supreme court

Now – just six cases yet to be decided

by Dave

The case of “Guns for Domestic Violence Abusers” was decided yesterday (June 21) in the Rahimi decision. As a practical matter, I am glad, as my heart goes out to the victims of domestic violence. Victims must be able to convince a judge to issue a restraining order that includes a finding that the defendant posed a physical threat to her or her child.

The case really focuses if gun ownership is a right or privilege. Fortunately, eight justices ruled upheld the regulation, ruling that handgun ownership can be temporarily suspended following for a court finding of a credible threat to the spouse or child.

The one dissenter to the case was Justice Clarence Thomas, who would have found the regulation violated criteria set down in the Bruen decision. He argued had to be sufficient “historical tradition of firearm regulation” to justify the suspension.

Both prior Supreme Court decisions (Heller (2008), Bruen (2022)) made firearm regulations more difficult. The prior decisions also split the court between liberal/moderate and conservative justices. Justice Scalia wrote the Heller decision, and was opposed by the four liberals/moderates on the bench (Breyer, Stevens, Ginsburg and Souter). The two moderates on the bench would be Justices Stevens and Souter, both nominated to the Court by Republican presidents.

Justice Thomas wrote the Bruen decision, which was opposed liberal justices Breyer, Sotomayor and Kagan.

See Wikipedia summary of Bruen:

The issue really comes down to public safety verses prior conservative interpretation of the Second Amendment in Heller and Bruen. It is not contested that there can be lawful restrictions on what can be bought or owned by the public, such as military weapons, designed specifically for mass destruction. It is just far gun restriction can go that pits liberals against conservatives.

In Heller, the dissent as written by Justice Breyer completely disagrees with the idea that the objective of the Second Amendment was to grant a general right to gun ownership. Instead, he argues it was to allow officers in the state militia (this pre-dates the standing army as we have today) to store their arms in their home. The conservatives seem to ignore the first 13 words of the amendment. (Note Judge Thomas did not do this; his opinion is exactly as shown below)

Second Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

One can contrast this to the First Amendment, which is an straight forward statement on what the US Congress could never do:

First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

How I wish our constitution could be amended just to say, gun ownership (like a driver’s license) is a privilege not a right.

As Roberts wrote in the case published yesterday (Rahimi case), historically there are many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.” Further, he wrote that the prior ruling (Bruen case) does not require a “historical twin.” Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where the provision might raise constitutional concerns. The majority opinion was joined by both liberals and conservatives.

The Rahimi case will be considered a landmark case. I can not say I honestly read all of Judge Thomas opinion. But, temporarily suspending the defendant’s right to own a gun, while he is currently under a restraining order from his spouse and child, seems like a very practical means of preventing a violent individual to commit murder. Judge Thomas seems very upset that the rights of a law-biding citizen (Mr. Rahimi) was suspended but zero concern for the victim of domestic violence who I am certain fears for her life.

Six justices added concurring opinions. I particularly liked Justice Sotomayor, who focused on why we have such regulations, to begin with:

To start, the Government has a compelling interest in keeping firearms out of the hands of domestic abusers. A woman who lives in a house with a domestic abuser is five times more likely to be murdered if the abuser has access to a gun.

So, it is one down and six to go.

Stay tuned,

Dave

Rahimi Case opinion

Note I state that Justice Thomas dissent included the full Second Amendment, Justice Gorsuch concurring opinion presents just the last 14 words. The amendment contains just 27 words in total.

I enjoyed Justice Sotomayor’s analysis of Judge Thomas dissent. She writes:

The dissent reaches a different conclusion by applying the strictest possible interpretation of Bruen. It picks off the Government’s historical sources one by one, viewing any basis for distinction as fatal.

Also she writes:

This case lays bare the perils of the dissent’s approach. Because the dissent concludes that “§922(g)(8) addresses a societal problem—the risk of interpersonal violence—‘that has persisted since the 18th century,’” it insists that the means of addressing that problem cannot be “‘materially different’” from the means that existed in the 18th century. Post, at 7. That is so, it seems, even when the weapons in question have evolved dramatically.

Cases to be decided by the Supreme Court (updated June 21)

by Dave

The following was updated to include more information on each of these cases.

The following link describes seven very important cases, yet to be decided by the Supreme Court. There are at present 21 undecided cases, but these are the important ones. I would expect all cases to be decided by July 12, 2024. I think they can push back the summer adjournment date, to complete the remaining cases.

I’ve used the same titles as in the CNN article, which unless the CNN article is read, can give the wrong impression. This is particularly true in case 3, where one convicted rioter wants a charge of obstructing an official proceeding dropped because the defendant claims it was based on a law that was never intended for this purpose. The result will be chaotic to the courts because many rioters have been charged under this statute and their sentences can be reduced or voided by the appeals court. Donald Trump for his actions, is also charged under this statute.

It would also help in securing presidential pardons for rioters, if the Supreme Court rules in favor of the Fischer case. As a practical matter, these are not people you would rather not release early, but they should not be held if the law is now considered invalid.

CNN: Abortion, guns, Trump and more: These are the Supreme Court’s biggest remaining cases

1. Trump claims ‘absolute’ immunity

2. Abortion for health in emergencies

3. January 6 rioters seek to shorten sentences (‘Fischer Case’)

4. Guns for domestic abusers

5. Government regulation of Facebook

6. Cleaning up online ‘disinformation’

7. Government regulations threatened (Chevron deference to agency decisions)

Cases 1 and 3 will have a direct impact on the January 6 charges against Trump. The Fischer case could allow rioters of the Capitol to have some of the charges against them dropped by the appeals court. Also, the charges against Trump might be reduced from four to two.

