U.S. Supreme Court: Post-Ginsburg Edition

https://slate.com/news-and-politics/2023/07/supreme-court-term-wrap-unpacking-arrogance.html

Dahlia Lithwick interviewed three court watchers about their reactions to various cases and their observations about where the court is headed: Jamelle Bouie, former Slate writer and current New York Times opinion columnist; Sherrilyn Ifill, former president and counsel of the NAACP and newly named head of Howard University’s inaugural Vernon E. Jordan Jr., Esq. Endowed Chair in Civil Rights; and Steve Vladeck, law professor at the University of Texas and author of New York Times bestseller The Shadow Docket. excerpted their answers to her first question—lightly edited and condensed for clarity.

This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. We’re working to change the way the media covers the Supreme Court. Sign up for the pop-up newsletter to receive our latest updates, and support our work when you join Slate Plus.

The month of June has proved to be quite a ride for court watchers. In the first weeks, the Supreme Court surprised us, fracturing in major decisions in all kinds of ways that went beyond the 6–3 splits we witnessed last year. The six-justice supermajority appeared disinclined to tear down quite as much as was expected—at least, they didn’t until things really ramped up at the end of the month, and LGBTQ+ rights, race-based affirmative action, and student debt relief programs were all upended in the span of 48 hours. Now, as the justices head off for their summer vacations—and as recent reporting has shown, with at least some possibly headed for private jets and glacier martinis—the rest of us are left to sort through what it all meant and how to compare it to last year’s Dobbs-shaped black hole.

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On the final episode of Amicus for this term, Dahlia Lithwick interviewed three brilliant court watchers about their reactions to various cases and their observations about where the court is headed: Jamelle Bouie, former Slate writer and current New York Times opinion columnist; Sherrilyn Ifill, former president and counsel of the NAACP and newly named head of Howard University’s inaugural Vernon E. Jordan Jr., Esq. Endowed Chair in Civil Rights; and Steve Vladeck, law professor at the University of Texas and author of New York Times bestseller The Shadow Docket. Below, we’ve excerpted their answers to her first question—lightly edited and condensed for clarity.

Dahlia Lithwick: What does each of you clock as a unifying through-line, if one exists, about this past term? How do you connect it to the national earthquake that was the term before?

Sherrilyn Ifill: I have so many thoughts rushing through my head that it’s hard to pick which one. But I think as a top line, it is calling me back to the very first opening session of the Biden Supreme Court Commission. At that time, we had testimony from different experts, and people submitted testimony, and so forth. Niko Bowie testified first, and he offered an incredibly powerful and important and scathing account of the Supreme Court’s counter-democracy role over the course of its existence. He started out by popping the balloon of the idea that the Supreme Court is the place of last resort that has brought us to a more perfect union. And I remember, a number of my colleagues on the commission seemed quite shaken, or maybe some were offended. But there was no doubt that everything that he was saying was true.

And yet, we were doing this task of performing on this commission without seriously engaging the charge for change. And I think we see the consequences of that this year. Obviously, this was a devastating term, but I think really important for our maturation as a democracy in understanding that things are out of balance. And I think it’s time for us to take a very close look at the way in which we have allowed the mythology of the Supreme Court to set itself on top of our democracy, as opposed to being within our democracy. And I think this term best exemplifies that. I think it’s a historic term. I think it’s a term that will define the Roberts Court. And I don’t think it’s the kind of definition that he anticipated or wanted when he took the job.

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Steve Vladeck: I’m going to pick a slightly provocative word, but the more I think about it, the better I think it is. The word of the term, for me, is arrogance. This is a profoundly arrogant institution, and I mean that in multiple respects. Arrogant from the sense of sort of picking and choosing the cases it wants in ways that are not necessarily advancing what the lower courts need, as opposed to the agendas of the justices. Arrogant in the sense of handing down decisions in major cases that really are punts, making you wonder why they took the case in the first place. Like what was the point of granting cert in Moore v. Harper if that was the decision we were going to get out of the court?

