U.S. Supreme Court: Post-Nino Edition

the case was heard before Gorsuch joined xpost

Baffled at what Thomas' reasoning could possibly be tbh

being butthurt over Anita Hill

legislative jiggery-pokery!

from SCOTUSblog:

Indeed. Thomas, Breyer, Ginsburg, and Sotomayor joined Kagan in full.

lol:

Excellent literary back and forth bw Kagan & Alito in the footnotes - Alito citing "Hamlet," Kagan "Inherit the Wind."
by David 10:16 AM

Kagan:

Although States enjoy leeway to take race-based
actions reasonably judged necessary under a proper interpretation
of the VRA, that latitude cannot rescue District
1. We by no means “insist that a state legislature, when
redistricting, determine precisely what percent minority
population [§2 of the VRA] demands.” Ibid. But neither
will we approve a racial gerrymander whose necessity is
supported by no evidence and whose raison d’être is a legal mistake.

Analysis:

There is a lot of detail but here is my bottom line: This decision by Justice Kagan is a major victory for voting rights plaintiffs, who have succeeded in turning the racial gerrymandering cause of action into an effective tool to go after partisan gerrymanders in Southern states. That Justice Kagan got Justice Thomas not only to vote this way but to sign onto the opinion (giving it precedential value) is a really big deal. Despite what is written in the text of the opinion, Justice Kagan, in a couple of footnotes (footnotes 1 and 7), attempts to solve the race or party problem by moving the Court much closer to the position of treating race and party as proxies for one another in the American South. Points 8 -10 below explains this in detail.

Justice Alito, in his partial dissent for himself, the Chief Justice, and Justice Kennedy, is incensed at the decision, seeing it as inconsistent with the Court’s earlier decision in Easley v. Cromartie. He begins his dissent with: “A precedent of this Court should not be treated like a disposable household item—say, a paper plate or napkin—to be used once and then tossed in the trash. But that is what the Court does today in its decision regarding NorthCarolina’s 12th Congressional District: The Court junks a rule adopted in a prior, remarkably similar challenge to this very same congressional district.”

it's very strange that this is the same court (mostly) that invalidated the Voting Rights Act, but now is consistently concerned about racial disenfranchisement. Huh, if only Congress could pass some law to address that very thing hmmm

GOP abuse of 1992 amendments to the Voting Rights Act is how we got into this mess (structural disadvantage to Dems, Tea Party control over GOP).

Kagan (or her clerks most likely) writes rather good legal prose. Her opinion's a model of clarity.

Circuit court nomination issue-- Republicans are gonna get rid of the blue slip rule

Leaders are considering a change to the Senate’s “blue slip” practice, which holds that judicial nominations will not proceed unless the nominee’s home-state senators signal their consent to the Senate Judiciary Committee....Removing the blue-slip obstacle would make it much easier for Trump’s choices to be confirmed. Although Trump and Senate Republicans have clashed early in his presidency, they agree on the importance of putting conservatives on the federal bench.

...Were Republicans snickering in private for six years because Democrats continued to be Boy Scouts during the Obama presidency, respecting the blue-slip rule despite blanket Republican opposition of the kind that Republicans now say will prompt them to kill it? Probably. Was it the right thing to do anyway? I guess I'm still unsure. But it sure doesn't look like it....

...both Bill Clinton and Barack Obama simply gave up nominating judges in states where there were any Republican senators. They would object as a matter of course and their objections would be honored. George Bush, by contrast, continued nominating judges everywhere. Democratic senators sometimes objected, but not always—and Republicans often ignored their objections anyway when they controlled the Senate.

http://www.motherjones.com/kevin-drum/2017/05/blue-slip-rule-its-last-legs

quoting
https://www.washingtonpost.com/politics/courts_law/senate-republicans-consider-changing-custom-that-allows-democrats-to-block-judicial-choices/2017/05/25/d49ea61a-40b1-11e7-9869-bac8b446820a_story.html?utm_term=.1ab864b5fdf2

they'll probably do it and regret it in a few years, same as with the SC filibuster

I think the calculation is that federal judges hold lifetime appointments, and they will stuff the courts with young conservatives who'll rule for a generation, enough to suppress any later regrets.

yeah I hate to break it to them but people die all the time

They have the presidency for four years and control of nominations for that long. There's a shit ton of unfilled judgeships as of today due to their earlier foot dragging and obstructionism. The long term is not of interest to them. Trump may not have much interest or success in nominating to fill administrative political appointments, but the Federalist Society will feed him judge nominees as fast as he can send them to the Senate.