Case 2 is the result of laws banning abortion unless it is a life or death situation with the pregnant woman. This case will examining bans on abortion which prohibit doctors from treating woman, where there is real health consequences if they do not have abortion.

Case 4 centers on state laws which restrict gun ownership because individuals were guilty of crimes of domestic abuse. The interpretation of Second Amendment rights by the Court of gun ownership, was a classic clash between conservatives vs liberals. The case will be interesting as it is a balance between gun ownership rights and public safety, which is a legitimate government responsibility. After the heated bump stock decision, I am certain all liberals will agree the restrictions are constitutional. To win, they must convince two conservatives to vote with them.

Case 5 concerns actions against Facebook for prohibiting misinformation on their platform. State laws which would limit or ban this practice. Facebook routinely refused to allow many myths about Covid-19 and unfounded personal attacks. I think the liberals will support Facebook’s right to refuse to post misinformation. Other postings, like the elections in either the US and Brazil, were rigged, generally receive disclaimers instead of outright deletions.

Case 6 comes from the Biden’s administration policy of advising social media platforms, that their sites contain false information. They are not regulating the content of the platform, yet there are serious free speech issues at play. I believe the liberals on the court will uphold the government’s position.

Case 7 is about the “Chevron doctrine” which gives deference to the judgement of the agency in regards to decisions requiring their expertise. For practical reasons, in determining air and water standards, the ability of agencies to set their own rules is important. You can expect the liberals on the court to want to keep the Chevron doctrine as it is, and conservatives will want to discard it, or make it much more restrictive.

See link: Supreme Court likely to discard Chevron

Per Wikipedia:

Chevron is one of the most important decisions in U.S. administrative law. It has been cited in thousands of cases since its issuance in 1984.[4] Thirty-nine years later, in May 2023, the Supreme Court granted certiorari to reevaluate Chevron in Loper Bright Enterprises v. Raimondo, No. 22-451. A decision is expected in the first half of 2024.[5]

Wikipedia: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

The Chevron decision was decided by a 6-0 vote by the Supreme Court. If it is overturned, then the three liberals on the court will likely have a strongly worded dissent, based on Stare Decisis:

Stare Decisis—a Latin term that means “let the decision stand” or “to stand by things decided”—is a foundational concept in the American legal system. To put it simply, stare decisis holds that courts and judges should honor “precedent”—or the decisions, rulings, and opinions from prior cases.

Quite bluntly, Chevron was a practical decision that kept very nuanced challenges to agencies’ decisions out of the realm of the courts. The only change to Chevron is the makeup of the court.

In the next two weeks or so, all these cases will be decided. The court is now six conservatives and three liberals. For liberals to win, they must convince at least two conservatives to join them. There’s a lot of speculation on social media and cable networks on how they might decide. We will know soon enough.

Stay tuned,

Dave

Supreme Court Intervention in the Hush Money case

by Dave

The Supreme Court will not “intervene.” It isn’t the way the system works. Supreme Court only hears cases from the lower courts. The trial court will finish their job on July 11, 2024 with the sentencing of Donald Trump. I believe his sentence will be stayed, meaning it will be put on hold until after all appeals have been exhausted.

After sentencing, Donald Trump, will likely submit an appeal, which the appellate court must hear. He can ask that this appeal be expediated. I don’t think he will ask the case be expediated. Losing his appeal doesn’t really help his campaign.

I think Trump likes the attention. No gag order stops Trump from blaming the Biden administration for the trial and verdict. This is totally baseless. No gag order at present stops Trump from claiming that the Department of Justice and FBI are out-of-control. His latest claim is that FBI agents were “locked and loaded” to assassinate him when they entered Mar-a-Lago on August 8, 2022. Note that the Director of the FBI is Christopher Wray, appointed by Donald Trump, but generally at hearings gets the most criticism from Republicans.

It is very rare that the Supreme Court expediates a decision. In December 2023, the Special Counsel Jack Smith sought to expediate the issue of presidential immunity, by having the Supreme Court hear the case before the appeals court had ruled. Donald Trump, fearing that he might lose in the Supreme Court argued that the Appellate Court should first complete its review.

The Supreme Court is powerful. It uses this power cautiously. It can overturn verdicts, if the trial has violated the rights of defendants. If for example, Donald Trump, were forced to testify, then a Constitutional issue would be evident. Judge Merchan let the jury know that Donald Trump had the right not to testify, and the jury could not use this fact in their deliberations.

Our legal system is not in tatters. Our FBI and Department of Justice are very actively enforcing the law, in partnership with the States and local authorities. I want them to continue to investigate all areas of criminal activities, including financial and election law crimes.

Stay tuned,

Dave

Trump calls on supreme court to annul his guilty verdict in hush-money case

The Overfishing Case in the Supreme Court

by Dave

This is a landmark case. Like other Supreme Court cases, the problem might seem small, but the ramifications of this decision could affect our government’s ability to enforce many regulations, including the Food and Drug Administration. The case is called “Relentless v. Department of Commerce” and I hope the Supreme Court will rule against Relentless. Just so you know my feelings!

The Supreme Court’s term is ending in late June or early July, and they always leave the most important cases to the end of the term. As usual, I focus more on the practical aspects of what happens as a result of the ruling, rather than the legal arguments.

— The Case

Fishing is a huge business, and there is always a temptation to overfish, which is to exceed the established quotas for a particular species of fish. It’s simply a risk verses reward situation. It is also a classic case of the regulators (US Government, National Marine Fisheries Service) verses the regulatees (Herring industry).

The problem is undisputable- when more fish are taken than the spawning rate, the population declines. There are multiple solutions, but enforcement is frustratingly difficult given the many species of fish. So the agency decided to enforce quotas by requiring trained inspectors onboard the fishing vessels and pay $700 per day for their services.

