U.S. Supreme Court: Post-Ginsburg Edition

Someone should really get a Go Fund Me going for Thomas. I guess maybe they already have.

I live in a world where even if it didn’t involve massive ethics violations at the highest levels of government, I’d hang my head in shame if I, a grown ass man earning a 6-figure salary, let another grown ass man pay for my mama’s house and my child’s education.

— curtis marshall (@wxcurtis) May 4, 2023

Thinking about Alito's whining about how people are now "attacking" the Court, I think he has something of a point, he just misunderstands it. I do think the hard-right court's activism has attracted more scrutiny, from the media and the public at large — but that's because when you assert power over other people's lives in ways that negatively affects them and that are actually unpopular with people in general, there is a natural and laudable tendency for people to say, "Well just who the hell are YOU?"

Really I think this is the kind of thing Roberts has had in mind when he has rightly worried about radical ideological decisions undermining the Court's legitimacy.

John Roberts as a Reagan hack devoted himself to limiting the reach of the VRA, so he can fuck himself into a sewer.

loling at the galaxy brain blue check idiots with their "now do Sotomayor's book deal" takes. yes, because that is exactly the same thing.

Oh yeah, Roberts is definitely part architect of the current Court. That he seems to have at least mild misgivings about its rapaciousness doesn't in any way excuse him. I just think he's right to worry about its perceived legitimacy, because once they've lost it — which in a lot of ways they have already — it's hard to get back.

I understand why a chief justice would worry about the legitimacy of a court he has wanted to lead for decades, but Roberts is maybe the least corrupt of a rotten bunch (I write this even as we know now what we do about his wife).

This isn't just about gifts, or perks, or trips--it's about a decades-long effort by the Right to create a separate universe in which Conservative Justices don't have to care about how their decisions are received by law professors or the legal world, but only how they are received by the Federalist Society and rich donors. It's all been done to keep Justices from "growing" (i.e. moving to the center) as had happened with Republican appointees like John Paul Stevens.

We've now reached the point that even regular people are catching on to this shit and no longer see the Court as an elevated priesthood in American life but just another set of partisan crazies.

I mean

Conservative judicial activist Leonard Leo arranged for the wife of Supreme Court Justice Clarence Thomas to be paid tens of thousands of dollars for consulting work just over a decade ago, specifying that her name be left off billing paperwork, according to documents reviewed by The Washington Post.

In January 2012, Leo instructed the GOP pollster Kellyanne Conway to bill a nonprofit group he advises and use that money to pay Virginia “Ginni” Thomas, the documents show. The same year, the nonprofit, the Judicial Education Project, filed a brief to the Supreme Court in a landmark voting rights case.

Leo, a key figure in a network of nonprofits that has worked to support the nominations of conservative judges, told Conway that he wanted her to “give” Ginni Thomas “another $25K,” the documents show. He emphasized that the paperwork should have “No mention of Ginni, of course.”

Ginni's got expensive habits, poor Justice Thomas needs all the help he can get with his nephew's schooling and mother's housing, he's living paycheck to paycheck

Funniest thing from this article is that some dude gifted Clarence Thomas tires.
If you're not paying for your own tires, what exactly do you pay for ever?https://t.co/PRi4ZGByZ8 pic.twitter.com/6iFcmIgEjL

— David Dayen (@ddayen) May 4, 2023

Congress could pass a law enumerating a strict code of ethics for the SCOTUS. Nothing prevents it. Such a law would be constitutional. But if one or more justices failed to comply then Congress would still have no enforcement mechanism other than impeachment. Good luck with that.

For Congress to pass a law we’re still stuck with filibuster rules too I think, and it doesn’t look like there are enough Republicans willing to vote for it .

Meanwhile Washington Post is reporting that Leonard Leo , right wing Fed Society judicial activist directed Kellyanne Conway in 2012 to pay Ginni Thomas for consulting work but to leave her name off the billing paperwork.

Dem Judiciary chair Durbin and Schumer could be more assertive about all of this but they aren’t willing to try . Maybe there would not be votes to impeach Thomas but make him sweat and do something at least while making clear how corrupt he is

The IRS is apparently fine with a whole network of Leo run entities acting in political ways despite how they’re incorporated

“Non-profit “ entities

https://www.washingtonpost.com/investigations/2023/05/04/leonard-leo-clarence-ginni-thomas-conway/

Surprised they even made an effort to hide the payments

Weird bedfellows in this California 'bacon law' ruling:

https://www.sfgate.com/politics/article/supreme-court-california-bacon-law-dismissed-18093919.php

whoops

https://www.sfgate.com/politics/article/supreme-court-california-bacon-law-dismissed-18093919.php

https://www.scotusblog.com/2023/05/court-throws-out-conviction-of-former-cuomo-aide/

