U.S. Supreme Court: Post-Nino Edition

Josh I suspect they thought SCOTUS was going to side with them so until the SCOTUS ruling, they could posture however they liked

More ethical issues re PA case (not that Gorsuch would see a problem though)--

Last week, after the Pennsylvania state Supreme Court invalidated the state’s GOP-friendly congressional map, top Republicans in the state Legislature asked the state Supreme Court to throw out the decision. One of the Democratic justices, they argued, should have recused himself from the case because of comments he made in 2015 opposing gerrymandering.

But one of these Republicans, Senate President Pro Tempore Joseph Scarnati, did not disclose a more serious conflict of interest: Scarnati donated $25,000 to a different state Supreme Court justice, Republican Sallie Mundy, in April 2017. The donation came through his political action committee.

State Supreme Court justices in Pennsylvania are elected in partisan campaigns, and according to campaign finance disclosures, last year Mundy received donations from Scarnati as well as two Republican members of the US Congress from Pennsylvania. Rep. Brian Fitzpatrick donated $1,000 to Mundy’s campaign on July 27, 2017, after the gerrymandering case was filed in state court, according to Mundy’s filing. On November 1, 2017, after voting rights groups had asked the state Supreme Court to take the case, GOP Rep. Charlie Dent donated $1,000 to Mundy. Both Fitzpatrick’s and Dent’s congressional districts were at stake in the case. Both congressman also gave through their political action committees.

...The vote was 5-2, with Mundy one of the two dissenters. The court ordered new maps to be drawn in time for the 2018 midterm elections.

https://www.motherjones.com/politics/2018/02/republicans-fighting-to-protect-gerrymandering-in-pennsylvania-have-an-ethics-problem/

Looks like that Mother Jones article re the ethics issues was written before latest SCOTUS ruling

Courthouse News reports:

Offering no mention of the Florida school shooting, Supreme Court Justice Clarence Thomas complained Tuesday about the growing stack of Second Amendment cases that are denied high court review.

“The right to keep and bear arms is apparently this court’s constitutional orphan,” Thomas wrote. “And the lower courts seem to have gotten the message.” Thomas penned the dissent this morning after his colleagues rejected a challenge to California’s 10-day waiting period for firearms.

Quoting the court’s last Second Amendment case, the 2010 ruling McDonald v. Chicago, Thomas noted that the Second Amendment is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.”

https://www.courthousenews.com/thomas-balks-as-court-denies-review-to-california-guns-case/

Thomas must be referring to the different body of rules that allows him to sexually harass scores of women and remain on the bench

reexamination of the evidence against Thomas by author Jill Abramson

http://nymag.com/daily/intelligencer/2018/02/the-case-for-impeaching-clarence-thomas.html

Abramson's book is the best about him.

http://inthesetimes.com/features/janus_supreme_court_unions_investigation.html

Janus case gets argued Monday. Conservative Justices will use it to kill public sector unions

PLEASE don't revive this thread on a Sunday night

on a totally unrelated note, i wonder how i'd feel if i don't know, say, neil gorsuch died right now

ambivalent. gorsuch was the number one choice of the Federalist Society. they'd just swap in the number two choice and roll on, Columbia.

The U.S. Supreme Court ruled Tuesday that immigrants, even those with permanent legal status and asylum seekers, do not have the right to periodic bond hearings.

It's a profound loss for those immigrants appealing what are sometimes indefinite detentions by the government. Many are held for long periods of time — on average, 13 months — after being picked up for things as minor as joyriding. Some are held even longer.

The case, Jennings v. Rodriguez, has implications for legal permanent residents the government wants to deport, because they committed crimes and asylum seekers who are awaiting a court date after turning themselves in at the border. Immigrant advocates contend that many of these immigrants have a right to be free on bail until their case is heard.

But the court wrote in its 5-3 opinion Tuesday, "Immigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country."

The majority opinion was penned by Justice Alito and joined by the court's conservatives. (Justice Kagan did not participate. She recused herself, stemming from work she had done as President Obama's solicitor general.)

ICE detentions are our incipient Holocaust moment and I don’t know what to do about it

It's incredible disheartening and upsetting to me.
Where are these people being held? Private detention centers.
What are they doing there? Slave labor and miserable living conditions.

Alito's ugly arrogance in his majority decision :

Alito called the dissent an “utterly implausible” reading of the statute.

i'm shocked by this

Court decides 5-4, with Gorsuch joining 4 liberal justices, that part of federal immigration law too vague to be enforced: https://t.co/t5iHfMtjb4

— AP Politics (@AP_Politics) April 17, 2018

Seems less so when diving into the details -- his objection is in line with Scalia-like complaints about vague language in the law, etc. But as a practical effect, definitely of interest.