The long term is not of interest to them.

right. Like I said, they'll come to regret it in a few years.

As recently as a month ago I worried, especially reading a New Yorker article about the vehemence of the Federalist Society funnel, that Trump would comply, but he doesn't seem to give a shit either! If I were a Republican, this is the development that would most astound and infuriate me.

xp In a few years? They probably figure they can come up with a new set of tactics under the new rules, something just as unconscionable as their last set of tactics, but about as effective. Maybe poisoning Democratic nominees?

yeah Trump clearly hates making appointments/doing job interviews

xp

Maybe poisoning Democratic nominees?

maybe their new buddies at the Kremlin could give them some tips

Trump clearly hates making appointments/doing job interviews

And yet he loved doing a reality show based around hiring / firing...

I'm sure it was always the firing people that attracted him. First, it's a stark assertion of power in a way that hiring is not. Second, good hiring requires a working understanding of other humans, but firing only requires a simplistic dissatisfaction, for any reason or for no reason.

The Senate acted Thursday on Trump’s first appeals-court nomination, elevating U.S. District Judge Amul Thapar of Kentucky to the U.S. Court of Appeals for the 6th Circuit, which covers Kentucky, Michigan, Ohio and Tennessee. Thapar was confirmed 52 to 44 on a party-line vote, with four Democrats not voting. Thapar’s nomination did not raise blue-slip concerns, because both of Kentucky’s senators are Republican and Thapar is a favorite of Senate Majority Leader Mitch McConnell (R-Ky.).

They got this one through, and they're gonna get a lot more through I think. Trump doesn't have to interview every one of them.

no but he does have to actually nominate them

You go girl.

http://media4.s-nbcnews.com/j/newscms/2017_22/2023451/170602-ruth-bader-ginsburg-book-ew-442p_cf49716023d3c7472e729f863b84e3d8.nbcnews-ux-2880-1000.jpg

politico guy needs a cut
http://www.politico.com/magazine/story/2017/02/rbg-ruth-bader-ginsburg-workout-personal-trainer-elena-kagan-stephen-breyer-214821

Posted this on June 17 Trump thread , but might be more relevant here

We're doomed--Despite federal job positions sitting vacant, 45 is moving faster on judicial nominations

https://newrepublic.com/article/143227/trumps-judicial-picks-keeping-republicans-happyand-quiet

David Dayen article and his tweet-- Trump nominating judges at 3x the rate of Obama at this point in 1st term

The right-wing Federalist Society had a list all ready for Trump and he has basically outsourced vetting to them. Obama took a long time in 2009 selecting and vetting names without having a liberal equivalent of the federalist Society he was willing to use and trust. Plus Obama was hurt by Senatorial blue-slip rules (allowing republicans to block possible nominees) and Obama's own desire to be centrist

Federalist Society executive vice-president Leonard Leo has effectively chosen the last three Republican Supreme Court nominees. And the group was essential in constructing lists of acceptable judges for Trump to choose from, along with the stalwart think tank, the Heritage Foundation. Other groups, like the Judicial Crisis Network, focus heavily on judges as well.

This architecture is much more brittle on the left. While the American Constitutional Society was created specifically as a counterweight to the Federalist Society, the network hasn’t gained nearly the same influence. Additional funding of liberal judicial groups might help,

The Supreme Court declared Monday that it will consider whether gerrymandered election maps favoring one political party over another violate the Constitution, a potentially fundamental change in the way American elections are conducted.

The justices regularly are called to invalidate state electoral maps that have been illegally drawn to reduce the influence of racial minorities by depressing the impact of their votes.

