Has SCOTUS no shame

[Rach3]

Frat boys always like free food and drinks, especially with their brothers:

https://www.yahoo.com/news/supreme-cour ... 31909.html

[Belle]

"No shame"? A very puritan phrase and a throwback to the 1950s and the censorious religious right.

[Rach3]

"No shame"? A very puritan phrase and a throwback to the 1950s and the censorious religious right.

Wrong - again.

https://www.history.com/this-day-in-his ... -his-match

[Rach3]

Right-wing nuts and gun-nuts Alito and Thomas encourage litigants ( a BIG impartial justice and ethical no-no ) to challenge 2nd Circuit's decision to stay a lower Court's ruling where the lower Court decided New York's restrictive State laws on carrying guns outside one's home violated the Federal 2nd Amendment :

IVAN ANTONYUK, ET AL. v. STEVEN NIGRELLI, IN HIS OFFICIAL CAPACITY AS ACTING SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL.

ON APPLICATION TO VACATE STAY [January 11, 2023]

The application to vacate stay presented to JUSTICE SOTOMAYOR and by her referred to the Court is denied.

Statement of JUSTICE ALITO, with whom JUSTICE THOMAS joins, respecting the denial of the application to vacate stay:

The New York law at issue in this application presents novel and serious questions under both the First and the Second Amendments. The District Court found, in a thorough opinion, that the applicants were likely to succeed on a number of their claims, and it issued a preliminary injunction as to twelve provisions of the challenged law. With one exception, the Second Circuit issued a stay of the injunction in full, and in doing so did not provide any explanation for its ruling. App. to Emergency Application 2. In parallel cases presenting related issues, the Second Circuit has likewise issued unreasoned summary stay orders, but in those cases it has ordered expedited briefing. See, e.g., Order in Hardaway v. Nigrelli, No. 22–2933 (CA2, Dec. 7, 2022), ECF Doc. 53; Order in Christian v. Nigrelli, No. 22– 2987 (CA2, Dec. 12, 2022), ECF Doc. 40.

I understand the Court’s denial today to reflect respect for the Second Circuit’s procedures in managing its own docket, rather than expressing any view on the merits of the case. Applicants should not be deterred by today’s order from again seeking relief if the Second Circuit does not, within a reasonable time, provide an explanation for its stay order or expedite consideration of the appeal.

[Belle]

Saucing the goose and the gander
EDITORIAL

Joe Biden may well have been surprised by the discovery of a batch of 10 highly classified documents in an office in Washington he used after his two terms as US vice-president ended in 2017. He “didn’t know they were there”, he was quoted as saying on Tuesday. He was referring to files about Ukraine, Iran and Britain that were designated “sensitive compartmented information”, a category above top-secret. The President’s legal team reportedly found additional classified documents when it subsequently searched a second location.

Mr Biden must be subjected to the same rigorous scrutiny Donald Trump faced following the discovery last November of hundreds of classified documents at Mar-a-Lago, his Florida home. Differences between the two top-level security breaches abound. In 2017 Mr Biden was vice-president, not president. He had no authority to declassify documents, as Mr Trump claims he did with the Mar-a-Lago files. Mr Biden, it seems, had far fewer documents and, unlike Mr Trump, there was no acrimonious wrangling for months with the US National Archives, which has the legal right to hold them. Mr Biden’s lawyers handed his documents over the morning after they were found.

None of that, however, exonerates Mr Biden from responsibility for the breach and the need for him to be targeted by the same robust investigative processes launched against Mr Trump. To do otherwise would be to undermine Washington processes that demand what is sauce for the goose should be sauce for the gander. Mr Biden was quick off the mark in attacking Mr Trump when the Mar-a-Lago documents emerged. He asked piously: “How could anyone be that irresponsible?”

The same question applies no less to his own documents. Prosecuting Mr Trump over his documents was always going to be difficult for the Biden administration. The discovery that Mr Biden also had highly classified documents adds greatly to that difficulty. In its embarrassment, the administration should learn the lesson that the best way to deal with Mr Trump is to allow voters to pass judgment on him. The same applies to Mr Biden.

("The Australian", 13 January)

[lennygoran]

Frat boys always like free food and drinks,

Still beer or has he switched to wine? Regards, Len

[Rach3]

Frat boys always like free food and drinks,

Still beer or has he switched to wine? Regards, Len

Whichever the GOP donor ( ie. SCOTUS Historical Society donor ) is paying for.

[Rach3]

Saucing the goose and the gander
EDITORIAL

Joe Biden may well have been surprised by the discovery of a batch of 10 highly classified documents in an office in Washington ...
("The Australian", 13 January)

As often here, one of your non sequiturs to a topic.

IF you'd like to debate the relative criminality/morality/intelligence of Trump vs. Biden in a separate topic , ladies first .

[lennygoran]

Whichever the GOP donor ( ie. SCOTUS Historical Society donor ) is paying for.

Well beer helped him with his early raping but wine made suit him better as he rapes the US constitution. Regards, Len

[Rach3]

Alito,Thomas, Kavanaugh, and now Roberts' wife's activities ?

https://tinyurl.com/3mdwcsj4

Gorsuch must be looking over his shoulder.

[Rach3]

Thomas again in 2019 objects to free lawyers for indigents:

https://www.msnbc.com/deadline-white-ho ... -rcna75535

[Belle]

Thomas again in 2019 objects to free lawyers for indigents:

https://www.msnbc.com/deadline-white-ho ... -rcna75535

All the usual Lefty wingmen. That's the only stuff you imbibe!! Need to get out more, mate!

[Rach3]

All the usual Lefty wingmen. That's the only stuff you imbibe!! Need to get out more, mate!

Not to worry , as I regularly get from you adequate doses of alt.Right and how the other half lives.

[Rach3]

https://www.supremecourt.gov/opinions/2 ... 7_nmio.pdf

[Rach3]

Thomas’ vile dissent and Alito’s rant wanting to deny DNA testing to an accused:

https://www.supremecourt.gov/opinions/2 ... 2_e1p3.pdf

[Rach3]

Off with his head say Les Six in another criminal case, no Thomas or Alito dissents of course:

https://www.supremecourt.gov/opinions/2 ... 1_kifl.pdf

[maestrob]

Chief Justice Declines to Testify Before Congress Over Ethics Concerns

In an accompanying statement on ethics practices, the Supreme Court’s justices insisted their current ethical guidelines on gifts, travel and financial deals are sufficient.

By Abbie VanSickle
Published April 25, 2023
Updated April 26, 2023, 7:51 a.m. ET

WASHINGTON — Chief Justice John G. Roberts Jr. told the Senate Judiciary Committee in a letter released Tuesday evening that he was declining its invitation to testify about ethics rules for the Supreme Court.

In an accompanying statement on ethics practices, all nine justices, under mounting pressure for more stringent reporting requirements at the court, insisted that the existing rules around gifts, travel and other financial disclosures are sufficient.

The chief justice wrote that such appearances before the committee were “exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”


Last week, Senator Richard J. Durbin, Democrat of Illinois and chairman of the committee, invited the chief justice to appear after revelations of unreported gifts, travel and real estate deals between Justice Clarence Thomas and Harlan Crow, a Texas billionaire and Republican donor.

In the letter, Chief Justice Roberts attached a “statement of ethics principles and practices” signed by the current justices and included an appendix of the relevant laws that apply to judicial disclosures.

In the ethics statement, the justices wrote that they aimed to clarify how they “address certain recurring issues” and “to dispel some common misconceptions.” To deal with ethical questions, they look to “judicial opinions, treatises, scholarly articles, disciplinary decisions, and the historical practice of the court and the federal judiciary,” their signed statement said, which added that they could seek advice from colleagues and the court’s legal office.


The justices also said they may be limited in what to disclose because of security concerns. In fact, financial disclosures are not filed immediately and must be submitted each year in May. (The court has asked for more funding for security because of threats, including an alleged assassination attempt that targeted Justice Brett Kavanaugh last summer.)

In a statement, Mr. Durbin said that the hearing would proceed regardless.

“I am surprised that the chief justice’s recounting of existing legal standards of ethics suggests current law is adequate and ignores the obvious,” Mr. Durbin wrote. “It is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of our government without it.”

Advocates for greater transparency at the court said the statement did little to ease concerns about accountability.

“Roberts’s statement is nowhere near an appropriate response to the ethical failures of the current court,” Gabe Roth, the executive director of Fix the Court, which has called for stricter ethics rules for the Supreme Court, said in a statement.

This month, ProPublica revealed that Justice Thomas had joined Mr. Crow on luxury trips for nearly 20 years, including flights on his private jet to an exclusive all-male retreat in Northern California, a vacation aboard his superyacht in Indonesia and stays at Mr. Crow’s 105-acre lakeside resort in the Adirondack Mountains. None appeared on the financial disclosure forms Justice Thomas filed each year.

