U.S. Supreme Court: Post-Ginsburg Edition

As we go through the waiting-for-a-huge-unscheduled-ruling-from-#SCOTUS fire drill for the third time in eight days, a reminder that this is not how the Court has historically operated—or how it should.

That’s a big theme of my book on the “shadow docket,” which comes out 5/16: https://t.co/YtNnX7hl9j

— Steve Vladeck (@steve_vladeck) April 21, 2023

He makes good points even if he’s pushing his book. He’s referring to expected ruling today/ tonight re abortion pill lower court rulings

oh great

(re: your 2nd sentence)

#BREAKING: #SCOTUS *stays* Judge Kacsmaryk’s mifepristone ruling in full pending appeal.

This means there will be no change in the access to or availability of the medication anytime soon.

— Steve Vladeck (@steve_vladeck) April 21, 2023

#BREAKING: #SCOTUS *stays* Judge Kacsmaryk’s mifepristone ruling in full pending appeal.

This means there will be no change in the access to or availability of the medication anytime soon.

— Steve Vladeck (@steve_vladeck) April 21, 2023

Fuck I'm sorry for double post.

I feel like a weight just lifted.

This isn't the end of the line as it's pending appeal but

7-2 decision

Lemme guess who the 2 were.

You are correct

that's good news

BREAKING: Supreme Court stays order banning mifepristone. This means mifepristone remains 100% legal and accessible in states where it is legal.

Thomas and Alito dissent.https://t.co/Fmn64gkbOS pic.twitter.com/Vv9HqB1PbB

— Mark Joseph Stern (@mjs_DC) April 21, 2023

Having the first of many beers in celebration.

Alito dissent is so whiny

That dude is the human embodiment of whining.

whew

What remains of Alito's hair is the embodiment of whining.

and: CA5 set the case/appeal for expedited briefing. it will be interesting to see whether this SCOTUS order affects what CA5 does/rules/says in the government's appeal.

(some judges might take this as a hint/treat it as persuasive/predictive...)

— Leah Litman (@LeahLitman) April 21, 2023

When lemons and limes have tequila shots, they lick Sam Alito first and suck on him after.

— Elie Mystal (@ElieNYC) April 22, 2023

stop, now I'm hard

Seems as good a time as any to re-up this great piece: https://www.newyorker.com/magazine/2022/09/05/justice-alitos-crusade-against-a-secular-america-isnt-over

In other Supreme Court news this past week, they heard a case concerning what is free speech and what is criminal stalking. However at the hearing, rather than focusing on the facts at issue re a man who sent thousands of unsolicited facebook messages to a woman, the conservative justices talked out the speech of professors in college classes and the students who hear them

https://www.fastcompany.com/90881970/supreme-court-to-decide-when-social-media-stalking-illegal

This article was written before the hearing

The Slate article written after the hearing -

https://slate.com/news-and-politics/2023/04/counterman-colorado-supreme-court-threats-stalking.html

The justices’ message was clear: Stalking is not the problem; sensitivity is. To them, stalking is quite literally a state of mind: If the stalker didn’t mean for his conduct to be frightening, then it isn’t. All the target has to do is understand that; she just needs to lighten up, take a joke, accept the compliment, grasp the lesson. Just because someone has made objectively terrifying statements is no reason to overreact and get law enforcement involved; victims should wait for the stalker to do something really frightening before they jump to conclusions.

I haven’t dug into the facts of the case to see if she blocked the guy and he somehow created another account and continued to stalk her

So a stalking victim should lighten up and holla back but if the wrong person pulls into your driveway you can murder them.

x-post back to Alito dissent-

Law Professor Vladeck substack excerpt:

But then there’s the bolded passage—and the remarkable assertion that “the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases.” You’ll note that Alito cites to precisely zero authority either for the “legitimate doubts” or for the government somehow having an obligation to “dispel” those doubts. Yes, members of Congress (from both parties) have suggested that the Biden administration shouldn’t follow an adverse ruling in the mifepristone case. But not only has no one in the executive branch even hinted that such a move was remotely in the cards; the White House specifically poured cold water on the idea. Near as I can tell, it’s been 162 years since the last time a President directly ignored a court order—and, right-wing fever dreams notwithstanding, I don’t exactly see President Biden or Attorney General Garland as likely heirs to the Merryman precedent.

Against that backdrop, it’s hard to imagine where Justice Alito got these “legitimate doubts” from (except, perhaps, right-wing media). Suffice it to say, before a Supreme Court Justice (let alone one with prior executive branch experience) publicly levels such a charge against the incumbent administration, it might behoove them to provide some evidentiary support.

https://stevevladeck.substack.com/p/24-justice-alito-and-the-shadow-docket?r=2k6pc&utm_campaign=post&utm_medium=web

https://www.lawyersgunsmoneyblog.com/2023/04/samuel-alito-is-not-mad-do-not-write-that-he-was-mad

Nine days after Gorsuch was appointed to the Supreme Court, the head of Greenberg Traurig—a major law firm that’s before the Court all the time—bought land he’d been trying to sell for two years. Gorsuch did not report the identity of the purchaser. https://t.co/P4WH4VNnps