But the Supreme Court has never found a plan unconstitutional because of partisan gerrymandering. If it does, it would have a revolutionary impact on the reapportionment that comes after the 2020 election and could come at the expense of Republicans, who control the process in the majority of states.

https://www.washingtonpost.com/politics/courts_law/supreme-court-to-hear-potentially-landmark-case-on-partisan-gerrymandering/2017/06/19/d525237e-5435-11e7-b38e-35fd8e0c288f_story.html?utm_term=.64f7c4fa4332

don't worry gorsuch will save us all

this one is gonna be interesting

of course, there's nothing in the Constitution about parties so

Founders did not know how to party

Chris Hayes alluded to this on Twitter yesterday. ugh.

http://thehill.com/homenews/news/339314-kennedy-considering-retiring-from-supreme-court-reports

This has been swirling for a few weeks. Certainly could happen.

welp bye bye Roe i guess

Eh maybe

maybe democrats should just pull the tried and true GOP-in-2016 move and refuse to confirm anyone. after all, it's practically time for the mid-terms and once we reach that point, you gotta round up to 2020. let the people speak.

Too bad Putin already has a job for life

sorry to dredge up the 2016 election again, but - did hillary clinton's campaign forcefully remind everyone about the complete bullshit of the scalia / merrick garland thing? like not just in passing but as a repeated message? it seems like mcconnell & frenz made a bet that there would be enough amnesiac voters that they could completely get away with it, and they were right. or maybe it wouldn't really matter even if clinton would have pressed the issue, because pointing out the overt thievery of the GOP wouldn't persuade anyone already inclined to vote for a republican (they don't care that it was stolen, they just care about getting a conservative SC justice), and the mystical undecided voter probably wouldn't be able to pay attention long enough to understand what actually happened and why it was shameful?

just read that Kennedy and his clerks gathered for a 30-year reunion this weekend that was pushed forward by a year. that makes all the rumors about his retirement seem more likely. I'm not looking forward to what lies ahead this week

did hillary clinton's campaign forcefully remind everyone about the complete bullshit of the scalia / merrick garland thing?

No. This was treated similarly to the election meddling shit, as far as I can tell - presumably it was decided making a deal out of it would be shrill and overly partisan, regarding an aspect of government which is supposed to be neutral / hallowed ground or whatever - and again, everyone thought she had it in the bag. Save one profoundly stupid design choice in our system, she did.

Scott Lemieux on the consequences of SCOTUS' decision affirming the ACA.

When the Supreme Court held in 1987 that it was constitutional for the federal government to use the threatened withholding of federal highway funds to create a de facto national drinking age of 21, it argued that the Constitution places implicit limits on the ability of the federal government to coerce the states to achieve national objectives. But the implication of the decision was that, if there were a case in which conditions on federal spending power were unconstitutional, it would involve an indirect objective only obliquely related to the central purpose of the spending. Nothing in the Court’s decision suggested to Congress that a straightforward condition—such as, “if you want Medicaid money you have to accept the conditions of the Medicaid program”—would be unconstitutional. In fact, the conditions placed on states that take Medicaid had been changed many times before the ACA.

Far from having the compelling legal basis that would be needed to justify its sweeping implications, the Medicaid expansion holding in Sebelius is a ludicrously incoherent mess.

This matters a great deal going forward. Let’s say President Kirsten Gillibrand takes over in 2021 with Democratic majorities in both houses of Congress. One of their top priorities will be to fix the damage inflicted by the Medicaid cuts, which in the Senate’s version of TrumpCare will phase in fairly slowly. How can Congress be sure its attempts to restore funding won’t be found to be unconstitutionally “coercive” changes to Medicaid spending? The answer is, it can’t be sure. Sebelius didn’t create any kind of workable standard, providing no meaningful guidance to Congress about how far is too far. And even worse, the more people a restored Medicaid insures, through new conditions on the disbursement of Medicaid funds, the more likely it is to be struck down. It’s a truly perverse situation.

I thought there was something funny in the Kennedy speculation this weekend. I think Charles Pierce is right:

Let us be cynical for a moment and put ourselves in the place of someone within the Republican congressional leadership and/or someone in the White House. (Don't worry. In the latter case, all you have to do is hire an imaginary lawyer.) God only knows what will happen in the 2018 midterm elections. You may only have one shot at replacing another justice on the Court and swinging the majority in the general direction of the Star Chamber. Neither Elena Kagan nor Sonia Sotomayor is going anywhere for the foreseeable. Stephen Breyer's departure is highly unlikely, and you couldn't get Ruth Bader Ginsberg out of there with Seal Team Six. So what's an earnest young schemer to do?