Justice Thomas also failed to report a real estate deal with Mr. Crow. In 2014, a real estate company linked to Mr. Crow bought the house where Justice Thomas’s mother lives in Savannah, Georgia, along with two vacant lots along the same street. Mr. Crow paid $133,363 to the justice and his family for the property, according to records filed at Chatham County courthouse dated Oct. 15, 2014. The justice’s mother, Leola Williams, still lives in the home now owned by Mr. Crow.

Politico reported on Tuesday that shortly after being appointed in 2017, Justice Neil M. Gorsuch sold property to the chief executive of a major law firm that often has business before the court and did not disclose the identity of the buyer. Experts said that while that was not a violation of the law, it underscored the need for reform.

Earlier this year, the American Bar Association urged the justices to adopt an ethics code and said that the absence of one imperils the legitimacy of the court.

In 2019, Justice Elena Kagan told a House committee that the chief justice was “studying the question of whether to have a code of judicial conduct that’s applicable only to the United States Supreme Court.”

In 2011, the chief justice wrote in his year-end report on the state of the federal judiciary that the justices consult a code of conduct and said there was no need for them to be constrained by the Code of Conduct for United States Judges, which applies to other federal judges.

“All members of the court do in fact consult the code of conduct in assessing their ethical obligations,” he wrote, adding: “Every justice seeks to follow high ethical standards, and the Judicial Conference’s code of conduct provides a current and uniform source of guidance designed with specific reference to the needs and obligations of the federal judiciary.”

https://www.nytimes.com/2023/04/25/us/p ... thics.html

[maestrob]

Read the letter Chief Justice John Roberts sent to Chairman Richard Durbin here:

https://int.nyt.com/data/documenttools/ ... d/full.pdf

[Rach3]

Check out this article from The New York Times. Because I'm a subscriber, you can read it through this gift link without a subscription.

"Supremely Arrogant"

"Are these men interpreting the law or settling scores?"

https://tinyurl.com/2mtx4znp

[maestrob]

Clarence Thomas Can’t Undermine the Legitimacy of the Supreme Court Fast Enough

May 12, 2023
By Jamelle Bouie

Opinion Columnist


For Republicans, the investigations into Clarence Thomas and his friendship with Harlan Crow, a Texas billionaire, are just pretexts for an attack on the legitimacy of the Supreme Court.

“This assault on Justice Thomas is well beyond ethics,” Senator Lindsey Graham of South Carolina said during a hearing of the Senate Judiciary Committee last week on Supreme Court ethics reform. “It’s about trying to delegitimize a conservative court that was appointed through the traditional process.”

“This is an unseemly effort by the Democratic left to destroy the legitimacy of the Roberts court,” he went on to say. “It’s put people at risk. It’s put their personal safety at risk.”

Senator Chuck Grassley of Iowa accused Democrats and their “allies in the liberal media” of waging “a crusade to threaten to pack and smear the courts.” And Senator Mike Lee of Utah described the questions about Thomas’s conduct as “attacks” that are “undermining the rule of law, endangering the security of the justices and their families, and inflicting incalculable damage on our country.”

For their part, Democrats do not seem eager to attack or undermine the legitimacy of the Supreme Court. Just a handful of Democrats in the House of Representatives called for Justice Thomas’s resignation after reports that he accepted lavish trips and gifts from Crow, and Senate Democrats have been careful with the issue. There’s been no attempt to subpoena either Justice Thomas or Chief Justice John Roberts — who was politely asked by letter, last month, to come before the Senate Judiciary Committee — and there’s no indication that Democrats have the votes to pass anything like a meaningful Supreme Court ethics law.

What’s more, Democrats still speak as if they hold the Supreme Court in high esteem. They defer to its judgments and trust it enough to think that it could, with a little prodding, handle its own ethics issues. The goal of their questions and investigations is not to delegitimize the court as much as it is to shore up the court’s legitimacy — to protect its standing in a world where most Americans take a dim view of most American institutions.

Republicans, in other words, are wrong; Democrats are not out to undermine the Supreme Court.

But they should be.

The problem of the Supreme Court isn’t that its members are mired in ethics scandals (although they are). It isn’t that it’s been captured by a network of conservative apparatchiks and right-wing billionaires (although it has).

No, the problem of the Supreme Court is that it is a powerful and unaccountable branch of government whose traditional role has been to protect the rights of property and the prerogatives of the privileged above all other concerns. And on those rare occasions where the court has worked for the interests of ordinary Americans — for workers, for Black Americans, for sexual minorities — it has been to either reverse previous decisions (such as Brown v. Board of Education’s reversal of Plessy v. Ferguson) and free Congress to enforce the Constitution as written.

For the left-of-center of American politics, the Supreme Court has been, over the course of its long history, more hindrance than help. And to the extent that liberals began to trust the court as an institution, it’s because they made a mistake, confusing the exceptional rulings of the court under Chief Justice Earl Warren for the norm. The Supreme Court, as the legal scholar Lucas A. Powe Jr. has observed, is “part of a ruling regime doing its bit to implement the regime’s polices.” If the court appeared liberal — or at least friendly to liberalism — in the first decades after the Second World War, it was because of the hegemony of New Deal liberalism over American politics, not because of any inherent quality of the Supreme Court itself.

No one party or ideological movement has established hegemony over American politics in our moment, but the current Supreme Court represents a coalition that has burrowed itself into the judiciary in the hope that it can reshape the political order by judicial fiat even as it loses at the ballot box.

So far, there’s every indication that this will work. That’s because without court expansion or other serious reforms to the structure of the court — and absent unforeseen circumstances like an inopportune death — Republicans can expect to hold a majority on the Supreme Court until 2065, according to a recent paper on possible partisan composition of the court over the next century.

Put differently, barring a Franklin Roosevelt-like run of election victories, the only option Democrats have to rein the court in as a tool of the most reactionary forces in our society is to try to change its size and structure. The necessary first step toward those and other reforms is to undermine the court’s legitimacy, to knock it off its pedestal and remove some of its mystique.

And if the final result is a court that is much weaker than it has been in recent history — a court that can’t claim total control over the meaning of the Constitution — then that is something to celebrate. The Supreme Court is imperious, a fickle friend to justice. It would be better, in the end, to remove it as much as possible from the decisions that shape our lives, rather than to leave it with a leading role in the affairs of we, the people.

https://www.nytimes.com/2023/05/12/opin ... imacy.html

[maestrob]

Why the Supreme Court Is Blind to Its Own Corruption

May 18, 2023, 5:00 a.m. ET
By Randall D. Eliason

Mr. Eliason is the former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia.


The scandal surrounding Justice Clarence Thomas has further eroded the already record-low public confidence in the Supreme Court. If Chief Justice John Roberts wonders how such a thing could have happened, he might start looking for answers within the cloistered walls of his own courtroom.

Over more than two decades, the Supreme Court has gutted laws aimed at fighting corruption and at limiting the ability of the powerful to enrich public officials in a position to advance their interests. As a result, today wealthy individuals and corporations may buy political access and influence with little fear of legal consequences, either for them or for the beneficiaries of their largess.

No wonder Justice Thomas apparently thought his behavior was no big deal.

He has been under fire for secretly accepting, from the Republican megadonor Harlan Crow, luxury vacations worth hundreds of thousands of dollars, a real estate deal (involving the home where his mother was living) and the payment of private school tuition for a grandnephew the justice was raising. Meanwhile, over the years, conservative groups with which Mr. Crow was affiliated filed amicus briefs in several matters before the Supreme Court.

That sounds like the very definition of corruption. But over the years, many justices — and not just conservatives — have championed a different definition.

The landmark case is the court’s 2010 decision in Citizens United v. Federal Election Commission. A five-justice majority — including Justice Thomas — struck down decades-old restrictions on independent campaign expenditures by corporations, holding that they violated the companies’ free speech rights. It rejected the argument that such laws were necessary to prevent the damage to democracy that results from unbridled corporate spending and the undue influence it can create.

The government’s legitimate interest in fighting corruption, the court held, is limited to direct quid pro quo deals, in which a public official makes a specific commitment to act in exchange for something of value. The appearance of potentially improper influence or access is not enough.

In dissent, Justice John Paul Stevens accused the majority of adopting a “crabbed view of corruption” that the court itself had rejected in an earlier case. He argued that Congress has a legitimate interest in limiting the effects of corporate money on politics: “Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”

Citizens United opened the floodgates to unlimited corporate spending on behalf of political candidates and to the influence that spending necessarily provides. But the decision didn’t come out of nowhere: The court has often been unanimous in its zeal for curtailing criminal corruption laws.

