Kagan, E Justice

primary on gerry dissent 2x?

see Major Questions west va v epa

immunity 6-3

the Supreme Court justices who dissented to Monday's ruling on former President Donald Trump's presidential immunity claim called it a mockery of the Constitution that reshapes the institution of the presidency.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented to Chief Justice John Roberts ruling that Trump was entitled to absolute immunity for actions carried out in his official capacity as president — but not all presidential actions were official.

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Supreme Court strikes down limits on party spending in federal elections, backing Republican appeal | The Associated Press

(AP) — The Supreme Court on Tuesday erased limits on how much political parties can spend in coordination with candidates for Congress and president, striking down a federal election law that is more than 50 years old.

Prodded by a Republican-led lawsuit that includes Vice President JD Vance, the court’s six conservative justices were again in the majority of the latest decision that upended congressionally enacted limits on raising and spending money to influence elections. The court’s 2010 Citizens United decision opened the door to unlimited independent spending in federal elections.

The limits on party spending stem from a desire to prevent large donors from skirting caps on individual contributions to a candidate by directing unlimited sums to the party, with the understanding that the money will be spent on behalf of the candidate.

The Supreme Court had previously upheld the limits, in 2001.

But Justice Brett Kavanaugh, writing for the court, said that decision was wrong and should be overruled. “In short, constitutional text, history and precedent establish that the political-party coordinated-expenditure limits violate the First Amendment,” Kavanaugh wrote.

Justice Elena Kagan’s dissent for the three liberal justices said the court “ushers in untold harm” by enabling parties to funnel large contributions to individual candidates, far in excess of what donors can give those candidates directly.

National parties now will be able to make direct contributions to candidates’ campaigns,

The decision is likely to give Republicans at least a short-term boost because they maintain a sizable cash advantage over Democrats.

The Republican National Committee and its Senate and House campaign fundraising arms have dwarfed Democrats’ in the months before congressional elections where the GOP is defending narrow majorities in both houses.

At the end of May, the RNC reported having more than $125 million to spend, its highest-ever cash on hand total, according to its most recent Federal Election Commission filing in May. Meanwhile, the National Republican Senatorial Committee had more than $48 million on hand in its most recent report and the National Republican Congressional Committee had more than $81 million.

In the same period, the Democratic National Committee had $14.4 million on hand, while the Democratic Senatorial Campaign Committee had roughly $37 million and the Democratic Congressional Campaign Committee, roughly $73 million.

The Republican committees for House and Senate candidates filed the lawsuit in Ohio in 2022, joined by Vance, then a senator from Ohio, and then-Rep. Steve Chabot.

After President Donald Trump took office for his second term, the Federal Election Commission dropped its defense of the law and joined with Republicans in urging that it be overturned.

Democrats had called on the court to uphold the law, even though there is wide agreement that the spending limits have hurt political parties in an era of unlimited spending by other organizations.

Last year, the coordinated party spending for Senate races ranged from $127,200 in several states with small populations to nearly $4 million in California, the most populous state. For House races, the limits were $127,200 in states with only one representative and $63,600 everywhere else.

Entrenched divisions between liberal and conservative justices over campaign finance restrictions were on display when the court heard arguments in December.

“Every time we interfere with the congressional design, we make matters worse,” said Justice Sonia Sotomayor, a dissenter in Citizens United and the court’s other campaign money cases.

By contrast, Justice Samuel Alito, a member of the Citizens United majority, described the decision as “much maligned, I think unfairly maligned.” The effect of the decision was to ”level the playing field,” Alito said, by expanding the right to spend freely that had previously belonged only to media companies.

Associated Press writer Thomas Beaumont contributed to this report.

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AN 12 25

On Monday morning, December 8, the U.S. Supreme Court listened to oral arguments in Trump v. Slaughter — a case dealing with President Donald Trump's ability, under the U.S. Constitution, to fire employees of independent government agencies.

Trump and his allies, in the case, are promoting a far-right legal doctrine known as the Unitary Executive Theory — which claims that presidents have total control over who can be fired in the federal government. But opponents of the Unitary Executive Theory vehemently disagree, arguing that Congress has the ability to create agencies that are independent from a president's executive powers. One of those opponents is Rebecca Slaughter, who is arguing that Trump had no right to fire her from the Federal Trade Commission (FTC) because of the independence she enjoyed.

During the December 8 hearing, Solicitor General John Sauer was aggressively grilled by the High Court's three Democratic appointees: Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson. And MS NOW's Lisa Rubin offered, emphasizing that Kagan was essentially accusing Trump of trying to carry out an "enormous power grab." VID]

Rubin told Cabrera, "This concept of a unitary executive…. has gained currency among political conservatives," adding, "Certainly, it's not a legally conservative theory because it is a gigantic enlargement of executive power. That's not how legal conservatives have traditionally thought, but that is what's going on here."

According to Rubin, the "liberal justices" are "playing out the consequences of the logic being employed by the (Trump) Administration, which is (that) this isn't just about the FTC."

Rubin told Cabrera, "I want to read to you something that Justice Kagan said in her discussion with the solicitor general, John Sauer, because I thought it got to the heart of what this is really about…. The idea was that the president was supposed to do the executing, but he wasn't supposed to do the legislating…. In other words, in Justice Kagan's view, this is a power grab by the president… That, according to Justice Kagan and the other liberals on the Court, is an enormous power grab with real consequences for our country."

Georgetown University law professor Paul Butler, also on the panel, predicted that the High Court's GOP-appointed justices will "almost certainly" rule in Trump's favor and "say the president has the authority to fire the FTC commissioner."

"This outcome is virtually certain," Butler told Cabrera and Rubin — who agreed with him that the outcome in Trump v. Slaughter is a "fait accompli" and that the GOP-appointed supermajority will reject the arguments of Kagan, Sotomayor and Jackson."

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AN 5 25

During a hearing on Thursday morning, May 15, Solicitor General John Sauer was questioned by justices of the U.S. Supreme Court — including Elena Kagan, Sonia Sotomayor, Amy Coney Barrett and Chief Justice Roberts. The hearing involved universal injunctions blocking President Donald Trump's executive order (EO) against birthright citizenship.

Attorneys who are challenging Trump's order stress that it is unconstitutional, as birthright citizenship is protected by the U.S. Constitution's 14th Amendment.

During her questioning, Kagan asked Sauer, "Does every single person that is affected by this EO have to bring their own suit? Are there alternatives? How long does it take? How do we get to the result that there is a single rule of citizenship…. that is the rule that we've historically applied, rather than the rule that the EO would have us do?"

After Sauer was questioned by Barrett, the conservative justice accused him of being evasive in his responses to Kagan's questions.

IFrame Content

Barrett told Sauer, "Are you really going to answer Justice Kagan by saying there's no way to do this expeditiously?"

The questioning is receiving a lot of responses on X, formerly Twitter — some from angry MAGA Republicans, others praising their questions.

Law professor Jonathan Turley tweeted, "are you really going to answer [J]ustice [K]agan by saying, there's no way to do this expeditiously?"

David W. Green, a self-described "MAGA patriot," told Turley, " If the conclusion reached is anything other than 'judicial overreach has gone too far,' then we have an unconstitutional judicial branch and a constitutional crisis."

