The US Supreme Court

[JimC]

Duelling courts...

[Tero]

US Supreme soon to ban abortion pill.
Alito
http://karireport.blogspot.com/2022/07/ ... n-our.html
will be explaining that supervision of abortion pills is not in our history and tradition. Best to ban them all. Throw in the birth control pill too.

[Tero]

The likely outcome is that the Consitutuion in all its wisdom does not authorize the federal gov't to regulate dangerous abortion drugs. Because life begins at conception.

[Tero]

Comstock act bans all mailing of sex related stuff:
RS
Thomas was more blunt as he questioned a lawyer for Danco Laboratories, manufacturer of mifepristone: “How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” He added the statute “is fairly broad, and it specifically covers drugs such as yours.” The lawyer responded that the law had not been enforced in decades and “I don’t believe that this case presents an opportunity for this court to opine on the reach of the statute.”

https://www.rollingstone.com/politics/p ... 234994335/

[Tero]

Made up "legal" tool:
De Girolami also neglects to consider that, in each of these cases, the court dishonestly manipulated the history it purported to rely on, each time ignoring briefs by historians that attempted vainly to educate the judges. (The dishonesty is nicely anatomized in Jack Balkin’s important new book, “Memory and Authority: The Uses of History in Constitutional Interpretation.”)

The basic problem is that tradition does not come in packaged units. Any invocation of tradition will select some aspects of the past, in a way constrained only by the writer’s inventiveness. In these cases, “tradition” is so malleable that it has no independent capacity to influence the outcome.
https://thehill.com/opinion/judiciary/4 ... icans/amp/

[Sean Hayden]

The basic problem is that too many people wake up every day knowing how the world ought to be. You want one thing, and some other asshole wants another, and you're both producing bullshit just as fast as you can to get it. That's why the idea of freedom is so appealing, it promises to protect me from the majority of bullshit. I can choose not to engage in the dumbfuckery and pursue my own agenda instead...but alas, the shit has been spread so far, and piled so high, I can't help stepping in it.

[Brian Peacock]

Your neck deep in it. Time to head for higher ground?

[Tero]

SC to determine if homelessness is a crime. Oregon case up soon.

[JimC]

Being anything other than a rich, white conservative US male is a crime...

[macdoc]

a rich, white conservative US male

is suspect as well....

[JimC]

Only by the woke...

[Tero]

Breaking: The MAGA Supreme Court majority appears ready to rule that the right to "life, liberty, and the pursuit of happiness" doesn't extend to women with pregnancy complications or who otherwise need abortions.

This is horrifying, and it is because of Donald Trump.

[L'Emmerdeur]

The Supreme Court of the US has become unbalanced, in more than one meaning of the word. I happened to come across a discussion here from 2019 about the decision in Franchise Tax Board of California v. Hyatt, specifically (now retired) Justice Breyer's dissent in which he noted the majority's disregard for stare decisis (overturning a long-established decision for essentially ideological reasons) and alluded to possible future decisions which might overturn significant decisions like Roe v. Wade. Breyer was correct to be concerned, and I don't think the right wing ideologues on the court have finished with slashing away at the civil rights of Americans and paving the way for right wing authoritarian rule.

The author of the piece below discusses the overtly political motivations of Federalist Society judges Trump got onto the bench. All three of the justices he nominated to the Supreme Court were members of the Federalist Society as were 56% of the federal judges he nominated. Specifically, a letter in which 13 of these FedSoc judges announce that they will not hire Columbia University graduates as clerks because of the anti-genocide demonstration on the Columbia campus.

'Federalist Society Judges Acting Badly: An Ongoing Saga'

Many of the judges selected by Leonard Leo and Don McGhan during the Trump years have been acting very badly. A little over a year ago, I documented this terrible behavior by discussing many different judges. For example, Justin Walker was only 37 when he was nominated to be a federal trial judge despite absolutely no trial experience. What Walker possessed were ties to conservative groups, including the Federalist Society. Less than one year later he was confirmed as a judge for the United States Court of Appeals for the District of Columbia Circuit.

In his brief time as a district court judge, Walker issued a decision in a case involving COVID restrictions and prayers on Easter Sunday that reads "less like a judicial decision and more like a screed against Democrats published in an outlet like Breitbart." The first seven pages of the opinion rant about Christians and other religious groups suffering major persecution throughout the ages. The last lines of his opinion speak for themselves: "Christ’s sacrifice isn’t about the logic of this world. Nor is their Easter Sunday celebration. The reason they will be there for each other and their Lord is the reason they believe He was and is there for us. For them, for all believers, it isn’t a matter of reason; finally, it’s a matter of love."

In between these odes to religion, Walker decided to name a bunch of prominent Democrats who long ago belonged to the KKK. There is no connection between that list and any issue in the case. Walker's reward for all this religious and political posturing, as mentioned above, was a promotion to the Court of Appeals.