While a code of ethics for the Supreme Court would be nice , I am reading some say that all that would do would be to legitimize the extremist right wing partisan decisions coming from the Court. Thus, the answer is still expanding the court to 13 justices to match up to the 13 circuit courts of appeal. I recognize it is fantasyland right now to think we will ever have a Democratic majority courageous enough to do that.

https://www.nytimes.com/2023/05/12/opinion/clarence-thomas-supreme-court-legitimacy.html

If it is not possible to redesign the Court so as to render it more credibly independent from our nation’s polarized politics, then weakening its authority (and thus, judicial review) seems preferable to acquiescing to right-wing minority rule. https://t.co/Tho0EFESBj

— Eric Levitz (@EricLevitz) May 8, 2023

https://nymag.com/intelligencer/2023/05/what-conservatives-cant-say-about-clarence-thomas.html

That said, if progressives have an interest in preserving public confidence in the integrity of the federal government writ large, we have no such interest with respect to the current Supreme Court. Surely, the primary problem with the Roberts Court is not that its reactionaries occasionally profit off their power

Rather, it is that the court’s conservative majority (1) denies rights that progressives deem inviolable, and, in other domains, (2) circumscribes popular sovereignty in deference to a facially implausible interpretative doctrine that just so happens to almost invariably yield substantive outcomes favorable to the American right (which, uncoincidentally, cultivated and exhaustively vetted every single member of that majority).

The idea that other justices have secured gifts as lucrative as Thomas’s — and the media is simply failing to spotlight them — is unsubstantiated and, given the extremity of Thomas’s behavior, highly improbable. But the suggestion that liberals are more interested in using Thomas’s ethical violations to erode the Supreme Court’s legitimacy than they are in reforming that institution’s ethics rules is plausibly true. Or, at least, in my view, liberals should be more interested in doing the former.

As a general matter, flagrant government corruption is bad for the progressive project. If people view the state as full of self-dealing parasites, it will be much harder to persuade them to accept higher taxes in exchange for more social services and public investments. And insulating democratic politics from the corrosive influence of class inequality requires, among other things, ethical norms that deter open bribery.

True.

Bouie in NY Times article linked above:

For the left-of-center of American politics, the Supreme Court has been, over the course of its long history, more hindrance than help. And to the extent that liberals began to trust the court as an institution, it’s because they made a mistake, confusing the exceptional rulings of the court under Chief Justice Earl Warren for the norm. The Supreme Court, as the legal scholar Lucas A. Powe Jr. has observed, is “part of a ruling regime doing its bit to implement the regime’s policies.” If the court appeared liberal — or at least friendly to liberalism — in the first decades after the Second World War, it was because of the hegemony of New Deal liberalism over American politics, not because of any inherent quality of the Supreme Court itself.

See: almost every Fuller-era ruling.

not because of any inherent quality of the Supreme Court itself.

how could the Supreme Court have any inherent qualities?

ask them!

Lmfao they voted 9-0 to limit public corruption laws in a case where the guy pretty much just wrote “I am soliciting bribes” via email https://t.co/Uu7NZcKLjk

— Jerry Iannelli (@jerryiannelli) May 11, 2023

SCOTUS ruled 7-2 against Andy Warhol in a fair-use case regarding a photo of Prince:
https://www.nytimes.com/2023/05/18/us/supreme-court-warhol-copyright.html

Interesting to see which way the justices fell in this one: Sotomayor wrote the opinion and Kagan the dissent. And the lone justice who joined the dissent was Roberts.

Currently reading Kagan's dissent, which quotes both Jonathan Lethem and Nick Cave.

I was pretty surprised and put off by the LGM take on this

https://www.lawyersgunsmoneyblog.com/2023/05/warhol-foundation-v-goldsmith

Sort of a funny take considering the name of that blog.

That LGM writer often trolls readers.

Irony about the blog title aside, what about the LGM take surprised you? From a Marxist perspective the concept of "fine art" can be classic mystification and the "transformative" angle of fair use has been criticized as a license to steal.

Here's a good primer on transformative fair use

https://fairuse.stanford.edu/overview/fair-use/four-factors/

I kind of agree with the LGM take on this--Warhol is not exactly "transforming" the art he creates when he uses, say a Goldsmith photo

Im still angry about RBG. Know when to quit FFS.

Justice Gorsuch calls Covid safety measures “the greatest peacetime intrusions on civil liberties in American history.”

