SCOTUS 2
3/22
see heartbeat
SEE SCOTUS 3 6-3 bak
see major questions
html "amicus flotilla."
brett schlapp party w/ s miller case before scotus 12 22
an 12 22
For decades, the U.S. Supreme Court was synonymous with social progress, and Republicans were part of that progress. Chief Justice Earl Warren was a Republican appointee of Republican President Dwight D. Eisenhower. In 1973, the majority opinion in Roe v. Wade was written by Justice Harry Blackmun, a Richard Nixon appointee. And Justice Anthony Kennedy, known for his unapologetically pro-gay rulings in Lawrence v. Texas and Obergefell v. Hodges, was a right-wing libertarian appointed by President Ronald Reagan.
But in 2022, the High Court has moved to the far right and has the low approval ratings to show for it. Democrats successfully used the overturning of Roe v. Wade with Dobbs v. Jackson Women’s Health Organization to tar and feather GOP candidates in the 2022 midterms. Critics of the High Court’s radical-right supermajority fear that protections for gay rights and access to contraception will be rolled back if Justice Clarence Thomas has his way.
Washington Post opinion columnist Jennifer Rubin has been a scathing critic of that radical-right supermajority and its ruling in the Dobbs decision. But in her December 12 column, the Never Trumper offers some reasons why the High Court may not be a lost cause.
“The Supreme Court’s right-wing majority has been on a tear lately,” Rubin explains. “In the last week alone, Justice Samuel A. Alito, Jr. made inappropriate wisecracks during oral arguments about whether a web designer can object to working with gay couples. And several right-wing justices seriously considered adopting a once-fringe legal theory that could upend how state courts oversee elections. Allegations also recently emerged that in 2014, Alito leaked the outcome in the Court’s Hobby Lobby case to a group of right-wing donors, which Alito denied.”
Rubin continues, “Fortunately, there is no shortage of ideas to return sanity to the Court. And there has never been a better time to advance them to the public.”
The columnist quotes Maya Wiley, president of the Leadership Conference on Civil and Human Rights and a frequent guest on MSNBC. According to Wiley, “The Supreme Court is now far out of step with the American mainstream and has, as a result, become the best organizer of its own Court reform campaign…. More Americans believe term limits, transparency and ethics reform are good ideas.”
Rubin goes on to lay out three possible ways to bring about Supreme Court “reform”: (1) “Eliminate lifetime tenure for justices,” (2) “Expand the Court,” and (3) “Implement ethics rules for justices.”
In the U.S., Supreme Court appointments are lifetime appointments. All three of the socially conservative justices that former President Donald Trump appointed are Generation Xers, which means that if Justices Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch live as long as the late Justice Ruth Bader Ginsburg (who was 87 when she died in 2020), they could be on the Court 30 or more years from now. Kavanaugh is 57, Gorsuch is 55, and Barrett is 50. If Barrett lives to be 90, she could be on the Court in 2062.
Some other countries have term limits for their supreme courts. In Uruguay, justices are appointed to ten-year terms. And Rubin describes “18-year terms” as an idea that is “gaining broader support among the public.”
“Democracy is not well served when the same pack of out-of-touch Ivy League law school alumni can dominate the bench for decades simply because of Senate gamesmanship and politically timed retirements,” Rubin argues. “Establishing terms limits could ameliorate those practices. It could also help detoxify confirmation hearings and end the unseemly practice of justices purportedly misrepresenting their views simply to be confirmed.”
Rubin points out that Congress has the power to increase the Supreme Court’s number of seats. President Franklin Delano Roosevelt proposed expanding the Court during the 1930s, although he encountered opposition from both Democrats and Republicans in Congress.
“The number of seats on the High Court is not set in stone,” Rubin observes. “It was set at nine when the nation had nine circuits; there are now 13 (circuits). And Republicans effectively reduced the number to eight when they refused to consider President Barack Obama’s nomination of Merrick Garland to the Court in March 2016…. For those who say expansion would politicize the Court, remember that the Court has already been politicized.”
Rubin concludes her column by stressing that the United States is in a bad place when the public has such a low opinion of the Supreme Court.
“The goal should be to rebuild the public’s confidence in the rule of law,” Rubin writes. “There is arguably no more important task. It’s time to start preparing the public to save the Supreme Court from itself.”
READ MORE:**House Judiciary Committee to hold hearing on 'troubling allegations' against Samuel Alito**
https://www.alternet.org/2022/06/restless-newly-constituted-court-dissent/
United States Associate Supreme Court Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor issued a searing triple dissent on Wednesday in which they decry the Court's rightward trajectory after its majority ostensibly granted federal Border Patrol agents immunity for violating the constitutional rights of American citizens.
The case, Egbert versus Boule, "guts a seminal Supreme Court precedent, Bivens v. Six Unknown Named Agents(1971), which established that federal law enforcement officers who violate the Constitution may be individually sued — and potentially be required to compensate their victims for their illegal actions," Voxexplained in an analysis. But in yesterday's 6-3 decision, the Court "eliminates the public’s ability to sue Border Patrol officers — and possibly all federal officers — who commit similar violations."
Breyer, Kagan, and Sotomayor – all of whom were chosen by Democratic presidents – argued that the Court's assaults on precedent have been supercharged by former President Donald Trump's appointment of three extremely conservative jurists: Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh.
"A restless and newly constituted Court sees fit to refashion the standard anew to foreclose remedies in yet more cases. The measures the Court takes to ensure Boule’s claim is dismissed areinconsistent with governing precedent," they wrote.
"The Court’s application of its new standard to Boule’s Fourth Amendment claim underscores just how novel that standard is. Even assuming the claim presents a new context, the Court’s insistence that national-security concerns bar the claim directly contravenes Ziglar. Moreover," they continued, "the Court’s holding that a nonbinding administrative investigation process, internal to the agency and offering no meaningful protection of the constitutional interests at stake, constitutes an alternative remedy that forecloses Bivens relief blinks reality."
Breyer, Kagan, and Sotomayor also outlined the likely fallout from Boule.
"Remarkably, the Court goes beyond invoking its national security talisman in this case alone. In keeping with the unprecedented level of generality the Court imports into the special-factors analysis, theCourt holds that courts are not 'competent to authorize a damages action . . . against Border Patrol agents generally' (Ante, at 11). This extraordinary and gratuitous conclusion contradicts decades of precedent requiring a context-specific determination of whether a particular claim presents special factors counseling hesitation (See supra, at 6–8.4)," the trio opined.
"The consequences of the Court’s drive-by, categorical assertion will be severe," the Justices added. "Absent intervention by Congress, CBP agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury. That will preclude redress under Bivens for injuries resulting from constitutional violations by CBP’s nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border."
In other words, Border Patrol agents are now free to do whatever they want without having to worry about oversight, and individuals whom they harm have little to no recourse.