— southpaw (@nycsouthpaw) April 25, 2023

Dem Judiciary committee chair Durbin probably won't subpoena Gorsuch to testify for same lame reason he just offered for not subpoena'ing Thomas

NEW: Senate Judiciary Committee Chairman Dick Durbin says he didn't invite Justice Clarence Thomas to testify re ethics because he thought Thomas would ignore the invitation. via @KellyGarrity3 https://t.co/DRbtBr2jvA

— Josh Gerstein (@joshgerstein) April 23, 2023

Just good old fashioned log rolling.

durbin sucks badly but every single democrat should be railing on the blatantly corrupt supreme court

BREAKING: Chief Justice Roberts declines Senator Durbin’s invitation to testify before the senate judiciary committee pic.twitter.com/aiG2OE4iQq

— Steven Mazie (@stevenmazie) April 25, 2023

That's a lot of words to say "fuck you I won't do what you tell me"

I'm shocked.

Just great, as they say.

https://www.youtube.com/watch?v=kgttPt_1IG0

It all comes down to the fact that the SCOTUS can ignore any attempt by Congress to control any aspect of their conduct, short of impeachment -- and a successful impeachment is politically impossible at present.

The irony is that the lifetime appointments and the protection from interference were designed to foster independence, but like everything else "norm" based these days it's curdled and lead to the opposite effect, corruption with no consequence.

The very careful "We must soberly respect precedent, this has not happened since 1821, please see my 87 footnotes" kind of shit is very very calibrated to give the sense that there are norms. And that there is any kind of continuity between today's Supreme Court and previous ones.

I am sitting and typing on land that has seen several civil wars (including the famous one) featuring torrents of literal bloodshed so I know this is not new bullshit. But it is, still. manifestly, bullshit.

The Court can decide to adapt and evolve. But it can also decide not to. And it can also decide to do what is most in line with its preexisting ideological stances, then retroactively sanctify those stances as dogma.

Clearly, this court has decided to do what is most politically convenient for the (current and temporary) majority, and cloak it in sanctified terms.

In the near term, I assume that the GOP-appointed and GOP-manipulated majority will use its vaunted independence to do hideous things. We can hope for unlikely reform, and we can also hope that the distant future offers at least a glimmer of improvement.

We can also hope that the GOP SCOTUS majority dies in a hideous house fire.

in a hideous IHOP fire

I live in the DC area and slightly know the Scalia kids. Not saying I can make that happen, but also not NOT saying it.

Alito looks like the sort of guy who loves a good steak cooked to perfection at IHOP for dinner.

cooks probably knew who it was for and put arsenic in it

only the food runner accidentally brought it to Dan Bongino's table

A new statement signed by all nine Supreme Court justices stressing their commitment to ethics principles has come under immediate fire for failing to respond to recent calls for the court to adopt a binding code of conduct.

...Sens. Angus King, I-Maine, and Lisa Murkowski, R-Alaska, said Wednesday they will introduce legislation to require the court to create its own code of conduct, as well as appoint an official to review public complaints and publish annual reports disclosing them. A similar bill had already been introduced by Sen. Chris Murphy, D-Conn.

https://www.nbcnews.com/politics/supreme-court/supreme-court-draws-fire-ethics-inaction-rcna81544?cid=sm_npd_nn_tw_ma&taid=64497839842be500017b3ef7&utm_campaign=trueanthem&utm_medium=social&utm_source=twitter

...which the current justices will no doubt answer with an elaborately worded "fuck you I won't do what you tell me."

All shrouded in legalese about historical precedent and checkas and balances and coequal blah blah but still amounting to a gigantic middle finger.

Like, okay, it's so very cute that you want to make a law about us. Good luck enforcing it because the case would inevitably come to... us. We who have already said "fuck you I won't do what you tell me."

I am manifestly not a fan of absolute monarchy but this is the kind of shit where I would secretly kinda love it if there were a grownup who could just step in and tell people to stop being whiny-ass toddlers and just be better.

which the current justices will no doubt answer with an elaborately worded "fuck you I won't do what you tell me."

What we need is the appointment of an independent-minded wonk equally versed in policy, optics and Rage Against the Machine. Wait, I know just the person!

https://pyxis.nymag.com/v1/imgs/1e2/658/97214dcde5465d5180e2ff718c8b30060e-1----.rsocial.w1200.jpg

just looked up ryan's post-congressional life, and yeah, he's still one of the 8 people on the board of directors at fox corporation

I might be crazy, but I think we're going to see further ethics requirements imposed upon the SC. All of them were subject to the Code of Conduct for United States Judges before they were elevated to the Supreme Court, so the logical next step is to apply that or portions of that to the Supreme Court: https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges

dow posted this link over on the us politics thread: https://www.nbcnews.com/politics/supreme-court/supreme-court-draws-fire-ethics-inaction-rcna81544

it seems likely that the roberts court will continue to oppose any kind of accountability

What if such imposed ethics requirements were ruled ... unconstitutional?
https://durrellbowman.files.wordpress.com/2020/09/the-piranha-brothers.jpg