In the 1999 case of United States v. Sun-Diamond Growers of California, the court unanimously held, in effect, that it is not a violation of the federal gratuities statute for an individual or corporation to have a public official on private retainer. The court rejected a theory known as a “status gratuity,” where a donor showers a public official with gifts over time based on the official’s position (that is in contrast with a more common gratuity, given as a thank you for a particular act by the official). The quite reasonable rationale behind that theory was that when matters of interest to the donor arose, the past gifts (and hope for future ones) might lead the official to favor his or her benefactor.

That actually sounds a lot like the Crow-Thomas relationship. But the court held that such an arrangement is not unlawful. The gratuities law, the court ruled, requires that a particular gift be linked to a particular official act. Without such a direct link, a series of gifts to a public official over time does not violate the statute, even if the goal is to curry favor with an official who could act to benefit the gift giver.

In the wake of Sun-Diamond, federal prosecutors increasingly turned to a more expansive legal theory known as honest services fraud. But in Skilling v. United States, the court ruled that theory is limited to cases of bribes and kickbacks — once again, direct quid pro quo deals. Three justices, including Justice Thomas, wanted to go even further and declare the statute that prohibits honest services fraud unconstitutional.

The court proceeded to limit its “crabbed view of corruption” even further. In the 2016 case McDonnell v. United States, the court held that selling government access is not unlawful. Gov. Bob McDonnell of Virginia and his wife, Maureen, accepted about $175,000 in secret gifts from the businessman Jonnie Williams, who wanted Virginia’s public universities to perform research studies on his company’s dietary supplement to assist with its F.D.A. approval. In exchange, Mr. McDonnell asked subordinates to meet with Mr. Williams about such studies and hosted a luncheon at the governor’s mansion to connect him with university health researchers.

A jury convicted the McDonnells on several counts of corruption. The U.S. Court of Appeals for the Fourth Circuit — hardly known as a bastion of liberalism — unanimously affirmed the convictions. But the Supreme Court unanimously reversed, holding that the things Mr. McDonnell did for Mr. Williams did not qualify as “official acts” under federal bribery law. Selling official access may be tawdry, the court held, but it is not a crime.

Those who think Justice Thomas may be guilty of corruption may not realize just how difficult the court itself has made it to prove such a case. Now only the most ham-handed officials, clumsy enough to engage in a direct quid pro quo, risk prosecution.

Viewed in light of this history, the Thomas scandal becomes less surprising. Its own rulings would indicate that the Supreme Court doesn’t believe what he did is corrupt. A powerful conservative with interests before the court who regularly provides a justice with vacations worth more than his annual salary is, as the court said in Citizens United, merely the “appearance” of potential corruption. In the court’s view, the public has no reason to be concerned.

But the public clearly is, and should be, concerned over the ability of the rich and powerful to purchase access and influence unavailable to most citizens. Unfortunately, Citizens United is here to stay without a constitutional amendment or an overruling by the court, neither of which is very likely.

But it’s still possible for the rest of the country to move past the court’s naïve and inadequate view of corruption. Congress could amend criminal corruption laws to expand their scope and overturn the results in Sun-Diamond, Skilling and McDonnell. It could increase funding for enforcement of the Ethics in Government Act and increase the penalties for filing a false financial disclosure form (or failing to file one at all). Beefed up disclosure regulations could make it more difficult for officials to hide financial interests and could make it clear there are no disclosure exceptions for enormous gifts of “personal hospitality,” contrary to what Justice Thomas claims he believed. And Congress could pass legislation like the proposed Disclose Act, to require transparency regarding who is behind political donations and spending.

Congress so far has shown little interest in passing such reforms. But that’s where the remedy lies. It’s time for Congress to act.

In his Citizens United dissent, Justice Stevens observed, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” That’s exactly how it now appears to the public — and that applies to Supreme Court justices as well as to politicians.

Randall D. Eliason is the former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia and teaches white-collar criminal law at George Washington University Law School.

https://www.nytimes.com/2023/05/18/opin ... ption.html

[Rach3]

Justice Gorsuch goes on a rant over what he perceives to be an over-reaction to the pandemic, and how in his view we should have waited for legislatures to act rather than taking administrative actions based on science. The white-tower Justice needs to get out more , and perhaps get a medical degree, work in a COVID ward first , before ranting.Bloomberg News May 18:


" Among ‘greatest intrusions on civil liberties’ in US history.
Unusual eight-page statement accompanies routine order.
US Supreme Court Justice Neil Gorsuch blasted the “breathtaking scale” of emergency decrees issued by state and federal officials during the pandemic, calling them a historic threat to freedom.

In an eight-page statement that accompanied a routine order, Gorsuch decried lockdowns, school and church closures and vaccine requirements, casting them as fear-induced overreactions that could drive a slide toward autocracy.

“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country,” he wrote.

Gorsuch issued the statement as the court dropped a showdown over pandemic-era border restrictions after President Joe Biden’s administration ended the emergency declaration that had formed the policy’s legal basis. Gorsuch, a 2017 appointee of then-President Donald Trump, said he agreed with the decision to scrap the case.

The Covid-19 pandemic killed more than 1.1 million people in the US alone, according the Centers for Disease Control and Prevention. Gorsuch consistently voted to restrict what government officials could do to stem the spread of the virus, opposing capacity limits at houses of worship and efforts by the Biden administration to require workers either be vaccinated or submit to regular tests.

In his Thursday statement, Gorsuch faulted executive branch officials for issuing the emergency decrees, lawmakers for being “silent” and judges for not doing enough to intervene.

“Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it,” he wrote. “One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action — almost any action — as long as someone does something to address a perceived threat.”

He added: “Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.”

His full rant:

https://www.supremecourt.gov/opinions/2 ... 2_5hd5.pdf

[maestrob]

Oh, sure! We should have waited for Congress to act.

What a nut-job!

[maestrob]

Neil Gorsuch Has Given Himself Away

May 23, 2023
By Jamelle Bouie

Opinion Columnist


The justices of the Supreme Court aren’t always open about their views, but there are times when they inadvertently reveal just how skewed their perspective is.

First, a little background. Last year, the Biden administration announced it would end its predecessor’s pandemic-era policy of expelling asylum seekers at the Mexican and Canadian borders based on a federal law that gives the Centers for Disease Control and Prevention the power to bar entry into the United States in order to curtail the spread of infectious diseases. Title 42, as the policy came to be known, was supposedly established to protect the public. But by the time it came into effect, Covid-19 was already widespread, and there was no evidence of significant transmission by asylum seekers and other migrants. What was true is that President Donald Trump had devoted much of his time in office to dismantling the nation’s immigration system and limiting entry as much as possible from the southern border.

Several months after the administration announced its plan to end Title 42, a Federal District Court in Washington ruled that the policy was illegal and ordered the government to end it. A group of states with Republican attorneys general then sued to keep the policy in place, appealing their case to the Supreme Court. The dispute came to an end last week, when the Supreme Court remanded the case back to a lower court with instructions to dismiss the motion as moot. The reason, presumably, is that the federal government had already ended the Covid-19 public health emergency. There was nothing to decide.

There was, however, something interesting about the court’s order in this case. Not content to let the instruction stand on its own, Justice Neil Gorsuch added a statement. Gorsuch recounts the story of the Title 42 policy, not to criticize the court’s decision but to emphasize what in his view was the defining aspect of the Covid-19 crisis.

“The history of this case,” Gorsuch writes, “illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.” It’s at this point that Gorsuch drops a doozy: “Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country.”

Gorsuch elaborates on the point: “Executive officials across the country issued emergency decrees on a breathtaking scale” and “Governors and local leaders imposed lockdown orders forcing people to remain in their homes.” They shuttered businesses and schools, he continues, and “threatened violators not just with civil penalties but with criminal sanctions too.”

Now, there obviously was — and still is — a debate to have about the extent of the state, local and federal responses to Covid-19, which killed more than 1.1 million people in the United States between March of 2020 and May of 2023 and remains among the leading causes of death. But do those measures have a chance of representing the “greatest intrusions on civil liberties in the peacetime history of this country”?

Consider the competition. Were Covid restrictions a greater intrusion on civil liberties than the forced sterilization of more than 70,000 Americans under the eugenic policies of state and local governments across the country from the 1920s through the 1970s? The mass surveillance of thousands of Americans involved in liberal and left-wing politics by the federal government during the 1960s? The McCarthyite purges of thousands of Americans accused of “un-American activities” in the 1950s? The “Palmer Raids” of 1919 and 1920, in which federal agents arrested thousands of Americans on flimsy evidence with plans to deport them from the country?