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in a decision Monday that liberal Justice Elena Kagan warned will further corrupt the nation's money-dominated political system, the U.S. Supreme Court's right-wing majority struck down a campaign finance regulation limiting federal candidates' ability to use campaign funds to repay personal loans.
Established by the Bipartisan Campaign Reform Act of 2002, the rule barred candidates from using more than $250,000 in campaign funds collected after an election to recoup their loans to their own campaign.
The legal challenge to the cap was brought by Sen. Ted Cruz (R-Texas), who intentionally violated the $250,000 cap during his 2018 reelection bid in order to pursue a repeal of the limit, which he characterized as a violation of free speech.
As CNNexplained:
A day before he was reelected in 2018, Cruz loaned his campaign committee $260,000, $10,000 over the limit—laying the foundation for his legal challenge to the cap... [H]e could have been repaid in full by campaign funds if the repayment occurred 20 days after the election. But Cruz let the 20-day deadline lapse so that he could establish grounds to bring the legal challenge.
The high court's 6-3 decision strikes another blow to the nation's campaign finance restrictions, which were already weak and rife with loopholes that big donors readily and frequently exploit.
"While the direct effects of this decision are limited to the narrow federal provision at issue in the case, it reveals a Supreme Court increasingly out of step with the American people—who overwhelmingly recognize that unchecked campaign giving poses profound risks to the integrity of our democracy," said Trevor Potter, the president of Campaign Legal Center. "More immediately, the ruling could imperil an array of similar restrictions on post-election loan repayments adopted at the state and local level out of legitimate concerns over corruption."
Rep. Bill Pascrell (D-N.J.) added on Twitter that "the right-wing Supreme Court has issued yet another preposterous decision effectively legalizing government corruption at the request of Republicans."
In her dissent, Kagan argued that the court's ruling will make even more common the kinds of "crooked exchanges" that have long sullied the U.S. political system, which is awash in money from corporations and ultra-wealthy individuals.
"Political contributions that will line a candidate's own pockets, given after his election to office, pose a special danger of corruption," Kagan argued, pointing to the issue of recouping personal loans. "The candidate has a more-than-usual interest in obtaining the money (to replenish his personal finances), and is now in a position to give something in return. The donors well understand his situation, and are eager to take advantage of it. In short, everyone's incentives are stacked to enhance the risk of dirty dealing."
Kagan went on to contend that quid pro quos—political favors carried out in exchange for money, in this case post-election donations—could become more rampant thanks to the Supreme Court's new ruling, which was authored by Chief Justice John Roberts, who helped orchestrate the high court's infamous Citizens United ruling and other attacks on campaign finance law.
"Post-election donors can be confident their money will enrich a candidate personally," Kagan wrote. "And those donors have of course learned which candidate won. When they give money to repay the victor's loan, they know—not merely hope—he will be in a position to perform official favors. The recipe for quid pro quo corruption is thus in place: a donation to enhance the candidate's own wealth (the quid), made when he has become able to use the power of public office to the donor's advantage (the quo)."
"The politician is happy; the donors are happy. The only loser is the public. It inevitably suffers from government corruption," she continued. "In allowing those payments to go forward unrestrained, today's decision can only bring this country's political system into further disrepute."
In a statement, Sen. Sheldon Whitehouse (D-R.I.) voiced agreement with Kagan's dissent, calling the high court's ruling "another victory for right-wing donors in their assault on our campaign finance system, and another step toward unlimited special-interest spending in our elections."
"Big Republican donor interests built their supermajority to deliver wins like this one," Whitehouse added, "wins that help special interests skirt our democratic process to achieve what they want."
622 an
no lnx twt
For decades, Sen. Susan Collins’ admirers in New England praised her as a shining example of a moderate GOP conservative who was staunchly pro-choice. Collins insisted that opposition to Roe v. Wade was a deal breaker for her, but in 2018, the Maine Republican helped pave the way for Roe’s demise when she voted to confirm Justice Brett Kavanaugh to the U.S. Supreme Court.
Kavanaugh, Collins assured abortion rights supporters in 2018, considered Roe “settled law” and embraced the doctrine of stare decisis — a legal concept that means respect for precedent. But according to a leaked 5-4 majority draft opinion written by Justice Samuel Alito, Kavanaugh is among the justices who favors overturning Roe. Collins was deceived by Kavanaugh — deception that, journalists Asawin Suebsaeng and Adam Rawnsley report in an article published by Rolling Stone on June 2, was encouraged by members of the Trump Administration.
“Turns out, Collins wasn’t just wrong about Kavanaugh,” Suebsaeng and Rawnsley explain. “She was deliberately manipulated by Trump Administration officials — and a future Supreme Court justice — who viewed her as an easy mark.Two former senior Trump White House officials tell Rolling Stone that the pro-choice Collins wasn’t even considered a serious threat to the devoutly conservative Kavanaugh.”
Suebsaeng and Rawnsley continue, “Instead, the team predicted she’d need only a vague assurance that the nominee would uphold the half-century-old ruling defending abortion rights. And they were right.”
The High Court justices who have reportedly decided to overturn Roe range from Kavanaugh and Alito to Amy Coney Barrett, Neil Gorsuch and Clarence Thomas. The four dissenters are Sonia Sotomayor, Elena Kagan, Chief Justice John Roberts and Stephen Breyer (who is retiring and will be replaced by President Joe Biden’s nominee, Judge Ketanji Brown Jackson, later this year).
Collins voted to confirm Gorsuch in 2017, and she voted to confirm Alito in 2006. The Maine senator also voted to confirm Barack Obama nominees Sotomayor and Kagan.
After meeting with Alito in 2005, Collins told reporters, “He assured me that he has tremendous respect for precedent and that his approach is to not overturn cases due to a disagreement with how they were originally decided.”
A former Trump Administration official, interviewed on condition of anonymity, told Rolling Stone, “The thinking from Trump.… and everybody else who worked to make this happen was that, as long as his nominees didn’t say anything stupid (on abortion) and let the Susan Collins-es of the world think what they needed to think and hear what they needed to hear, then it would get done.”
According to Suebsaeng and Rawnsley, some Trump Administration officials who “worked on the Kavanaugh confirmation privately mocked Collins and her public posturing over Roe,” using “crass language” that included describing the Maine senator as a “cheap date.”
“Back in 2018,” Suebsaeng and Rawnsley report, “ the Trump team and Senate GOP offices would regularly send guidance to outside organizations and top activists who were fervently supporting Kavanaugh…. When it came to Collins, the guidance from Team Trump was, consistently, that she not be approached, according to two sources who were close to the White House. One of the reasons, a former top Trump aide says, is because the White House and Kavanaugh allies believed that a pressure campaign from the right would backfire, and that Collins would get to a ‘yes’ on her own — assuming she got just the right verbal responses she wanted.”