I am not sure if this policy is working, but that isn’t for the Supreme Court to decide. I can understand the pushback from the vessels’ owners, particularly the smaller business owners, who claim that the $700/day can make it unprofitable to fish. The Relentless corporation has brought this legal challenge to the Supreme Court as an overreach of a government agency in making rules without the legislature empowering the agency specifically to do so.

I can also imagine how difficult it must be, for fish inspectors to be checking the haul of vessels at the dock, when they are all coming in together. So, putting the inspectors on the vessels made sense.

— The Chevron Deference and Politics

The Chevron deference is part of a ruling, in which the court opined that when ambiguity exists in the enforcement of a law, the court should defer to the judgement of the regulatory agency and just look at whether this is a reasonable interpretation of the agency’s authority. It is based on pragmatism, that the regulatory agency has a better understanding of the problems and potential remedies. It was part of a 1984 Supreme Court decision, and has been narrowed in scope by other court decisions. An excellent summary provided by Cornell law school:

https://www.law.cornell.edu/wex/chevron_deference

I suspect philosophical/ political perspective will have a lot to do with this ruling. The Supreme Court is split, 6 conservatives and 3 liberals, so this might be a win for conservatives. Roberts may join with the liberals. but that won’t be enough to carry the day. Maybe Barrett?

Supreme Court likely to discard Chevron

NY Times, https://www.nytimes.com/2024/01/17/us/supreme-court-chevron-case.html

As I stated at the onset, I hope Relentless loses. The Chevron deference, I believe, is necessary to keep politics out of enforcing unpopular rules. And, the consequences of invalidating the Chevron doctrine will extend far beyond our government’s attempt to regulate the fishing industry. Oral arguments in January indicated Brown, Kagan and Sotomayor will not invalidate the Chevron deference. Thomas, Alito, and Kavanaugh seem to be building a case against this doctrine, as being against free enterprise.

If Relentless wins, it will weaken the hand of government agency to accomplish their areas of responsibility, and in the long term, be bad for the general public. The enforcement of rules is often very difficult, as the risk to reward ratio changes, and owners of businesses see compliance as an option rather than a responsibility.

Yes, there are tons of regulations, but I think in the long run, the Chevron deference benefits everyone. We import 90% of our fish, and if we can’t control overfishing, we have no seat at the table when others are busy diminishing the populations of fish. Same is true for many other areas, such as the environment (yes including climate change), water and air pollution, and safe food and drugs. We depend, like it or not, on the expertise of agencies.

This is an election year, and Donald Trump will champion himself as a great regulation chopper, which will lead to new prosperity. It’s a nice populist theme, particularly for a real estate mogul, with huge legal problems. Perhaps, it isn’t MAGA, but MMGA, or Make Me Great Again.

Stay tuned,

Dave

Other Links related to Overfishing:

New Civil Liberties Alliance: Relentless v. Department of Commerce

Note: The New Civil Liberties Alliance is counsel for the Relentless defendants.

Environmental defense Fund, Overfishing

2024 The year of historical trials and court decisions

by Dave

Some people try to associate court trials with other things they are familiar with and it is usually a disaster. Court cases are not like the movies. They can go on for months. It is also not a ballgame. It doesn’t end in nine innings.. Decisions are appealed.

The public knows who they like and dislike, and believes the accused should either be set free or in jail for the rest of their lives. The Republican politicians went years claiming Hillary Clinton had committed all sorts of crimes. But, finally, one Democrat has been charged with profiting from his high position, Senator Bob Menendez. His wife has also been charged. 

Hunter Biden and Steve Bannon will go on trial unless either can cut a plea agreement. These trials will be headline news, because of their close association with President Biden and Donald Trump. In both cases, there has been zero evidence these actions involved either Biden or Trump. Both will have the best lawyers money can buy, but the evidence against them will make or break their cases.

And then of course there is Trump and his two civil cases and four criminal ones. I have written extensively about this and there are many Trump legal problems trackers out there. The final conclusion of the civil case against Trump and his organization for the overvaluation of properties will end quietly, as the judge will simply file the judgment in late January and Trump will appeal. 

The disqualification issue must be decided by the Supreme Court. This case and the immunity case will be historical landmark cases. I think only 3 of the 4 criminal cases will likely be tried in 2024, with the Georgia conspiracy case, starting either late 2024 or early 2025. The Supreme Court has a number of highly contentious cases, of which I’ve commented on the abortion pill.

An independent judicial system is one. of the cherished rights of all Americans. If someone has been unjustly accused, the appropriate place to seek justice is the courtroom, not on social media or cable news stations.

So in sum, the system is working as it is intended. The appeal process is an additional check that ensures convictions are in accordance with the law and the rights of individuals are protected.  

Republican members of Congress should not be involved in any of these cases. They should not attempt to tilt the balance of justice against Hunter Biden or in favor of Donald Trump. By their meddling in trials, through their power to subpoena, they are hindering our system of justice.

I fear a re-election of Donald Trump and his disrespect for the judiciary will severely damage our judiciary system. His use of pardons for political purposes would be an attack on the sacred right of justice for all, that comes from  a conscientious and independent judiciary system. Might makes right approach whether by Congress or the President brings us one step closer to tyranny.

What will work, is an informed public who understands the judiciary has a very independent role vital to our system of government. 

Wishing the best of all in 2024,

Dave,

Supreme Court to take up landmark cases

by Dave

These are cases in which whatever the outcome, millions of Americans will be impacted. And millions of Americans will believe that the judges are total idiots, and/or highly partisan. To begin with, they are neither. The buck stops at the Supreme Court. All judges who have been accepted to the Supreme Court are really brilliant.