That’s just the 20th century. When we look back to the 19th century, we see even more egregious peacetime assaults on the rights and liberties of Americans. Beginning in the 1890s, for example, Southern legislatures began to strip voting and civil rights from huge swaths of their states’ populations. Then there’s labor conflict. In 1877 alone, state, local and federal strikebreakers killed more than 100 people engaged in strikes and protests against railroads across the country.

Of course, any catalog of 19th-century attacks on civil liberties would be incomplete without a mention of slavery, in which millions of Americans were reduced to chattel by force of law for the better part of a century under the Constitution. And to protect and preserve the social order produced by the mass enslavement of millions of people, slaveholding states passed draconian limits on speech, from outlawing the circulation of antislavery materials to banning abolitionist speech outright.

It is certainly possible that even judged against the full weight of American history, the Covid restrictions on in-person gatherings represent an exceptional and egregious assault on civil liberties. But I’m skeptical.

What is interesting to think about, however, is what it says about Justice Gorsuch that those restrictions loom so large in his historical imagination. Perhaps they conflict with his occasional libertarian streak. Perhaps he is, like his colleague Samuel Alito, deeply offended by rules that put limits on religious services but allowed people to shop at grocery stores. Or perhaps he just didn’t think of those other historical examples at all.

In which case, Gorsuch’s denunciation of pandemic restrictions acts as an inadvertent glimpse into his view of the United States. With one notable exception (and it is quite notable) — the history of Native Americans — he is willing to ignore or doesn’t even see our long, peacetime history of repression and internal tyranny. What he seems to see instead is a long history of liberty with some significant exceptions, including our recent experience with the pandemic.

It is a shocking worldview but not, in the end, a surprising one. A justice like Gorsuch who frequently struggles to see injustice and cruelty in the present — from his votes in favor of capital punishment to his vote to let states curb women’s bodily autonomy — will surely struggle to see injustice and cruelty in the past.

https://www.nytimes.com/2023/05/23/opin ... _engBandit

[maestrob]

Who Can Rein In the Supreme Court?

May 25, 2023
By The Editorial Board

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values. It is separate from the newsroom.

The Supreme Court will soon issue rulings, on affirmative action, student debt relief, and the First Amendment and gay rights, that have the potential to affect the American public for generations. And yet public approval of the court is at a historic low. This was true even before the seemingly endless stream of reports over the past few weeks about the justices’ lax ethics. Since a conservative supermajority took control of the court in 2020, it has blown through the guardrails courts are expected to observe — showing little respect for longstanding precedent, reaching out to decide bigger questions than it was asked to and relying on a secretive “shadow docket” to make hugely consequential rulings with no public explanation.

Even Republicans who are happy with the Supreme Court’s recent rulings are voicing their concerns. “What I would urge the court to do is take this moment to instill more public confidence,” Senator Lindsey Graham of South Carolina said during the Senate Judiciary Committee hearing on ethics at the Supreme Court on May 2. “I think we’d all be better off if they did that.”

Mr. Graham is right: The nine justices — unelected and employed for life — are shielded from the usual mechanisms of democratic accountability, and so they depend on a high level of public trust like no other institution of American government. Their failure to take the steps necessary to restore that trust, steps that are entirely within their control, is undermining their legitimacy as one of the country’s most vital institutions.

Instead the justices are behaving as though the same laws they interpret for everyone else don’t apply to them. They’re not entirely wrong. In most other government jobs, people can be fired for disregarding laws or ethical obligations, but the justices can be confident that they will face no consequences. Federal laws that explicitly apply to them — involving, for example, financial disclosures and recusal standards — are not enforced, leaving the justices to self-police, and the highest court is not bound by a code of ethics as the lower federal courts are.

Despite repeated requests, they have refused to adopt such a code, bristling at the suggestion that they do more to take these concerns seriously. Asked to appear at the Judiciary Committee hearing, Chief Justice John Roberts responded with a perfunctory letter that waved off the request with a vague reference to “separation of powers concerns” and “judicial independence.” In a speech to a legal group on May 23, the chief justice acknowledged that ethics was “an issue of concern inside the court,” and said the justices were considering ways to “give practical effect” to a commitment to abide by high standards of conduct.

At a moment of extreme distrust of government and institutions, this dismissiveness is not only disparaging of public opinion — it’s dangerous. The Times’s Adam Liptak wrote last year in a review of recent legal scholarship that the Roberts court “has rapidly been accumulating power at the expense of every other part of the government,” arrogating to itself the authority to make policy decisions on issues, such as climate change, that had long been the province of Congress or executive agencies. A court that thus wields an astonishing degree of power over the daily lives of hundreds of millions of Americans has also walled itself off from outside scrutiny, operating like an ecclesiastical city-state in the heart of the American republic.

The “separation of powers” was never meant to allow each branch the license to act without any involvement by the others. Rather, the American system of government is expressly designed for each branch to check the power of the others. A president can veto a bill passed by Congress. The Supreme Court can strike down an executive order or federal law. And Congress can regulate the size, jurisdiction and other administrative aspects of the Supreme Court, including judicial ethics, as it has going back to the first Judiciary Act in 1789 — a law that passed, notably, by a Congress that included many of the framers of the Constitution itself.

In recent years, however, Congress has failed to live up to its coequal status in the federal government, avoiding even mild confrontation with the Supreme Court. During the Judiciary Committee hearing, Mr. Graham said he did not want to “micromanage” the court by forcing it to adopt an ethics code. But this hands-off approach has allowed the justices to decide for themselves what rules to follow and whether or not to explain their reasoning to the public.

There is recent precedent for bipartisan action regulating the court. Last year, Congress passed a law amending its 1978 ethics law to require the reporting, in an online database searchable by the public, of stock transfers over $1,000 by all federal judges, including the justices. Already, justices have filed reports under this law, suggesting that they accept Congress’s authority to legislate in this area.

So the question is not whether Congress has the power to act, but what a meaningful ethics regime should look like. There are several bills, one bipartisan, making their way through Congress. They differ in their particulars, but most share the key principles that need to underlie any legislation.

First, the Supreme Court needs, at long last, a clear, comprehensive and transparent code of ethics. Whether Congress orders the court to draft such a code or imposes one itself, the point is the same: Underneath the mystique of their black robes, the justices are public servants, no less than members of Congress or judges on the lower federal courts, and they should be held to at least the same standards.

This would require frequent and detailed reporting of all travel and accommodations they receive — including donor names, dollar amounts and descriptions of gifts. If a justice sells real estate, as Neil Gorsuch did only days after taking his seat in 2017, he or she should be required to identify the buyer; Justice Gorsuch did not, even though his buyer was the chief executive of a major law firm that has regular business before the court. The object of these disclosures is to give the American public as complete a view as possible into the various potential influences on the court.

There should also be clear and consistent rules about when a justice should be recused from a case. At the very least, the justices should be required to explain their decisions on recusal to their colleagues and to the American people. This would have required Justice Clarence Thomas, for example, to defend his ongoing participation in cases involving the Jan. 6 Capitol attack even after it became public knowledge that his wife, Ginni, had been actively involved in the legal effort to overturn the 2020 election.

Second, the Supreme Court needs its own dedicated ethics officer, to field complaints from the public and advise the justices on their obligations in specific circumstances. This means the justices would no longer be left to rely on the advice of friends and colleagues, as Justice Thomas said he did in choosing not to disclose lavish gifts over the years from his friend Harlan Crow, a Texas billionaire who has been affiliated with at least one company with a case before the court. Ideally, an ethics officer would be akin to an inspector general for the court, empowered to investigate complaints, issue reports and create a body of precedent that justices can rely on.

Last and most difficult is the matter of enforcement. Even well-designed rules will not matter if the justices know that they will face no consequences for ignoring them. In the lower courts, judges who violate ethics rules are sanctioned by panels of appeals-court judges — their peers. That wouldn’t work in the Supreme Court, which sits at the top of the judicial branch.

Enforcement through the other branches faces other hurdles. Congress may impeach a justice, but it has done so only once, in 1804, and the Senate voted to acquit. Today’s partisan polarization makes impeachment and removal a virtual impossibility. Even in the case of clear lawbreaking, it’s hard to imagine the attorney general, regardless of party, prosecuting a sitting Supreme Court justice.

Still, adopting these proposed elements — a code, an ethics officer, a system for investigating and reporting on unethical behavior — would provide a constant reminder to the justices that they work for the American people. That would help foster a culture of accountability and transparency for a small group of powerful officials who have long avoided both. It would also send the message that the justices take their obligations to the American people seriously and would help to re-establish the public trust that they rely on for their authority. For this reason, the justices should not simply tolerate being held to a strong code of ethics. They should welcome it.

https://www.nytimes.com/2023/05/25/opin ... s-act.html

[Rach3]

The frat boy gets one right, the Alito 5’s fakery too much even for Kavanaugh:

https://www.msnbc.com/opinion/msnbc-opi ... -rcna86336

[maestrob]

Time Is Running Out for John Roberts and the Supreme Court

June 12, 2023
By Erwin Chemerinsky

Mr. Chemerinsky is the dean of the School of Law at the University of California, Berkeley.

