U.S. Supreme Court: Post-Ginsburg Edition

I hate these 'act properly please!' fucks almost as much as I hate the Alito/et al.

I say this as someone who is not a conservative & disagrees with Kavanaugh on a whole lot: Harassing someone outside their family’s private residence is grotesque. It’s not healthy. And it says something that crossing this line is seen by many as virtuous. https://t.co/LVEbxRICpk

— Billy Binion (@billybinion) May 8, 2022

uncle baby billy binion

lol @ reason boy

God forbid they be mildly inconvenienced or annoyed, that's just going too far

Regarding the leak theories, I find it kind of implausible that a fucking Supreme Court Justice would "waver" based on a leak. These are literally the most self-regarding motherfuckers on the planet. All nine of them. You think they're going to change their mind because of what someone might think?

I said upthread I think all this speculation is bullshit, but the "occam's razor" explanation to me is that it was a liberal clerk who was horrified and wanted to warn everyone, not some 4-D chess bullshit.

Seems predictable that people will get upset when you decide to use the power granted to you to uphold the public good to instead take away a constitutionally guaranteed right that has a direct and profound effect on their daily lives.

Imo more ppl should be outside Kavanaugh's house

Protesting at Kavanaugh's house after said house has been reduced to ashes...might be too much. But let's try it and find out first.

Regarding the leak theories, I find it kind of implausible that a fucking Supreme Court Justice would "waver" based on a leak.

The way I understand it, it’s the other way around - the point of the leak is to prevent wavering, rather than to cause it. The idea is that when the particulars of the opinion aren’t known, there’s room for negotiating, persuasion — chances of opinion, as it were. But once the majority opinion is public, in the extreme Alito form, it makes it (the idea is, I think) more difficult to modify that extreme opinion in a way that preserves maximum face saving (which, despite of their ultimate tenure jobs, seems to be the most important function of a sc justice)

Only a movement that disrupts business and property can reverse this.

Just a reminder: because of non-proportional representation and demographics: in order to break the filibuster and overcome the R+6-7 bias in the Senate, Democrats would need to win 3 straight elections by 19 points to make abortion legal nationally. 1/n

— Brynn Tannehill (@BrynnTannehill) May 9, 2022

I'm feeling this:

One of the consequences of the myth of indispensable men — the graveyards are full of them — is that we tolerate positions of extreme social power and importance being held by single individuals for absurdly long periods, because these people will supposedly be so difficult to replace.

This is of course ridiculous: the merit myth is just that. While Sotomayor has been an excellent justice, there are, conservatively speaking, tens of thousands of people who would also be excellent SCOTUS justices. Indeed thousands of them are Hispanics, and in a nation where within another decade or so one out of every five Americans will be Hispanic, it should be considered unacceptable for the Supreme Court not to have at least one Hispanic justice, which obviously has profound consequences regarding the question of who should replace Sotomayor on the Court.

Ideally, of course, we would have a legislative scheme that would require justices to take senior status from the Court after a reasonable number of years, while ensuring that they were selected to the Court in the first place in a more rational manner than the current haphazard non-system. Proposals limiting justices to 18-year terms, guaranteeing that each president gets two nominations per presidential term would accomplish this goal directly, while indirectly ensuring that, demographically speaking, the Court not look like the late-stage Soviet politburo.

But such reforms are extremely unlikely in the foreseeable future, meaning that we will need to depend on informal norms rather than formal laws to get individual justices to do the right thing.

It’s an overwhelming moral imperative, under our present system, that progressive justices retire strategically. For pragmatic reasons, it would be best if SCOTUS justices didn’t serve for the ridiculously long terms that have become standard in recent decades, and that they retired before all the perils of our current gerontocratic practices became evident in their individual cases.

Who among us couldn't imagine a multitude of reforms that would make our system more responsive to the needs of ordinary people, but which will never happen because it removes power from those unwilling to relinquish it.

How long is the DC media going to pretend that everyone in town isn’t whispering that insurrectionist loon Ginni Thomas leaked Alito’s opinion because Bret Kavanaugh was wavering? There’s one discussion in front of the cameras and another behind.

— Dave Zirin (@EdgeofSports) May 8, 2022

People are protesting outside Justice Kavanaugh's house. Someone said "But think of his neighbors" and Kavanaugh's neighbor replied "We ARE his neighbors. We organized the protest"

— Chad Loder (@chadloder) May 8, 2022

loool awesome

Brett Kavanugh neighbor/ Rand Paul neighbor 2024

i read a bit about that neighbor protest the other day. as of then, it was kind of sad because it really was just his next-door neighbor, and apparently none of the other assholes in the community would stand with her. many were opposed, pearl clutching shit, but also many were of the "well i'm not going to participate myself but i won't stop you" at best, while others thought it was inappropriate (probably worried that they'd be the next target, because everyone in that neighborhood is probably a gigantic asshole. so instead it was kind of a sad portrait of the only neighbor willing to lay something on the line, alone. but maybe more neighbors have joined since then

It means they don't get invited over for the monthly Kavanaugh keggers.

