SCOTUS Takes Over

Good boy, Congress! Now it’s your turn President

SCOTUS has set itself up as the sole arbiter of the constitutional limits on the power of the federal government. We say we have a federal government of limited powers. As I’ve noted in this series, one of the goals of the Founders was to keep the federal government from interfering in the internal affairs of the states. In the debates on the Reconstruction Amendments, there is a constant return to the idea that the feds shouldn’t infringe state power. And there’s the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Our federalism, or dual sovereignty, may have served political purposes in the late 18th Century, but now it’s created monstrous problems. By narrowly construing the limits of federal power and asserting control over congress and the president, SCOTUS has created or ignored horrifying problems and made it almost impossible for us to solve them. In this post I’ll look at several of them.

1. Democracy In Citizens United, the right-wing members of SCOTUS held that laws limiting PAC spending on elections were somehow unconstitutional. Now billions of dollars are spent on dark money contributions that benefit campaigns, and while we can assume these people are filthy rich, we don’t know who they are, and we have no to find out what they expect in return. (Hint: it’s not good government.)

In Shelby County v. Holder SCOTUS struck down Section 5 of the Voting Rights Act, the pre-clearance provision,

… because the coverage formula was based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states. Fn omitted.

In Rucho v. Common Cause SCOTUS allowed partisan gerrymandering.

The Court ruled that while partisan gerrymandering may be “incompatible with democratic principles”, the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the remit of these courts. Fn omitted.

In Brnovich v. DNC, SCOTUS upheld two Arizona laws making voting harder. The two laws had a disparate negative impact on poor people, mostly minorities. The explanation for this decision even in Wikipedia doesn’t make sense to me, but then, I’m in favor of voting. It was generally seen as the last step before complete dismantling of the Voting Rights Act.

That destruction was narrowly avoided in the recent Allen v. Milligan decision, where John Roberts didn’t reverse an earlier case, Gingles, discussed here. Gingles is a very narrow reading of §2 of the VRA, meeting Robert’s lifelong goal of making it really hard to win a VRA case.

A majority of SCOTUS has now decided not to further attack democracy by adopting the ridiculous independent state legislature silliness. Of course they reserved their own supremacy.

These cases make voter suppression easy, and Red states have imposed a startling array of limitations. For example, Texas passed a law limiting drop boxes for mail-in ballots to one per county. In this interview Rep. Terri Sewell of Alabama, a sponsor of the John Lewis Voting Rights Advancement Act, describes some more.

The intent is clear. Continuing centuries of practice, SCOTUS revanchists rule that states are free to restrict voting any way they see fit, no matter the impact on democracy. As a result, SCOTUS is enabling minority rule.

The main impact is on cities, which are routinely cracked and packed to restrict their political power. For example, Texas tightly controls the ability of large cities to govern themselves. Recently cities were forbidden from requiring water breaks for workers as they swelter under a heat dome for the third week.

How long are Dallas, Houston, Austin and San Antonio residents willing to see their taxes spent in small country towns while rural religious fanatics control their personal lives?

2. Women’s Health As I’ve noted Alito’s decision in Dobbs doesn’t comport with constitutional law as I learned it in the long ago. But its consequences have been sickening. Jessica Valenti tries to keep track of attacks on women in her substack. Pregnant women are rufusing to travel to Red states or plan to leave them over health concerns.

Not content with controlling the lives of women who seek treatment inside their jurisdictions, the anti-women states pass laws with extra-territorial effects, like Texas’ SB 8, the Bounty law. These states claim the right to attack citizens of other states who provide care. Blue states are responding by enacting shield laws, refusing to recognize the demands of the aggressors. Here’s an explainer from Vox. Shield laws typically operate to protect all kinds of health care criminalized by legislators in Red States, including gender-affirming care.

This sets up a serious conflict between the states, perhaps reminiscent of the fury over the Fugitive Slave laws. How long will normal people put up with these assaults?

3. Taking away Congressional power SCOTUS is working to hamstring Congress. One obvious example is Shelby County v. Holder, where SCOTUS said Congress didn’t work hard enough to justify renewal of the VRA.

In the middle of the Covid crisis, Congress indicated OSHA should adopt a rule under its emergency authority requiring larger employers to protect their workers. OSHA complied. SCOTUS struck that down on the shadow docket. SCOTUS ruled that Congress couldn’t delegate the management of the crisis to an agency but had to do something specific to prove to SCOTUS Congress did its homework.

In EPA v. West Virginia, SCOTUS said Congress had to pass a new bill if it wanted to do anything serious about climate change. It created a brand-new constitutional rule to explain its decision, which the creators gave the laughable title major questions doctrine. It says that if 5 members of SCOTUS think something is a big deal, Congress can’t delegate authority to an agency under general language, but must specifically authorize the agency to act in a way those 5 oracles think conclusive.

We’re told the solution is through the ballot box. How long will we put up with this sham voting regime when SCOTUS feels free to slap down laws that don’t meet its ever-changing standards?

4. Controlling executive powers In the middle of the Covid crisis, district court judges enjoined enforcement of vaccine mandates for health care workers and rebellious members of the military. The injunctions were upheld by appellate courts. Then SCOTUS overturned them after an emergency hearing. The lower courts set themselves up as arbiters of the nation’s military and health care policies. SCOTUS implicitly agreed that lower courts were entitled to do so, even as it overruled these outrageous decisions.