Unlike the legislature and executive branch, the judicial branch at every level, issues opinions that are available to the public and can be critically reviewed by constitutional scholars, who really understand the issues. 

Two landmark cases are the Trump disqualification case and the Trump presidential immunity case. Neither one has been accepted by the US Supreme Court, but almost everyone believes they will be soon. Lawyers on both sides will be burning the midnight oil, to explain, in a million words or less, to explain why their side is right.  

Trump Disqualification Case

By a 4 to 3 ruling, Colorado Supreme Court ruled on December 20, 2023 that the Secretary of State may not include Donald Trump from the primary ballot. The ruling would also eliminate him from the general election ballot. The Supreme Court will have the final say in these cases. 

State judges can take several “off-ramps” to dismiss disqualification challenges. I call these the “Don’t let this case land in my courtroom defenses” or “Stop them at the courthouse doors.” The judge does not need to hold an evidentiary hearing if the plaintiffs have not demonstrated real injury. Second, judges have ruled in many states that these cases are premature, or as they say, are not ripe for review, because Donald Trump’s name is not on the general election ballot.

Colorado’s case went forward based on both state and federal laws and the Fourteenth Amendment to the US Constitution. State law giving the Secretary of State the right to disqualify candidates in the primary election, allowed the case to proceed. The case cleared several major hurdles in the District Court, in particular, that the violence on January 6, 2021, adequately fits the definition of an insurrection and that Trump’s actions constituted “engagement.” So, none of the normal off-ramps were taken.

However, Trump was the victor in this initial court case, because the judge concluded that the 14th Amendment did not specifically state that it applied to presidential elections. The Colorado Supreme Court reversed the judgment, arguing that the Fourteenth Amendment held for all elected offices of government, which they decided included the president. 

This case must be decided by the Supreme Court. They understand what is at stake. Suppose a similar judgment occurs in Florida, Texas, or Georgia. It has the potential to allow Biden to win, because Trump is not on the ballot. And remember, if one of the four judges disqualifying Trump had dissented, the ruling would have allowed Trump to run. It was summed up by one commentator, that voters not judges decide elections. Well, we shall see.

I particularly like a recent opinion posted on CNN. It is important to note that this opinion is not the views of CNN, and the author is not a lawyer. 

CNN Link: The Fourteenth Amendment gambit is breathtakingly foolish

Jan 6 Presidential immunity case

As part of the pre-trial motions of the January 6 case, with a scheduled start date of March 4, Donald Trump claimed presidential immunity for all actions while he was president. The trial court ruled against him, so he filed an appeal. The Special Counsel, Jack Smith, asked the Appellate Court to expedite the matter and they agreed.

Since the case will inevitably end up in the Supreme Court, Smith asked the Supreme Court to review the case, prior to the Appellate Court decision. As I was completing this post, the Supreme Court, rejected Smith’s petition without comment. This allows the Appellate Court to decide first, which will inevitably delay the start of the trial.

To leapfrog ahead of the Appeals Court or maintain the normal order. That was the question until last Thursday. Trump’s legal team wrote an excellent reply to Smith’s petition. Nothing is stronger than taking someone else’s words and using them against them. Smith argued that jumping ahead of the normal order was needed because this matter was of great public importance. Trump countered that if this is so important, it justified the Appellate Court’s review first to ensure the Supreme Court had all the facts before a landmark decision. It’s the old “haste makes waste” argument. 

The elephant in the room is the elections. Trump wants to push the January 6 criminal case to after the election. The decision by the Supreme Court and Trump’s very busy court date means it might be delayed past November.  If Trump loses again in the Appellate Court, he has 45 days to file an appeal to the full Appellate Court, and if he loses again, 90 days to appeal to the Supreme Court.

The January 6 Defendants Case

On Dec 13, 2023, the Supreme Court agreed to hear the Fischer case, which if successful, will undermine the legal basis for 2 of the 4 counts against Trump in the January 6 case. The Fischer case is also referred to as the Jan 6 defendants case because it arose from a defendant found guilty of participating in the riot on January 6. 

The case is whether the law that formed the basis of guilty convictions of over 200 defendants for attempting to disrupt an official proceeding on January 6 was really applicable. It was enacted as an anti-corruption corporate statute after the Enron scandal to prevent the destruction of documents.

For a detailed examination of the applicable law 18 USC 1512, see Lawfare post: Trump Jan 6 Indictment: The Statutes.

So, the Supreme Court, through a very narrow interpretation of the applicable law, could effectively dismiss two of the charges against Trump and the conviction of over 200 defendants in the January 6 riots. The Department of Justice has been slowly working their way up to the leadership ranks of the extremist groups, and it would terrible to see the organizers of the January 6 riots go free, based on slight interpretation differences in the words, like “corruptly” or “otherwise.”

Abortion Pill Case

The Supreme Court will decide if states can limit access to the abortion pill, mifepristone. Since overturning Roe vs. Wade, the argument is availability is a state’s issue. However, the drug has been approved for general use by the FDA. This case will have the greatest impact on abortion rights since the Supreme Court overturned Roe v. Wade. It is estimated that approximately half of all abortions in the US are medicated abortions. Plus, any ruling to limit use of a drug that has been deemed safe by the FDA, would allow states to challenge the use of any other drug on the market, making their judgment superior to the FDA.

NYT: Abortion Pill Rullings

The Supreme Court tends to leave the most controversial decisions to the end of its term, which could end in July 2024. My sense is they will act rapidly on the Colorado Disqualification Case, as it directly impacts Trump’s candidacy. A delay in the presidential immunity case would be a big gift to Trump as he would definitely get the case dismissed if he is elected president. The status quo right now on the abortion case, is the ruling on restrictions has been put on hold, so this is one that can be delayed without a major impact.