*curtains move and shape of the golden boy appears from a second floor window. he is clearly mouthing the words "I like beer!"*

Oh wow. The Lancet — one of the most prestigious medical journals in the world — is out with a forceful statement about Roe v. Wade *on the cover*. pic.twitter.com/foqLq4DWic

— Caroline Orr Bueno, Ph.D (@RVAwonk) May 13, 2022

“Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” So begins a draft opinion by Associate Justice Samuel Alito, leaked from the US Supreme Court on May 2, 2022. If confirmed, this judgement would overrule the Court's past decisions to establish the right to access abortion. In Alito's words, “the authority to regulate abortion must be returned to the people and their elected representatives”. The Court's opinion rests on a strictly historical interpretation of the US Constitution: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” His extraordinary text repeatedly equates abortion with murder.

The Due Process clause of the 14th Amendment to the Constitution has been the main foundation underpinning the right of American women to an abortion. That 1868 Amendment was passed during the period of American Reconstruction, when states’ powers were being subjected to certain limitations. The goal of the Amendment was to prevent states from unduly restricting the freedoms of their citizens. That guarantee of personal liberty, so the Supreme Court had previously held, extended to pregnant women, with qualifications, who decided to seek an abortion. Alito rejected that reasoning. He argued that for any right not mentioned in the Constitution to be protected, it must be shown to have had deep roots in the nation's history and tradition. Abortion does not fulfil that test. Worse, Roe was an exercise in “raw judicial power”, it “short-circuited the democratic process”, and it was “egregiously wrong” from the very beginning. It was now time, according to Alito, “to set the record straight”.

What is so shocking, inhuman, and irrational about this draft opinion is that the Court is basing its decision on an 18th century document ignorant of 21st century realities for women. History and tradition can be respected, but they must only be partial guides. The law should be able to adapt to new and previously unanticipated challenges and predicaments. Although Alito gives an exhaustive legal history of abortion, he utterly fails to consider the health of women today who seek abortion. Unintended pregnancy and abortion are universal phenomena. Worldwide, around 120 million unintended pregnancies occur annually. Of these, three-fifths end in abortion. And of these, some 55% are estimated to be safe—that is, completed using a medically recommended method and performed by a trained provider. This leaves 33 million women undergoing unsafe abortions, their lives put at risk because laws restrict access to safe abortion services.

In the USA, Black women have an unintended pregnancy rate double that of non-Hispanic White women. And the maternal mortality rate for Black women, to which unsafe abortion is an important contributor, is almost three times higher than for white women. These sharp racial and class disparities need urgent solutions, not more legal barriers. The fact is that if the US Supreme Court confirms its draft decision, women will die. The Justices who vote to strike down Roe will not succeed in ending abortion, they will only succeed in ending safe abortion. Alito and his supporters will have women's blood on their hands.

The 2018 Guttmacher–Lancet Commission on Sexual and Reproductive Health and Rights For All concluded that these rights, which included the right to safe abortion services and the treatment of complications from unsafe abortion, were central to any conception of a woman's wellbeing and gender equality. The availability of an essential package of sexual and reproductive health interventions should be a fundamental right for all women—including, comprehensive sexuality education; access to modern contraceptives; safe abortion services; prevention and treatment of HIV and other sexually transmissible diseases; prevention and treatment for gender-based violence; counselling for sexual health; and services for infertility. What kind of society has the USA become when a small group of Justices is allowed to harm women, their families, and their communities that they have been appointed to protect?

The route forward is unclear and perilous. This Court's argument suggests possible future attacks on a raft of other civil rights, from marriage equality to contraception. Despite urgent pleas from some members of Congress, the long-overdue encoding of Roe into law by the Biden administration is highly unlikely. That a Court is about to force through a health policy supported by only 39% of Americans is dysfunctional. Indeed, if the Court denies women the right to safe abortion, it will be a judicial endorsement of state control over women—a breathtaking setback for the health and rights of women, one that will have global reverberations.

https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(22)00870-4/fulltext

impressive

The Supreme Court's second and final opinion of the day is Cruz v. FEC. By a 6–3 vote, the court strikes down a federal law prohibiting post-election contributions to repay a candidate's personal loans to their campaign. All three liberals dissent. https://t.co/GKuHtkwILe

— Mark Joseph Stern (@mjs_DC) May 16, 2022

A 5-4 immigration jurisdiction case decision too w/ Gorsuch joining liberals in the dissent

Now that Amy's safely in place every 6-3 or 5-4 SCOTUS decision is going to be horrifying enough to make your hair stand on end.

yes, but those are the decisions god wants

A friend pondered this over the weekend: what if native tribes opened abortion clinics on their lands? I've seen casinos, fireworks stores, etc... would their sovereignty apply here?