Jim Devine, a self-described "conservative libertarian," said, " I believe we will be seeing some hypocrisy soon."

MAGA user Dave Harvilicz, @DaveHarvilicz posted, "Amy Coney Barrett on universal injunctions is currently showing her intellectual inadequacy. Better diligence on judicial appointments is warranted."

@GulfFLLinda posted, "The 14th amendment was meant to protect the children of slaves. That’s it. Which should have been done. Period. You’re right it will be Barrett and Roberts who choose to interpret the Constitution and make up their own rules."

Eric Daugherty wrote, "The Supreme Court must overturn Birthright Citizenship. Amy Coney Barrett and/or John Roberts will be required. It was not created so foreign nations could implant pregnant mothers into our country to "anchor" themselves here. Even thinking about the fact this is allowed is ludicrous."

X user Amanda Giancana wrote, " Solicitor Gen Sauer is gettin ANNIHILATED by #SCOTUS, he’s an embarrassment [and] so outta his depth. [Barrett] just called him out on his disgraceful response to Kagan — “did u really answer Justice Kagan with “there’s no way to do this expeditiously!"

Journalist Brian Cano Sr. tweeted, "@SCOTUSblog: Justice Kagan questioned the rationale behind bringing Trump v. CASA, Trump v. Washington, and Trump v. New Jersey to the Supreme Court, stating, 'There's no way that I would bring this before the court.' Is D. John Sauer taking one for the team?"

*Watch the full video below or at this link.

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7 22

Signed into law by President Richard Nixon in 1970 with the intention of reducing and controlling air pollution nationwide, the Clean Air Act is the nation’s primary federal air quality law, giving the Environmental Protection Agency (EPA) the authority to regulate air emissions from sources that are either stationary (e.g., power plants) or mobile (e.g., vehicles).

This article was produced by Earth | Food | Life, a project of the Independent Media Institute.

On June 30, the Supreme Court limited that authority with its controversial ruling in the case of West Virginia v. Environmental Protection Agency, dealing a heavy blow to President Joe Biden’s climate agenda. At the center of the case is Section 111 of the Clean Air Act, which establishes mechanisms that the EPA can use in order to control emissions of air pollutants from stationary sources like power plants.

Writing the opinion for the conservative majority, with the three liberal justices dissenting, Chief Justice John Roberts said that Section 111 does not give the EPA the authority to regulate greenhouse gas emissions from existing power plants by “generation shifting”—which could force power plants to move away from coal to renewable energy. The ruling removes a primary mechanism the Biden administration has for achieving the president’s goal of halving carbon dioxide emissions by 2030—and moving the nation to a low-carbon economy.

Major Questions

Roberts said that the basis for the court’s decision was the “major questions doctrine” (MQD)—a phrase that no previous Supreme Court majority had explicitly invoked. In the majority opinion, Roberts writes that the MQD has now been invoked “because it refers to an identifiable body of law that has developed over a series of significant cases all addressing a particular and recurring problem: agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”

He said that if lawmakers had wished to grant the EPA the power to mandate how power plants generate electricity, the law should have stated “clear congressional authorization,” adding that “our precedent counsels skepticism toward EPA’s claim” that the law “empowers it to devise carbon emissions caps based on a generation shifting approach.” Basically, the ruling states that the EPA would overstep its remit in its regulation of power plant emissions if it mandated a move to renewable energy.

Justice Elena Kagan, writing in dissent, said that in using “capacious terms” in Section 111, Congress gave the EPA a wide berth in designing its emission reduction rules. “The current Court is textualist only when being so suits it,” she writes. “When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.” She further writes that the ruling “strips” the EPA of the “power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’”

Cloudy: Zero-Carbon Future

If solar and wind energy are fully integrated into the global energy mix, renewable sources could provide up to 80 percent of the world’s electricity, according to the International Renewable Energy Agency, an intergovernmental organization based in Abu Dhabi that supports nations in the transition to sustainable energy. The United States plays a central role in the global shift to a low-carbon—and ultimately, zero-carbon—economy: After China, it is the world’s second-biggest consumer of energy.

Generating electricity without emissions is one of the primary strategies we have in order to achieve net-zero emissions—something that the National Academies of Sciences, Engineering, and Medicines asserts is technologically feasible in the U.S. by 2050. But by limiting the federal government’s ability to cap emissions by mandating a shift to renewable power generation, the Supreme Court has made a zero-carbon future more difficult not only for the U.S. but also for the world. “If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean,” Kagan wrote in the court’s dissenting opinion. This is not just a problem in the U.S.: Several islands in the northern Solomon Islands, a nation of hundreds of islands in the south Pacific, have already been swallowed by the rising sea levels.

“Whatever else this Court may know about, it does not have a clue about how to address climate change,” Kagan writes. “And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself — instead of Congress or the expert agency — the decisionmaker on climate policy. I cannot think of many things more frightening.”

Dena Adler, a research scholar at the Institute for Policy Integrity at New York University School of Law, also questioned Roberts’ highly irregular use of the MQD. “The major questions doctrine is in part problematic because Congress has legislated for decades with an expectation that it can broadly authorize agencies to use their expertise,” she told E&E News. “Yet, as the court applied it today, the doctrine looks skeptically on agencies regulating under this broad authorization.”

In a statement, EPA Administrator Michael S. Regan said he is “deeply disappointed by the decision,” but noted that the agency “will move forward with lawfully setting and implementing environmental standards that meet our obligation to protect all people and all communities from environmental harm.”

‘Supremely Stupid’

The reaction from environmentalists has been unanimous and scathing.

John Noël, a senior climate campaigner with Greenpeace USA, called the ruling “irresponsible” and “supremely stupid,” in an email. “This ruling is going to hurt people. It’s going to hurt wildlife. It’s going to make it easier for business owners to challenge clean air regulations. If there was ever a doubt that this Supreme Court favors the powerful over the people, it’s gone.”

“How much damage can a conservative Supreme Court do to our rights in just a couple of weeks? Unfortunately, we know the answer, and it’s grim,” wrote actress and activist Julia Louis-Dreyfus, in an email.

“We should be outraged by what the Supreme Court has done,” said Jason Rylander of the Center for Biological Diversity, a nonprofit headquartered in Tucson, Arizona, in an online press briefing on July 1.

Kevin S. Curtis, the executive director of the Washington, D.C.-based nonprofit NRDC Action Fund, said in an email that the “deeply damaging” ruling “has set us back half a century—at a moment when… we have no time to lose,” adding that the decision is “radically out of step with settled law, scientific and medical consensus, and widely held public opinion.”

Biden’s Climate Toolbox

It is important to note that, while representing a significant setback to executive climate action, the ruling restricts—but does not eliminate—the agency’s ability to reduce power plants’ carbon pollution. President Biden still has an array of levers at his disposal, several of which he has yet to pull. He can, for example, declare a climate emergency under the National Emergencies Act, which would unlock a variety of presidential powers. “If Biden were, for instance, to ban just crude oil exports, he could cut greenhouse gas emissions by up to 165 million metric tons each year—the equivalent of shuttering 42 coal plants,” write Jean Su and Maya Golden-Krasner, both of the Center for Biological Diversity, in the Nation.