Arrogance in sort of turning its back collectively and individually on the idea that it ought to be accountable as an institution, and the justices ought to be accountable. Chief Justice Roberts’ letter in response to Chairman Durbin’s invitation to testify is, I think, actually one of the more important single documents of the term.

And arrogance in the sense that the chief’s majority opinion in the student loan case, I think, is really the bough on the tree of arrogance. Because it says: We are allowed to disagree with each other without you guys telling us that we are somehow undermining the institutional arrangements that guide our country. So, I just can’t get over the arrogance of both the court as a whole and the justices in the majority, for the most part. What’s related to that is that I think that arrogance is a lot more visible now.

oops didn't mean to include some of that Slate ad stuff

Remember everyone, under the Republican justices’ opinion in Citizens United, it’s legal for a billionaire to give a Super Bowl ring to a SCOTUS justice, unless the billionaire says the magic words “this is a bribe I am giving you in return for the following official actions.” https://t.co/JWe629W5KK

— Ian Millhiser (@imillhiser) July 9, 2023

https://www.nytimes.com/2023/07/09/us/clarence-thomas-horatio-alger-association.html

But a look at his tenure at the Horatio Alger Association, based on more than two dozen interviews and a review of public filings and internal documents, shows that Justice Thomas has received benefits — many of them previously unreported — from a broader cohort of wealthy and powerful friends. They have included major donors to conservative causes with broad policy and political interests and much at stake in Supreme Court decisions, even if they were not directly involved in the cases.

Justice Thomas declined to respond to detailed questions from The New York Times.

In his early years on the court, Justice Thomas disclosed about 20 private plane flights and an assortment of other gifts, including cigars, a Daytona 500 jacket, a silver buckle and a rawhide coat. After The Los Angeles Times chronicled his gifts and travel in 2004, he stopped disclosing private flights and has seldom reported gifts or other benefits. After the Crow revelations, the justice said that “colleagues and others in the judiciary” had advised him that he did not need to report the hospitality of good friends.

His decision not to disclose many benefits for nearly two decades — beyond trips related to teaching, speeches and attending legal or academic conferences — has made it difficult to track potential conflicts of interest.

Another day another Clarence Thomas corruption story--

https://www.theguardian.com/us-news/2023/jul/12/clarence-thomas-aide-venmo-payments-lawyers-supreme-court

Several lawyers who have had business before the supreme court, including one who successfully argued to end race-conscious admissions at universities, paid money to a top aide to Justice Clarence Thomas, according to the aide’s Venmo transactions. The payments appear to have been made in connection to Thomas’s 2019 Christmas party.

Justice Alito tells the @WSJ that Congress has no business policing SCOTUS. "I know this is a con­tro­ver­sial view, but I’m will­ing to say it... No pro­vi­sion in the Con­sti­tu­tion gives them the au­thor­ity to reg­u­late the Supreme Court—pe­riod." https://t.co/tor4akmv75

— Nate Raymond (@nateraymond) July 28, 2023

Impeach Alito & Thomas. That'd fix their wagons.

Yet the SC is dependent on Congress appropriating them money to operate (thinky face emoji).

just say you'll fund me for the rest of my life

https://news.bloomberglaw.com/us-law-week/alito-lays-groundwork-to-scrap-court-financial-disclosure-rules

So while they’re at it, why not scrap the 1978 Ethics in Government Act requirement that the justices file annual financial disclosure reports available for public inspection? The reports are fairly modest in scope, requiring the justices to disclose little more than their outside teaching and book income, spousal place of work, reimbursed travel, and major debts and investments, and each category contains significant exceptions: spousal salary, vacations paid for by “friends” and home mortgages, for example, are all exempted from disclosure.

Some, including Alito, argue that the justices aren’t currently bound by the law. The nine, he said, “voluntarily follow [the] disclosure statutes that apply to lower-court judges and executive-branch officials,” implying it’s been out of the goodness of their hearts that they’ve complied to this point.

But with this shot across the bow, it appears that the Age of Marginal Accountability may soon yield to the Era of You Can’t Make Us.