In light of the Supreme Court’s unwillingness to adopt an ethics code for itself, Congress must step in and pass a statute imposing standards. All other judges in the country — state and federal — are bound by ethical rules. It is inexcusable that the most important and powerful judges are not.

The issue has taken on urgency after a recent investigation by ProPublica revealed that Justice Clarence Thomas has over the years accepted lavish trips and other gifts from a major Republican donor. Similar calls for ethics rules followed a report last fall in The New York Times of allegations that a landmark 2014 contraception decision “was prematurely disclosed through a secretive influence campaign by anti-abortion activists.”

Chief Justice John Roberts, who has questioned whether Congress even could impose an ethics code on the court, said last month that he and his colleagues were continuing to take steps to address questions about the justices’ ethical standards. But he offered no details.


Congress should not wait on the court any longer. It has the authority to hold justices to a code of conduct. If it fails to do so, it will share responsibility for the ethics mess at the Supreme Court.

One argument against Congress stepping in is that it would violate the separation of powers for legislators to impose standards on a coequal branch of government. The chief justice made a cryptic reference to this last month, saying he was “confident that there are ways” to ensure that justices adhere to the highest standards that are “consistent with our status as an independent branch of government and the Constitution’s separation of powers.”

But separation of powers does not mean that one branch of government operates entirely independent of the others. Congress, for example, regulates many aspects of the Supreme Court, including its size, the salary of the justices and its budget. Congress has also long imposed financial reporting requirements on the justices and limits on the gifts and outside income they can receive, though as the chief justice noted in 2011, “The court has never addressed whether Congress may impose those requirements on the Supreme Court.”

For example, a federal law, 28 U.S.C. § 455, requires federal judges, including justices, to disqualify themselves in any proceeding in which their “impartiality might reasonably be questioned.” Also, the Ethics in Government Act of 1978 requires government officials, including justices, to disclose many kinds of financial interests and transactions. The statute also applies to the president. It is hard to imagine the court ruling that all of these laws are unconstitutional.

The chief justice has also raised concerns about recusal in cases in which a justice’s impartiality might be reasonably questioned. He has noted that in the case of the Supreme Court, recusal by a justice would force the court to decide the case in question without its full complement of justices — unlike in lower courts, where a judge who steps aside can be replaced by another judge.

This argument is specious. A recent analysis by Bloomberg Law found that the justices recused themselves in roughly 3 percent of appeals since 2018, with Justices Samuel Alito and Elena Kagan doing so most often. The court managed in these circumstances. The court also operates short-handed when there is a vacancy, as it did for over a year after Justice Antonin Scalia died in February 2016, until Neil Gorsuch was confirmed in April 2017.

Even if, with the advent of an ethics code, there might be more instances in which a justice might recuse, it would be worth it to ensure that justices abide by the same rules as all other judges.

A further objection is that imposing ethical standards on justices is partisan. Last month, when the Senate Judiciary Committee held a hearing on whether to impose an ethics code on the court, some of the Republican senators on the committee decried the effort as political. That is nonsense, because all justices — regardless of who appointed them or their ideology — would be bound by the same rules.

Liberals and conservatives should want a Supreme Court that is above reproach. The hope is that there will be enough members of Congress of both parties who are willing to stand up for ethics, especially when such standards don’t even apply to them.

Senators Sheldon Whitehouse and Richard Blumenthal, along with other Democrats, have introduced the Supreme Court Ethics, Recusal and Transparency Act. Among other things, it would require the Supreme Court to adopt a code of conduct within 180 days of the bill’s enactment. It also would create a transparent process for the public to submit ethics complaints against justices, to be reviewed by a random panel of chief judges. And it would mandate rules requiring disclosure rules for gifts, travel and income received by justices and law clerks that are at least as rigorous as the House and Senate disclosure rules.

The hard question is how the ethical rules should be enforced. Now it is left to justices to decide whether to recuse themselves from cases. Allowing people to judge their own situations never can inspire confidence in the decisions. Alternatives have been suggested, including having a panel of retired appeals court judges review these questions or referring the matter to the other justices.

The public’s view of the court is plummeting. A recent survey by Quinnipiac University found that more registered voters disapprove of the job the court is doing than at any other point in the past 20 years. Forty-six percent of Americans thought Justice Thomas should resign after the recent revelations by ProPublica.

The case for the Code of Conduct for federal judges is made succinctly in its first sentence: “An independent and honorable judiciary is indispensable to justice in our society.” That should apply equally to the nation’s highest court.

https://www.nytimes.com/2023/06/12/opin ... gress.html

[maestrob]

Samuel Alito Joins the Supreme Court’s Billionaire’s Club

June 27, 2023
By Jamelle Bouie

Opinion Columnist


The Supreme Court ethics crisis continues, not with Clarence Thomas but with his right-wing comrade, Justice Samuel Alito.

In 2008, according to a recent ProPublica investigation, Justice Alito took a trip to a more-than-$1,000-a-night luxury resort in a remote region of Alaska, arriving there on the private jet of Paul Singer, a billionaire hedge fund manager and Republican donor. If Alito had chartered the jet on his own dime, it could have cost him more than $100,000 for a one-way trip. Alito, however, flew for free.

Six years later, in 2014, Alito voted in Singer’s favor in a dispute between Singer’s hedge fund and the nation of Argentina. “The hedge fund was ultimately paid $2.4 billion,” according to ProPublica.

In an unusual essay for The Wall Street Journal, Alito insisted that there was no corruption or undue influence. He said he had only spoken to Singer on a handful of occasions before the case in question and that his seat on the flight was of no ethical concern because it was “a seat that, as far as I am aware, would have otherwise been vacant.”

As for the trip, Alito wrote that he stayed in a “rustic” and “modest one-room unit,” that the meals were “home-style fare” and that if there was wine served, “it was certainly not wine that costs $1,000.” Alito was adamant that he had no obligation to disclose any trip that he might have taken and that the facts at hand “would not cause a reasonable and unbiased person to doubt my ability to decide the matters in question impartially.”

Judging from the trips and gifts they have received, both Alito and Thomas appear to have been beneficiaries of something like a billionaire buddies program, in which they’re paired with a particularly generous friend. I say “paired” because these connections aren’t as spontaneous as they may seem.

If there is an evergreen presence in these stories concerning the court’s ethical entanglement, it is Leonard Leo, one of the longtime leaders of the Federalist Society, a conservative legal organization. Leo helped organize Alito’s fishing trip with Paul Singer; he can be seen (in a painting commissioned for the Texas billionaire Harlan Crow) vacationing with Clarence Thomas; and he was responsible for steering tens of thousands of dollars in consulting fees to Thomas’s wife Ginni. Last year, Leo turned his influence and ties into a $1.6 billion gift from a single donor to his Marble Freedom Trust — quite possibly the largest political donation in American history.

There’s no mystery to solve about Leo’s goals. He wants a conservative court to construct a conservative Constitution for the sake of a more conservative political order. But there is still a question to answer about his techniques and methods: What, exactly, is the nature of his relationship with Thomas, Alito and the other conservative justices on the Supreme Court, to say nothing of the federal judges he helped select and place as an adviser to President Trump?

Here, I have a few thoughts.

Imagine for a moment that you are a conservative political activist with an abiding interest in constitutional law. You consider yourself an “originalist” or a “textualist” and oppose much of the constitutional jurisprudence of the 20th century, from the affirmation of deep federal intervention into the economy during the New Deal to the expansion of rights of bodily autonomy and personal freedom in the 1960s and ’70s. You want to rewind — to turn the constitutional clock to where it was before the age of liberalism.

You have set your sights on the Supreme Court and the federal judiciary writ large. You have made it your mission to bring the court back to first principles or at least your first principles.

You did the hard work of political transformation and institutional change. You cultivated allies, created networks of like-minded individuals, recruited aspiring judges and politicians to the cause and most important, you won elections. After more than a decade of struggle, despite the occasional setback, you had all the pieces in place: a conservative majority on the Supreme Court and a chance to undo Roe v. Wade.

And then it all fell through. Your conservative justices weren’t as reliable as you thought. They weren’t a single bloc. And three of them voted, against your hopes and expectations, to protect the constitutional right to an abortion. Yes, they might have opened the door to new limits, but what mattered most in 1992 — after 12 years of conservative rule — was that Roe still stood.