“President Biden must take charge as the climate president,” Gaby Sarri-Tobar of the Center for Biological Diversity and Ted Glick of Beyond Extreme Energy wrote in an email. “He’s already shown a willingness to do this by invoking the Defense Production Act to boost domestic manufacturing of renewable energy technology and advance energy justice by giving frontline and labor communities a seat at the table.”

Additionally, states and local governments can also regulate their own emissions. “A bill passed in Maine [in 2019], for example, calls for emissions at 80 percent below 1990 levels by midcentury, with a halfway goal by 2030,” writes Hillary Rosner for Audubon, a nonprofit environmental organization. “And Hawaii’s 2018 legislation sets a goal of carbon neutrality by 2045. Connecticut and California, meanwhile, have been working to curb emissions for more than a decade.”

Lawmakers on Capitol Hill could also enact far-reaching clean energy legislation—and could even amend Section 111 of the Clean Air Act to give the EPA explicit authority to move power plants toward renewables in order to meet federally mandated emission reductions. And voters could elect and support climate-focused lawmakers—and get their friends, families and community members to do the same.

When the Going Gets Tough, the Tough Get… Voting

Curtis of the NRDC Action Fund said that the ruling “[shows] us that we cannot take legal and federal protections for granted.” Part of not taking those protections for granted means participating in our democracy, and that means voting, particularly casting ballots during midterm elections when federal legislators are elected. It is the members of the House and Senate who decide the federal government’s legislative agenda.

To put the nation on a zero-carbon pathway—and to withstand attacks from a conservative, activist Supreme Court—federal lawmakers must pass clear and strong climate legislation. That means getting climate-focused legislators into office on Capitol Hill. And that means getting climate-focused voters to cast their votes during the midterm elections.

In his email, Curtis called for a midterm election “get-out-the-vote” campaign to “defeat the anti-environment legislators who could pave the way for a conservative agenda that dismantles our rights and our future.” Similarly, the EPA’s largest union, AFGE Council 238, which called the court’s decision a “colossal mistake,” urged people to “demand climate justice” from their elected representatives.

“Without meaningful legislative progress in the coming months… the country will fall far short of its international pledges, which, given the scale of American emissions, will make it almost impossible for the world as a whole to fulfill its already unlikely targets,” writes David Wallace-Wells in the New York Times. “If Republicans win control of Congress in the November midterms, then the window on the prospect of such legislation may be shut for at least a few years.”

The bottom line is that the ruling, while disheartening (and to the environment and public health, even dangerous), is not a death knell for climate action. Like pro-choice supporters disappointed by the court’s recent overturning of Roe v. Wade, those who are concerned about the court’s EPA ruling could use this moment as a rallying cry to step up climate action. If it weren’t already abundantly clear, the Supreme Court—or rather, the conservative majority of the Supreme Court—has underscored that a fundamental part of climate action would be going to the polls during this year’s midterm elections.

Ensuring a healthy environment for ourselves, our families and our fellow Earthlings—for this and future generations—means getting involved in the political process, and that means voting. Voting also means getting the right to complain. So the next time you hear someone grumbling about the “supremely stupid” Supreme Court decision, ask them: “Are you voting on November 8?”

Author Bio: Reynard Loki is a writing fellow at the Independent Media Institute, where he serves as the editor and chief correspondent for Earth | Food | Life. He previously served as the environment, food and animal rights editor at AlterNet and as a reporter for Justmeans/3BL Media covering sustainability and corporate social responsibility. He was named one of FilterBuy’s Top 50 Health & Environmental Journalists to Follow in 2016. His work has been published by Yes! Magazine, Salon, Truthout, BillMoyers.com, CounterPunch, EcoWatch and Truthdig, among others.

https://www.alternet.org/2022/06/elana-kagan-dissent-scotus-epa/

an 6 22

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."

an 5 22

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/2022/02/brett-kavanaugh

U.S. Supreme Court Justice Brett Kavanaugh, on Monday, expressed his disapprovalover Justice Elena Kagan's sharp criticism of him and his conservative allies.

The conflict arose over the Court's decision Monday to halt a lower court's order requiring Alabama to redraw its congressional maps over claims it disenfranchised black voters. Per Talking Points Memo:

"The conservative majority did not explain its reasoning in Monday’s order. Justice Brett Kavanaugh did write a concurring opinion, attempting to rebut Justice Elena Kagan’s dissent."

In her dissent, Kagan did not mince words with her criticism of Kavanaugh, arguing that the state's attempts to defend the redistricting, which would group the majority of Black voters in one district, "seeks to 'graft onto' the Voting Rights Act 'a new requirement, lacking any foundation in our precedent.'”

Per TPM, the state claims "that if a new map to craft two Black majority districts is to be drawn, it must be drawn without taking race into account as a priority — otherwise, the state claims, it would be an illegal racial gerrymander."

However, Kavanaugh argues otherwise.

“The stay order does not make or signal any change to voting rights law,” he insists. “The stay order is not a ruling on the merits, but instead simply stays the District Court’s injunction pending a ruling on the merits.”

Kavanaugh then pivoted to express his disapproval of the Kagan's dissent. “The principal dissent’s catchy but worn-out rhetoric about the ‘shadow docket’ is similarly off-target,” he said.

“Late judicial tinkering with election laws can lead to disruption and to unanticipated and unfair consequences for candidates,political parties, and voters, among others,” Kavanaugh wrote. “It is one thing for a State on its own to toy with its election laws close to a State’s elections. But it is quite another thing for a federal court to swoop in and re-do a State’s election laws in the period close to an election.”

He also claimed politics had no bearing on his decision.

“Contrary to the dissent’s mistaken rhetoric, I take no position at this time on the ultimate merits of the parties’ underlying legal dispute,” he wrote. “And I need not do so until the Court receives full briefing, holds oral argument, and engages in our usual extensive internal deliberations.”

~ brett

https://www.alternet.org/2021/05/justice-elena-kagan/

omg

https://www.alternet.org/2020/03/bill-moyers-and-dahlia-lithwick-break-down-how-the-courts-have-proven-they-have-trumps-back/

Bill Moyers and Dahlia Lithwick break down how the courts have proven they have Trump’s back

President Donald J. Trump, Judge Brett M. Kavanaugh and Anthony M. Kennedy, retired Associate Justice of the Supreme Court of the United States, walk together Monday, Oct. 8, 2018, to the East Room of the White House in Washington, D.C. (Official White House Photo by Joyce N. Boghosian)

Written by Bill Moyers / BillMoyers.Com March 24, 2020

Dahlia Lithwick: Hi there.

...

Bill Moyers: I guess you won’t be hanging out at the Supreme Court anytime soon, right?

Dahlia Lithwick: No. No, they’re not hanging out there either, so. It’s really unprecedented to just scuttle arguments. Justice Ginsberg is 87, so I think it is for the best. But it is really extraordinary times that we are living through.

Bill Moyers: Yeah, I remember something you said, “If ever there was a time for the American legal profession to put down its yellow pads and stand up for the rule of law, it’s today—”

Dahlia Lithwick: Yeah, after Donald Trump was elected, I felt so strongly that lawyers were gonna be the bulwark, that it was clear that he was gonna be assailing the rule of law, and then I really believed that lawyers were going to find lines that couldn’t be crossed.