Suebsaeng and Rawnsley add, “The Trump team’s apparent manipulation of Collins was part of a broader effort to smuggle, in broad daylight, anti-Roe justices onto the Supreme Court — an effort that was only somewhat complicated by Trump’s past statements on ending Roe and his nominees’ long anti-abortion records.”
In 2018, according to Rolling Stones’ sources, “Trump aides and Kavanaugh allies” held mock Senate confirmation hearings — and Kavanaugh practiced giving evasive answers to questions about Roe.
“Whenever the topic of abortion came up in his prep sessions,” Suebsaeng and Rawnsley report, “Kavanaugh knew what do say: effectively, nothing. Typically, he would give lengthy, detailed monologues on dissents, opinions, and precedents, and then, as was his standard, refuse to divulge how he thought he’d rule if the opportunity to overturn Roe ever came up.”
An anonymous source told Rolling Stone, “That’s how (Kavanaugh) operated. It was his way of telling you, ‘I know a lot about this — but I’m not going to tell you how I’d rule’.… His idea was that saying it was long-standing precedent didn’t mean it couldn’t get overturned at some point.… (Kavanaugh) gets the need to demonstrate knowledge about the law, but not to tip your hand about your opinions about a specific case or issue.”
6 22
odd split?
the United States Supreme Court ruled on Tuesday that Texas violated the Constitution with a bill banning social media companies from the regulation of hate speech on their platforms.
"Supreme Court halts Texas social media law that critics say would require Facebook and Twitter to require hate speech, extremism," Bloomberg News court reporter Greg Stohr reported.
The majority decision was supported by Chief Justice John Roberts along with Justices Stephen Breyer, Sonia Sotomayor, Brett Kavanaugh, and Amy Coney Barrett.
Justices Clarence Thomas, Samuel Alito, Jr., Elana Kagan, and Neil Gorsuch dissented.
"To be clear, the headline here is *not* the dissent; it’s that Chief Justice Roberts, Justice Kavanaugh, and Justice Barrett *all* voted to block HB20," wrote University of Texas Law Prof. Steve Vladeck.
"That’s a pretty powerful sign of where #SCOTUS is heading on this case—and issue—even if the dissent’s analysis is … alarming," he explained.
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A ruling handed down by the right-wing United States Supreme Court on Monday that strips convicted felons of the opportunity to present evidence in federal court that they had ineffective counsel is facing ferocious condemnation by legal experts.
The 6-3 majority decision in Shinn versus Ramirez and Jones, authored by Associate Justice Clarence Thomas, denied the petitions of two death row inmates in Arizona – David Martinez Ramirez and Barry Lee Jones – to submit proof that their attorneys had failed them at trial. Martinez and Jones argued that as a result, their Sixth Amendment rights to due process and habeas corpus were violated.
Because their appeals were denied at the state level, Thomas declared that Ramirez and Jones had no legal standing to sue federally.
“[O]nly rarely may a federal habeas court hear a claim or consider evidence that a prisoner did not previously present to the state courts in compliance with state procedural rules,” Thomas wrote.
"Such intervention is also an affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them," he said. "Federal courts, years later, lack the competence and authority to relitigate a State’s criminal case."
The Court's three liberal jurists dissented.
"This decision is perverse," Associate Justice Sonia Sotomayor opined on behalf of the minority."It is illogical: It makes no sense to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in postconviction proceedings ... but to fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim."
She said that "the Court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel.”
Numerous legal experts concurred with Sotomayor, stressing that Monday's precedent-reversing ruling guts the 6th Amendment.
"You can't meaningfully enforce the Sixth Amendment in a state post-conviction proceeding unless you have an ounce of seriousness about the lawyer they are getting in that forum," University of Texas Law Professor Lee Kovarsky tweeted. "And since representation in state post-conviction proceedings is a national embarrassment, it means that it's not a really useful site of Sixth Amendment enforcement."
Kovarsky expanded upon what that means for defendants.
"You can have your claim decided on the merits in federal court, but you cannot INTRODUCE EVIDENCE to prove that claim," he said. "There's a million ways to pick this opinion apart, but here's a simple one. If you get to federal court with incontrovertible evidence of innocence, you can disable procedural bars but that evidence can't be considered on the merits. Your modern Supreme Court, people."
Read his thread below [twt]
university of Texas Law Professor and CNN contributor Steve Vladeck noted that "Thomas holds that habeas courts can't expand the record to take new evidence showing ineffective assistance of state postconviction counsel."
Leah Litman, an associate professor of law at the University of Michigan, agreed.
"It's bad," she Tweeted. "If the state appoints you a lawyer who is constitutionally ineffective at your trial; and then appoints you ANOTHER lawyer who is constitutionally ineffective to argue your trial lawyer was ineffective ... you're screwed. This is just a horrific decision that will close the Martinez exception that allowed litigants to enforce the 6th amendment right to counsel."
Others were far less cordial in her critique.
"HOLY. SHIT," New York City Public Defender Eliza Orleans said. "This decision effectively ensures that innocent people will remain imprisoned. This is radical. This is horrifying. This is extremely scary."
Commercial litigator Akiva Cohen pointed out the obscure insidiousness embedded within Thomas' annotations.
"I don't think I've ever been angrier about a footnote. Context: this is in a SCOTUS decision holding that a state prisoner on death row can be executed because of his appellate counsel's negligence, because district courts CANNOT 'forgive' the forfeiture due to that negligence," he said. "I mean holy fuck. 'Oops, sorry your lawyers suck, but it would cost too much to make sure you're actually guilty before we electrocute you'??"
Slate correspondent Mark Joseph Stern was equally as outraged.
"The Supreme Court's second and final opinion of the day is an absolutely atrocious 6–3 ruling in Shinn v. Martinez Ramirez, a habeas case. I will say more but this decision effectively ensures that innocent people will remain imprisoned," he tweeted. "The Supreme Court has previously said that habeas petitioners can bring ineffective assistance of counsel claims for the first time in federal court. But today, it says they *can't develop evidence to support these claims.* In doing so, it turns that 'right' into an illusion."
Stern added that "everything about Thomas' opinion is repulsive."
https://www.alternet.org/2022/05/ted-cruz-2657329267/
no lnx doc twt
Supreme Court hands Ted Cruz lucrative $555,000 win by declaring campaign finance rule violates free speech
David Badash and The New Civil Rights Movement May 16, 2022
In a 6-3 decision Monday the U.S. Supreme Court handed Texas Republican Senator Ted Cruz a lucrative win, declaring a federal rule limiting the amount a candidate who loans money to their own campaign can be repaid violates the free speech clause of the First Amendment.