Here’s how I imagine the lawsuit seeking to overturn the law will proceed:

The effort will have an air of propriety because, for one, it’s not going to be Alito himself who files suit. It’ll be a lower-court judge, probably from Texas, who’s directed to do it, and he’ll file not in Washington, where the office that oversees the disclosure regulations is located, but in a friendly neighboring district.

Maybe he’ll get a few other judges to join him as plaintiffs to give the impression that the filing requirements are burdensome for jurists across the country.

Twice now, Justice Alito has gone straight to the Wall Street Journal to publicly comment on and meddle in Congressional activity.

The interview was conducted by an attorney with a case before the Supreme Court next term.

Alito must recuse himself in Moore v. U.S. https://t.co/L2wRFYMsxw

— Senator Dick Durbin (@SenatorDurbin) August 3, 2023

So Durbin writes a tweet and thinks he’s done his job. How about actually mobilizing Democrats to expand the court? What the hell is complaining about this accomplishing? You’re still stuck with Thomas, too. Nothing changes

This is the equivalent of Senator Durbin making the "I'm watching you" gesture where he points two fingers at his own eyes and then points them at Associate Justice Alito, at which Alito first pretends to shiver with fear, says "Oooo! I'm scared", then laughs.

otm

i imagine alito is more like a "cranking window up that is him giving you the finger" kind of justice.

https://www.nytimes.com/2023/08/05/us/clarence-thomas-rv-anthony-welters.html

Clarence Thomas’s $267,230 R.V. and the Friend Who Financed It
The vehicle is a key part of the justice’s just-folks persona. It’s also a luxury motor coach that was funded by someone else’s money.

NEW: Think you know that Clarence Thomas has wealthy patrons?

You don’t know the tenth of it.

We assembled the most comprehensive account yet of his secret luxury travel—paid for by many billionaires.@BrettMmurphy & @Amierjeski:https://t.co/IqZPnfWYOw pic.twitter.com/cJ3hb03MMd

— Jesse Eisinger (@eisingerj) August 10, 2023

Other members of the court have accepted travel underwritten by wealthy businessmen and speaking invitations at universities. Stephen Breyer accepted a flight to a Nantucket wedding from a Democratic megadonor. Ruth Bader Ginsburg took a tour of Israel and Jordan paid for by an Israeli billionaire. Those gifts are public because Breyer and Ginsburg disclosed them.

Thomas, however, is apparently an extreme outlier for the volume and frequency of all the undisclosed vacations he’s received. ....The Thomases have been treated to at least seven University of Nebraska-Lincoln games — five arranged by Sokol — in recent years. The Times first reported on Thomas’ appearances at some of them.

Thomas has never reported any of those tickets on his yearly financial forms. Judiciary disclosure rules require that most gifts worth more than $415 be disclosed. “It’s so obvious,” said Richard Painter, former chief White House ethics lawyer for President George W. Bush. “It all has to be reported.” ProPublica identified more than 60 federal judges who disclosed tickets to sporting events between 2003 and 2019. In 1999, Thomas disclosed private flight and accommodations for the Daytona 500 but hasn’t reported any other sporting events before or since.

https://www.propublica.org/article/clarence-thomas-other-billionaires-sokol-huizenga-novelly-supreme-court

supreme Court Justice Clarence Thomas for the first time acknowledged that he should have reported selling real estate to billionaire political donor Harlan Crow in 2014, a transaction revealed by ProPublica earlier this year. Writing in his annual financial disclosure form, Thomas said that he “inadvertently failed to realize” that the deal needed to be publicly disclosed.

https://www.propublica.org/article/clarence-thomas-disclosure-filing-harlan-crow-real-estate-travel-scotus

The report also included new information that Thomas said was "inadvertently omitted" from his prior financial disclosure reports.