Shortly after taking office, Biden established immigration enforcement priorities. Ken Paxton, the indicted, impeached, and wildly partisan Attorney General of Texas, filed suit to block those priorities and establish priorities he liked. The lower courts granted a stay and SCOTUS allowed that stay to remain in effect for a year. Then in US v. Texas, a recent decision I haven’t read, SCOTUS overruled the 5th Circuit. This is typical for any decision of the executive. Courts at all levels feel free to impose stays and screw around for months while the problem festers.

How long can we let the judiciary prevent us from dealing with massive problems before we protect ourselves from their ignorance and their dangerous ideology?

Note: Please remember that you should not say, or even think, that SCOTUS is an illegitimate power-grabbing rabble intent on imposing their minority views. It hurts their feelings and detracts from the sanctity of their holy calling.

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88 replies
  1. Robot17 says:

    Really interesting Ed. When will all this begin to have a political influence felt by the court? The reasonables will need to build a significant majority in both houses (plus the prez) to pack the court. I think that will end up being the unobtainable solution.

    • Patrick (G) says:

      Been thinking about this, and I don’t think that the supreme court having a unilateral veto over the laws that were hashed out by congress and approved by the executive branch is consummate with the idea of co-equal branches of government. Since laws require the assent of both legislative and executive branches, it makes no sense that judicial Modifications to those laws are accepted unconditionally without review by the other branches with no checks or balances for legal dementia.

      • gertibird says:

        Yes. The SCOTUS needs to be reined in by Congress and or the President. Who will and can do this,?

  2. earlofhuntingdon says:

    Adding insult to injury, the six radical right wing members of the Court often make their decisions via the shadow docket, which insulates them from the cognitive dissonance of considering full briefings, arguments, and evidence – and which makes it easier to ignore the factual record.

  3. Rugger_9 says:

    A really good argument, as if we needed more reasons to expand the court so each Justice has a Circuit and a couple of spares. 13 should do it. I suspect that if the SCOTUS continues its current legal and ethical trajectory Biden will essentially be cornered into it in 2025. It won’t happen before then and will need a D flip of the House to pass the legislation. Given what we’ve seen in the past year alone I could easily see the so-called Blue Dog moderates finally getting pissed off enough to act.

    • Robot17 says:

      Possibly but I think they’ll need a significant rather than simple majority of both houses to pull it off. I think it requires a simple majority in both houses but realistically any dissenting dem (think Manchin or Sinema) could hold the whole thing hostage.

      I like the idea of each having a circuit. Still begs for judicial activism on a more limited scale and may cloud decisions over the long term but this court teeters on disaster IMO.

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      • Robot-seventeen says:

        Better? I assume characters don’t count.

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  4. harpie says:

    The “Vast Right Wing Conspiracy” has mutated into a cancerous FASCIST BLOB.

    A Rare Peek Inside the Vast Right-Wing Conspiracy The Council for National Policy, a secretive network of powerful conservatives, goes to great lengths to conceal its activities and even its members. But recently uncovered documents reveal the extent of the group’s influence on American politics. https://newrepublic.com/article/167002/council-national-policy-documents-right-wing-conspiracy Anne Nelson 8/26/22 [Nelson is author of “The Shadow Network”]

    For more than four decades, the Council for National Policy, or CNP, has functioned as the secret hub of the radical right, coordinating the activities of right-wing strategists, donors, media platforms, and activists. Its membership and meetings have long been undisclosed, but over the past two years, a number of them have been brought to light. It has spawned generations of offshoots, which appear, disappear, alter URLs, and change names with astonishing frequency. Now two watchdog organizations have obtained new materials on the group’s current operations. […]

    • harpie says:

      Here is Anne Nelson about The Fascist Blob’s Mifepristone Mess:

      Texas District Court Judge Who Ruled on Mifepristone was Handpicked by the Same Network that Brought the Lawsuit https://washingtonspectator.org/texas-judge-who-ruled-on-mifepristone-was-handpicked-by-same-network-that-brought-lawsuit/ Anne Nelson Apr 18, 2023 [I keep reading that as “bought”]

      On April 7, U.S. district judge Matthew Kacsmaryk made headlines with an unprecedented ruling suspending the 2000 FDA approval of the abortion medication mifepristone. The ruling marked the first time a court has tried to invalidate the approval of a medication over the objection of the FDA.

      Within an hour of Kacsmaryk’s ruling, a legal battle ensued, as regional federal courts rushed to support or oppose the decision. In their ruling, the 5th Circuit Court of Appeals temporarily blocked the central feature of Kacsmark’s order that overturned the FDA’s approval of mifepristone, but added their own restrictions on when during a pregnancy the drug could be used, and how it could be distributed. The Justice Department asked the Supreme Court to block the Appeals Court ruling pending a fast-tracked appeal, and the request was granted. These skirmishes are likely to lead the question back to the high court.

      [… describes the Fascist Blob’s machinations…]

      Most of the mainstream reporting on the mifepristone lawsuit portray the event at face value: a “conservative Christian legal organization” represents an “anti-abortion group” before a “Trump-appointed judge.” But just beneath the surface lies the story of how lavishly funded non-profit organizations are bringing an orchestrated lawsuit before a judge who was handpicked by the same network. These groups have obscured their methods, but publicized their goals:
      to eliminate abortion,
      to repeal marriage equality,
      to relegalize conversion therapy,
      and eventually, to reverse the political and social reforms of the past century.