But this was just a battle — you could still win the war. So you regroup. You work and wait in anticipation of the time when you can replace your sometime friends on the court with more reliable conservatives. You won’t rely on a sense of mission or commitment to ensure loyalty among the judges and justices, no, you’ll resist the drift toward judicial independence by strengthening the ties between the men (and occasionally the women) and the movement. You’ll hold lavish events in their honor, give them awards, fund schools in their names, help their spouses find work and pair them off with a donor or two so they can have a taste of the high life.

This isn’t quid pro quo — no one is trading favors or taking cash for judicial decisions — it’s like-minded people enjoying one another’s company and friendship. It is showering the most important allies you have with prestige and, crucially, the esteem of their peers. It’s creating a web of personal and emotional bonds in addition to political and intellectual ones.

Your beneficiaries are already on your side, of course — otherwise they wouldn’t be in the club in the first place — but they might be a little less willing to buck the views and prevailing sentiments of their fellow travelers. And if all this social scaffolding means that your justice is a little more likely to cast the right vote in the right case at the right time, then it is money well spent. Even better, there is more where that came from: more billionaires, more influence and more perks for the justices to enjoy while they attend to the work they were appointed to do.

Our hypothetical activist here is a mishmash of figures — Leonard Leo is too young to have been involved in the first phase of the conservative legal movement, leading up to the partial defeat of Planned Parenthood v. Casey. But Leo, who is responsible for at least a third of the membership of the current Supreme Court, is our pioneer. He is the one who figured out the solution to the problem of the independent justice.

https://www.nytimes.com/2023/06/27/opin ... thics.html

[maestrob]

Look at What John Roberts and His Court Have Wrought Over 18 Years

July 9, 2023, 6:00 a.m. ET
By Linda Greenhouse

Ms. Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.


The end of a Supreme Court term always sparks a lively conversation about how to characterize what just happened, and this year was no exception. In refusing to weaken the Voting Rights Act any further, did the court show itself to be a bit less dogmatically conservative than the year before? Did the 6-to-3 rejection of a dangerous theory that would have stripped state courts of the authority to review election laws show that the justices could still build bridges across their ideological divide?

Yes, democracy survived, and that’s a good thing. But to settle on that theme is to miss the point of a term that was in many respects the capstone of the 18-year tenure of Chief Justice John Roberts. To understand today’s Supreme Court, to see it whole, demands a longer timeline. To show why, I offer a thought experiment. Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.

To appreciate that transformation’s full dimension, consider the robust conservative wish list that greeted the new chief justice 18 years ago: Overturn Roe v. Wade. Reinterpret the Second Amendment to make private gun ownership a constitutional right. Eliminate race-based affirmative action in university admissions. Elevate the place of religion across the legal landscape. Curb the regulatory power of federal agencies.

These goals were hardly new, but to conservatives’ bewilderment and frustration, the court under the previous chief justice, the undeniably conservative William Rehnquist, failed to accomplish a single one of them. In fact, to any conservative longing for change, the situation in 2005 must have appeared grim indeed. Not only had the Rehnquist court reaffirmed the right to abortion in the 1992 Casey decision; in 2000 it overturned a state ban on so-called partial-birth abortion, a law aimed at enlisting the court in a graphic anti-abortion narrative.

On gun rights, the court was maintaining a decades-long silence despite Justice Clarence Thomas’s public call in 1997 to revisit the Second Amendment and the George W. Bush administration’s startling advice to the court five years later that the federal government was ready, for the first time, to support the individual-right position on the ownership of firearms when an appropriate case arrived.

The Grutter decision in 2003, upholding affirmative action in admission to the University of Michigan’s law school, appeared to put racially conscious admissions decisions on a solid footing, at least for 25 more years.

On religion, a 1990 decision written by Justice Antonin Scalia held that the First Amendment’s free exercise clause ordinarily did not provide a religious opt out from compliance with laws that applied to everyone. And one of Chief Justice Rehnquist’s last major opinions, Locke v. Davey, called for maintaining a cautious “play in the joints” between free exercise and the First Amendment’s other religion clause, the establishment clause. (“In other words,” as the court put it, “there are some state actions permitted by the establishment clause but not required by the free exercise clause.”) The decision rejected the claim that a state offering scholarships for postsecondary education had to cover study for the ministry as well. There is little doubt that the same case would come out differently today.

Finally, actions of the federal agencies that make up the administrative state were largely insulated from judicial review based on the court’s 1984 Chevron decision, requiring courts to defer to an agency’s plausible interpretation of its own authority if Congress had failed to speak precisely to the question at hand.

That was how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office, less than a month after the death of his mentor, Chief Justice Rehnquist. And this year? By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.

It’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.”

Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine. Under this doctrine, the court will uphold an agency’s regulatory action on a major question only if Congress’s grant of authority to the agency on the particular issue was explicit. Deference, in other words, is now the exception, no longer the rule.

But how to tell a major question from an ordinary one? No surprise there: The court itself will decide. While the ratio of major questions to ordinary questions of administrative law remains to be seen, it’s hard to envision an issue important and contentious enough to make it to the Supreme Court not being regarded as major by justices who flaunt their skepticism of the administrative state.

Justice Neil Gorsuch was candid about this in a concurring opinion last year when the court limited the Environmental Protection Agency’s ability to regulate emissions from power plants. The major questions doctrine, he explained, “applies when an agency claims the power to resolve a matter of great ‘political significance.’” What is a better indicator of political significance than sustained conservative backlash? Last year’s environmental case set the stage for the court’s June 30 decision overturning the Biden administration’s student-loan forgiveness program.


The Heller decision in 2008 opened the Second Amendment door a crack, granting individuals the right to keep a handgun at home for self-defense. Chafing at Heller’s limited scope, Justice Thomas complained repeatedly over the next 14 years that the court was treating the Second Amendment as a “second-class right.” He finally won the day with the Bruen decision in 2022, a breathtakingly broad opinion rejecting any limitation on gun ownership that can’t be tied to an analogous limitation in the 18th century. On June 30, the court agreed to hear United States v. Rahimi, which will put this approach to the test. The question in the case is whether the Second Amendment allows the government to bar gun ownership by an individual under a restraining order for domestic violence. That the answer actually might be “no” — domestic violence wasn’t even a concept in the 18th century, when the Second Amendment was adopted — is too astonishing to contemplate.

And then there is religion and the case of the web designer who sought the right to refuse to design websites for same-sex couples celebrating a marriage. I was baffled when the court agreed to hear the designer’s appeal in February of last year, and not only because the designer, Lorie Smith, had not yet designed a wedding website for a paying customer and hadn’t turned anyone away — indications that the case wasn’t ripe for review.

Her lawyers at Alliance Defending Freedom, a hard-right Christian litigating group, asked the court to decide whether Colorado’s law prohibiting businesses from discriminating against L.G.B.T.Q. people violated either Ms. Smith’s right to freedom of religion or to free speech. The court agreed to hear only the speech question. I didn’t see how the two questions could be disentangled, given that Ms. Smith sought the right to post a statement on her web page explaining that it was for religious reasons that she was unable to create a website for a same-sex wedding. In other words, it was religion that inextricably fueled her free-speech claim.

Justice Gorsuch’s majority opinion, in fact, took pains to nest the religious essence of the case so deeply in the discussion of free speech that even a well-informed reader might not realize what the decision accomplished: The court has created a religious opt-out from compliance with laws that govern the commercial marketplace. He found a First Amendment violation in the fact that if Ms. Smith went into the wedding website design business, Colorado’s anti-discrimination law would require her to take all customers. His opinion cites many First Amendment precedents, including the right not to salute the flag, the right of private parade organizers not to include a gay organization among the marchers and the right of the Boy Scouts not to retain a gay scoutmaster.

But none of those precedents are relevant, because none involved discrimination by a commercial entity. It is only on the first page of Justice Sonia Sotomayor’s dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson, that a reader will comprehend clearly what just happened: “Today, the court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”

A full understanding of this case, 303 Creative L.L.C. v. Elenis, requires context. It is now eight years since the court, in Obergefell v. Hodges, recognized a constitutional right to same-sex marriage. Of the six members in the majority in 303 Creative, three were on the court for Obergefell, and all three — Chief Justice Roberts and Justices Thomas and Samuel Alito — were dissenters. Justice Alito’s dissenting opinion, which Justice Thomas joined, was bitter. The decision would be “used to vilify Americans who are unwilling to assent to the new orthodoxy,” he warned. Since then, those two justices have been searching for an Obergefell victim whose plight would vindicate their expressed concern. It wasn’t easy, but finally, despite the appeal’s obvious procedural flaws, in 303 Creative they found one.