That included personal bank accounts, a life insurance policy belonging to Ginni Thomas,

https://www.axios.com/2023/08/31/clarence-thomas-harlan-crow-financial-disclosure-ethics

He had just accidentally forgotten to include this stuff and now we should be happy he has included it. Oy . The votes are of course not there in Congress to impose new ethics rules (and certainly not to expand the court)

That's funny, when I inadvertently omit material conflicts of interest from my fucking job I get fucking fired

Too funny

https://x.com/profmarkovic/status/1699601984150724878?s=46&t=QDZVA2Ds4KfmaZUAmIs9Gw

?

no way i'm clicking that

(God, I hate Elon)

Another embarrassment for the Supreme Court. Judge Smith's excellent 9th Circuit opinion warned the Court that Kennedy's lawyers had concocted a false narrative. Kennedy never had any intention of moving back from Florida to coach high school football part-time. https://t.co/QobiFONzG7

— Milan Markovic (@profmarkovic.bsky.social) (@ProfMarkovic) September 7, 2023

Heidi Pryzblya wrote for Politico a big deep dive into how Leo and Federalist Society and Ginni Thomas and other conservatives got together after Citizens United oral arguments but before decision was issued and made plans to form organizations. Article goes into detail re Ginni Thomas . Plus a fascinating anecdote about a connected right wing winning “debutante” (sp?) who will be clerking for Alito.

https://www.politico.com/news/2023/09/10/ginni-thomas-leonard-leo-citizens-united-00108082

x-post-- seeing on twitter X a discussion of Gorsuch intentionally overlooking information that was available at hearing time on Coach Kennedy and how he didn't intend to stay in Washington state, and more data on how he handled the mid field prayers. I guess Gorsuch's law clerks didn't have the courage or interest in researching the facts for him either

Guest writer for Politico article—

The movement’s triumphs are now visible but its engine remains hidden: A billion-dollar network of groups, most of which are registered as tax-exempt charities or social welfare organizations. Taking advantage of gaps in disclosure laws, they shield the identities of most of their donors and some of the recipients of the funds. Among those who’ve been paid by the groups are leading thinkers and individuals with close personal ties to Leo — including a whopping $7 million to a group run by a close friend and his wife. They also include a for-profit business for which Leo himself is chairman and which received tens of millions of dollars from his nonprofit network.

https://www.propublica.org/article/clarence-thomas-secretly-attended-koch-brothers-donor-events-scotus

Thomas helped raise money for Koch Brothers one of the largest political organizations in the country, who are involved with cases that come to court and then defended the right of this organization to keep its activities hidden. Clarence Thomas wrote concurring opinion in AFPF v. Bonta saying that asking a Koch dark money group to disclose its donors violates those donors’ 1A rights.

https://x.com/SimonWDC/status/1705384824054423774?s=20

Come on, his jurisprudence is so tight it's unimpeachable.

Libs just jealous they can't go here (although Ken "Koch funds my PBS films" Burns does)

Charles and David Koch’s access to Thomas has gone well beyond his participation in their donor events. For years, the brothers had opportunities to meet privately with Thomas thanks to the justice’s regular trips to the Bohemian Grove, an all-male retreat that attracts some of the nation’s most influential corporate and political figures. Thomas has been a regular at the Grove for 25 years as Harlan Crow’s guest, according to internal documents and interviews with dozens of members, other guests and workers at the retreat.

https://www.nytimes.com/2023/09/26/us/politics/supreme-court-alabama-voting-map.html?smid=nytcore-ios-share&referringSource=articleShare

Alabama ‘s latest attempt to overrule a judge’s order and gerrymander was even too blatant for US Supreme Court. Kavanaugh had hinted in an earlier opinion he was leaning their way, but I guess he’s waiting for a more subtle opportunity

Hey, look, a Thomas recusal:

And there it is: Justice Clarence Thomas recused himself from Supreme Court decision rejecting John Eastman's request the court vacate the decision that allowed Eastman's emails to be shared with House Jan 6 Select Committee

====> pic.twitter.com/jL6RmmpAT6

— Scott MacFarlane (@MacFarlaneNews) October 2, 2023

Woo hoo. It’s a start but there are many other cases he’s not recusing from still.

Consumer Bureau case gets argued Tuesday and Thomas is very connected to amicus brief filers In that case

https://prospect.org/power/2023-10-02-clarence-thomas-another-conflict-of-interest/

This is surely only because his wife’s emails are in that order

Yep.

Meanwhile Roberts and Alito have a wealth tax case that they should recuse from

https://www.levernews.com/justices-have-financial-interest-in-major-tax-case/

https://slate.com/news-and-politics/2023/10/samuel-alito-wants-racial-gerrymander-south-carolina.html

Oy veh.