And that the United States was a country that was built on the proposition that there is no king, and that you have nothing if you don’t have the rule of law. I mean, I think I really believed all that. And who are the gladiators in that fight if not the lawyers?

I did expect that lawyers would be on the front lines. And I watched the day of the travel ban a week after the inauguration — it was the lawyers who ran out to the airports. It was the lawyers who parked themselves at the baggage claims [and] held up signs that said, “I’m just a tax attorney, but I’m here to help you get into the country–” I mean, I really thought that was setting a precedent wherein the lawyers were always gonna be the first ones out. And I’m not sure that materialized the way I expected.

Bill Moyers: If lawyers are failing us, where are we?

Dahlia Lithwick: I think there are so many component pieces of that. I think that you can look at the Mueller Report and the ways in which the findings of that report were distorted by Donald Trump’s own attorney general to imply that nothing had gone wrong.

I think you can look at declarations of emergency at the border last year, where no emergency existed, just to get funding that Congress had already said they were declining to offer. The travel ban itself. One after another, actions taken that really pushed the boundaries of what the executive branch can do.

And just the sort of dispiriting ways in which the Justice Department has doubled down on pressing some of those truly lawless actions, and so we saw Bill Barr at the highest levels of the Justice Department interfere with the Roger Stone sentencing.

This was unprecedented. Nobody had ever seen the president by tweet say, “Maybe we should change the sentence,” and have Bill Barr and very, very senior members of the Justice Department intervene — where line prosecutors had been working on this case for years. And I think we saw on that day, we saw four DOJ (Department of Justice) lawyers walk away from the case, one from the Justice Department, rather than be involved in that prosecution anymore.

But I think it can’t be these tiny little acts of resistance. It really does require the kinda thing that I think we saw in the days following, where we had thousands of prosecutors signing memos and immense numbers of former Justice Department officials saying, “We can’t proceed this way.”

But I think maybe the answer to your question is that so much of the rule of law, as it turns out, was built on soft norms, not on regulations and statutes and constitutional directives. And I think that we all think that this machinery is more robust than it really is. It turns out it’s tissue thin if we don’t fight for it.

Bill Moyers: I used to think that norms were sort of the unwritten Constitution like English procedures and propriety. But that doesn’t seem to hold up anymore.

Dahlia Lithwick: I remember when Merrick Garland was denied a hearing or a vote or even courtesy meetings in the Senate. And I thought, at the time, this is a norm. It is a norm that the president gets to put up a nominee, and that person gets a hearing and a vote. And I think that, time and time and time again in the last few years, I’ve found myself answering these questions about how can this be happening? How can Bill Barr personally intercede in the Roger Stone sentencing?

I think the answer is those were a bunch of norms that were put together post-Watergate. They never had the force of law. It was a set of decisions that this is how the polity would thrive post-Watergate. And I think it’s just such a chilling lesson for all of us that this is a series of gentlemen’s agreements about how we conduct ourselves; it’s not the law.

Bill Moyers: In the meantime, as you’ve written,Trump has weaponized the law in several ways. Talk about that for a moment.

Dahlia Lithwick: Well, I think the most chilling [thing] that we are seeing now is certainly the use of his own Justice Department to go after anybody who’s been disloyal. And also, as we just mentioned, using the Justice Department to exculpate, whether it’s through a lighter sentence for Roger Stone, or using his pardon power to pardon people like Joe Arpaio right at the very beginning.

Trump: I stand by my pardon of Sheriff Joe and I think the people of Arizona who really know him best would agree with me.

Bill Moyers: Arizona Sheriff Joe Arpaio who took a hard-line against immigrants.

Dahlia Lithwick: Who had people in camps dying on his watch, who had this hard-line, anti-immigrant worldview that was so brutal — that there was no question that what he was accused of doing, he had done. And I think that time and time and time again, we’re seeing Donald Trump use the pardon power to say, “There’s really no such thing as white collar crime. There’s no such thing as being too hard on illegal immigrants. There’s no such thing as being — whatever it is that he himself — sometimes — engages in.”

And I think that, in addition to really kind of rejiggering the entire Justice Department so that it seems as though it answers to him personally, I mean, that’s always been his worldview. He wanted an attorney general and he complained about Jeff Sessions, that Jeff Sessions wasn’t loyal, and he wanted Jim Comey to be loyal. Even Don McGahn, his White House counsel, who ended up leaving, was not sufficiently loyal.

And I think he’s really got a notion that he’s like a Nero character — an emperor — and that the law works for him and responds to him. And in so many different configurations, we’ve seen him rescinding DACA by tweet. Making decisions about the dreamers thousands and thousands of dreamers on a whim. Making decisions about “don’t ask, don’t tell” on a whim.

And then we have the entire apparatus of government scurrying to effectuate that, to make it happen for him. But I guess the paradox is not just that he’s weaponized the rule of law, but that the rule of law has rushed to meet him, and to bolster his notions that he is above the law.

Bill Moyers: How do you battle with someone who thinks the law is just a win-or-lose game? And a commodity you can buy and sell? How do you deal with that? How do we fight back?

Dahlia Lithwick: One of the most revelatory books I’ve read this year is by an attorney whose name is Jim Zirin. He has a book out that talks about all the ways in which Donald Trump as president is behaving exactly the way Donald Trump as quote/unquote real estate mogul behaved.

There was a playbook, and it long predates the presidency. This was, believe it or not, the Roy Cohn playbook that goes all the way back to Donald Trump and his dad when they were accused of racist practices in rentals long ago. And it’s a really useful sort of road map to know what the behaviors are. And the behaviors are pretty typical if you are a real estate, very, very wealthy real estate mogul because it’s the same things over and over: It’s sue everybody, chill people from coming forward by terrorizing them. Make sure that your plaintiffs are subject to heinous, horrific abuse, repeated abuse, until they can’t [fight back] anymore.

Bill Moyers: And at the right time, to your advantage, you walk away from the mess you’ve created, declare bankruptcy, and leave the laborers, the contractors, the everyday workers, the creditors to bear the costs, right?

Dahlia Lithwick: Just bury them in litigation, bury them in discovery so that they don’t wanna go forward with the lawsuits. File all sorts of frivolous, frivolous claims, knowing that at some point, you’re just exhausting the other side. I mean, these are just the ways that this person who in his capacity as Donald Trump before he was president just used the levers of the legal system constantly.

He would be sued. He would have people who did work on his properties that he never paid. Trump University, the casino bankruptcies, every one of these lawsuits — he just fought back by hiring armies of lawyers who did what he said. And you’re quite right. The cost of picking up the debris afterwards, whether it’s Trump University or Trump steaks or whatever the detritus is, that’s not on the rich guy. That’s not on his lawyers. They profit either way.

That is exactly how he uses his private attorneys. That’s how he was using Rudy Giuliani, to go and stir up dirt and all sorts of false claims about Joe and Hunter Biden in Ukraine. So he has a very myopic kind of transactional view of lawyers are his — they’re his plumbers. They get the job done.

Bill Moyers: And they’re well paid for it.

Dahlia Lithwick: We’re learning there are many fundamental flaws in the system of capitalism that we have tethered ourselves to. But one of the flaws is that, for a very, very long time, rich men — whether it was Harvey Weinstein or Donald Trump — very, very rich men were able to surround their selves with armies of loyal attorneys who would do whatever they were asked to do. And that’s exactly how he’s trying to use his Justice Department today.