My focus here on what these past 18 years have achieved has been on the court itself. But of course, the Supreme Court doesn’t stand alone. Powerful social and political movements swirl around it, carefully cultivating cases and serving them up to justices who themselves were propelled to their positions of great power by those movements. The Supreme Court now is this country’s ultimate political prize. That may not be apparent on a day-to-day or even a term-by-term basis. But from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.

https://www.nytimes.com/2023/07/09/opin ... genda.html

[Rach3]

From Yahoo News today:

"Supreme Court Justice Samuel Alito spoke to The Wall Street Journal about congressional oversight.

"No provision in the Constitution gives them the authority to regulate the Supreme Court," he said.

The statement comes after months of news reports of ethical impropriety by members of the high court.

After months of news reports documenting instances of Supreme Court justices breaking judicial ethical standards and Democratic lawmakers pushing for a code of conduct to be implemented, conservative Supreme Court Justice Samuel Alito revealed in an interview that he doesn't believe that Congress has any authority to tell the court what to do.

"Congress did not create the Supreme Court," Alito said in an interview with The Wall Street Journal. "I know this is a controversial view, but I'm willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period."

He added that while he can't speak for the other justices, he thinks it's "something we have all thought about."

The comments perturbed at least two Democratic members of Congress.

Following the article's publication, Rep. Ted Lieu took to Twitter to remind Alito that Congress does have some oversight of the Supreme Court.

"Dear Justice Alito: You're on the Supreme Court in part because Congress expanded the Court to 9 Justices," Lieu tweeted. "Congress can impeach Justices and can in many cases strip the Court of jurisdiction. Congress has always regulated you and will continue to do so. You are not above the law."

Sen. Sheldon Whitehouse also noted on Twitter that he believes that Alito is part of what he called a "captured court."

One of the authors of the article who interviewed Alito, David B. Rivkin, is litigating a tax case, Moore v. US, in front of SCOTUS during the court's next term.

SCOTUS did not immediately return Insider's request for comment.

In April, GOP mega-donor Harlan Crow and SCOTUS Justice Clarence Thomas first faced scrutiny related to the 20 years worth of undisclosed trips Crow is accused of gifting to Thomas, per ProPublica. The outlet later reported that Crow purchased Thomas' mother's house and allowed her to live there without paying rent.

In response, Thomas — who asked for an extension to file his financial disclosure forms this year — said that at the time he wasn't aware that he was meant to disclose the trips with Crow.

Crow claimed to the Dallas Morning News that the revelations about his relationship with Thomas were a "political hit job."

In June, ProPublica unearthed that Alito had taken a luxury fishing trip with GOP billionaire Paul Singer, who later had cases before the court. Alito claimed that they never discussed cases on the trip, on which he boarded Singer's private plane.

Congress has probed Crow's and Thomas's relationship, as well as Alito's dealings, asking for a detailed disclosure of the gifts bestowed to Supreme Court justices.

A group of judges, the Committee on Financial Disclosure, is investigating Thomas and SCOTUS disclosure rules, while Senate Democrats have mounted a separate attempt to investigate Thomas and impose a code of ethics on the court."

Read the original article on Business Insider.

[Rach3]

They can interrupt women , but not hide:

https://www.axios.com/2023/10/14/suprem ... stream=top

[Rach3]

From The Guardian,NYT,Yahoo News today:

"The conservative supreme court justice Neil Gorsuch took just 10 minutes to approve without changes a 98-page draft of the opinion that would remove the federal right to abortion that had been guaranteed for nearly 50 years, the New York Times reported.

According to the paper, Samuel Alito, the author of the opinion in Dobbs v Jackson, the case that struck down Roe v Wade, from 1973, circulated his draft at 11.16am on 10 February 2022.

Citing two people who saw communications between the justices, the Times said: “After a justice shares an opinion inside the court, other members scrutinise it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.

“But this time, despite the document’s length, Justice Neil M Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes.”

Three other conservatives – Clarence Thomas, Amy Coney Barrett and Brett Kavanaugh – signed on in the following days.

“None requested a single alteration,” the Times said. “The responses looked like a display of conservative force and discipline.”

Seems the fix was in ?

[Rach3]

Justice Thomas apparently has no shame when it comes to asking for money.New Republic today:

https://www.yahoo.com/news/real-reason- ... 39330.html

[maestrob]

Justice Thomas apparently has no shame when it comes to asking for money.New Republic today:

https://www.yahoo.com/news/real-reason- ... 39330.html

Too low salaries lead to corruption everywhere.

[Rach3]

IF there is any doubt why the Alito-Thomas SCOTUS decided to hear Trump's immunity appeal and framed the only issue for their decision to be whether an " insurrection " occurred , and whether America's democracy, and thus elsewhere, may be about to come to an end:


New Yorker Magazine 2/29/24:

The Scandal of Clarence Thomas’s New Clerk
Crystal Clanton became notorious for sending outlandishly racist texts. Now she’s been hired to work for the Justice—and a dubious new story has surfaced to clear her name.

By Jane Mayer
February 29, 2024

( Rach3: First ... was my edit, not NY's)


Last week, Supreme Court Justice Clarence Thomas shocked the legal community when the news broke that one of his new law clerks will be Crystal Clanton—who became notorious in 2015 for apparently sending texts that said, “I HATE BLACK PEOPLE. Like f... them all . . . I hate blacks. End of story.”

For most young lawyers, sending such a text would indeed have been the “end of story.” Instead, Clanton is on the cusp of clinching one of the most coveted prizes in the American legal system. In the past several years, as Clanton has risen through the ranks of conservative legal circles, the story of her alleged racist outburst has been curiously transformed into a tale of victimhood. The new narrative is that Clanton was somehow framed by an unnamed enemy who—for motives that remain unclear—fabricated the racist texts to defame her.

This new account has been greeted with suspicion by many. If the revised story is a lie, then it threatens to implicate not just Justice Thomas, who has endorsed it, but several lower-court federal judges and the leader of a major political group aligned with former President Donald Trump. Indeed, the whole affair may prove one of the most shopworn axioms of political reporting—that the coverup is worse than the crime.

When the vile texts were sent, Clanton was the second-in-command and field director of the hard-right youth group Turning Point USA. The organization, a nonprofit advocacy group closely allied with Donald Trump’s Presidential aspirations in 2024, is well known for poisonous rhetoric: its leader, Charlie Kirk, has recently denigrated Martin Luther King, Jr., as “awful,” questioned whether Black pilots are capable of flying planes, and argued that televised public executions, perhaps by guillotine, should be held in America, with young people watching.


Yet, even within Turning Point, colleagues were so shocked by the bluntness of Clanton’s alleged texts that they preserved screenshots of the messages, which were shared in 2017 with The New Yorker. At the time, multiple Turning Point employees told me that Clanton was the author of the messages.

In 2017, Clanton told me, via e-mail, that she didn’t recall sending the texts, and that they seemed out of character. But when she was asked directly if she denied sending them she declined to answer.

The screenshots of the messages bore her cell-phone number. Another former Turning Point employee, John Ryan O’Rourke, who was the recipient of the texts, said at the time that he preferred not to discuss them. Several other Turning Point colleagues had also seen and circulated the screenshots. And there was more evidence. In addition to the racist comments, the screenshots show Clanton asking, “Can I come to Starbucks in 5?”; she showed up at one, on cue, a few minutes later. (In 2018, the online platform Mediaite revealed another offensive statement by Clanton, sent on Snapchat. The post featured a photograph of a man who appeared to be Arab, accompanied by a caption that she had added: “Just thinking about ways to do another 9/11.”)

In 2017, Clanton told me that she had resigned from Turning Point. Kirk, her boss at the time, made her departure sound less voluntary. In an e-mail, he told me that, after he learned of the texts, “Turning Point assessed the situation and took decisive action within 72 hours.” Four years later, a spokesman for Turning Point, Andrew Kolvet, confirmed the same set of facts to Ruth Marcus, a columnist for the Washington Post, telling her that Clanton was “terminated from Turning Point after the discovery of problematic texts.”

The story would likely be long forgotten, were it not for an extremely strange plot twist. After the texting scandal, Ginni Thomas, the lobbyist and politically active wife of Clarence Thomas, who had worked closely with Clanton as an adviser to Turning Point, unofficially adopted Clanton as the couple’s protégée.

The Thomases harbor deep anger at the mainstream media, stemming in part from the Justice’s embattled 1991 confirmation hearing, and evidently saw in Clanton a fellow-victim. Soon after leaving Turning Point, Clanton started working for Ginni Thomas. Remarkably, the Thomases then invited Clanton to live with them at their home in exurban Virginia, for the better part of the next year. The couple encouraged Clanton to go to law school, and Justice Thomas himself recommended her when she successfully applied to the Antonin Scalia Law School, at George Mason University. Justice Thomas also helped Clanton, who graduated in 2022, line up a prestigious judicial clerkship with Chief Judge William H. Pryor, Jr., of the U.S. Court of Appeals for the Eleventh Circuit. Pryor is one of the most conservative members of the federal bench, and a well-known “feeder” of clerks to Justice Thomas’s chambers.