On Wednesday, the Supreme Court heard Alexander v. South Carolina State Conference of the NAACP, a challenge to South Carolina’s congressional map based on the contention that it was an impermissible racial gerrymander. The case should have been easy for the groups that challenged the map, given the applicable law and the arguments advanced by the state’s lawmakers in defense of their map—which was found to be unconstitutional by the lower court.

Unfortunately for the challengers of that map, Justice Samuel Alito had other ideas. After more than two hours of Alito-centered arguments, the question for his other conservative colleagues will be whether they side with him, change the law, and have the Supreme Court serve as a super-trial court in such cases—allowing the high court to reject trial court findings when they come out a way the conservative majority doesn’t like.

This would be a dramatic shift to current precedent, something that Justice Ketanji Brown Jackson kept raising throughout the arguments, with an uncertain degree of success for the purposes of convincing Alito’s fellow conservatives.

A three-judge district court had, after an extensive trial, decided that South Carolina engaged in an impermissible racial gerrymander to one of its congressional districts in violation of the equal protection clause of the 14th Amendment.

Washington Post take on the South Carolina gerrymander case

The Supreme Court on Wednesday seemed likely to reinstate a South Carolina congressional map drawn by the GOP-majority legislature that a lower court found “exiled” 30,000 Black voters to create a district safer for a White Republican incumbent.

https://www.washingtonpost.com/politics/2023/10/11/supreme-court-south-carolina-map-race-gerrymandering/

From Slate :

… In comparison to Alito’s 37 questions, the rest of the court—all eight justices combined—asked a total of 28 questions.”

Good shit, by which I mean, evil shit:

https://www.propublica.org/article/we-dont-talk-about-leonard-leo-supreme-court-supermajority

From gleaning that article I got that Leo is afraid that conservative Justices will resign to go get rich in the private sector, so he sets up a world where they are constantly licked by rich guys

that seems about right. feels, in the absence of a viable left wing in this country, like an incredibly hopeless state of affairs

I don't object to his approach, mind. At this point we have lots to learn.

But I understand how the conservative pathology is more apt to weaken at the knees at the thought of avoiding democratic norms.

From gleaning that article I got that Leo is afraid that conservative Justices will resign to go get rich in the private sector, so he sets up a world where they are constantly licked by rich guys

The article mentions Bettina Richards, but not her record label's name- It's Thrill Jockey Records. She has a house across from Leo in Maine!

Wow running Thrill Jockey must really let you ascend the corridors of power. Lots of billionaire Tortoise fans?

Billionaires now living will never die

X-post - she probably inherited her parents Maine home and while I have read elsewhere of her and her label donating to progressive causes , this article made it sound like she didn’t want to fight Leo too strenuously re the anti- Leo sign placed in her Maine lawn

https://slate.com/business/2023/10/clarence-thomas-rv-loan-forgiven-debt-taxes-welters.html

Clarence Thomas and his RV ....hmmm.

One of the trials of teaching tax law is the need to write a new exam every semester. But sometimes the real world sends you an exam question. In this case, that question comes courtesy of Supreme Court Justice Clarence Thomas and his fancy RV. Or, more precisely, from the loan he received from his friend Anthony Welters to purchase the luxury vehicle. According to the New York Times, Thomas borrowed around $267,000 in 1999. At some point, after Thomas had made some interest payments and perhaps paid down some principal, Welters canceled the debt, according to a new Senate Finance Committee report. (A lawyer for Thomas denied the report, saying that the justice and his wife “made all payments to Mr. Welters on a regular basis until the terms of the agreement were satisfied in full.”) Relying on the report, a number of folks, including members of the committee, have pointed out that the alleged debt forgiveness creates something called cancellation of debt income, and they are wondering whether Thomas reported this income and paid tax on it. If he did, he’s in the clear. But if he didn’t, the question arises: Is Thomas, whose ethical standards and disclosures have come into question following a series of reports on gifts and travel from his various well-heeled friends, also a tax dodger?