“With the latest SCOTUS decision to further deregulate campaign finance, the Texas senator will be able pay himself back with fresh donor money,” HuffPost reports, adding that Cruz can now “hit up donors to help pay himself back for the $555,000 he loaned to his campaigns in 2012 and 2018.”
Possibly the most consequential result of the ruling is it “could also enable politicians to personally make money on their campaigns by charging interest on loans later repaid by donors.”
Chief Justice John Roberts authored the majority opinion, which was joined by all conservatives on the bench. Justice Elena Kagan authored the minority opinion, which was joined by the liberals.
“And as they paid him, so he will pay them,” Justice Kagan, warning of corruption, wrote in her dissent. “In the coming months and years, they receive government benefits ― maybe favorable legislation, maybe prized appointments, maybe lucrative contracts. The politician is happy; the donors are happy. The only loser is the public. It inevitably suffers fromgovernment corruption.”
“Cruz,” HuffPost notes, “will be able to raise $555,000 and put it in his own pocket immediately. For that, he can thank the six conservative justices ― three of whom he voted to confirm.”
https://www.alternet.org/2022/05/samuel-alito-just-laid-out-an-argument-for-rolling-back-a-variety-of-20th-century-progress-journalist/
https://www.alternet.org/2022/05/ben-shapiro-unwind-gay-marriage/
https://www.alternet.org/2022/05/safety-regulations/
Remember when lots of romaine lettuce was recalled because it was causing E.coli outbreaks? That was the Food and Drug Administration protecting us from getting sick.
Working in a warehouse? The Occupational Safety and Health Administration sets standards to ensure you don’t breathe in dangerous chemicals like asbestos.
Enjoying the fresh air on a clear, sunny day? Thank the Environmental Protection Agency for limiting the amount of pollution that can go into our air.
These agencies save lives. Since OSHA was established a half-century ago, its workplace safety regulations have saved more than 618,000 workers’ lives.
Republicans have been trying to gut these agencies for decades. Now, with the Supreme Court’s right-wing majority solidly in place, they have their best chance yet.
In January 2022, the Supreme Court blocked OSHA’s vaccine-or-testing mandate from going into effect, which was estimated to prevent a quarter-million hospitalizations.
The Court claimed that Covid isn’t an “occupational hazard” because people can become infected outside of work, and that allowing OSHA to regulate in this manner “would significantly expand” its authority without clear Congressional authorization.
This is absurd on its face. Section 2 of the Occupational Safety and Health Act of 1970 clearly spells out OSHA’s authority to enact and enforce regulations that protect workers from illness, injury, and death in the workplace. Congress doesn’t need to list every specific workplace hazard before OSHA can protect workers.
What this ruling tells us is that the Republican appointees on the Supreme Court are intent on gutting the power of agencies to issue regulations.
This term, the Court will also hear a case regarding the EPA’s authority to enforce the Clean Water Act. If the Court undermines the EPA’s authority, it will put our environment – and our health – at risk. Remember when the Cuyahoga River caught on fire because it was brimming with oil, acid, and factory chemicals? That’s what we may be returning to.
And what’s next? Will they gut the Federal Trade Commission and put us all at risk of being defrauded? Target the Securities and Exchange Commission and deregulate the financial sector, sparking another financial crisis?
Beware. If Republican appointees on the Supreme Court succeed in gutting regulatory agencies, we all lose. This agenda is anti-worker, anti-consumer, and anti-environment. The only thing it’s good for is corporate profits.[rr vid] https://www.youtube.com/watch?v=QRJmq9yCh-w&t=5s
planes and train optimal spreaders?!
aha more regs tossed out for exceeding authority = ~ gubmint? corp laissez-faire pollute? kill workers?
rooted in fed overreach?
jones day, trump fav, clerked for clarence
The Centers for Disease Control and Prevention's mask mandate for domestic travelers was struck down on Monday by a federal jurist who was appointed by former President Donald Trump. The decision is the latest in a string of blows to President Joe Biden's efforts to curb transmission of the coronavirus.
The CDC last week extended the rule until May 3rd.
Judge Kathryn Kimball Mizelle of the United States District Court for the Middle District of Florida wrote in a 59-page ruling that the CDC exceeded its authority in requiring passengers on airlines and any other "conveyance" of public transportation to wear masks to help slow the spread of COVID-19.
Mizelle – whom the American Bar Associated dinged as "not qualified" after she was installed by Trump at the age of 33 – said that passengers who refused to comply and were "forcibly removed from their airplane seats, denied board at the bus steps, and turned away at the train station doors" had their rights against "detention and quarantine" violated.
"The Mask Mandate is best understood not as sanitation, but as an exercise of the CDC's power to conditionally release [from what?] individuals to travel despite concerns that they may spread a communicable disease (and to detain or partially quarantine those who refuse). But the power to conditionally release and detain is ordinarily limited to individuals entering the United States from a foreign country," she proclaimed.
“Wearing a mask cleans nothing,” Mizelle opined, even as cases are once again rising in pockets throughout the country, such as in Philadelphia, Pennsylvania, which has re-instituted a mask mandate. The virus has also been spreading in the nation's capital, infecting White House officials and House Speaker Nancy Pelosi (D-California).
Steve Vladeck, a law professor at the University of Texas, blasted Mizelle's order in a Monday afternoon tweet.
"This is both a big deal and a truly preposterous (nationwide) injunction. The CDC’s statutory authority is specifically directed at preventing the spread of communicable diseases across state lines," he wrote. "Where else is such spread more likely to occur than transport hubs like airports?"
Former United States Secretary of Labor Robert Reich blasted right-wing efforts to gut federal regulations in a new video posted to YouTube on Tuesday.
In the roughly four-minute-long spot, Reich warned Americans that Republicans are working tirelessly to make life "more dangerous" in the name of boosting corporate profits.
"Your life could get a lot more dangerous. Republican appointees on the Supreme Court seem poised to strip away basic safety standards for our workplaces, our food, our air and water," Reich began.
He explained that regulatory organizations exist to protect the public from predatory practices.
"Remember when lots of romaine lettuce was recalled because it was causing E.coli outbreaks? That was the Food and Drug Administration protecting us from getting sick. Working in a warehouse? The Occupational Safety and Health Administration sets standards to ensure you don’t breathe in dangerous chemicals like asbestos. Enjoying the fresh air on a clear, sunny day? Thank the Environmental Protection Agency for limiting the amount of pollution that can go into our air," said Reich. "These agencies save lives. Since OSHA was established a half-century ago, its workplace safety regulations have saved more than 618,000 workers’ lives."
In this case, Reich takes aim at HFIB versus OSHA, in which the Court sided with the plaintiffs who sued to have COVID-19 workplace vaccine-or-testing mandates lifted.