Stay tuned,

Dave

Abortion case now with the Supreme Court

by Dave

Not my favorite topic. The abortion case is highly divisive, entwining legal, religious and political viewpoints. I’ll leave most of the commentary up to the pundits on internet, social media and cable news. who seem able and willing to comment on any topic in a minute. I trust more the printed media, in particular the New York Times and Washington Post. Yes, I am a news snob. I include only two links, one from Wikipedia, and a second from Scotusblog.com . The Supreme Court typically issues their most controversial opinions late in June or July, shortly before adjourning for the summer.

The case before the Supreme Court is Dobbs v. Jackson Women’s Health Organization and at issue is law recently passed in Mississippi which permits abortion up to the first 15 weeks. This is a violation of Roe v. Wade which permits states to outlaw abortions only at the end of the second trimester, approximately 24 weeks.

Roe v. Wade was decided in 1973, with Justice Harry Blackmun, a Republican nominated by Nixon, writing the majority opinion. Prior to this cases, it was hard time getting a case heard in the Supreme Court because by the time because there was no “live” case, as the woman whose rights had been denied, would have already given birth. The Court in 1973 opined that the case could go forward without the requirement of a “live” case.

I have included links on the history of the Roe v. Wade and the oral arguments summary by Amy Howe (Scotusblog). I believe both links provide a neutral stance on the issues.

The liberals on the court, would like to consider Roe v. Wade as settled law, which establishes a precedent for all future cases. It was decided on the Ninth and Fourteenth Amendments to the Constitution.

The conservatives likely consider Roe v. Wade improperly decided on a weak or nonexistent constitutional basis, and so they are merely correcting prior errors of the court. For practical purposes, if Roe v. Wade is overturned, abortion rights will return to the states to decide. What is legal in one state, could result in a felony charges (manslaughter) in another.

Stay tuned,

Dave

Links:

Wikipedia: Roe v Wade

Scotus Blog on summary of oral arguments in Dobbs

No 6-3 decisions – Update

by Dave

Perhaps I spoke to soon. Two important cases were just decided with all six conservatives in the majority as follows:

Americans for Prosperity v. Bonta

The Court struck down California’s requirement that charities and nonprofits operating in the state provide the state attorney general’s office with the names and addresses of their largest donors. (From Scotusblog.com)

Brnovich v. Democratic National Committee

By a vote of 6-3, the justices upheld two Arizona voting provisions that Democrats and civil rights groups challenged as disproportionately burdening minority voters. In an opinion by Justice Samuel Alito, the majority outlined what it described as “guideposts” for future challenges to voting laws under Section 2 of the Voting Rights Act, which bans racial discrimination in election practices. The court’s three liberal justices dissented, with Justice Elena Kagan complaining that Thursday’s decision “undermines Section 2 and the right it provides.” (From Scotusblog.com)

Stay tuned,

Dave

Links:

Scotusblog.com

No 6-3 Supreme Court Decisions?

by Dave

Justices Thomas and Breyer

“When you live in a polarized political environment, people tend to see everything in those terms. That’s not how we at the court function and the results in our cases do not suggest otherwise,” said Roberts before hundreds in attendance at the Temple Emanu-El Streicker Center in Manhattan.

Chief Justice John Roberts, Sept 2019.

There are 3 liberal Supreme Court justices: Sotomayor, Kagan and Breyer. As shown above, Justice Breyer is seated to the right of Justice Thomas. Supreme Court Justice Clarence Thomas is a long standing conservative justice. Other conservatives on the bench are: Alito, Gorsuch, Kavanaugh, Barrett, and Roberts. So, the balance of the court is 6-3, in favor of conservatives.

However, the idea that conservatives now control the court has no legs to stand on in the 2020 term. As the Economist article states, as of June 23, of the 50 cases decided in the current term, there have been only four cases of a 6-3 decisions split over ideological lines. There were 24 unanimous decisions.

The 2020 term is coming to an end. I believe there are just 5 more decisions before the court takes their summer break. The more contentious case often come at the end of the term. The HollyFrontier Cheyenne Refining case was decided on June 26, and it clearly supports what Roberts said, that the justices will decide based on the law and precedent, and not which political party supported their nomination. The case was decided 6-3 but the majority opinion was written by Justice Gorsuch, a conservative, and the dissent was written by Justice Barrett, another conservative. Joining Justice Gorsuch was Justice Breyer, a rock solid liberal on the court. Joining Justice Barrett, were liberal judges, Sotomayor and Kagan.

A New Yorker article entitled, “The Supreme Court surprising term” as published yesterday, states, “the Justices repeatedly defied expectations, with conservatives and liberals together forming majorities in high-profile cases in order to avoid or defer the fighting of deeper wars.” I’m not so sure that was the motivation. They recognize the immediate impact their decisions have on every court in the country and this supersedes politics.

The conservatives and liberals have different philosophies on interpreting the law. I don’t think any of the justices has really altered their general philosophy. Conservatives adhere more to the Constitution as written, and are less willing to take an expansive interpretation of the constitution. They can still arrive at the outcome, but with different reasoning. Judgement and and dissents of the court are much more powerful, when supported by both conservatives and liberals.

So, ironically, as our political parties seem to become more polarized, with opposing views on just about every issue, the Supreme Court is finding common ground and this is good. Yes, Republicans nominate conservatives and Democrats nominate liberals. The very good aspect of the approval process, is that we have a Supreme Court, with some of the top legal minds in the country, through their education and experience.

Conservatives and liberal justices joined in the denial of the challenge to Obamacare, probably the case with the greatest immediate impact and highly controversial between Republicans and Democrats. The majority ruled the merits of the case should not be considered, because there was lack of standing, based on no showing of real harm to the States. Justice Alito wrote a strong dissent to the majority.