White wealth privilege is ignoring 400 years of Native genocide, 265 years of Black slavery, & 99 years of Jim Crow—but lamenting 1 year of PTO during COVID.😑 pic.twitter.com/MrwMribfGX

— Qasim Rashid, Esq. (@QasimRashid) May 19, 2023

Incredibly stupid (not surprising) that these would-be historians on the bench don't know about the history of pandemic responses going back 200 years in this country. Isn't Gorsuch though passionately pro Native American in his rulings? Maybe we could frame every case from now on in some way with Native American Rights.

From an article cited by LGM:

Perhaps Justice Gorsuch didn’t directly cite the complaint in the case itself because it is, to use the technical legal term, batshit rightwing-nut crazy. It repeatedly refers to the Biden administration as “the Left.” In addition to complaining about the supposed pressure campaign to suppress anti-vax disinformation, it also complains about supposed suppression of (false) claims by Donald Trump and his allies about voter fraud. And it’s especially adamant about supposed suppression of anti-mask speech. . .

Near the end of Justice Gorsuch’s statement, he acknowledges that “decisive executive action is sometimes necessary and appropriate.” Yet nowhere in that statement does he say–and he apparently doesn’t think–that a pandemic caused by a novel virus that ended up killing over a million Americans and that sickened millions more was the sort of crisis calling for such decisive executive action. He refers to Americans’ overreactions to a “perceived threat,” implying (even if not coming right out and saying) that he thinks the perception with respect to COVID was inaccurate from the start. . . .

Justice Gorsuch’s statement terms the collection of orders comprising the US COVID response “the greatest intrusions on civil liberties in the peacetime history of this country.” That assertion echoes Justice Alito’s November 2020 speech at the Federalist Society national convention in which he called COVID-related government actions “previously unimaginable restrictions on individual liberty,” adding: “We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”

I guess it depends on who “We” are. This is a country in which millions of human beings were lawfully enslaved their entire lives–including during peacetime. And while I do not deny that the COVID restrictions were indeed a very serious intrusion on liberty, it’s a little hard to take seriously paeans to liberty offered by Justices who enthusiastically nullified a nearly-fifty-year-old precedent recognizing the freedom not to be forced to endure the bodily burdens of pregnancy and birth.

Yeah, that's what I can't get over: The COVID responses were public health measures carried out for the express purpose of combating a deadly global pandemic. The pandemic wasn't a pretext, it was the whole point. You can argue about the effectiveness of various measures put in place while our understanding of the virus was still limited, but I get the impression that some people would rather have not had any response at all, which is bonkers to me.

I kind of agree with the LGM take on this--Warhol is not exactly "transforming" the art he creates when he uses, say a Goldsmith photo

― a (waterface), Monday, May 22, 2023 5:14 AM

More than that though, "transformative use" is not in the Copyright Act at all. The "transformative" factor is not needed if the statutory factors are applied correctly. It became a freestanding exception that threatened to negate the fair use factors. The issue I would have with the Warhol work is it is in no way a commentary on Lynn Goldsmith's original photo, so the borrowing was not necessary. And I say this as a fan of Warhol. (I don't agree with the LGM take on Warhol's artistic merit, but I gather I'm not supposed to.)

DeSantis warned of a jurist replacement in the mold of John Roberts, a conservative who is perceived by many to be a centrist.

“If you replace a Clarence Thomas with somebody like a Roberts or somebody like that, then you’re gonna actually see the court move to the left, and you can’t do that,” he said.

DeSantis suggested that Roberts and liberal Sonia Sotomayor might also retire in the near future.

“So it is possible that in those eight years, we’d have the opportunity to fortify Justices Alito and Thomas, as well as actually make improvements with those others. And if you were able to do that, you would have a 7 to 2 conservative majority on the Supreme Court that would last a quarter-century,” the governor said to cheers.

Roberts, that fuckin' lib

Harlan Crow’s lawyer says he doesn’t have to answer Judiciary Committee questions re Justice Thomas

For a private citizen to assert that separation of powers puts them beyond the reach of Congressional inquiry is frankly bizarre. Specific justices are not empowered to cloak their friends & acquaintances w/the separation of powers protections the justices might hold. https://t.co/pqQnarBwIh

— Sherrilyn Ifill (@SIfill_) May 23, 2023

Given who will eventually decide this, he’s gotta take a shot

Bad clean water decision today

Kagan's opinion in Sackett calls back to WV v. EPA last term to ring the alarm about this Supreme Court overriding Congress' environmental policy choices. https://t.co/16oWmDsns6 pic.twitter.com/EDAhDAgkQ8

— Mark Joseph Stern (@mjs_DC) May 25, 2023

Alito I think wrote a majority one