"What this ruling tells us is that the Republican appointees on the Supreme Court are intent on gutting the power of agencies to issue regulations," he said. "This term, the Court will also hear a case regarding the EPA’s authority to enforce the Clean Water Act. If the Court undermines the EPA’s authority, it will put our environment – and our health – at risk. Remember when the Cuyahoga River caught on fire because it was brimming with oil, acid, and factory chemicals? That’s what we may be returning to."
Reich then reminded viewers that the GOP's assault on regulations is far from over.
"And what’s next? Will they gut the Federal Trade Commission and put us all at risk of being defrauded? Target the Securities and Exchange Commission and deregulate the financial sector, sparking another financial crisis?" he asked.
"Beware. If Republican appointees on the Supreme Court succeed in gutting regulatory agencies, we all lose. This agenda is anti-worker, anti-consumer, and anti-environment," Reich added. "The only thing it’s good for is corporate profits."
more discussion of packing and ethics; we used to rely on norms pre-trump, as in so many other gov't functions? a question of checks and balances among branches?
https://www.alternet.org/2022/03/clarence-thomas-2657046647/
tom b raw story
In an interview with Rolling Stone's Andrew Cohen, historian Jeff Shesol said he has no doubt thatSupreme Court Justice Clarence Thomas and his wife Ginni Thomas are in "lockstep" when it comes to believing Donald Trump should still be in the White House and claimed they see what they are doing as a "holy war."
With Cohen writing, "You don’t need to be a legal expert to know that one spouse shouldn’t sit in judgment in a case in which the other spouse is a witness — or a suspect. That’s as classic a conflict of interest as one can imagine and by refusing to acknowledge it Justice Thomas has brought great discredit on himself and his colleagues on the Court," he asked the author of “Supreme Power: Franklin Roosevelt vs The Supreme Court,” what he thinks is going on after revelations about Ginni Thomas' texts urging overturning the 2020 presidential election results.
According to Shesol, the biggest immediate problem is the fact that there is no mechanism in place to force Supreme Court justices to recuse themselves in cases where they have a personal stake as well as their freedom to take public political stances without consequences.
"I wrote for the NYT back in 2011 on the 'extrajudicial' activities of Thomas, [Samuel] Alito, and others," he explained. "They’re even more brazen today, if only because they have never faced any consequences (other than the opprobrium of the left and the mainstream media, opprobrium they welcome) for making political statements to politically minded crowds. You and I can write as many mean articles about them as we’d like, but short of impeachment, they’re untouchable and they revel in it."
According to the historian, he can't be sure Ginni Thomas was talking about her husband when she referenced support for election interference from her "best friend" -- but he has his suspicions.
After stating, "In a very real sense, Clarence and Ginni Thomas are answerable only to Clarence and Ginni Thomas. The Trump Administration gave us all a hard lesson in how few actual rules bind the behavior of our national leaders, and how much depends on their good judgment and self-restraint," he added. "Even if she’s not referring to Justice Thomas, the recent New Yorker story, among others, underscores the absurdity of the notion that (as they’ve claimed) Ginni does her thing and Clarence does his, and that they don’t discuss their work. This is a holy war, and, again, they are waging it in lockstep."
According to Shesol, Ginni Thomas is up to her neck in involvement t in the Jan 6th insurrection and there is little reason to believe that her husband didn't know it.
Explaining, "Ginni played an active role (which seems, with every passing revelation, to have been a greater role than previously disclosed or imagined) in trying to subvert the Constitution by overthrowing the results of a presidential election," he maintained that her husband's decision to side with Donald Trump on hiding White House documents, and his current silence, makes him suspect.
"Her husband’s role, apart from his dissent from that unsigned order, is less clear—though it is clear enough that he acted (or would have acted, if the other conservatives had joined him) in shielding his wife’s role in the plot from scrutiny," he stated. "Though his dissent is silent to his true motivations he has thus involved and implicated himself in the insurrection."
john s edit bd 3 22
It’s not clear to me yet why Virginia “Ginni” Thomas admitted to being at the gathering that came before the J6 insurrection. But I’m sure the spouse of Supreme Court Justice Clarence Thomas has her reasons.
Ginni Thomas told the Washington Free BeaconMonday that she attended the rally organized by the former president to “stop the steal.” She said she left before Donald Trump ordered a throng of insurgents, some armed, to sack and loot the seat of government.
“There are important and legitimate substantive questions about achieving goals like electoral integrity, racial equality and political accountability that a democratic system like ours needs to be able to discuss and debate rationally in the political square. I fear we are losing that ability,” she told the Free Beacon, a rightwing paper.
Thing is, those “important and legitimate substantive questions” had been addressed and settled by one federal judge after another. They had been answered by Republican secretaries of state in states won by the current president. You’d think the wife of a Supreme Court justice would respect court rulings. I suppose that might be too much to ask.
Like I said, it’s not clear to me why she outed herself. It could be she’s aware of a forthcoming story about to come to light, and turned to a sympathetic news outlet to “get ahead of the story,” as elites say. That way she can minimize damage to her and her husband’s public image.
If I were to guess, I’d say Ginni Thomas was aware of Donald Trump’s effort to pressure the former vice president, Mike Pence, into sending certified electoral votes back to states, which would reelect Trump, or otherwise sabotage the situation so the Supreme Court had to decide.
That would be bad. It would mean some people are above the law. Unfortunately, we don’t need a treasonous conspiracy to know that.
Ginni Thomas is untouchable.
She’s a leading figure in right-wing politics. Her activism frequently involves cases Justice Thomas will hear. She is a middleman, as it were, between the GOP’s very obscenely rich donor class and the court’s GOP supermajority, which is eager to give what’s asked of them.
There’s nothing you can do about it.
When the people are powerless, democracy isn’t all that.
Even if Congress were to pass laws regulating the behavior of Supreme Court justices, who would enforce those laws. The US Department of Justice? The FBI? Which among all the federal law enforcement agencies would investigate a justice’s spouse? The Congress? Hardly. It couldn’t remove a president for extortion.
I talk about this and other depressing things with Gabe Roth. He’s the executive director of Fix the Court, a nonprofit dedicated to reforming the federal judiciary, especially the highest court. When no one is above a justice, Gabe said, “you're free to do whatever you want.”
“I think that bulletproof-ness rubbed off on Ginni Thomas.”
With normal people in mind, can you explain whether it’s wrong for the spouse of a Supreme Court justice to be politically active?
It's not wrong for a justice's spouse to be politically active. Justices' spouses can and should have their own lives and their own jobs.
But Ginni Thomas is different from any other Supreme Court spouse in the history of Supreme Court spouses in terms of her brand of activism and how so much of it intersects with the court’s work.
She's been the
for the last three decades. WhenBush v. Gore[which decided the 2000 election] was at the court, she was vetting resumes for a potential Bush administration.
As Obamacare reached the court, she was lobbying against the law.