Supreme Court clerkships, which last for a year, are extremely valuable in both professional and financial terms. It’s common for former clerks to receive half-a-million-dollar bonuses when they sign on for their first law-firm jobs, and the credential eases the path to coveted academic and political positions. An extraordinary number of Thomas clerks—twenty-two, according to the Associated Press in 2018—populated the high ranks of the Trump Administration or were nominated by Trump for judgeships; others have fanned out across the nation to other prominent posts.

Ordinarily, only the very best law students in the country, with the most impeccable résumés, get a shot at a Supreme Court clerkship. Presumably, a past that included termination for making grotesquely racist statements would present an obstacle. But Ginni Thomas’s intense enthusiasm for Clanton became evident in a leaked video of a 2019 closed-door session of the secretive Council for National Policy, a conservative leadership group to which both Ginni Thomas and Charlie Kirk belong. The video shows her introducing Clanton to the members as her special guest, and saying, “Crystal was for five years Charlie’s right-hand person, the wind in his sails, from a garage organization to this organization. And now she’s the wind in my sails.”

In one sense, it hardly matters whom Justice Thomas hires as a law clerk. His conservative judicial views are well known and unwavering, and it’s improbable that one of his clerks would bend his decisions in any discernible way. Also, had Clanton apologized, it’s unlikely that many people would still care. But hiring a young woman who was fired for racial bigotry, and who has never apologized for it, could scarcely send a worse message to Black litigants and lawyers, or do more to undermine the Court’s promise—carved into its building’s grand façade—to deliver “Equal Justice Under Law.”

Perhaps even more disturbing than Clanton’s hiring is the dubious revisionist history that has emerged to justify her selection. This refashioned narrative threatens to implicate the credibility of some of the most powerful legal officials in the country.

In the fall of 2021, reports surfaced that Clanton had lined up two successive clerkships: the first with U.S. District Court Judge Corey Maze, of the Northern District of Alabama, and the second with Judge Pryor, of the Eleventh Circuit. Ruth Marcus, the Washington Post opinion writer, posted a column asking of Pryor, “Why is a prominent federal judge hiring a law clerk who said she hates Black people?” Democrats on Capitol Hill filed an ethics complaint with the Eleventh Circuit, complaining that Maze and Pryor had hired “an individual with a history of nakedly racist and hateful conduct.” They warned that placing such a person in “close proximity to judicial decision-making threatens to seriously undermine the public’s faith” in the federal courts. And they argued that no member of any minority would “trust that they will receive equal justice before these judges.”

The federal judiciary’s self-policing process is abstruse enough to delight fans of “Bleak House.” The complaint was transferred to the Second Circuit, in New York, where Chief Judge Debra Ann Livingston, an appointee of George W. Bush, began an inquiry. The confidential process took place behind closed doors, but Bill Rankin, a reporter for the Atlanta Journal-Constitution, obtained letters that Justice Thomas and Judge Pryor sent to the Second Circuit in support of Clanton. Justice Thomas wrote that his wife had “informed me of the horrible way” Clanton “had been treated at Turning Point and asked that she be allowed to live with us.” The implication was that Clanton had been victimized at Turning Point.

Pryor added more detail. He put forward a novel defense of Clanton, which he attributed to conversations he’d had with Justice Thomas, along with a previously unmentioned set of facts provided by Charlie Kirk. According to this new account, Clanton was actually the victim of an unidentified former employee, who, for unknown reasons, had framed her as the author of the racist texts. It was not explained why this outlandishly devious plot hadn’t been exposed earlier—not at the time of her resignation, nor when Clanton was interviewed by The New Yorker, nor during the subsequent four years, when Turning Point’s spokesman consistently confirmed that Clanton had been fired for sending the texts.

According to Pryor’s letter, Clanton had been unable to deny the allegations about the racist texts earlier because she had been bound by a nondisclosure agreement, the existence of which she evidently had failed to mention to reporters at the time. If there was an N.D.A., Clanton also didn’t mention it to a lawyer to whom she referred my questions in 2017. The lawyer, Robert Grabemann, told me that he hadn’t prepared an N.D.A. for her and wasn’t aware that one existed. Stephen Gillers, a law professor at N.Y.U. who is considered a leading authority on questions of judicial ethics, said the claim that an N.D.A. prevented Clanton from telling the truth earlier “is simply not credible,” adding, “I’ve seen my share of N.D.A.s, and I can’t imagine one that would forbid a person to deny making racist statements. I don’t know how one might even word such an N.D.A. To me, this claim is preposterous and strong evidence that information needed for public understanding of these events has been hidden.”

In Pryor’s letter, he said Justice Thomas had assured him that Clanton “was a victim of a pernicious attempt to portray her as a racist.” Kirk, meanwhile, had told Pryor “the media has alleged that Crystal said and did things that are simply untrue.” Instead, Kirk claimed, the real culprit was a former employee who had “created fake text messages to be used against other employees,” in order to make it seem as though they had engaged in misconduct. The real culprit’s name was not identified.

Clanton did not respond to a request for comment. When I reached Kirk to ask him to explain his volte-face on Clanton’s responsibility for the texts, he referred me to his spokesman, who said that he had no comment on the veracity of the new version of the facts, even though it contradicted the explanation that he had provided before. Moreover, when I checked this new account with former Turning Point employees, they hadn’t heard anything about faked texts, or were aware of any other employee having been held responsible for the elaborate ruse. And when Marcus, at the Washington Post, inquired about the new origin story for the texts, a former Turning Point staffer simply replied, “Not fake,” and declined to say more. In a column, Marcus, a graduate of Harvard Law School, deemed the revisionist narrative “not credible.”

Nonetheless, Judge Livingston seemed satisfied. Without obtaining the disputed texts or interviewing key witnesses, she dismissed the ethics complaint against Judge Pryor and Judge Maze. In her ruling, Livingston echoed the claim that the original news coverage was false, and that Clanton had always treated everyone with “kindness, respect and fairness.” She wrote that a Turning Point executive—clearly Kirk—had explained that a different employee “was fired after the organization learned that this person had created fake text messages to be used against coworkers, to make it appear they had engaged in misconduct, when they had not.” Livingston noted that Clanton was highly qualified, and that Pryor and Maze knew about the allegations against Clanton before offering her the coveted clerkships, and that both had determined the allegations of racist behavior by Clanton to be untrue. The “undisputed record,” Livingston concluded, shows that Pryor and Maze “performed all the due diligence that a responsible Judge would undertake.”

Critics howled. Congressman Hank Johnson, a Democrat from Georgia on the House Judiciary Committee, who helped initiate the ethics complaint, declared that “the 2nd Circuit’s decision does a disservice to everyone involved,” adding, “This cannot be the end of the matter.” (When I reached out to Livingston, a spokesman for the Administrative Office of the U.S. Courts replied that misconduct proceedings are “confidential by statute. So Chief Judge Livingston cannot comment.”)

There was one final attempt to get to the bottom of the allegations. The Judicial Conduct and Disability Committee of the U.S. Judicial Conference asked a special committee to gather more evidence. The committee told the Second Circuit that it needed to go back and find out whether Clanton had, in fact, made the racist statements attributed to her, and exactly what Clanton had told Pryor and Maze about the matter. It pointed out that Clanton “has never publicly denied the allegations,” and noted that “there are numerous individuals with first-hand knowledge of the candidate’s alleged conduct.” At a minimum, it said, “the special committee should attempt to interview the candidate and the witnesses identified in the media reports we have cited.”

But that didn’t happen. Instead, Judge Pryor and Judge Maze invoked a legal rule to bar the Judicial Conference from reopening Livingston’s findings. Jeremy Fogel, the director of the Berkeley Judicial Institute and a retired federal judge, told me, in an e-mail, that those who support Justice Thomas’s outlook “likely will argue that this decision clearly is within his discretion as a justice, especially given the close working relationship and level of trust expected between justices and their law clerks.” His critics, however, “will see this as another example of his willingness to ignore ethical rules.” (Justice Thomas and Ginni Thomas declined to comment for this story, as did Judge Maze. Judge Pryor did not respond to a request for comment.)

Either way, with the help of some rather powerful patrons, and a weak judicial-ethics system, Crystal Clanton is on her way to clerk at the highest court in the land. Eric Segall, a law professor at the Georgia State University College of Law, who served in George H. W. Bush’s Justice Department, told me, “Can you imagine what would happen if a Black person who said ‘I hate all white people’ ended up clerking for Sotomayor? You’d never hear the end of it on Fox News. But there’s almost total silence about this.”