In that post from a year ago, I also discussed Judge James Ho's decision not to hire graduates of Yale Law School as his clerks. His reasons were quite obscure, centering around, I really don't know, maybe Yale is just too liberal a place for him. I summarized that incident as follows:

Ho was under no obligation to hire Yale clerks in the first place, so why make such a public fuss and call for other federal judges to join the "boycott?" One theory is that he is auditioning for the Supreme Court. Another theory is that he just likes publicity. But the theory does not matter. Except to the extent that actual cases before him sometimes call for judgments that are as much political as legal--which is substantially less frequently for a lower court judge than for the Supreme Court--Judge Ho has no business getting involved in culture wars and taking obvious political sides. To do so is inappropriate for a sitting federal judge.

Well, Judge Ho is back at it again. On Monday, he and 12 other Trump/Leo/McGhan Federalist Society judges sent a letter to the President of Columbia University saying they will no longer hire law clerks who attend Columbia either as an undergraduate or a law student. Again, the reasoning of the boycott is quite obscure but has something to do with vague and unsubstantiated charges of viewpoint discrimination (totally undocumented) and other aspects of how Columbia has handled the student protests over Gaza.

As an aside, it's worth noting that the letter makes various factual assertions, some of which are highly contestable and others which are flatly wrong. For example, the letter concludes by citing a supposed precedent, stating that "Justice William Brennan refused to hire law clerks from Harvard Law School because he disliked criticisms of the Supreme Court by some of its faculty." But that's nonsense, as Judge Ho and his buddies could have discovered by looking at a list of Justice Brennan's clerks. They would have then realized that from 1956 to 1965, Justice Brennan hired clerks only from Harvard; thereafter, he hired from a variety of schools, including from Harvard in most years. The tiny kernel of truth in this mostly false retelling is that for a short period of time Justice Brennan apparently was angry at Harvard over personal matters but he nevertheless consistently hired Harvard graduates throughout his career. But why let facts get in the way of a good rant?

...

These thirteen judges are acting like immature and hormonal teenagers believing that the world does and should revolve around them and their daily need to unleash terror on those they dislike. Most teens grow out of that particular mindset but not so for these and many other Federalist Society federal judges. For them, public outbursts of anger and bitterness towards the left are more than fair game; they lead to rewards and promotions. And that is what happens when the leaders of the Federalist Society get to choose our nation's judges.

On the Supreme Court in particular, an interview with a state supreme court justice:

'A State Supreme Court Justice Decries the “Horrors and Treachery” Coming From SCOTUS'

Perhaps no lower court judge has condemned the U.S. Supreme Court’s reliance on bogus history and racist values as sharply as Hawaii Supreme Court Justice Todd Eddins. In several scathing opinions, Eddins has decried the conservative supermajority’s radical reversal of settled precedent in the name of a conservative theory, originalism, that’s both dangerously retrograde and totally unworkable. In Tuesday’s Slate Plus bonus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern interviewed the justice about his very public criticisms of SCOTUS and his embrace of state constitutionalism to limit the fallout in Hawaii.

...

Eddins: [I]t’s absolutely astounding that originalism revives the value judgments of a racist, misogynistic, homophobic society and constrains the value judgments of contemporary judges. You’re talking about times when human beings enslaved other human beings, when women were just an appendage of their husbands and had no contractual rights and no property rights. It makes no sense for contemporary society to pledge allegiance to the founding era’s culture ...

You know, when precedent is for suckers and we don’t know whether settled law will become unsettled every June [when Supreme Court decisions are announced], it’s really hard for the judiciary to function. It’s hard for judges to operate when there’s a lack of stability. And it’s not just judges; it’s the litigants, the lawyers, the law professors who have to tear up their syllabuses. I mean, it’s fundamental to our American system of justice that law works incrementally, that cases build upon cases, and that we rely on precedent. That’s the stability of the law. And when you have a group of people who come in and disregard precedent, it really unsettles things; it causes chaos. People don’t know how to operate.

The law is now constantly shifting—you said nihilism, and that’s actually what it is. I think it’s also a lack of humility, a lack of respect for all the law that’s been out there for centuries of the American judicial system. Who gave these originalists the right to kill the Constitution? And when the Constitution is killed, where do we stand? It makes it so difficult for courts throughout the land.

...

Stern: Over the last few years, conservative litigants and justices tried to strip the ability to protect voting rights from state Supreme Courts. And it’s hard not to think they were motivated by fear of state Supreme Courts acting independently, departing from the phony originalism of the Roberts court and actually protecting the right to vote, which we used to consider fundamental.

Eddins: Absolutely. And again, that’s just more dishonesty. The U.S. Supreme Court’s decisions are really destroying democracy. It’s just race to the extreme in case after case. It tears at the fabric of our nation and what I view our federal Constitution to be. And now, over the last few weeks, it seems like it’s not just personal values and preferences that they’re injecting into their jurisprudence; they also give preference to specific individuals, and that’s where the court is truly eroding confidence in the judicial system.

Stern: When you say they’re giving preference to specific individuals, you’re thinking about Donald Trump in the presidential immunity case?

Eddins: I am.