When a case on whether Congress could subpoena certain J6-related records was at the court, she was signing a letter saying Congress was harassing “private citizens who have done nothing wrong."
Supreme Court justices are supposed to recuse themselves from cases in which their "impartiality might reasonably be questioned."
Justice Thomas has often said he and Ginni are one – fused together in the fire of his confirmation. He’s said there’s no daylight between them.
These comments make me — and I think I'm pretty reasonable about this — question his impartiality on several issues before the court.
Has Thomas ever ruled against his wife's interests?
It's hard to quantify since the court has issued more than 2,000 rulings since Thomas joined it in 1991. But in general, the answer is no.
On major cases, the Republican justices rule the way average Republicans would want them to rule. Similarly, the Democratic justices rule the way average Democrats would want them to rule.
The Republican exceptions — Roberts on Obamacare, Kennedy on gay marriage, Gorsuch on tribal sovereignty — don't include Thomas.
How would you characterize Ginni Thomas's brand of politics?
Mean-spirited and misinformed. How can you be a functioning adult and think it's OK to share memes on Facebook related to the Holocaust, saying gun control is the reason 6 million Jews died?
Hoo-boy.
She gives out awards every year to some of the most brazen, shameless and horrible people you can imagine. Covid deniers, election-fraud maker-uppers, anti-Muslim bigots, the works.
With respect to gun control causing 6 million Jews to die, I wonder if perhaps she does know it's not OK, but she’s saying it anyway. From that perspective, we can see the role of bad faith. Someone like that could violate conflicts of interest norms knowing they were.
The truth is there really are no set conflict-of-interest rules if you're a Supreme Court justice. Rules only work if there are consequences. If there's no one above you, if you're never going to be impeached and removed since it's too hard, you're free to do whatever you want.
I think that bulletproof-ness rubbed off on Ginni Thomas.
With that in mind, there's no way of holding a justice’s spouse accountable for her role, however, minimal in J6. Am I correct?
Correct.
I would bet the J6 Committee would be squeamish about subpoenaing Ginni Thomas, though they did subpoena Donald Trump’s former White House Chief of Staff Mark Meadows, with whom Ginni is close.
They don't want to be seen as "political," and I could imagine some of them think that going after a justice's spouse would be seen that way.
So it's possible for the spouse at the Supreme Court justice to be engaged in sedition, a crime that could rise up to the Supreme Court, and the justice in question could rule in favor of his spouse?
Yes.
That’s fucked up.
Ginni Thomas would say she left before the crime happened.
She already said she left in remarks made to the Washington Free Beacon. If she's bulletproof, why bother going to a sympathetic newspaper to explain why she's not guilty of anything?
My guess is enough people saw her at the Ellipse that the story of her being there was going to get out. She wanted to get ahead of it.
So what if the story got out, though?
My guess is that more is coming out – that she was in touch with Meadows or someone on J6 who’s been subpoenaed. She wanted to quash the rumor she paid for buses to get people to DC that day.
So what’s the solution to a laughably corrupt system, as it appears to be? Can Congress put teeth in conflict-of-interest norms?
First, they can require justices to write and adopt a code of conduct that sets expectations for conduct inside and outside the court.
Second, they can require justices to explain when they recuse themselves and make it easier for litigants to ask why they don't recuse in cases in which there's a perceived conflict of interest.
Third, they can amend the federal recusal statute to say that if you as a justice received a benefit from an individual or group — whether a gift, a free trip or personal hospitality — you have to sit out SCOTUS cases brought by that individual or group for a certain number of years
Fourth, they can hold more oversight hearings so judicial ethics issues are in the open, not merely discussed whenever a justice messes up.
I could keep going.
Yes, please.
Fifth, they could require that judges and justices put annual financial disclosure reports online (currently they're placed on thumb drives and the disclosures office always has a multi-year backlog).
Congress could require that every time a judge or justice buys or sells a stock, or other financial instruments, they have to file a contemporaneous transaction report, as members of Congress must.
Sixth, Congress could write a law that would require justices to take senior status after 18 years, so they'd keep life tenure, but after 18 years, they'd have to move to a lower court – or they could fill back in at the Supreme Court in case of an unexpected vacancy.
Seventh, they could require judges and justices to fill out contemporaneous travel reports, as members of Congress must. These show in real-time who's paying who for what (flights, hotels, etc).
These sound good, but rules and laws don't mean much unless they're enforced. Assuming Merrick Garland would never touch a case involving a Supreme Court justice’s spouse, who would enforce these laws and rules even if they were enacted?
That'd be my assumption, yes.
The DOJ wouldn’t bring charges against a Supreme Court spouse.
It'd have to be a bribe to get to that point.
A bribe would be blessedly simple, but what about a spouse of a Supreme Court justice who’s cheerleading sedition?
I don't see how that's enforced, correct.
This is very depressing isn't it?
I guess. I'm used to it.
OpEdNews Op Eds 2/10/2022
SCOTUS Conservatives Declare War Against Decades of Regulatory Laws
By Jeanine Molloff (Page 1 of 4 pages)
Message Jeanine Molloff
Reprinted from buzzflash.com
Conservatives on the Supreme Court are working feverishly to potentially dismantle most government regulation that corporations want gone, by dredging up two legal fictions, the 'major questions' doctrine and the 'nondelegation' doctrine.If successful, the court could nullify decades of progressive laws on everything from food safety to environmental concerns. The court is dismantling democracy itself.
December 10, 2021, multiple tornados struck the American Midwest, including Missouri, Illinois, Arkansas, and Kentucky, destroying everything in their path. Amazon employees at the Edwardsville, Illinois 'fulfillment center' were trapped in a flimsy tinfoil structure as a killer tornado stampeded through the sleepy rural setting. Personal accounts from workers and their families claim that Amazon kept these workers as virtual hostages. Those who wanted to leave were threatened with disciplinary action. Though multiple tornado warnings were issued all day, workers weren't allowed to access emergency weather reports because of the company's 'no phone' policy, which forbids phones on the warehouse floor. Six Amazon employees died in that warehouse when the roof collapsed. These deaths were avoidable. In fact, you could argue that these deaths were facilitated by Amazon's systemic abuse of their employees.
That same night another lethal tornado hit the Mayfield Consumer Products Factory in Mayfield, Kentucky. Severe weather warning systems alerted the community some three hours before the tornado hit. Employees at the Mayfield factory were also being threatened by supervisors with disciplinary action, including termination if they left the facility. The employees remained on site, and eight died in the rubble. Kentucky tornado: Factory workers threatened with firing if they left before tornado, employees say (nbcnews.com)Survivors of deadly tornado that leveled factory sue employer, saying they weren't allowed to leave | PBS NewsHour
In both instances, workers placed in danger by their employers have a legal pathway to receive compensation for their injuries and demand their employer be held accountable. This is due, in part to various government agencies such as OSHA, whose job is to defend workplace safety. Without such agency regulation, workers have little to no recourse against abusive employers. These agencies determine and craft regulations meant to implement laws which are generally written in very vague and broad terms. In order to make the regulations fair and subject to various industry standards, these agencies are staffed by professionals in those specific areas of expertise. It should be unnecessary to explain this rationale; that a lawyer shouldn't be crafting regulations on something like pharmaceuticals, nuclear energy or vaccine safety but Supreme Court conservatives apparently never received the memo.