Bill Moyers: When a president takes his playbook from a crooked lawyer like Roy Cohn in the 1970s and uses it to run the United States government today, what are we supposed to do?

Dahlia Lithwick: It’s such a different paradigm because every president, whether or not you agreed with George Bush, used his White House counsel in certain ways, [and] used the Justice Department and his attorney general in certain ways. But [now] we have a president who simply just indefatigably using his lawyers to beat up the weak and to protect his own usually financial interests. And so there’s not a model on a big constitutional scale for what you do when the president wanted a Roy Cohn, got a Roy Cohn in Bill Barr, and is proceeding to just break stuff.

Bill Moyers: Has it occurred to you that the president prefers to govern by chaos, I mean, it detracts journalists from covering other things he’s doing. I’m reaching right now on my desk for a story I read just this morning inCounterPunch. The headline is, “The Supreme Court is set to strike a major blow against social and environmental protections.” It would amount to the evisceration of regulations that protect our health and safety as citizens. Did you know about this? Are you aware of this?

Dahlia Lithwick: Yeah. This is part of a really — and you’re so right. This is happening almost in the dark of night. It’s happening on page A12, if there at all, because page A1 is the chaos. And way, way back, under the fold in the middle of the paper, there is this stealth attack on government agencies and their ability to regulate themselves. And you’re also quite right, it is happening, at the U.S. Supreme Court under our noses. And, what you’re describing is the sort of ascendancy of what was once a kind of fringe theory that Justice Antonin Scalia put forth about agencies and the limits on their power.And this idea of the unitary executive, that every single thing in the executive branch is subordinate to the president.

That was a crackpot idea once upon a time. And you are quite right, it is pushing its way into the very epicenter of several arguments that the Court is hearing this year. And this idea that — it’s called technically the nondelegation doctrine, and it essentially says that we can gut agency authority, for instance the Clean Air Act, the Clean Water Act. We can gut agencies’ ability to have kind of ongoing oversight of problems.

It was once seen as a really fringe idea that is now being used. I think Justice Elena Kagan has described it as it is going to be used to end government as we know it.

Bill Moyers: She’s actually said that the conservative majority will eventually essentially rule that, quote, “Most of the government is unconstitutional.” And it makes me think, and I wonder if it does you, that the right wingers on the Court were put there to enact the Republican platform into law.

Dahlia Lithwick: It’s such a good question and it’s funny because it gets ignored. We get very, very focused, I think, on Neil Gorsuch and Brett Kavanaugh and questions of abortion, and maybe to a lesser degree questions of religious liberty, right? The Hobby Lobby questions about whether religious dissenters can be forced to do things they don’t want to do.

But I think you’re exactly right, that simmering under those issues both Kavanaugh and Gorsuch were quite openly kind of auditioning to be on the Supreme Court with their writings, very explicit writings in the vein that you’re describing. Writings that would seek to do away with the administrative state, do away with the power of government regulatory agencies, whether it’s the (CFPB Consumer Financial Protection Bureau) or the EPA. Efforts to essentially say all of those agencies answer to the president and he can hire and fire at whim. And he can constrain their authority at whim.

That was not a stealth campaign. They were doing that, both justices — Gorsuch and Kavanaugh — were doing that very, very openly, talking about those things. And I think you’re quite right, we got very, very hyper-focused in both of their confirmation hearings on other issues, equally important issues. But I think we looked away from their records on hobbling federal government as we know it. And you’re quite right, I think they were put on the Court to do just that. And we’re seeing, in two short years, they are doing just that.

Bill Moyers: Brett Kavanaugh wrote last year in favor of forbidding Congress from allowing federal agencies, quote, “To exercise regulatory authority over a major policy question of great economic and political importance.” But I thought Congress was supposed to deal with questions like that. What do you make of this?

Dahlia Lithwick: What I make of it is exactly the words you just said, which is this would give the Supreme Court itself authority to say, “Yeah, we just don’t like these regulations. These ones are not good. This agency isn’t right.” And to really eviscerate the regulatory state as we know it. And this goes way beyond the 2020 election. If you have a 5-4 majority on the Court that really believes that using these kinds of doctrines to chip away at agency power, this is going to be kind of sealed into the mix for decades.

Bill Moyers: So you’ve written, Dahlia, about how, in recent years, the Supreme Court has issued ruling after ruling awarding more power to large corporations. This would be the biggest payoff ever to the big businesses, wouldn’t it? I mean, the Republican-controlled Court would have a veto power over all federal regulations?

Dahlia Lithwick: It’s unbelievable. And again, I think it is a pincer when you look at it — twinned with — the issues you’re talking about where, the Chambers of Commerce and big, big corporations have never won the way they’re winning now. Their win rate in the John Roberts court is like nothing we have seen since before the New Deal.

And so I think what you’re seeing is, on the one hand,gutting of unionswhich this Court has been involved in. Giving huge rights to corporations, whether it’s Citizens United or Hobby Lobby. This slow progression of doing away with workers’ rights and protections for the little guy, protections in all sorts of contexts.

And, at the same time, as you say, the cherry on top is doing away with agency regulations that regulates big businesses. And these big business cases, whether they’re affording huge new rights to businesses, or big wins to businesses that are trying to fight back any attempt to cabin corporate power and union power.

The Clean Air Act, the Clean Water Act, the CFPB — any of these agencies — can be just tossed away at the whim of the Court.Those two things together are a huge, huge boon for business, and they are massively costly, not just for workers, but for the environment, and for women’s rights, and for the rights of the elderly. So many entities that are not afforded protections when the Court is only looking out for corporations...

yikes, does not bode well for 2020?

10/19

https://lawandcrime.com/high-profile/supreme-court-vacates-ruling-finding-michigan-unconstitutionally-gerrymandered-congressional-districts

United States Supreme Court on Monday cancelled a federal court’s decision, which found Michigan’s congressional voting districts were unconstitutional because they were gerrymandered to such a degree that it violated voters’ First Amendment rights and the Constitution’s Equal Protection clause.

Gerrymandering is the setting of electoral boundaries to favor the political interests of the party in power.

A three-judge panel on the U.S. District Court of the Eastern District of Michigan ruled in April that 34 of the state’s voting districts were specifically designed to disadvantage Democratic voters, deliberately diluting the power of their vote to ensure a particular partisan outcome. The panel’s ruling ordered the state to redraw the voting district maps, calling partisan gerrymandering a “pernicious practice that undermines our democracy.”

The order was expected in light of the Justices June decision in Rucho v. Common Cause, a landmark decision which greatly reined in federal court’s ability to intervene in political gerrymandering cases. The Court ruled that the partisan gerrymandering issue was “beyond the reach of federal courts.”

In a 5-4 vote along ideological lines, Chief Justice John Roberts invoked the court’s Political Question doctrine in finding it constitutionally permissible for voting districts to be drawn with the specific intent to disadvantage voters of a particular political ideology. The ruling was seen as a severe blow to voting rights advocates challenging the disproportionate impact gerrymandering can have on voting power.

Roberts reasoned that the question before the court– “determining when political gerrymandering has gone too far”– could not be grounded in a “limited and precise rationale” because the issue “lacks judicially discoverable and manageable standards for resolving.”