Yeah, the "unconstitutionally vague" argument is tailor-made for Scalia-alikes and should be pushed at Gorsuch as often as possible by those seeking to overturn an unjust law.

Can't wait for the Trump tweets about this

Breitbart ran an op-ed in support of the decision. Comment section, predictably, is not having it:

http://www.breitbart.com/big-government/2018/04/17/pollak-gorsuchs-ruling-immigration-case-solid-conservative-originalism/

This one does interest me because it really does hinge entirely on legal formalism -- you could easily make the case that it's silly to distinguish "burglary" from "crime of violence" for purposes of whether the person was "on notice" that he could be deported. Like "I only broke into someone's house" doesn't sound that compelling. Which is not to say I think he should be deported, but trying to look at this from the conservative perspective. So Gorsuch is formalistic enough to really go against what seems like a no-brainer for conservatives. Or at least wants to give the impression that he is with one of his early rulings.

I thought someone had revived this thread because of (a) Sotomayor's shoulder injury (b) The Most Important Man in America had announced his retirement.

love this exchange:

Larry Sparks • 12 minutes ago
Gorsuch sides with the liberals on the court. Claims burglary is not a crime of violence. Guess breaking into someone's home is not a violent act.

CLS Larry Sparks • 8 minutes ago
breaking in to my home will be responded to with a violent act that will likely make the coroner puke

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He was named to Forward’s 50 “most influential” Jews in 2017.

nice scare quotes

lol

It is a source of continuous bafflement to me that so many "conservatives" believe that the rights outlined in the Constitution apply only to citizens and not to persons, despite the plain language of the document itself.

but, see, it was obvious who belonged and who didn't in 1878.

and 1787

who belonged and who uh belonged

white men with property?

nice one, silby

but it is absolutely correct that even an originalist reading of the constitution shows that rights not specifically assigned to citizens were meant to include immigrants and even travelers present in the U.S.

Ian Millhiser with a sharp analysis:

Broadly speaking, there are two different approaches to the law on the Supreme Court’s right flank.

Justice Samuel Alito is the consummate partisan. Unlike his other conservative colleagues, Alito has never cast the key fifth vote to throw a decision to the Court’s liberals. He’s also far more inclined to manipulate existing doctrines than to overrule them — claiming that longstanding doctrines actually require progressive laws to be read narrowly, even when such claims are the opposite of the truth. Alito tends to view each case in isolation. And, whenever possible, he presents the best arguments he can muster to gain a conservative result in each particular case.

At the other end of the spectrum is Justice Clarence Thomas. Less partisan and more ideological, Thomas is willing to push much further than Alito, and he has no compunctions about explicitly overruling major precedents. For example, under Thomas’ theory of the Constitution, child labor laws and the federal ban on whites-only lunch counters are unconstitutional. Unlike Alito, however, Thomas thinks in terms of broad principles rather than in terms of isolated efforts to move the law to the right. On rare occasions, this broader approach to the law places Thomas to the left of his fellow justices.

Which brings us to Tuesday’s decision in Sessions v. Dimaya, a 5-4 decision where Neil Gorsuch sided with the four liberals in favor of an immigrant convicted of burglary. Gorsuch’s vote, and his separate opinion in Dimaya, confirms that he is much more a Thomas than he is an Alito. He is willing to hand liberals a small victory on the path to a much larger effort to shift legal doctrines to the right

A scary read: https://newrepublic.com/article/148358/democrats-prepare-pack-supreme-court

Our contemporary elite polarization means that the center-right Courts of the last four decades will be a thing of the past as soon as Justice Kennedy leaves: The median vote of the Court will be either a conservative like John Roberts or Sam Alito, or a liberal in the mold of Elena Kagan or Ruth Bader Ginsburg. That the Court will be strongly aligned with one political faction during a time of close partisan competition is tinder that could easily fuel a constitutional crisis.

Er... seems odd not to mention the possibility of a Democratic president deliberately selecting an "inoffensive"/"uncontroversial" choice to get through a slim Democratic majority Senate. Someone like, I don't know.... Merrick Garland. Seems odd not to mention that.

oops posted the last bit twice

RUTH BADER GINSBERG IS NOT VERY FAR LEFT

xp Call it anaphora and claim victory

But what if Donald Trump is able to replace Kennedy, and, God forbid, justices Stephen Breyer and/or Ginsburg as well? There is no good outcome in this scenario. Republicans would have a hammerlock on a nine-member Court for decades.

This also assumes that Thomas (who turns 70 next month) and Alito (who just turned 68) both continue to serve for "decades," or that they retire/pass away at a time when Republicans are in control of the nominations process. Which certainly isn't unthinkable, but isn't guaranteed either, so I'm not sure we're quite the guaranteed doomsday track where a delegitimizing court-packing fight is the only way out.