The conservatives on the court would use two legal fictions to deregulate the government, and yes, subsequently create a chaotic system which could, for instance, assign a lawyer to write regulations for nuclear waste storage or decide whether vaccines are medically safe.
The two legal fictions I am referring to are the 'major questions doctrine' and the 'nondelegation doctrine.' Both fictions were crafted specifically to undermine any regulations which did not receive a legislative permission slip from Congress for any rules or regulations not mentioned in the original legislation.
Conservative jurists know these two fictions are based on little more than rhetorical quicksand, but they don't care.
The intent of these two legal fictions is to bring all government agencies other than the military to a grinding halt. The conservatives on the Supreme Court are determined to create a judicial 'get out of jail free' card for the growing state of 'corporate capture' in the USA. Just this past month the Supreme Court reviewed and decided two cases, specifically engineered to test the "major questions doctrine." Both cases revolve around vaccine mandates. The court is also scheduled to hear a case which would test "nondelegation" in the coming weeks, and that case is West Virginia v. EPA. If these legal fictions are allowed to stand, the Supreme Court could dismantle much of the federal government, especially in the areas of consumer safety, worker rights, and environmental concerns.
The history of the "major questions" doctrine...
The genesis of this fiction began with a few cases which questioned whether federal agencies exceeded their authority granted by Congress as they interpreted various applications of the law. The goal of this fiction is clear. The "major questions" doctrine was implemented so conservatives could nullify any substantive agency authority and subsequent regulations.
This was the first step required to dismantle much of government. The far right-wing is patient if nothing else. Historically, there were three specific cases which served as the prerequisite to dismantling regulations which the business community was determined to kill.
Communications Act of 1934and "major questions" kryptonite...
The first case dealt with the Communications Act of 1934, which established tariffs on telecommunications companies through the administration of the FCC or Federal Communications Commission. In 1994, the Supreme Court ruled that the FCC couldn't unilaterally "modify" tariffs for the telecommunications industry, deciding that such modifications would constitute a rewriting or revision of the Communications Act of 1934. Such changes would have to come about through the legislative process. The fact that this action on the part of the FCC would have virtually abolished those tariffs is not the major point. The goal of these judicial activists was to discredit the delegation of powers to federal agencies, as an illegitimate and thus unconstitutional grant of power to the administrative state.
FDA v. Brown & Williamson Tobacco Corp. Case....[much more]
Michael Livermore is professor of law at University of Virginia School of Law.
As in many other areas, Justice Anthony Kennedy was the swing vote in environmental cases, lining up in the middle of his more reliably conservative and liberal peers. His proposed replacement, Judge Brett Kavanaugh, has exhibited a very clear track record of relative solicitousness to regulated industry and skepticism to environmental interests. These instincts will likely place him to the right of Chief Justice John Roberts in environmental cases, shifting Roberts to the center of the court. As a consequence, we can expect that a Kavanaugh confirmation would usher in a court that is considerably less sympathetic to environmental protections. This new alignment may have particularly profound effects in the coming years in litigation involving greenhouse gas emissions and federal jurisdiction over water pollution.
When the Supreme Court decides environmental cases, its primary role is in defining the scope of agency authority under one of the major environmental statutes (such as the Clean Water Act) or passing on the legality of an agency action. Because of the specificity of many environmental cases — interpreting the language in one provision of a long and complex statute or examining the administrative record that supports a particular agency decision — the doctrines that arise in environmental cases are typically fairly contained. Where they have more general applicability, it is often because they are intertwined with other questions, such as administrative law issues.
Such was the case with the Supreme Court’s decision in Chevron v. Natural Resources Defense Council Inc., which arose in a challenge by an environmental organization to a Reagan-era rule by the Environmental Protection Agency. The environmental law question in that case was the definition of a “source” under Clean Air Act rules concerning air pollution control requirements. Although the outcome had important environmental law consequences, that statutory issue did not represent the kind of repeat question that generally arises many times before the courts. The case is famous, rather, for its rule concerning the deference owned to agencies for their statutory interpretations, a doctrine that applies far outside the context of a single environmental statute.
Because of the sui generis nature of many environmental law cases, and their entanglement with administrative law issues, one might expect that it would be difficult to identify general trends for individual judges. A strong commitment to Chevrondeference, for example, might cut in favor of a stringent regulation in one case and an industry-friendly deregulation in another. Nevertheless, in some high-profile environmental cases, the court does split along standard ideological lines, with the liberal justices coming down in favor of pro-environment outcomes and the conservative justices favoring industry. It is in these more ideologically charged cases that Kavanaugh’s skepticism toward environmental protections is likely to have the most impact.
Two little-known dissents in which Kavanaugh parted ways from even his conservative colleagues on the U.S. Court of Appeals for the District of Columbia Circuit help illustrate his general tendencies in environmental cases. In Sierra Club v. EPA, in 2008, Kavanaugh sat on a panel with two fellow Republican appointees: then-Chief Judge David Sentelle, who was appointed by President Ronald Reagan, and Judge Thomas Griffith, who, like Kavanaugh, is a President George W. Bush appointee. That case involved a challenge by the Sierra Club to a Bush-era EPA regulation that relaxed monitoring requirements associated with a permitting program under the Clean Air Act. Writing for the majority, Griffith found that the EPA had overstepped its statutory authority and struck down the rule. In his dissent, Kavanaugh noted that he “agree[d] completely with the majority opinion about bedrock principles of statutory interpretation,” yet arrived at the opposite result — for him, the most natural interpretation of the act was one that favored the agency’s less stringent approach.
Another case in which Kavanaugh disagreed with like-minded colleagues in an environmental case was 2010’s Howmet Corp. v. EPA, which involved an industry challenge to an EPA interpretation of one of its regulations under the Resource Conservation and Recovery Act. The agency had determined in an enforcement action that a particular chemical was “spent material” and therefore subject to regulation after it had been used in an industrial cleaning process. Writing for herself and Sentelle, Judge Janice Brown (also a George W. Bush appointee) found that the regulation in question was ambiguous and deferred to the agency’s interpretation. Kavanaugh disagreed, arguing that “EPA’s argument mangles the language of [its] 1985 regulations.” He would have voided the agency enforcement action that relied on that interpretation.