He conceded that the ruling may enable increasingly inequitable political representation, but said that such a result does not violate any constitutional mandate where no standard for determination exists. Roberts did not prevent the court from intervening in cases of racial gerrymandering.

Justice Elena Kagan wrote a scathing dissent in which she called the majority’s decision a low-point for democracy.

“I think it important to underscore that fact: The majority disputes none of what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is ‘incompatible with democratic principles,’” she said from the bench.

Scotus Orders by Law&Crime on Scribd

...

...Before handing down his surprise decision in the census case, Roberts ruled alongside the other four justices appointed by Republicans to allow partisan gerrymandering to go unchallenged in federal court. This essentially guarantees that the political party that controls a statehouse can draw voting districts however it wishes, without intervention.

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” Justice Elena Kagan wrote in dissent. “Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”

The ramifications of this decision will be felt for decades to come all over the country. There’s ample evidence that Republicans in office have pursued gerrymandered maps to shut out people of color or other groups likely to vote Democratic — either by carving them up and dispersing them, or by concentrating them into as few districts as possible.

John Roberts, who gave Republicans a green light to install legislative majorities against the will of the people — and may yet allow them yet another tool to keep power through the census — seeks to convey a sense of consensus, as biographer Joan Biskupic notes. Supreme Court justices “do not sit on opposite sides of an aisle, we do not caucus in separate rooms, and we do not serve one party or one interest. We serve one nation,” Roberts insisted last October.

But as Nse Ufot, the executive director of New Georgia Project, the nonprofit voter engagement group founded by Stacey Abrams, notes: “Justice Roberts is hiding behind the concept of federalism. They’re using the separation of powers and branches of government as a pretext for attacking civil rights. They have a sacred duty to uphold the Constitution. [The 2013 decision to overturn parts of the Voting Rights Act] told us everything we needed to know about the Roberts Court and their hostility toward civil rights and voting rights.”

Roberts wrote both of Thursday’s majority opinions. This is his project, and it’s not over.

‘A requiem for American democracy’: 5-4 Supreme Court vote rules partisan gerrymandering is ‘beyond the reach of the federal courts’

Elizabeth Preza June 27, 2019

no lnx

Supreme Court on Thursday in a 5-4 ideological split rejected limits to partisan gerrymandering, quashing an effort by advocates of political reform to rein in manipulative electoral district boundaries.

Chief justice John Roberts authored the ruling, which decided claims of partisan gerrymandering “present political questions beyond the reach of the federal courts.”The ruling states that federal courts lack the authority to curb gerrymandering, and overturned a lower court decision that ordered the redraw of North Carolina’s Republican-drawn districts in time for the 2020 election.

The Supreme Court didn’t just rule that these specific instances of partisan gerrymandering were OK. It said it will *never* draw that line — will never say that any specific gerrymander has gone too far. So, states will only get even more aggressive now.https://t.co/pZ7k21yfNb

— Sam Baker (@sam_baker) June 27, 2019

In her dissent, Justice Elena Kaganwrote that, “for the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”

Kagan’s conclusion. pic.twitter.com/jpjLjnBpyF

— Matt Ford (@fordm) June 27, 2019

Kagan’s conclusion in the partisan gerrymander cases is a requiem for American democracy. pic.twitter.com/yq6pCB2ALi

— Matthew Segal (@segalmr) June 27, 2019

For some, the ruling served as a reminder for why Senate Majority Leader Mitch McConnell (R-KY) remains focused on confirming judges above most other legislative priorities.

This is why Mitch McConnell has long prioritized the courts over all issues except campaign finance. If you care most about winning the game, you need to control the body that shapes the rules of the game. https://t.co/hj1aN3yWy5

— Alec MacGillis (@AlecMacGillis) June 27, 2019

https://www.alternet.org/2019/04/as-supreme-courts-right-wing-justices-indicate-theyll-side-with-trump-opponents-denounce-bald-faced-attempt-to-racially-rig-us-census/

Civil rights advocates decried the Trump administration’s attack on immigrant rights and marginalized communities Tuesday as the Supreme Court heard arguments regarding the potential addition of a citizenship question to the 2020 census.

The nation’s highest court began deliberating Commerce vs. New York, hearing from a number of rights groups who oppose Commerce Secretary Wilbur Ross’s effort to add the question, “Is this person a citizen of the United States?” to the 10-year survey of all U.S. residents.

The court’s more liberal judges and a number of critics argued that the question would result in an inaccurate count of U.S. residents, with many in immigrant communities declining to respond for fear of the Trump administration’s aggressive anti-immigration agenda.

“This case isn’t just about a line on a form,” said Dale Ho, director of the ACLU’s Voting Rights Project, after addressing the court. “It’s about whether or not everyone in America counts. The administration’s own estimate is that if you put this question on the census, 6.5 million people won’t get counted.”

That’s a wrap! We just argued before the Supreme Court for a 2020 census that counts all communities. pic.twitter.com/KQFehKAUYd

— ACLU (@ACLU) April 23, 2019

“There’s no doubt that people will respond less,” Justice Sonia Sotomayor said during the hearing. “If you’re talking about prediction, this is about 100 percent that people will answer less.”

Three federal judges have blocked the addition of the question, which has not appeared on a U.S. census since 1950.

Ross broke federal law when he moved to add the question, Judge Jesse Furman arguedin his January ruling in the Southern District of New York. The commerce secretary claimed the question had been requested by the Justice Department in order to ensure proper enforcement of the Voting Rights Act. Ross had in fact asked the DOJ to make the request, Furman said.

“There needs to be a reason to add the question, and I don’t see any reason,” Justice Elena Kagan said Tuesday. “It did seem the secretary was shopping for a need.”

The Trump administration argues that the citizenship question is needed to ensure proper enforcement of the Voting Rights Act—an argument Justices John Roberts and Brett Kavanaugh reportedlyappeared prepared to accept on Tuesday.

Author and voting rights advocate Ari Berman denounced the claim as a “complete farce.”

“Trump DOJ hasn’t filed [a] single lawsuit to enforce [the Voting Rights Act] and has strongly supported GOP efforts to make it harder to vote,” Berman tweeted.

It’s complete farce Trump admin argues citizenship question on 2020 census needed to enforce Voting Rights Act. Trump DOJ hasn’t filed single lawsuit to enforce VRA & has strongly supported GOP efforts to make it harder to vote https://t.co/BgMmbghZu6

— Ari Berman (@AriBerman) April 23, 2019

In addition to concerns about why and how Ross attempted to add the question, civil rights groups say the citizenship question would have grave implications for marginalized communities beyond 2020. The 10-year survey of all residents in the U.S. is used to determine how many representatives states have in the U.S. House, as well as appropriations of federal funding for local governments.

“The decisions about where to build hospitals, schools, roads, and add new businesses are linked to the decennial count of the population,” said the New York Immigration Coalition in a statement. “The distribution of more than $700 billion in federal resources is also tied to the census.”

“The facts are clear: the census is simply an enumeration of residents, as constitutionally mandated,” said Steven Choi, executive director of the New York Immigration Coalition. “Adding the citizenship question will have an especially chilling effect on communities of color, depriving immigrant-rich states of federal dollars and political representation, while virtually erasing our communities.”