Nobody Can Say Why They're Passing This BillWell, if I'm the earnest young schemer, I start calling my dozens of Federalist Society pals presently clerking in the federal courts and I tell them that my pal at Justice heard from a friend who knows Kennedy's barber that the justice is going to retire. Then I sit back and watch the Internet do my work for me, hoping that Kennedy himself will take the hint. As everyone who watched The West Wing knows, this is not the way the game is supposed to be played. However, those of us who grew up on the novels of Allen Drury know that this is exactly the way the game is played. The horrors of letting the conservative chop-shops fill the federal bench are already well underway. Stabbing Anthony Kennedy in the back is certainly not beneath Mitch McConnell because nothing is beneath Mitch McConnell.

^^saw that, am relieved Kennedy didn't announce his retirement, for today at least. Pierce also linked to a David Lat piece explaining that Kennedy's clerks asked for the reunion to be moved up a year to celebrate his 80th

it's funny cause that speculation goes against what i had seen earlier - kennedy had slowed down clerk hiring but after trump got elected, went back to a full bench

How the Supreme Court just dangerously undermined the separation of church and state

The case revolved around a formal policy of the Missouri Department of Natural Resources that prevented public money from being given to religious institutions or individuals in their capacity as religious leaders. This policy reflects the basic logic behind the First Amendment's prohibition on the "establishment of religion." The framers feared that providing public money to religious institutions would both sow religious conflicts within society and promote state meddling with religious institutions. Missouri's policy reflects the sound view that taxpayer money and religious institutions should be kept separate.

The Supreme Court has held, in a limited number of cases, that taxpayer money can directly or indirectly be given to religious institutions for a secular purpose. Today's decision goes further: It requires the state to provide money to a religious institution, standing the Establishment Clause on its head.

http://theweek.com/articles/708298

[url=https://www.nytimes.com/2017/06/27/us/politics/supreme-court-term-consensus.html?ribbon-ad-idx=5&rref=homepage&module=Ribbon&version=origin®ion=Header&action=click&contentCollection=Home%20Page&pgtype=article]The share of votes in support of the majority opinion was the highest in at least 70 years[/urll].

In addressing racial discrimination, the court issued a series of decisions that heartened liberals.

In Buck v. Davis, Chief Justice John G. Roberts Jr. wrote a forceful majority opinion siding with a Texas man who had been sent to death row based on testimony laced with what the chief justice called “a particularly noxious strain of racial prejudice.” In Peña Rodriguez v. Colorado, Justice Anthony M. Kennedy, writing for the majority, said courts must make an exception to the usual rule that jury deliberations are secret when evidence emerges that those discussions were tainted by racism. “Racial bias implicates unique historical, constitutional and institutional concerns,” he wrote.

In Bank of America v. Miami, Chief Justice Roberts provided the crucial fifth vote, joining the court’s four-member liberal bloc, to allow Miami to sue two banks for predatory lending under the Fair Housing Act of 1968.

The decisions amounted to a small but significant trend, said Elizabeth Wydra, the president of the Constitutional Accountability Center, a liberal group. “Just as we have recently seen Justice Kennedy more willing to acknowledge systemic racism in his recent affirmative action and fair housing opinions,” she said, “this term saw Chief Justice Roberts vote in a rather surprising — but welcome — way to acknowledge racial bias in the criminal justice system and make it easier for cities to sue over discriminatory mortgage lending practices.”

With Gorsuch on board, though, bye bye, comity!

oops!

Ugh

https://www.washingtonpost.com/politics/courts_law/over-liberals-objections-supreme-court-says-texas-need-not-draw-new-districts-now/2017/09/12/c6287b0c-981c-11e7-82e4-f1076f6d6152_story.html?hpid=hp_hp-more-top-stories_travelban704pm%3Ahomepage%2Fstory&utm_term=.c015223cac41

Over the objections of four liberal justices, the Supreme Court ruled Tuesday night that Texas does not immediately have to redraw electoral districts that a lower court found diminished the influence of minority voters.

The 5-to-4 ruling almost surely means the 2018 midterm elections will be conducted in the disputed congressional and legislative districts.

The justices gave no reasons in their one-paragraph statement granting a request from Texas that it not be forced to draw new districts until the Supreme Court reviewed the lower court’s decision.

But the court’s liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — signaled their unhappiness by noting they would not have agreed to Texas’s request.