Both of these cases involve fairly typical questions of statutory and regulatory interpretation, but what is striking is Kavanaugh’s inclination — even more so than his fellow conservatives — to read the language at issue in ways that were adverse to more stringent environmental protection. By contrast, it appears as though in his time on the D.C. Circuit, Kavanaugh has never issued a dissent in a case in which the majority ruled against an environmental interest.
To reach these outcomes, Judge Kavanaugh is quite flexible in how he applies general principles of administrative law. This tendency is especially clear in two opinions concerning challenges to Obama-era Clean Air Act regulations. In White Stallion Energy Center v. EPA, in 2014, the majority upheld a regulation that imposed more stringent controls on mercury pollution from coal-fired power plants. In dissent, Kavanaugh argued that the agency was obligated to consider compliance costs when determining whether it was “appropriate and necessary” to regulate these sources — its failure to do so was, in his eyes, fatal to the regulation. After granting certiorari in the case, the Supreme Court in 2015 vindicated Kavanaugh’s view in Michigan v. EPA. Justice Antonin Scalia, writing for a 5–4 majority, held that the statutory language “appropriate and necessary” required that the agency consider costs at the earliest stage of its rulemaking.
Kavanaugh’s flexibility becomes apparent in something of a companion case from 2012, EME Homer City Generation v. EPA, in which a group of states and industry representatives challenged a rule to reduce air pollution that crosses state borders. That case also involved the consideration of costs when setting a regulation, but with a twist: In this case, it was the EPA and environmentalists that argued that the agency had the discretion to consider compliance costs when setting emissions budgets for states, and industry arguing that the agency could not consider costs. Kavanaugh again sided with industry, holding that the “EPA may rely on cost-effectiveness factors in order to allow some upwind States to do less than their full fair share” to control pollution, but not more. In other words, for Kavanaugh, cost considerations were a one-way ratchet: When costs are high, then they can be used to justify less stringent environmental protection, but cheap and easy controls are not a good reason to go further to clean up the air. EME Homer, like White Stallion, was taken up by the Supreme Court, but this time Kavanaugh’s view did not prevail, with Justice Ginsburg writing for a 6–2 majority (which included Kennedy and Roberts) that the statute gave the agency broad latitude to craft a regulatory program to cut interstate emissions, with compliance costs as a perfectly reasonable factor for the agency to consider. Scalia, however, agreed with Kavanaugh, arguing in dissent that the agency inappropriately relied on costs.
The contrast between White Stallion and EME Homer is clear: In the case in which considering costs would lead to less stringent standards, Kavanaugh believes that costs must be considered; but in the case in which considering costs would lead to more stringent standards, he says that they cannot be considered.
If we assume that Kavanaugh’s appointment would shift the swing vote on environmental cases to Roberts, it is worth considering how much this would affect the shape of environmental law in the coming years. Despite the Supreme Court’s politically charged nature, many environmental cases do not result in 5–4 decisions, and so changing a single justice would not upset the outcome. And in recent years, when the justices have fallen along strict ideological lines, Kennedy has typically joined the conservative wing. Since taking his position as the court’s median justice, Kennedy has only swung an outcome toward the liberals in two major environmental cases. The first was Rapanos v. United States, in which a separate opinion by Kennedy avoided a majority opinion by Scalia that would have severely limited the scope of federal jurisdiction under the Clean Water Act. The second was Massachusetts v. EPA, in which Kennedy joined the liberal wing in holding that the agency had the authority to regulate greenhouse gases under the Clean Air Act. Both of these are extremely consequential cases and involve issues that are likely to reappear in the near future.
Current controversies over jurisdiction under the Clean Water Act swirl around the Clean Water Rule, which was promulgated under President Barack Obama. Several cases involving that rule, and an effort by the current administration to repeal it, are now winding their way through the courts and are likely to find an audience before the Supreme Court soon. With a new court composition, Scalia’s plurality opinion in Rapanos may be up for a revival, potentially leading to a severe contraction of federal jurisdiction over pollution into smaller water bodies. Litigation over climate change and greenhouse gas regulation currently takes many forms, from constitutional claims and state actions under nuisance law to pending challenges to the not-yet-rescinded Obama-era Clean Power Plan. When these cases ultimately arrive at the court, environmentalists have good reason to be fearful not only that they may lose on the issue of the day, but also that the bedrock holding of Massachusetts v. EPA may gradually be eroded over time. (It is worth noting that a direct reversal of Massachusetts v. EPA is unlikely, given the court’s reliance on that decision in subsequent cases such as American Electric Power Co. Inc. v. Connecticut, which held that there was no federal common law action for climate damages.)
More generally, given congressional gridlock, notice-and-comment rulemaking by environmental agencies has become the primary vehicle for environmental progress over the past several decades. A shift from Kennedy to Roberts as the deciding vote in environmental cases will make this path more difficult, halting and fraught with risk. For regulated industries, this shift will be welcome, improving their chances in litigation and strengthening their bargaining hand with agencies. Environmentalists, on the other hand, have good reason to be concerned about the new obstructions that are likely to spring up on one of the few remaining paths they have for achieving their policy goals.
Posted in Judge Kavanaugh's jurisprudence, Nomination of Brett Kavanaugh to the Supreme Court
Recommended Citation: Michael Livermore, Judge Kavanaugh and the environment,SCOTUSblog (Jul. 18, 2018, 1:27 PM), https://www.scotusblog.com/2018/07/kavanaugh-and-the-environment/
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raw story
https://www.alternet.org/2022/03/clarence-thomas/
Supreme Court Justice Clarence Thomas' right leaning political views have been obvious for decades in his writings for the Court. A new report in the Daily Beast, however, spotlights just how intertwined his financial connections are to an ultra-conservative judicial activist.
When Thomas was looking to promote the release of his memoir last October he chose to hire a public relations firm, CRC Advisors, run by the former chief of the Federalist Society, Leonard Leo. Leo is a top fundraiser for right-wing judicial activist groups. The Daily Beast reports that "Leo has raised hundreds of millions of dollars over the three decades on behalf of right-wing dark money groups to influence the federal judiciary and Supreme Court. He advised and persuaded Republican presidents George W. Bush and Donald Trump in their appointments of Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Chief Justice John Roberts—and prepped Justice Thomas for his nomination hearings."
The report also says that Leo is the "hub" of dark money groups that stealthily fund and link up with parties who argue cases before the Supreme Court, something that Supreme watchers have dubbed an "amicus flotilla."
Leo’s affiliations with the court - and especially Thomas - are especially pronounced. He made the justice the godfather of one of his children and has hosted him on vacation at his New England retreat.
Paul Collins is a professor of political science at the University of Massachusetts at Amherst and author of several books about the high court. He says Thomas’ choice of Leo’s firm is “strange” and “unnecessary.”
“It signals that this world of the Federalist Society is even smaller than we thought,” Collins told The Daily Beast.