      As Kelly Shackelford told the CNP, “We’re literally changing the future of the country.”

  5. Benoit Roux says:

    The SCOTUS came close to rule the ACA unconstitutional, even though the law was voted by the House and adopted by the Senate (more than 60 votes).

  6. Ian_23JAN2019_2249h says:

    I’ve been saying for *years* that Roberts wants a kritarchy! And I reckon it’s one of Leonard Leo’s main projects, which would explain why he’s spends so much time and wealthy right winger’s money making sure America’s judiciary reflects his desires and not those of the people.

    I just wonder how long that approach can hold.

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    • WhatOnEarth says:

      Fourth and final? I never saw the others!

      You’re assuming that someone goes back to see if there are any responses? I only saw this one because I was idly wondering if there were any replies; that’s (clearly!) not something I normally do. I mean, it’s not as if, as far as I can tell, that you send out a notification to commenters that anyone has replied to a comment.

      BTW, it appears to be in auto-moderation, anyway!

      [Moderator’s note: First, this site asks very little of its community though we do our best to protect both the site’s security and community members’ privacy. Checking for replies to one’s comments is really a very small expectation because this is a community, not a place to drop an opinion and run off as trolls frequently do. Second, your comment (and that of others who have been similarly non-responsive to multiple requests) is logically in auto-moderation to assure you’re complying with the site standard.

      We’ll assume “WhatOnEarth” is the username you’ve chosen. Please make a note of it and stick with it. /~Rayne]

      • WhiteTiger says:

        Is there some way to find one’s comments in order to check for replies? I have wanted to in the past but have not found any mechanism for that on this site.

        I hope I can find this comment to check for a reply. I surf a lot of places.

          • WhatOnEarth says:

            That’s what I’d call “inconvenient”!

            I really can’t see me doing that. Go back to a page that I made a comment on, instead of the page notifying me that there’s a reply? These days I just assume the site lets folk know there’s a reply. So, no notification, no reply, therefore no need to revisit the page! (Which would explain why I never saw the other tellings-offs. I just didn’t perceive any need to go back to look!) In a nutshell: going back to the page to see if someone replied? I used to do that in the 1990’s.

            To be frank, in this day and age, I’m surprised the comment system is so rudimentary. It doesn’t appear to even remember ID’s! (And, apparently, it has no way of managing the length of the name field, which is a basic function of comment plugins, these days.) It’s not as if WordPress is limited in commenting plugins, so there are other options out there.

          • WhiteTiger says:

            That only works if you are already on the page. I often don’t remember which post I responded to exactly.

      • WhatOnEarth says:

        “Checking for replies to one’s comments is really a very small expectation ”

        It is an expectation that is *not* communicated, though. And it’s not something that I, as someone who codes websites for a living, expects any more. Two decades ago? Sure. In 2023? Hardly! And while I stay as far away from WordPress as I can (I simply don’t like its software architecture), I do know there are plenty of comment systems that are available for it.

        “is logically in auto-moderation to assure you’re complying with the site standard.”

        Logical to whom? Not to me! If there’s an expectation that the site’s readers will return to review their comments and that expectation is not communicated anywhere on the site, you’re ensuring that “troll-like behavior”, as it were, is perpetuated. These days if I don’t get a notification that there was a reply to a comment, I just assume there was no reply. If there was no reply, why would I go back to that page? To reread it?

        At the rest of annoying you, I’ll posit that it is not my commenting that is breaking your model of user interaction, it is that your model is broken from the get-go! In the 1990’s, I’d go back and see if someone had replied to a comment. That was because the notification mechanisms didn’t exist, or if they did, they were rudimentary and unreliable. In 2023? For such a prominent and important website as this, I had the expectation that notifications would be in place! Especially as notifications are essential for fostering any online community! Even PHPBB had a notification system, of sorts, when I was dabbling with it in the early 2000’s. I’ve built such things for Rails and Drupal sites. But insisting on length requirements, when that sort of thing should be handled by the field (you should ask what else you’re not checking for… but, please, do not tell me!), and insisting that I take the time to go back and review comments? Yeah, that’s not going to happen for the simple reason I have a busy life and, in 2023, rely on sites to tell me if there’s a reply to a comment I’ve made!

        • Rayne says:

          If you don’t like the way this community works, then don’t comment. Simple, easy fix.

          By the way, you’ve proven you’re perfectly capable of checking for replies because you felt compelled to come back and dump your fee-fees. Admit to yourself you believe you’re entitled to demand a comment system which serves your personal standard without any fucking investment on your part.

          We don’t need 369 word long lectures on how you think you can build a better comment system mouse trap when other commenting systems have completely shutdown, been breached, or inundated with trollery over the last 16 years. Go build one for someone else.

            • Rayne says:

              *applying BenGay to my whip arm*

              Yeah. Look around here, +16 years we’ve been here. Some of the community members are in their 70s, betting even 80s, and they’ve managed to figure out how it works.

              Do we need an update? Sure. When we have the time we’ll tweak the system, and then people will be pissed they can’t get in because they are using the wrong username, too short a username, or made a typo in their email address. Can’t wait for that and the mansplaining lectures which follow.

              I need to lift some weights in preparation for the upgrade to my whip.