What keeps the Court out of politics? The Court has nine independent justices, and each gets one vote, including the Chief Justice. In the case of eight justices, the Chief Justice does not break the tie. A tie means the lower court decision holds. So, I believe giving the Chief Justice no special privileges has been one way the court has kept out of partisan politics. The President might call up the Speaker of the House, when the Republicans were in the majority and say he wants certain legislation passed. Doesn’t work at the Supreme Court. Our founding fathers wrote in the Constitution that the Supreme Court judges would have lifetime appointments, so this keeps them out of the political fray.

I think it is also a tribute to John Roberts and other members that has resulted in conservatives agreeing with liberals and vice-versa. Yes, conservatives tend to agree more often with each other than with liberal members. But, this agreement isn’t consistent enough to predict cases.

Which justices cross over and join with the other side? I think this term, the answer is pretty clear. Every single one of them! Breyer joining with Barrett on one case, Sotomayor and Kagan joining with a dissent written by Thomas in another case (TransUnion Credit Case). How nice!

Links:

Economist: The 3-3-3 court: America’s Supreme Court is less one-sided than liberals feared

The Supreme Court’s Surprising Term

Scotus Blog

Trump’s tax case

by Dave

The Supreme Court ruled the President may be issued a subpoena for evidence from Congressional Committees and any Prosecutor in the country.   There is no blanket immunity because Trump is president.   This assertion of absolute immunity from the issuance of subpoena was part of the claim made by Trump.   Most legal experts felt Trump would lose on this point.    Trump attacked both the Supreme Court and the New York prosecutors who issued the subpoena;

“The Supreme Court sends case back to Lower Court, arguments to continue,” Trump wrote. “This is all a political prosecution. … I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration! … Courts in the past have given ‘broad deference’. BUT NOT ME!”

Trump went into this great conspiracy nonsense later on Fox News.   The judicial system is disgraceful when they they investigate his close associates.  Actually, the justice system is doing their job when they prosecuted Manafort, Flynn,  Stone, and Papadopolous.    Trump can rant and rave all he wants on Fox News.   What is so abundantly clear, is that when close associates of Trump don’t cooperate with prosecutors, then they are good people and don’t deserve to go to jail.   But those who rat on him, are the bad people (like Michael Cohen, Trump’s fixer) and deserve their sentences.   Even Roger Stone admitted that his sentence was commuted from 40 months in jail to zero, because he kept his mouth shut.  This stinks to high heaven.

The truth of the matter, is that our judicial system is doing just fine.   The damage done is repairable, which I hope can happen after the November elections.  The court case in practical terms, was a win for Trump, because he doesn’t have to release his taxes prior to the election.  In fact, experts say there the cases could stretch on for a long time perhaps late 2021.  The broad subpoena from Congress will have may never be executed.

The Supreme Court very rarely has to rule on subpoenas from Congress because some accommodation is worked out.  The Supreme Court in their ruling has laid down certain criteria for executing subpoenas against a president, to really protect the president and also to allow appropriate requests from Congress and prosecutors to be executed.   I believe what was particularly important to Chief Justice Roberts was that this ruling included three conservative, Republican nominated justices (Roberts, Kavanaugh and Gorsuch) along with the four liberal justices on the court.

Having the subpoena issue pushed off to next year is likely for the best.  If the Supreme Court has enforced the Congressional subpoena, I believe it would be damaging to Trump just before the election. He could blame his defeat on “political prosecution.”   Oh gee, he’s already claiming this!

It isn’t political prosecution or harassment.   It is equal application of the law for everyone.  No absolute immunity for Donald Trump.

Stay tuned,

Dave

Links:

I’ve copied a few opinions on the Supreme Court case.   The opinions are on the supremecourt.gov website.

NYT Opinion:  The Supreme Court Lets Trump Run Out the Clock

Politico: Supreme Court splits on Trump tax cases, potentially shielding returns until after election

Washington Post: Supreme Court says Manhattan prosecutor may pursue Trump’s financial records, denies Congress access for now

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Supreme Court Decisions – 3 Down and one biggie to go.

by Dave

“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!”    Trump’s tweets, June 18, 2020.   (Referencing the court’s decision in favor of the DREAMers, see last link)

The reference to Second Amendment rights is really pretty weird, because the Supreme Court refused to hear 10 petitions regarding gun rights, letting these issues be resolved in the lower courts. In the current term, due to expire very soon, there are no gun rights cases.

Trump has lost 3 cases in a row.  He loves to brag on how he’s backed the courts with conservative judges,  but in these cases, at least one has sided with the liberals on  the court.   The cases that were decided against Trump were:  (1) The Louisiana abortion restrictions case (2)  DACA legality case and (3) LGBQT discrimination case.   You can’t win a case in the Supreme Court unless a Supreme Court Justice nominated by a Republican president joins with the liberals.  If Biden wins,  I suspect Ginsburg will retire, so we will still be 5 conservatives and 4 liberals.

The most recent decision, the Louisiana abortion limitations case,  was decided in favor of the liberal minority, because John Roberts, normally a conservative, decided to join them.   Roberts concurred with the decision, but wrote a separate opinion, defending the decision based on the “Texas Case.”     Simply put, like cases should have like outcomes.   It is called “stare decisis.”