Common Cause, Planned Parenthood, and Make the Road New York were among the groups who assembled outside the Supreme Court to call on the justices to reject the addition of the question....

epa mercury: no sense to spend billions to save millions on health and envir. UpR 6/30 dar jamel: tho AGW will cost trillions (but later vs biz 1/4)

http://www.nytimes.com/2015/06/30/us/supreme-court-blocks-obamas-limits-on-power-plants.html?_r=0

5-4 w/ kennedy

The Supreme Court on Monday blocked one of the Obama administration’s most ambitious environmental initiatives, an Environmental Protection Agencyregulation meant to limit emissions of mercury and other toxic pollutants from coal-fired power plants.

Industry groups and about 20 states had challenged the E.P.A.’s decision to regulate the emissions, saying the agency had failed to take into account the punishing costs its rule would impose.

The Clean Air Act required the regulation to be “appropriate and necessary.” The challengers said the agency had run afoul of that law by deciding to regulate the emissions without first undertaking a cost-benefit analysis.

Writing for the majority, in the 5-to-4 decision, Justice Antonin Scalia wrote: “It is not rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits. Statutory context supports this reading.”

The E.P.A. had argued that it was not required to take costs into account when it made the initial determination to regulate. But the agency added that it had done so later in setting emissions standards and that, in any event, the benefits far outweighed the costs.

The two sides had very different understandings of the costs and benefits involved. Industry groups said the government had imposed annual costs of $9.6 billion to achieve about $6 million in benefits. The agency said the costs yielded tens of billions of dollars in benefits.

In dissent, Justice Elena Kagan wrote: “The agency acted well within its authority in declining to consider costs at the opening bell of the regulatory process given that it would do so in every round thereafter — and given that the emissions limits finally issued would depend crucially on those accountings.”

The decision, Michigan v. Environmental Protection Agency, No. 14-46, does not strike down the rule, but it means the E.P.A. will have to review and rewrite it, taking costs into consideration.

http://thinkprogress.org/climate/2015/06/29/3675111/scotus-epa-kagan-dissent/

In a 5-4 ruling Monday, the Supreme Court found fault with the EPA’s regulation of toxic heavy metal pollution from coal and oil-fired plants, claiming that the agency failed to prove the regulations “appropriate and necessary” because they did not initially take costs into consideration.

To Justice Elena Kagan, who wrote the Court’s dissent, that reasoning failed to acknowledge all the other times the EPA took cost into consideration throughout the regulatory process.

As Kagan wrote:

That is a peculiarly blinkered way for a court to assess the lawfulness of an agency’s rulemaking. I agree with the majority — let there be no doubt about this — that EPA’s power plant regulation would be unreasonable if ‘[t]he Agency gave cost no thought at all.’ … But that is just not what happened here. Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants. And when making its initial ‘appropriate and necessary’ finding, EPA knew it would do exactly that — knew it would thoroughly consider the cost-effectiveness of emissions standards later on. That context matters.

When first deciding to regulate mercury pollution from power plants, Kagan noted that the EPA made its decision based on the fact “that power plants’ emissions pose a serious health problem, that solutions to the problem are available, and that the problem will remain unless action is taken.”

Kagan said the EPA didn’t consider costs in the first stage of the regulatory process because it knew that it would have a chance to consider costs later on.

“[T]he Agency, when making its ‘appropriate and necessary’ finding, did not decline to consider costs as part of the regulatory process,” she wrote. “Rather, it declined to consider costs at a single stage of that process, knowing that they would come in later on.”

Later in the dissent, Kagan argued that it would be impossible for an agency to anticipate all the consequences of a particular regulation during the regulation’s very first stages:

Suppose you were in charge of designing a regulatory process. The subject matter — an industry’s emissions of hazardous material — was highly complex, involving multivarious factors demanding years of study. Would you necessarily try to do everything at once? Or might you try to break down this lengthy and complicated process into discrete stages? And might you consider different factors, in different ways, at each of those junctures? I think you might.

Moreover, Kagan argued, the EPA made a decision to regulate mercury emissions from power plants before it designed those emission standards, making it impossible to calculate potential costs associated with standards that hadn’t even been created yet.

“Simply put,” Kagan wrote, “calculating costs before starting to write a regulation would put the cart before the horse.”

In the majority opinion, Scalia compared the EPA to a potential car owner looking to purchase a Ferrari without thinking about the costs of the car. It was a metaphor that Kagan didn’t love:

The comparison is witty but wholly inapt. To begin with, emissions limits are not a luxury good: They are a safety measure, designed to curtail the significant health and environmental harms caused by power plants spewing hazardous pollutants. And more: EPA knows from past experience and expertise alike that it will have the opportunity to purchase that good in a cost effective way. A better analogy might be to a car owner who decides without first checking prices that it is “appropriate and necessary” to replace her worn-out brake-pads, aware from prior experience that she has ample time to comparison shop and bring that purchase within her budget.

When deciding to regulate mercury pollution from power plants, Kagan contined, the EPA did not ignore the question of cost. Instead, it chose to wait until it had a better idea of what the emission regulations would be to consider the cost that those regulations would incur.

“The majority arrives at a different conclusion only by disregarding most of EPA’s regulatory process,” Kagan wrote. “It insists that EPA must consider costs — when EPA did just that, over and over and over again.”

The majority’s decision, Kagan concluded, ignored the latitude given to the EPA by Congress about how to best account for costs and benefits when designing emissions regulations.

“And the result,” she wrote, “is a decision that deprives the American public of the pollution control measures that the responsible Agency, acting well within its delegated authority, found would save many, many lives.”

TAGS

http://www.sourcewatch.org/index.php/Elena_Kagan

Elena Kagan, J.D. is currently serving as Solicitor General for the Obama Administration. She is the first woman ever to hold the position. As of May 10, 2010, she became President Obama's second nominee to the Supreme Court.

Contents [hide]

Bio

Elena Kagan was born April 28, 1960. She grew up in Manhattan on the Upper West side. She attended Princeton University for her undergraduate education. There she received an A.V. in History before matriculating to Oxford University on a Sachs scholarship. After receiving her Masters in Philosophy, she then attended Harvard Law School where she made the Law Review. Upon receiving her J.D, she went on to clerk for Abner Mikva on the D.C. Circuit of the U.S. Court of Appeals. Following the end of that clerkship, she then clerked for U.S. Supreme Court Justice Thurgood Marshall.

After completing her clerkship with Justice Marshal, Kagan worked on Michael Dukakis' 1988 presidential campaign. She then went to work for the D.C law firm William and Connolly. After 2 years, she entered into the field of academia as a an assistant professor at the University of Chicago. Four years after she gained tenure but left to work in the Clinton administration.

She domestic policy adviser to the White House during the Clinton Administration, circa 1998. In that role, she was one of the Administration's lead people on tobacco issues for the Clinton Administration. She helped the Clinton Administration bargain with the tobacco industry for the 1998 Master Settlement Agreement.^[1] She was a deputy to Bruce Reed in the White House.^[2]

She is a former Dean of Harvard Law School.

Argument in Citizens United

Nomination to the Supreme Court

President Obama nominated Kagan to the Supreme Court on May 10, 2010. If confirmed, Kagan would be the fourth female supreme court justice. She is the second woman that President Obama has nominated to the bench. The confirmation hearings are set to begin on June 28, 2010.