              /end-choir-preaching

              • MWFfromSAT says:

                I design websites for a living… This site is one of the most readable sites I frequent. It’s straight forward in it’s presentation & fairly intuitive in function. It’s really damn near a perfect vehicle for some of the most brilliantly written journalism/opinion anywhere. (Rayne,sounds like “Woke on Earth” might be a heavy Facebook user–they send out notifications for responses to comments ad nauseum. Hope you don’t add that feature.)

                • Rayne says:

                  If we add Reply Notifications we must also add a demand for an active email account. We don’t currently ask for that. We only ask that whatever community members enter into the email field, they use it consistently to affirm their identity as a commenter.

                  If community members want or need to be able to hear from us, an active email helps — but many members don’t want to sacrifice their privacy and use an inactive or fake account instead. Considering the amount of work this site has put into civil liberties and the rise of the surveillance state, demanding an active email address to participate in comments is rather antithetical.

                  • David Brooks says:

                    It hadn’t even occurred to me that a fake email was acceptable; it should have, as you don’t warn about sending a verification link. That’s the default assumption on other sites.

                    But about PII: I long ago decided to stop pseudonomizing myself in various online communities because I feel that, if I express an opinion I should be prepared to stand by it in person. After all, nobody is confused as to Dr Wheeler’s real name. But please don’t take that as a criticism of the majority who do prefer cloaks; it’s just my personal choice.

                    But given that, and given the constant attacks on this site, would you recommend I switch back to an earlier username that was more “hidden”? And should that recommendation be made to new commenters?

                    • David Brooks says:

                      p.s. Rayne would be justified to point out I recently used a cloaked name here; it’s because a jumped from Kos, where I’m using a pseudonym from years ago, and typed that out of habit.

                    • Rayne says:

                      I wouldn’t change now because the community here knows you by this name. But I will point out that your opinion about using a pseudonym is predicated on your gender identity/sexual identity/race/ethnicity; women, BIPOC, many LGBTQ+, and disabled persons have experienced swarming, brigading, doxxing, swatting, phishing, and more making use of a real name extremely difficult.

                      I’ve used pseudonyms to protect my family, especially after an incident in which my car’s tires were punctured. YMMV.

                    • David Brooks says:

                      FTR, I accept Rayne’s mild admonishment below; perhaps I didn’t emphasize enough that I completely respect others’ own personal preference.

      • earlofhuntingdon says:

        To my untutored mind, your demands for simplistic convenience would require a persistence of your data that few people around here want. Nor would they want to add cost or complexity to a site that works far better than almost any other on the Internet.

        Too much data collection is usually a magnet for hackers. It’s like an open street door during a hot Saturday night riot.

        • Rayne says:

          We can’t have that here, not considering the entities beating on the door nonstop for access to data. It’s bad enough AI has combed this site, we can’t willingly provide a repository of users’ personal data.

          • ExRacerX says:

            Thanks to you and the other mods for your efforts to keep this site afloat and cyber-safe. I’m sure I’m not the only one who appreciates it.

  7. Sans Serf says:

    The Executive and Legislative branches need to be reminded not only that they are a co-equal branch, but they are the only branches that can claim to have a democratic legitimacy.

    The concept of “judicial review” appears nowhere in the Constitution and was established by fiat in Marbury v Madison.

    Perhaps the other two branch could pass a law establishing what powers of review SCOTUS actually has over the constitutionality of laws and statues as well as limiting they ability to strike down whole laws. Then to really drive the point home, this law would have a clause that makes this law itself “unreviewable by the courts.”

    This is probably the wrong way to push back against a power grabbing judiciary, but the other two branches need to remember they have agency too. The judiciary only has the power that the legislative and executive consent to give.

  8. Dryly 41 says:

    They are highly, highly, highly partisan right wing racist REpublican politicians masquerading as judges on the supreme court. They base their decisions n their politics and ideology and NOT the Constitution or Law. Indeed, if the Constitution gets in the way of their politics, as it did in Shelby County v Holder they merely reincarnated John C. Calhoun and his Nullification doctrine and Nullified the Fifteenth Amendment to the Constitution and declared parts of the Voting Rights Act of 1965.undonstitutional.

    They see themselves as the supreme policy makers in the United States superseding the executive and legislative branches.

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  9. harpie says:

    SAMUEL ALITO’S WIFE LEASED LAND TO AN OIL AND GAS FIRM WHILE THE JUSTICE FOUGHT THE EPA A deal made by Alito’s wife with an energy company paints recent Supreme Court decisions on the environment in a damning light. https://theintercept.com/2023/06/26/samuel-alito-oil-gas-supreme-court-environment/ Daniel Boguslaw June 26 2023

    A YEAR AGO this month, Martha Ann Bomgardner Alito decided to see if a 160-acre plot of land in Grady County, Oklahoma, would produce. […]

    • ExRacerX says:

      Thanks! I was just going to post a link to another story about this. It’s very depressing, and even more so taken in context with the recent Clarence Thomas imbroglio. Something’s gotta change.

    • harpie says:

      ALITO signed on with the other “conservatives” to EPA v. West Virginia, [2022] which Ed mentions in this post. THEN,

      […] In May [2023], Alito penned a majority decision in Sackett v. EPA which radically scaled back the Clean Water Act, reducing its mandate by tens of millions of acres. […]

  10. harpie says:

    NOW:
    https://twitter.com/steve_vladeck/status/1674421375573057536

    [10:03 AM · Jun 29, 2023] #BREAKING: #SCOTUS strikes down Harvard and UNC race-based affirmative action programs.