The big brains of Right to Life plan to treat an abortion obtained anywhere as a murder, so that the threat of a murder prosecution would effectively prevent women from seeking abortions outside US jurisdiction. Unless they're rich and white ofc.

iirc the governor of OK has already started warning tribes (who cover a large % of the state) about this very idea, ie:

https://thehill.com/news/sunday-talk-shows/3488884-oklahoma-governor-warns-tribes-not-to-create-abortion-havens/

his 'warning' seems pretty empty

They can expect a sternly worded letter.

the last thing I was is for a bunch of do-gooder liberals trying to impose this idea on any tribe, I just wondered about the potential legality of it.. considering that there are reservations in pretty much every state, I think

The second any tribe makes a bold move against the current white supremacist Republican party, expect that the Supreme Court will revisit any relevant rulings and eviscerate what sovereignty they have.

Yeah empty or not, I figure you would have to imagine too hard to come up with a nasty scenario of retribution against tribes

*would not have to

It won't even be retribution, they're just going to move that item up on their to-do list. There's no chance Native American sovereignty isn't marked for death by the GOP.

https://www.washingtonpost.com/politics/2022/05/14/clarence-thomas-supreme-court-leak-roe-trust/

The leak of a draft opinion regarding abortion has turned the Supreme Court into a place “where you look over your shoulder,” Justice Clarence Thomas said Friday night, and it may have irreparably sundered trust at the institution.

It was second time in a week that Thomas has decried declining respect for “institutions”; he made similar remarks at a conference of judges and lawyers last week.

....Thomas was in conversation with a former law clerk, John Yoo, a professor at the University of California at Berkeley. Yoo did not ask the justice about recent controversies involving Thomas’s wife, Virginia “Ginni” Thomas, who was a staunch defender of President Donald Trump and whose text message exchanges with Trump’s chief of staff regarding legal schemes to challenge Trump’s 2020 election loss have come to light.

John Yoo is always known as a tough interviewer

As Livia Soprano said, "Awww poor Yoo!"

John Yoo can shampoo my crotch

It was second time in a week that Thomas has decried declining respect for “institutions”

there is no god or this fuck would have been struck dead there and then

i don't know where to put this so i'm putting it here
seems bad

This seems like a pretty consequential decision https://t.co/DiyNjlygtt pic.twitter.com/ghlsYyvdl8

— John P. Collins (@prof_jpc) May 18, 2022

On its face, I'm not sure why requiring a jury trial for securities fraud actions is per se bad. I can see how it might have negative practical implications for prosecutions, but it's hard for me to formulate why securities fraud should be different than anything else in that regard.

fucking hell. the constitutional theory applied in that 5th Circuit opinion would basically destroy all federal regulatory agencies. these radical judges are dead set on dragging the nation back into the 19th century.

That is the goal, yes.

i am not done reading it (also too tired to finish today tbh) but i don't understand why it's not a "public right." my understanding of administrative law is poor tbh. even though i technically practice it. haha. ha. there was another 5th cir. case with some big implications recently too but i forgot what it was.

tbh tbh

The quote shown in the tweet cited three arguments and "right to a jury trial" was easily the least radical one. None of the three cited arguments was rejected as inapplicable or incorrect.

The most radical argument was the court's apparent acceptance of the plaintiff's interpretation of language in the constitution stating Congress is granted "all" legislative power as meaning that the SEC is unconstitutionally creating law by enforcing regulations not passed by Congress. Requiring Congress to explicitly pass all the regulations directly, as legislation, would invalidate every current regulation and replace them with chaos.

yeah i think (2) and (3) are more important. the vast majority of cases do not even reach administrative litigation. i do not believe that the ruling (or a consistent future supreme court ruling) will invalidate every regulation that exists--unfortunately there are other coming cases about the ability of agencies to regulate that will be even worse. (there are also statutes for a lot of things that agencies do and regulated entities will still want to negotiate before complaints are filed.) anyway it's not just this one case, it's part of a larger project. the other case i'm thinking of had to do with an agency not having the authority to decide to withhold records in a FOIA request because the commissioners can't be removed by the president, which is the same issue addressed in (3). weird that no one has to assert that there would be any reason to remove them. it seems to have nothing to do with the case itself. but it looks like we are headed for a system where all ALJs/commissioners are appointed by the current president which will be not great. well maybe it'll be ok since everything has to be filed in federal district court....