The Supreme Court made its interpretation of the Second Amendment in the District of Columbia v. Heller case.   Based on Heller, any  town, city or state  which passes a rule or law, which renders a gun not readily usable for the owners protection in their home has violated the Second Amendment, and judges must declare these rules to be unconstitutional.   For those who own guns and want to keep them in their homes for protection,  the Supreme Court ruled on this more than a decade ago and the doctrine of “stare decisis” will ensure that these rights are preserved.    Voting for Biden or Trump won’t change a thing.   The liberals on the court  believe strongly in stare decisis, because without this, the conservative majority could undo many decisions, including gay marriage, the right to an abortion and desegregation of schools, to name a few.

The big ones, coming any day now, are 3 lawsuits aimed at release of Trump’s taxes (Trump v. Deutsche Bank,  Trump v. Mazars, USA,  Trump v. Vance).    I think at least one of these, is going to succeed.  From what I understand it, the DOJ has opined that a sitting president can not be indicted,  and the extension of this, is that a sitting president may not be investigated for criminal actions.   Sort of blanket immunity.   We will see soon enough how far this blanket will stretch,

So in advance, let me re-tweet Donald:

“These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of me.”

If he’s got to give up his taxes, he will not exactly go gently into the night.

Stay tuned,

Dave

Wikipedia:  2019 to 2020:  Supreme Court Pending Cases

NPR:  Supreme Court Hands Abortion-Rights Advocates A Victory In Louisiana Case

NPR: Supreme Court Delivers Major Victory To LGBTQ Employees

NPR:  Supreme Court Rules For DREAMers, Against Trump

CNBC:  Supreme Court decides not to hear big gun-rights cases, dealing blow to Second Amendment activists

Confirmation on Judge Brett Kavanaugh

by Dave

Sorry folks, I’m on the side of Republicans.  I think  all the last minute scrambling to discredit Judge Kavanaugh is dumb.  The assault claim seems to  lack supporting evidence.   The incident occurred 35 years ago.  I believe it is likely that his accuser, Dr. Christine Ford, was sexually assaulted while she was in High School.   She has submitted notes from a therapist,  in a couples counseling session in 2012,  which supported her claim of assault.  The notes do not name Brett Kavanaugh as the attacker.   Now, 35 years later, she may have the wrong student. Nobody else seems to back up her story.

Yale Professor Akhil Amar’s made some excellent points when he was asked to testify in the Senate Committee.  He told the Committee the best way to evaluate a candidate is by their written opinions as a judge and not from emails and other communications.   Opinions must be reviewed by legal scholars who have real understanding of the issues.  Amar considers Kavanaugh to be the best qualified of the 25 judges on the list of candidates.   He told the Senate Judiciary Committee that the confirmation process is badly flawed, and should be fixed.  I agree.   He told Democrats, “be careful what you wish for.”   Rejecting Kavanaugh will likely result in a less qualified candidate.

I am hoping some of the Democrats break free of the politics, and vote for Brett Kavanaugh.   What goes around, comes around, and there will be Democrat nominations to the Supreme Court.   Would Democrats like it if their nominee got the same treatment?

How would I change the system?  Getting rid of partisan politics is hard.   The FBI must conduct a background check.   I would not allow each senator on the committee to ask questions.  I would have one counsel  representing the Republicans and one counsel representing the Democrats  ask their questions of the nominee in an open session.   The questioning would be limited to one day.  They would be able to present questions in written format.  One day with a panel of experts testifying for and against the nominee would be held.   Individual senators would not be able to make speeches.  I found it most disturbing when senators would cut off Kavanaugh as he was answering a question.   I found it very disrespectful.

Stay tuned,

Fave

 

 

 

 

Replacing Justice Kennedy

by Dave

There’s battle lines being drawn
Nobody’s right if everybody’s wrong
Young people speaking their minds
Getting so much resistance from behind

Buffalo Springfield,  1966

They were talking about civil rights marches, and protests against the Vietnam war.   It wasn’t about the changes in the Supreme Court.  This might be a bit harsh, but voters in 2016, who did not want a Supreme Court run be conservatives, should have voted for Hillary Clinton.  Trump gets to chose who he wants and they will be highly regarded judges, according to most sources.   The Democrats will have no wiggle room to suggest that his nominee is not qualified to be a Supreme Court judge.

The four top names are,  Amy Coney Barrett,  Thomas Hardiman,  Brett Kavanaugh and Amul Thapar,  all of whom have the stamp of approval of conservative legal organizations, like the Federalists.   Kennedy sided with the progressive judges in Planned Parenthood v. Casey (1992), upholding Roe v.  Wade, the famous case which legalized abortion.   Kennedy wrote the majority opinion, legalizing same sex marriages (Obergefell v. Hodges, 2015).   But,  Kennedy also sided with the conservatives when he wrote Citizens United v. FEC (2010) which through the free speech rights of corporations, allowed for massive campaign spending by corporations in the 2016 election.

Justice Kennedy was often a key vote.   In this last term,  on the close votes, he seemed more incline to agree with conservatives, including the most recent case which decided that Trump’s travel ban (note Travel Ban III) was within his authority and legal.

Judge Kennedy was 81 years old.  Could more retirements be announced?  The oldest judges, Ruth Ginsburg, 85 years old,  and Stephen Breyer, 79 years old,  still seem pretty spry.    They are the more liberal judges.

Trump wants a young Judge, who is espouses a conservative philosophy, suitable to the Republicans and likely will not change once he is on the court.   For this reason,  I believe the next Supreme Court nominee will be Brett Kavanaugh.

Stay tuned,

Dave

 

 

 

Supreme Court: Ideological Differences

by Dave

The Supreme Court is not split Republicans verses Democrats.   There is however an ideological split, which influences their decisions.   This is all highly simplistic, as I don’t want a blog about textualism, or judicial activism ideas.      I consider Ginsburg, Breyer, Sotomayor, and Kagan to be in the liberal camp and Thomas, Alito, Roberts, Kennedy and Gorsuch to be in the conservative camp.    So, in theory, every decision will be decided by the group of 5 in the conservative camp.  Wrong, wrong and wrong!