    [10:15 AM · Jun 29, 2023] In a nutshell: The majority does not expressly overrule Grutter or formally bar *all* race-based affirmative action, but the Court reconstrues the test in a way that will make it virtually impossible for any university to satisfy going forward.

    It’s ending it without ending it.

    Sotomayer’s dissent, with Kagan and Jackson:
    https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf#page=140

    […] Today, this Court stands in the way and rolls back decades of precedent and momentous progress.

    • harpie says:

      More on the DISSENT:
      https://twitter.com/BrianneGorod/status/1674420200828211200
      10:10 AM · Jun 29, 2023

      J.Sotomayor in #dissent in today’s affirmative action decisions from #SCOTUS: “The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.” [screenshot] [THREAD]

      Archived: https://web.archive.org/web/20230629143451/https://twitter.com/BrianneGorod/status/1674420200828211200

    • harpie says:

      https://twitter.com/mjs_DC/status/1674423966830850049
      10:25 AM · Jun 29, 2023

      One odd, surprising, and important facet of the chief justice’s opinion: He explicitly exempts military academies from his new ban on race-conscious admissions “in light of the potentially distinct interests” they may present. [screenshot]

      Judge JACKSON, Dissent:

      [pdf237/237] The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare
      Black Americans and other underrepresented minorities
      for success in the bunker, not the boardroom (a particularly
      awkward place to land, in light of the history the majority
      opts to ignore).106 […]

      • harpie says:

        In footnotes, Justice Jackson takes on
        [Harlan CROW Affirmative Action Recipient] THOMAS:

        [pdf233/237] Justice Jackson Dissent: 103 JUSTICE THOMAS’s prolonged attack, ante, at 49–55 (concurring opinion), responds to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted. […]
        JUSTICE THOMAS ignites too many more straw men to list, or fully extinguish, here. […]

        • P J Evans says:

          ooooh, BURN! (And those strawmen *should* be burned. He benefited from programs he doesn’t want others to access.)

    • harpie says:

      Justice Brown Dissent:

      [pdf233/237] With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems. […]

  11. Spencer Dawkins says:

    Ed, thank you for this post.

    On this point,

    How long are Dallas, Houston, Austin and San Antonio residents willing to see their taxes spent in small country towns while rural religious fanatics control their personal lives?

    Speaking as a Dallas native and current Dallas-suburb resident, I’m afraid the answer to your question is “longer than we might hope”.

    With my Facebook friends as an extremely biased sample, the way it looks to me, is that there are right-wing power grabs that repel Texans who were not previously repelled by right-wing power grabs.

    The obvious example is the Dobbs decision – unless you are a hard-line forced-birther, anyone of child-bearing age, or with a daughter or other relative of child-bearing age, who sees press reporting about doctors/hospitals forced to leave pregnant women in distress in their cars in the parking lot until they are so sick that “the mother’s life is at risk” before treating them, is likely to spend at least a few seconds saying “holy cow, that could happen to me/Person X!!!”

    And if they don’t see that press reporting, but are confronted with (in my own case) a young lady who wants a child very much, but is carrying a fetus that does not grow beyond six weeks, but still seems to have a heartbeat, so the mother is forced to carry the fetus that cannot survive after delivery, for two more ultrasounds, until the doctor is convinced that no one can reasonably challenge termination of this pregnancy, they may also recognize that putting women and their physicians in this position is a right-wing power grab.

    We are also seeing our governor signing legislation that prohibits treatment of trans children using puberty blockers and hormone therapies, and requiring that trans children already in treatment must be “weaned off”. That’s clearly another right-wing power grab, and trans children have become much more visible, even in Texas, so it’s possible more residents of Dallas, Houston, Austin and San Antonio will recognize that as such.

    But given the breadth of right-wing power grabs, we’re really playing whack-a-mole, if we want to push back strongly, and that’s not quick or deterministic.

    • Ed Walker says:

      Thanks for this insight. It mirrors some other reporting I’ve seen, where solid conservatives try to come to grips with the bedroom policing of their party.

      I lived in Tennessee for decades. The legislature was heavily tilted to rural counties and small towns at the expense of Nashville/Davidson County and Memphis. Until recently the primary impact was oour need to pay higher property taxes to get the education we wanted for our kids. Now they’re pushing their religious views on the cities. We saw this coming and left 10 years ago. No one has ever asked me why we left.

    • BriceFNC says:

      I believe strongly in the “equal protection of the law” provisions found in our Constitution–and I cannot help but wonder if we could entrap the current majority utilizing the literal interpretation of equal protection found in today’s decision. Citizens United reasoned that corporations have the “free speech” rights accorded all American citizens. When the court recognized corporations as “citizens” did that make it possible for a human to file an equal protection challenge to the favorable tax rates that corporation obtain through our tax code? Shouldn’t the current court’s very literal interpretation of “equal protection” apply across the board–including ending all differential treatment of “corporate citizens” versus humans?

  12. Golden Bough says:

    “How long will normal people put up with these assaults?”

    The better, even less answerable question, is “what can be done?” Or, more practically, “what are the executive and legislative branches capable of doing?”

    And your end Note left out “corrupt.” Don’t you DARE say this court is corrupt in spite of (thanks to ProPublica doing the job that none of the so-called “insider” SCOTUS journalists could do previously) multiple justices being undeniably corrupt and compromised.