I'm 100% pro court-packing

what's delegitimating about a court-packing fight? It was perfectly legal for FDR to pursue but he got the politics and timing badly bolloxed.

I guess I would argue that "legitimacy" is a political concept, not a legal one.

Anyway, it was the article's claim as I read it - that a reason to be worried about this ostensibly inevitable future court-packing incident would be that it would damage what's left of the court's vague above-the-fray aura etc.

fuck their above-the-fray aura

you'll love their vague above-the-fray aura when 6 conservatives decide that the freedom of contract is a constitutionally guaranteed right and prevent our legislature from doing anything pro-worker

The Supreme Court may soon get to hear (or just ignore) 9th Circuit decisions signed by Federalist Society right-wingers.

https://www.washingtonpost.com/news/morning-mix/wp/2018/05/10/a-trump-judicial-nominee-apologizes-for-controversial-articles-mocking-multiculturalism/?noredirect=on&utm_term=.9b7548825c3e

Ryan W. Bounds, a conservative federal prosecutor in Oregon, faced intense grilling from Democrats during his appearance before the Senate Judiciary Committee. Bounds’s controversial commentaries, written in the Stanford Review in the 1990s, criticized race-focused groups and questioned the value of cultural sensitivity training.

Bounds told senators his rhetoric had been “overheated” back then and offered apologies for the tone of some of his writings.

“I share the concerns of many that the rhetoric I used in debating campus politics back in the early ’90s on Stanford’s campus was often overheated, overbroad,” he said, adding that his views were “not as respectful” as they should have been “about how to best pursue diversity and ensure a multicultural respect on campus.”

Sen. Ted Cruz (R-Tex.) led Senate Republicans in pushing forward with the hearing, despite staunch opposition from both of Oregon’s senators, Ron Wyden and Jeffrey E. Merkley. In a rare move, the hearing proceeded despite both Oregon senators’ refusing to turn in “blue slips”: the pieces of paper used to signal approval of a nominee. When the slips aren’t submitted, it has often been treated as veto power of a nominee.

But not this time.

Republicans are filling appellate judge vacancies across the country that they blocked via blue slip rules and such previously (and Dems playing "by the rules" did themselves). Now we may get more conservative appellate court decisions which will influence what the Supreme Court hears. We're doomed

Brennan will take a seat on the 7th Circuit Court of Appeals in Chicago that has stood open since 2010 amid a bitter political standoff.

He was confirmed 49-46 with only Republican votes, over the objections of Democrat Tammy Baldwin, Wisconsin’s junior senator.

That has typically been enough to sink a nomination in recent years, because senators from both parties have enjoyed an effective veto over the selection of federal judges from their home states, a tradition known as the “blue slip.”

Baldwin’s GOP colleague from Wisconsin, Ron Johnson, used his blue slip power to block one of Democratic President Barack Obama's nominees for the same 7th Circuit seat that his party filled Thursday.
...When Democrats controlled the Senate, Judiciary chair Patrick Leahy of Vermont treated the blue slip as an absolute veto power by home-state senators, even when it made it harder to approve Obama’s nominees because of objections from Republicans in the minority. Leahy would not schedule a confirmation hearing if any senator from the nominee’s home state objected.

https://www.jsonline.com/story/news/politics/2018/05/10/senate-confirms-michael-brennan-u-s-court-appeals/598340002/

New Jersey won a landmark ruling from the Supreme Court Monday that could lead many states to legalize betting on college and professional sports.

The justices ruled 7-2 that a 25-year-old federal law that has effectively prohibited sports betting outside Nevada cannot block states such as New Jersey that want to set up sports books. The ruling could set the stage for other states to expand legalized gambling as a source of government revenue.

Justice Samuel Alito, a New Jersey native, wrote the court's opinion in the case. Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

It was a victory for the state's recently departed governor, Chris Christie, who had challenged the Professional and Amateur Sports Protection Act, passed by Congress in 1992 to preserve the integrity of the nation's most popular sports.

It was a defeat for the National Collegiate Athletic Association and the four major professional sports leagues -- baseball, football, basketball and hockey -- that had successfully blocked New Jersey in lower courts.

The court's action could jump-start action in Congress to pass legislation calling for federal regulation of sports betting -- something the sports leagues would prefer over separate rules from state to state.

Congress passed the 1992 law to preserve what lawmakers at the time felt was the integrity of the games. But New Jersey and its allies argued that it ran afoul of the 10th Amendment, which reserves for the states all powers not delegated to the federal government.

Seeing anti-commandeering principles reaffirmed is somewhat reassuring with the current administration being what it is.