent.

https://slate.com/news-and-politics/202 ... ssent.html

[Owendonovan]

In this post pandemic world, I've noticed that straight, white men, especially in power, have clawed back all the good will, power, and decency that was rising in those who aren't straight white men in America. I can't help but feel a much more violent America on the horizon because of those men.

[patrick]

In this post pandemic world, I've noticed that straight, white men, especially in power, have clawed back all the good will, power, and decency that was rising in those who aren't straight white men in America. I can't help but feel a much more violent America on the horizon because of those men.

Especially if a certain person was to repeat 2016 as that person, McConnell and others stacked the courts. McConnell is responsible for the first one as he stated no one gets nominated in an election year. However, McConnell dropped that clause by electing Barrett in 39 days.

[ti-amie]

In this post pandemic world, I've noticed that straight, white men, especially in power, have clawed back all the good will, power, and decency that was rising in those who aren't straight white men in America. I can't help but feel a much more violent America on the horizon because of those men.

I wish I could disagree. They want pre WW2 United States.

[ti-amie]

[ponchi101]

It is not a huge scandal because the SCOTUS has slowly stopped being the true independent branch of government, They are an arm of the GOP, and that has been known for ages.
So, nothing new.

[Owendonovan]

I feel a liberal court will almost always defer to the needs of the general populace before any special interest. (with history as a gauge)

[ti-amie]

Lisa Rubin
@lawofruby
·
3h
You might be hearing that a president still could be prosecuted even for official acts if the presumption of immunity is rebutted. But that ignores three more granular features of the opinion that are akin to prosecutorial roadblocks. 1/

First, the bar to rebut that presumption is HIGH. The court says the question to ask is whether prosecuting the official act in question “would pose any dangers of intrusion on the authority and functions of the Executive Branch.” 2/

Second, the government can never use evidence of official acts that don’t clear that bar. Put another way, if it can’t be charged, it can’t come in, even to inform the jury’s understanding of a president’s knowledge or intent. 3/

What does that mean practically? Think about the various times that DOJ officials told Trump he had lost and/or that there was no widespread evidence of fraud justifying further investigations or action. All of those instances are off the table as trial evidence now. 4/

And third, in determining what is and is not official, courts cannot consider a president’s motive or purpose. A president raids the home of a political rival because of their beef, not because of any legitimately suspected criminal activity? The beef is irrelevant legally. 5/

Today’s decision forces Jack Smith and future prosecutors to do their jobs with both hands tied behind their backs even as to the small slice of conduct that might be fair game. And that, in and of itself, is not fair game at all. 6/

Moreover, before even getting to the divide between official and unofficial acts, the court confers absolute immunity for the president’s “exercise of his core constitutional powers. Don’t sleep on that either; we’ll see plenty of litigation ahead about what’s in that bucket. 7/

The bottom line: The majority has not put a thumb of the scale for former President Trump; they’ve put their whole hand on it.

[ti-amie]

Katie Phang
@KatiePhang
The majority opinion critically rules that the Government cannot use evidence of a president's official conduct during a jury trial "to help secure his conviction, even on charges that purport to be based only on his unofficial conduct." They says that "the 'intended effect' of immunity would be defeated."

As such, prosecutors cannot present that evidence to the jury.