  13. harpie says:

    But…despite ALL that, I just want to note:

    I would NEVER say, or even think that
    SCOTUS is an illegitimate power-grabbing rabble intent on imposing their minority views.

    • Rayne says:

      LOL in spite of the obvious fact it always has been by virtue of the number of white men which have been seated as jurists over SCOTUS’ history.

  14. jdalessandro says:

    I have been enjoying — if such a thing is possible – Mr Walker’s writings on this topic. Last time I mentioned the book by Professor Chemerinsky [The Case Against the Supreme Court], in which he concludes that the prospect of a government without judicial review is too frightening to contemplate, although Britain and the Netherlands seem to get along without such a court. He recommends a host of reforms, including but not limited to term limits, sending them down to a lower court or assuming senior status, if they don’t wish to retire at the end of the term. I was hoping that Mr. Walker goes to proposed solutions next, as impossible as reform appears to be at this time, and in this climate.

    • jdmckay8 says:

      GIven people dying in Texas and across southern US from excessive heat, your…

      and in this climate

      can easily be read several ways. All relevant.

      I do not think structural remedies (ie. you mention term limits) provide any pathway to meaningful improvement. And I don’t think there’s solutions in the law given our problems. There is just (IMO) too much broken in Society right now, and a whole lot of that is so many people with a head full of junk that so much media shoots their way 24/7. I find this sad and discouraging. Canary in the mine these days is all we see/hear about a lot of people seemingly successful talking about mental health in a big way. Even 10 years ago, this was much more fringe.

      It almost seems like a clear, easy to understand collective awareness of “Public Good” is pretty much absent now.

  15. David F. Snyder says:

    The recent book, The Shadow Docket, by Stephen Vladeck, is a good complement to this post. The Judicial Act of 1925, penned by Taft, awards too much power to the justices.

  16. earlofhuntingdon says:

    Chief Justice Roberts’ rejection of affirmative action – long sought by Thomas and Alito – seems rather like the false neutrality employed during the Spanish Civil War and Italy’s colonialist invasion of Ethiopia. International arms embargoes limited the help outsiders could provide to besieged domestic forces, despite that they were under assault by powerful foreign interests who ignored those embargoes in order to support their domestic puppets. Superficial neutrality in such circumstances is tantamount to support for the hardly neutral, foreign-backed side. It is placing a thumb on the scale in a massive way.

    Roberts claims that the law cannot and must not be used to help those it has viciously discriminated against for centuries. He perpetuates that discrimination, while claiming that the law is neutral and, therefore, helpless to address the original sin that has plagued this country since its inception. He and five of his brethren demonstrate the resilience of America’s pernicious racism, even when clothed in black instead of white.

    • Ed Walker says:

      Justice Jackson points out, much more politely than I think proper, that SCOTUS was a major driver of Jim Crow. Six privileged members of the Court ignore their own complicity in the racial inequality Jackson describes. It’s nauseating.

  17. earlofhuntingdon says:

    Justice Thomas doesn’t seem to like himself very much. He has hated affirmative action, for example, since he was admitted to Yale Law School. The wealthy white patriarchs he aspired to support claimed, he felt with justification, that he was admitted only because he was Black.

    One could argue the truth of that, but it misses the point. The powers that be, whom Thomas sought to join, would have denigrated him regardless, because so many of them were racist. Their hatred of affirmative action – which threatened to upset their privileged apple cart – was a convenient cudgel. Yet, he has spent a career trying to demolish it, allowing him both to pull the social ladder up after he’s climbed it, and demonstrating that, like Trump, he thinks everything is always and everywhere about him.

  18. morganism says:

    The Mysterious Case of the Fake Gay Marriage Website, the Real Straight Man, and the Supreme Court

    “In filings in the 303 Creative v. Elenis case is a supposed request for a gay wedding website—but the man named in the request says he never filed it.
    This week, I decided to call Stewart and ask him about his inquiry. (6292023)

    The Supreme Court is expected to deliver its opinion in a case in which Stewart plays a minor role, a case that could be, as Justice Sonia Sotomayor stated by way of a question at oral argument in December, “the first time in the Court’s history … [that] a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation.” It took just a few minutes to reach him. I assumed at least some reporters over the years had contacted him about his website inquiry to 303 Creative—his contact information wasn’t redacted in the filing. But my call, he said, was “the very first time I’ve heard of it.”

    Yes, that was his name, phone number, email address, and website on the inquiry form. But he never sent this form, he said, and at the time it was sent, he was married to a woman. “If somebody’s pulled my information, as some kind of supporting information or documentation, somebody’s falsified that,”

    https://newrepublic.com/article/173987/mysterious-case-fake-gay-marriage-website-real-straight-man-supreme-court

    • harpie says:

      […] Here is what we know—though, to be frank, I do not know what we have learned from this yearslong mystery, other than it looks like Smith and her attorneys have, perhaps unwittingly, [yeah, right!] invented a gay couple in need of a wedding website in a case in which they argue that same-sex marriages are “false.”