I’ll start with  my conclusion.  Liberals tend to stick together more than conservatives, at least in the current term in the Supreme Court, so if the liberals can attract one or more conservatives, then they will prevail.   Sometimes, liberals join with conservatives.   There are unanimous decisions, where ideological differences are unimportant.   The most recent case,  the New Jersey State Gambling case,  was a 6 to 3 vote, with Kagan, normally on the liberal side, voted with the conservatives.

This is different from politics, where a Republican who supports a Democratic bill, in a close vote, is likely be pressured to change his vote.

I use Scotusblog.com  in the current term for my statistics.  Here is the agreement of votes from the liberal block, in the range of 96 to 100% agreement.

Ginsburg and Breyer   100%,  Ginsberg and Kagan  96%,  Ginsberg and Sotomayor 100%,  Breyer and Kagan 96%,  Breyer and Sotomayor 100%,  Sotomayor and Kagan  96%. 

The conservatives block of 5 justices, range from 68% to 100% as follows:

Thomas and Alito:  100%,  Thomas and Roberts 68%,  Thomas and Gorsuch 81%,  Alito and Roberts: 75%,  Alito and Gorsuch 81%,  Alito and Kennedy 86%,  Roberts and Gorsuch 85%,  Roberts and Kennedy: 89%,  Kennedy and Gorsuch 81%.  

There was a lot of talk about Kennedy being the swing justice.   But, a very good argument can be made that Roberts is also a swing justice.  In fact,   Roberts has agreed with Ginsburg and Sotomayor the same percentage of the time (68%) as with Thomas.  Gorsuch is the new justice, and statistics show he sides with the liberals at times.

There are some important caveats to this.  First, this is all cases, and not broken down in ones where there was an ideological difference.  I don’t know how many cases were involved in calculating these statistics; it may be quite a small set.  Finally,  in a number of cases, justices concur in part, but not in all of the decision.  The statistics don’t distinguish between partial or full agreement.  Both cases are considered agreement.

The Supreme Court has to make judgement on the most difficult cases.  It decides each case on its merits, and in relationship to the law.   It has been noted that the Supreme Court is producing less opinions in the current term.  It may be that Roberts has tried to obtain more of a consensus among the justices, by keeping the opinions more narrowly focused in some of the cases.

Stay tuned,

Dave

Links:

Ideological leanings of U.S. Supreme Court justices (Wikipedia)

Judicial activism

Textualism

http://www.scotusblog.com/statistics/

US Supreme Court Opinions  (Recent slip opinions)

The Supreme Court always provides their legal  reasoning for their opinions, and dissents, soon after a decision is rendered.

Supreme Court Immigration Case

by Dave

Messy.  Immigration policy is always messy.  This case is messy.  Obama’s order did not legalize anyone, but deferred deportation for a small fraction of immigrants here illegally.  It is estimated that it applied to 400,000 of the 11 million illegal immigrants.  The question is whether President Obama has this authority.  The Obama administration is on the defensive because the Texas court says he doesn’t have this authority and this caused a temporary halt to the program.   A future president could rescind this order.

Illegal immigrants who qualify get the all important green card, with alien registration numbers,  just like permanent residents.   So, opponents of the order argue that this simply promotes illegal immigration to this country.  However, new arrivals or anyone coming after 2010 are excluded from this order.   Many will not qualify because of a lack of documentation showing that they were here in 2010.

The outcome could go 4-4,  5-3 or even 6-2,  with Roberts and Kennedy joining with the liberals.  But, many observers seem to go for the 4-4 verdict, which is a win for the states suing the government and an  end Obama’s executive action.

The case will be decided in June.   The best analysis of the issues comes from scotusblog.com as follows:

Scotusblog.com

Obama’s executive order included the words “lawfully present”  for people here illegally.   It was argued by the Solicitor General  the executive order might work equally well without these 2 words.   But, attorneys supporting Texas, insisted the order allowed people to be lawfully present, whether it was explicitly stated or by the rights created by the order.

I guess the SC has  the option of striking down the entire order because it is simple contradiction of the legal status of these immigrants, and beyond the authority of the President to change.

But, the executive branch has the obligation to carry out the laws passed by Congress- not enact laws to their own liking.  So, this is the basis for Justice Kennedy’s comment that the executive order turns  policy making upside-down. This comment coming from Justice Kennedy gives experts the feeling of a 4-4 decision with Justice Kennedy siding with conservatives.  Thus, the argument that Obama’s executive order runs counter to the wishes of Congress is strong.

Another problem is whether Texas can show grounds for bringing the lawsuit, based on the financial harm of having to provide driver licences to all the “legally present”  immigrants.  There was extensive discussion on this point.  Texas has a law in place permitting driver licences to those in the  “deferred status” category, so they would be financially burden unless they changed their laws in which case they could not sue the government.   Chief Justice Roberts aptly called this a Catch-22.

Transcript of Oral Arguments

Liberals seemed more receptive to the argument that the realities of the immigration policy,  11 million illegal immigrants, and funds  be sufficient to deport a fraction  of these immigrants, so prioritization is within the right of the executive branch.  The Solicitor General Donald Verrilli opened with this observation, but Justice Sotomayor brought it up again during questioning.

The case will likely be a critical one, as this order is seen as an expansion of the authority of the president particularly among Republicans.  It is seen as a pragmatic solution to a Congress deadlocked on immigration reform among Democrats.   An Executive Order is not a law, but a temporary measure- but once immigrants get their deferred status, I honestly can’t see any future president wanting to rescind this order.

Stay tuned,

Dave