Sourcewatch resources

External resources

Amy Goldstein Kagan, as Harvard law school dean, pursued two courses on 'don't ask' policy Washington Post, May 28, 2010
David G. Savage, Tribune Washington Bureau Supreme Court backs off strict enforcement of Miranda rights, Los Angeles Times, June 1, 2010
Charlie Savage Kagan’s Writings Back Wider Executive Powers New York Times (Politics), May 21, 2010

Contact

References

↑ Tobacco Institute document collection News Summary February 10, 1998. Bates No. TI38560548-TI38560558
↑ Deposition of CYNTHIA RICE, July 22, 2003, UNITED STATES OF AMERICA v. PHILIP MORRIS USA INC. July 22, 2003, 257 pp, at Page 22, Bates No. RICEC072203

This article may include information from Tobacco Documents Online.

8/14

COAL EPA

http://www.motherjones.com/environment/2014/08/conservatives-typo-unravel-obama-climate-law-epa-coal

Conservatives Want to Wipe Out Coal Rules…Over a Typo

A federal appeals court took a red pen to Obamacare. The president's signature environmental achievement could be next.

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Conservatives want to wipe out coal rules…over a typo.

This story [1] originally appeared onGrist [2] and is republished here as part of the Climate Desk [3] collaboration.

If you can't beat 'em, point out their typos.

That seems to be the lesson of the D.C. Circuit Court's recent decision in Halbig v. Sebelius, which could render millions of Americans ineligible for health insurance subsidies on the basis of some sloppy syntax in the Affordable Care Act. After surviving more than 50 repeal votes in the House, a Supreme Court challenge to its constitutionality, and a famously rocky online rollout, health-care reform may end up hobbled by a mere drafting error. And the anti-regulatory crowd wasted no time in launching its next AutoCorrect attack: A new suit [4] asks the D.C. Circuit to nix the president's biggest climate-change initiative—EPA's "Clean Power Plan"—due to a 25-year-old mistake in the text of the Clean Air Act.

But don't panic just yet. As others have pointed [5] out [6], Halbigis far from a done deal. A different federal appeals court, the Fourth Circuit, upheld the insurance subsidies on the same day the Halbig court invalidated them. If the full D.C. Circuit doesn't end up reversing its three-judge panel's initial decision (through a sort of mini-appeal known as en banc review), the Supreme Court will almost certainly step in to resolve the circuit split. In the meantime, no one loses her insurance.

The prospects for EPA's climate rule aren't so bleak either. First of all, the 12 state attorneys general who filed suit were a bit too quick on the spell-check trigger. Federal courts generally limit review of agency decisions to "final actions," and the Clean Power Plan is still in draft form. As a result, the current case will probably be dismissed as premature. That won't stop the state AGs from re-filing as soon as EPA doespublish a final rule, but even then, their victory will hardly be assured. Here's why.

The "Clean Power Plan" is the administration's catchy(ish) nickname for a set of restrictions on carbon dioxide emissions from power plants [7], which generate a full third of the nation's greenhouse gas pollution. EPA's authority to regulate these emissions derives from a little-used Clean Air Act provision called Section 111(d). The section has been around since 1970, but when a bipartisan majority of Congress overhauled the Clean Air Act back in 1990, it amended 111(d). Twice. The details are complicated (you can read more about them here [8]), but the upshot is simple: Under the language of an amendment that originated in the Senate, regulating power plants' carbon emissions is perfectly kosher; under the House's amendment, not so much.

Competing House and Senate amendments—doesn't Congress have an app for that? Yep, even back in the digital dark ages of 1990, there was software designed to identify overlapping or incompatible changes to statutory text. But the conference committee charged with reconciling the House and Senate bills didn't have time to run it. As a result, both 111(d) amendments ended up in the compromise bill that was passed by both chambers and signed by the first President Bush. Meaning that both versions are, in some sense, the law of the land.

A self-contradicting statute—doesn't the judiciary have an app for that? Sort of. Federal courts certainly have an established rule for dealing with vague or ambiguous laws. Under the Chevrondoctrine,if a statute does not "speak clearly" with respect to a particular issue, courts will defer to any reasonable interpretation offered by the executive agency charged with implementing the law. In this case, the EPA maintains that the Senate amendment is more consistent with the Clean Air Act's overall structure and purpose. If Chevron applies, that justification should pass muster.

The tough question is whether Chevronwill apply. It's hard to see how a court could find that the competing amendments to Section 111(d) "speak clearly." But are the amendments "ambiguous" in the Chevron sense, or are they something else altogether—say, nonsensical?

Plenty of legal experts have shared their views, but at the end of the day, the opinions that really matter will be those of nine black-robed individuals in Washington, D.C. Handily enough, five of the Big Nine previewed their positions in a recent, fractured decision about an immigration rule. In Scialabba v. Cuellar De Osorio, the Supreme Court was confronted not with two contradictory versions of a single statutory section, but with a single statutory section that contained two seemingly contradictory instructions. (Cut Congress some slack, you guys. Drafting laws is really hard.) Justice Kagan, writing for herself and Justices Ginsburg and Kennedy, called the statute "Janus-faced," concluded that its "internal tension ma[de] possible alternative reasonable constructions," and deferred to the Board of Immigration Appeals' interpretive choice. Chief Justice Roberts, writing for himself and Justice Scalia, disagreed that the two clauses were truly in conflict but, even more importantly, rejected the idea that Chevron was "a license for an agency to repair a statute that does not make sense." In Roberts' view, "Direct conflict is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice."

The other four justices didn't weigh in on this particular question in Scialabba, so it's not clear whether Kagan's or Roberts' camp will carry a majority if and when litigation over the Clean Power Plan reaches the high court. But it's also not clear that the vote count will matter, because either way EPA should retain authority to regulate carbon emissions from power plants.

Come again? First, consider Justice Kagan's view. If her logic controls, the court will apply Chevron, defer to EPA's interpretation of Section 111(d), and affirm the agency's authority to regulate carbon emissions from power plants. A win for EPA and the president.

Alternatively, assume that Chief Justice Roberts gets the majority. The two amendments to Section 111(d) are almost undoubtedly in "direct conflict," so, in Roberts' view, EPA's interpretation doesn't warrant deference. Now what? Roberts' Scialabba opinion doesn't say what the court should substitute for Chevron in the case of a provision that's truly at war with itself. But if the chief justice believes that giving effect to only one of the two amendments represents a "legislative choice," the judicial branch has no more business picking a winner than EPA. (In fact, courts are even less suited than executive agencies to this sort of policy decision. Agencies are, at least, indirectly accountable to the people, because agency leaders serve at the pleasure of a democratically elected president.) If it's not possible to honor the House and Senate amendments simultaneously, the only remaining option is to throw out bothas invalid, in which case Section 111(d) would revert to its pre-1990 form.

That's the reason backers of the climate rule shouldn't panic: Under the earlier version of Section 111(d), EPA would still have authority to regulate carbon emissions from power plants. The agency still wins.

Oh, and if the current Congress doesn't like that result? Well, it remains free to share its preferred method for addressing climate change at any time. There's an app for that, too. It's called new legislation.