      When Smith and her attorneys, the Christian right group Alliance Defending Freedom, or ADF, brought this case for the first time, it was to the United States District Court in Colorado in 2016, and they lost. […]

      Maybe it should not be a surprise, though, that this strange fake “request” popped up in a case in which the plaintiff’s main argument rested on the claim that someday, out there, a same-sex couple would want her to design a wedding website. The closest thing Smith had to an actual inquiry—the nonwedding of Stewart and Mike—arrived within 24 hours of her having filed a suit in which said inquiry would be potentially a helpful piece of supporting evidence. […]

      • P J Evans says:

        Cousin got married a couple of months ago. He registered on one of those wedding sites, with the gift registry and the invitation-management and all (NOT 303).
        His new spouse is a black guy.

    • harpie says:

      I have a comment in moderation here, but to continue, plaintiff Smith’s attorneys are the Christian right group Alliance Defending Freedom, which is aligned with First Liberty Institute, which I talked about above [mifepristone lawsuit], the Heritage Foundation, and the Blackstone Legal Fellowships, which bring fundamentalist law students into the fold. All four work closely with the Federalist Society [that’s from the earlier linked article.]

      Significantly, all of these organizations were founded or are run by members of the secretive coordinating body known as the Council for National Policy (CNP).

      Josh HAWLEY’s wife works for them ADF:
      https://www.emptywheel.net/2023/03/13/tuckers-putin-envy/#comment-984756

          • ernesto1581 says:

            from ADF website:
            “… an American conservative Christian legal advocacy group that works to expand Christian practices within public schools and in government, to outlaw abortion, and to curtail rights for LGBTQ people.”
            pretty straightforward, I guess.
            ADF sent one of their rookies out to Randolph VT (pop. <5,000) this Spring to extract $125,000 from the VT state school insurance fund, in lieu of litigation, for grievous 1A infringement on the part of a father and daughter who had been chastised for violating school district policy by voicing their opinions (so they claimed) re: the presence of a trans child on girl's 9th-grade volleyball team, and had been ostracized for doing so. The child in question and her foster mother ended leaving town rather than put up with further unwanted attention from right wing avengers.

      • harpie says:

        https://nitter.net/MaxKennerly/status/1674781732594409473#m
        Jun 30, 2023 · 2:07 PM UTC

        Let’s be clear: nothing happened to the plaintiff in 303 Creative, the whole “case” was a hypothetical exercise, and the GOP Justices used it as a vehicle to undermine every single federal, state, county, and city anti-discrimination law in the country.

        [pdf6/70] GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, KAVANAUGH, and BARRETT, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN and JACKSON, JJ., joined.

        DISSENT begins at [pdf33/70]

        • harpie says:

          SOTOMAYOR: [pdf67/70] Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares […] a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate […] The opinion of the Court is, quite literally, a notice that reads: “Some services may be denied to same-sex couples.”

  19. Ed Walker says:

    Update: SCOTUS will now be deciding on all college admissions. They know more than everybody about everything.

    • Konny_2022 says:

      My late father liked to say: ” The almighty Lord knows everything, the [insert who you like or dont’t like] knows everything better.”

      P.S. Thank your for your analysis.

  20. dp_10MAY2022_2136h says:

    IMO, the Reconstruction Amendments are completely inconsistent with the 1789 view of the relationship between the federal and state governments. By 1865, state governments had proved themselves unworthy of the nation’s trust, so that deal was changed.

    [Welcome back to emptywheel. FOURTH AND FINAL REQUEST: Please use a more differentiated username when you comment next. We are migrating to a new standard requiring unique usernames of a minimum 8 letters. You have published one comment as “Donald W Price” and others as “dp,” the latter of which does not meet the site’s 8-letter minimum standard. Until you choose a permanent one, your username will be changed to reflect the date/time of your first known comment. Thanks. /~Rayne]

  21. cmarlowe says:

    That 2 SC judges voted to support ISL (in Moore v. Harper) is absolutely frightening. They are truly a threat to good order and our republic.

  22. Calistogan says:

    SCOTUS has ruled against race as a consideration for college admissions, but geographical considerations remain acceo. Couldn’t a college admissions boards

    SCOTUS ruled against using race as a consideration for college admission, but geographical considerations remain admissible. Given how gerrymandered our Congressional Districts have become couldn’t colleges admissions staff get around this inappropriate SCOTUS dive into policy making, by using consideration of applicant’s Congressional district, which are so gerrymandered by race or ethnic group? They would be free to make choices based on districts that are mainly black or brown—Karma for the right wingers?

    include consideration of Congressional District? With out gerrymandered districts, such consideration, along with financial status, might stand as proxy for minorities.

  23. Calistogan says:

    Yikes, could not complete editing the above before it was posted—sorry everybody. Makes me reluctant to post again on this site. Hopefully my point wa comprehensible.

    [Moderator’s note: 1) I’ve revised your username to match that of your previous comment instead of your real name; 2) Please try re-drafting your comment in plain text using Notepad or a word processing app and then cutting and pasting into the comment field before publishing. If you wish to revise yours, please reply with your edited comment and I will replace the original. /~Rayne]

    • harpie says:

      https://www.supremecourt.gov/opinions/22pdf/22-506_nmip.pdf

      [pdf5/77] ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion. KAGAN, J., filed a dissenting opinion, in which SOTOMAYOR and JACKSON, JJ., joined.

      Dissent begins at [pdf48/77]

      [KAGAN]: In every respect, the Court today exceeds its proper, limited role in our Nation’s governance. […]

      • harpie says:

        [KAGAN:] [pdf49/77] The Court’s first overreach in this case is deciding it at all. […] The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies.

        [pdf49/77] And the Court’s role confusion persists when it takes up the merits. […] The result here is that the Court substitutes itself for Congress and the Executive Branch in making national policy about student-loan forgiveness.

        […] But this Court today decides that some 40 million Americans will not receive the benefits the plan provides, because (so says the Court) that assistance is too significan[t].” Ante, at 20–21. With all respect, I dissent.

  24. Ed Walker says:

    SCOTUS opinion: we think this debt forgiveness thing involves a boatload of money and we want to control that Democratic President trying to help ordinary citizens so let’s ignore all our old stupid standing rules and strike it down. Then we’ll bitch about people saying we’re a bunch of illegitimate toads because we aren’t illegitimate toads, we’re doing what every SCOTUS does and people who talk like this are being mean to us and are bad people. Roberts at p. 25-6.

    • ExRacerX says:

      Anything that the Dems come up with must be shot down. At least Obamacare’s still flying—for now—having already dodged most of the R’s bullshit birdshot.

  25. ernesto1581 says:

    Another great day for the troglodytes.
    303, Student Debt, and both Affirmative Action cases — all judgements rendered in favor of plaintiffs without standing and, in several cases, in favor of plaintiffs to whom no harm had yet (or ever) been done.

  26. Franktoo says:

    Ed tells us: “SCOTUS has set itself up as the sole arbiter of the constitutional limits on the power of the federal government … Please remember that you should not say, or even think, that SCOTUS is an illegitimate power-grabbing rabble intent on imposing their minority views. It hurts their feelings and detracts from the sanctity of their holy calling.

    It is worth remembering that our system of government has two types of law: Ordinary Laws passed by our legislatures; and Higher Law, our Constitution, approved by all 13 original states and which needs 2/3rd of Congress and 3/4ths of the states to amend. The most important function of our Supreme Court (IMO) is protecting minorities from the tyranny of legislative majorities that wish to violate our sacred Rights and executives who wish to ignore the balance of power between branches of government. History shows that within a decade of creating the Bill of Rights, a Congress and President motivated by fear of war and political passions passed the Alien and Sedition Acts, severely limiting Freedom of Speech, the Press and other Rights. Certainly, we can’t trust any president or legislature to obey constitutional limits on their power. Protecting minorities from the tyranny of the majority IS a holy calling that elected officials are by nature incapable of handling. This is something that those who rail about “unelected Justices” fail to recognize.

    For each of the above opinions Ed disdains, there are excellent arguments on both sides, but most of us only hear those that agree with our existing biases. if interested in hearing both sides, consider listening to the podcasts from the National Constitution Center, an organization chartered to educate the public about the constitution on a non-partisan basis.

    • Rayne says:

      Frank, here’s an opinion from a minority: Bullshit.

      Let me guess you’re a white man who can pass as straight and Christian if you’re not straight and/or Christian who will not be affected by any damage this court inflicts on civil rights, because you really don’t understand what’s happening. You’re apparently not living it.

      As just one example the made-up case of 303 Creative LLC v. Elenis positing a potential violation of a website designer’s First Amendment rights, decided in a way to violate the human rights of a protected class is exactly what the Supreme Court was not supposed to visit let alone decide in favor of a group with a majority of power.

      This extra-legislative lawmaking by SCOTUS will ensure that every white Christian fundamentalist can express their First Amendment rights as open discrimination, reverting our society to whites-only|coloreds-to-the-back and gays-prohibited commercial spaces. Shopping malls are commercial spaces — is it okay if they post signs they don’t serve women, or Native Americans, or Jews because their First Amendment rights demand these people are not permitted in this space otherwise regulated as venue for commerce?

      You know how a white Christian fundamentalist website designer could exercise their free speech before 303 Creative? “I’m sorry, I’m booked solid for the next year and can’t take on any new clients.” They’ve been doing this all the time though more realistically no gay couple would approach them because there are a shit ton of service providers who don’t discriminate AND who have an existing portfolio of satisfied gay clients willing to offer references.

      I can’t believe you had the balls to try both-sidesing this bullshit here. Just let us get it from the Washington Post, okay? We don’t need it in comments.

    • Ed Walker says:

      You obviously don’t know anything about law, or understand any of the criticisms I have leveled at SCOTUS. I suggest you learn basic federal jurisprudence, with its emphasis on the limitations on judicial power, and then try to square that with the decisions of SCOTUS.

      The goal of the judicial branch is to provide certainty about the law. Every change in that law is destabilizing. Dobbs damaged hundreds of thousands of women physically and emotionally, and did untold damage to their families. Alito doesn’t address that damage. Nor does he discuss the impact on children born into a world that doesn’t care about them once they are born.

      You completely miss the point of the phrase “holy calling” in my post. That’s the view of the six MAGA members of thee Court. It’s the precise opposite of mine. That you agree with it even slightly is a mark of utter political naivete.

      Bullshit doesn’t sell at this site. Read a book. Like I do all the time.

      • Epicurus says:

        Ed, your final question in the opening text is

        “How long can we let the judiciary prevent us from dealing with massive problems before we protect ourselves from their ignorance and their dangerous ideology?”

        This is just a honest question of reference from me to understand you better. It isn’t meant as a baiting question. I won’t respond to anything you say.

        What do you suggest we do to stop the judiciary from preventing us from dealing with massive problem and protect ourselves from the judiciary’s ignorance and dangerous ideology?

Comments are closed.