The Slaughterhouse Cases

Index to posts in this series

Chapter 4 of The Second Founding by Eric Foner lays out the campaign of the Supreme Court to strangle (my word) the Reconstruction Amendments. The last chapter is the requisite effort to show how things can get better.

I think there’s more to be gained by reading the main decisions on the Reconstruction Amendments, so I’m going to depart from Foner’s text at this point. I think we will see that SCOTUS today uses the same tactics to strike down laws and ignore precedent. I’ll start with The Slaughterhouse Cases, 83 US 36 (1873). The syllabus takes up the first 20 pages; the opinion begins at 57.

Facts. The butchers of New Orleans were scattered across the city. They brought animals for slaughter from the river and train stations to their shops, and threw the offal and scraps into the Mississippi. This was a public nuisance and a health issue.

Louisiana passed a law creating a special corporation charged with building landings and railroad connections to a new set of slaughterhouses in a single location outside the city. The law gave the corporation an exclusive license, required the corporation to lease space to all comers (including Black butchers) for slaughtering operations, set price limits, and required space for a medical officer to check animals and meat for disease, among other things.

Holding. The Supreme Court upheld the statute in a 5-4 decision. The principle ground of the majority opinion is that the law was within the police power of the State. The police power is a legal term describing the power of the state to secure the “the health, good order, morals, peace, and safety of society”, as the dissent puts it. P. 87.

This case could have been decided solely on traditional police power lines, even if the Louisiana law was too broad. But the Court felt it should write about the Reconstruction Amendments, which were a significant part of appellate argument. So the Court ignored the principle of Constitutional Avoidance, the idea that a case should not be decided on constitutional grounds if some other ground is dispositive.

The discussion of the Reconstruction Amendments begins on P. 66. Samuel J. Miller, a Lincoln appointee, gives a brief history of the Civil War and the Reconstruction Amendments. He writes that the purpose of these amendments was to secure

… the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. P. 71.

The Court goes on to say that the amendments apply to everyone, but to construe them fairly the Court has to consider their “pervading spirit” and the evils to be remedied, and their purpose. This is what Justice Ketanji Brown Jackson is talking about in Allen v. Milligan, the Voting Rights Act case from this last term, and in SFFA v. Harvard, the affirmative action case.

Miller then discusses the 13th Amendment at length. Then he turns to the 14th Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Miller explains that this clause was intended to overrule Dred Scott. Then he says:

… the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established.

….

It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. P. 73-4.

The second sentence of §1 says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This means, Miller says, that the US can make laws affecting the privileges or immunities a person holds as a citizen of the US, and can protect those rights from state interference. But the 14th Amendment doesn’t give the Federal government the power to control or create the rights granted a state gives to its citizens.

There are very few privileges or immunities of citizens of the US. They are in the text of the Constitution, or the Bill of Rights if the Supreme Courts finds they are. They include protection against ex post facto laws and bills of attainder, and protection on the high seas, and not much else.

What are the privileges or immunities of citizens of states? Miller says they encompass “… nearly every civil right for the establishment and protection of which organized government is instituted.” P. 76. The sole point of the 14th Amendment is to guarantee that all such rights granted to citizens of the state are granted to all citizens within its jurisdiction equally.

Its sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. P. 77.

Miller claims that other construction would enable the federal government to control the exercise of the power of the state to make laws they think best, and set the Supreme Court up as the ultimate arbiter of the powers of states to pass laws. That would change the entire theory of government in this country. It that was the goal, the drafters of the 14th Amendment would have to use “… language which expresses such a purpose too clearly to admit of doubt.” P. 78.

Miller says that the states can enact any law they like, so long as the laws don’t discriminate against Black people as a class. P. 81. He doubts that the 14th Amendment could ever apply to anyone besides Black people.

The opinion concludes with a reminder that the Founders were worried about federal encroachment on state power, and claims that the Supreme Court “…has always held with a steady and an even hand the balance between State and Federal power….”. P. 82.

Discussion

1. This case shows the disaster that can arise when SCOTUS gives advisory opinions. There is a huge middle ground between Miller’s cramped reading of the 14th Amendment and the Appellant’s broad view. The opinion establishes a powerful limiting principle: that the purpose of the Reconstruction Amendments is to secure and protect the Freedmen and Black people. It would meant that the federal government can intervene to prohibit actual discrimination against Black people, and generally everybody, but it can’t intervene just because it doesn’t agree with the state’s decisions about privileges and immunities equally applicable to all citizens. That was a perfectly likely outcome in a proper case, a case where a state, for example, barred Black people from testifying against White people.

2. The Appellants were trying to stop state regulation of their businesses. They claim they have an
unfettered right to do business wherever and however they see fit, and that the 14th Amendment protects their exercise of that right. They didn’t win this case, but the idea persisted, and a form of it eventually was adopted by the Supreme Court, as seen in cases like Lochner v. New York.

3. There’s a tendency today to say that SCOTUS, a once-respected institution, has suddenly collapsed in a mixture of partisanship and hubris. Maybe we should ask when that wasn’t the case.

Thomas, Alito and Christmas Cookies

You have heard about the private jet and yacht trips given to Clarence Thomas, the jet trips given to Samuel Alito, etc. The stories of this type of absolute impropriety are seemingly endless.

Senior Massachusetts District Judge Michael Ponsor has penned an op-ed in today’s New York Times: in which he discuses the acceptable limits of what federal judges can take as grift. It is quite good and not very long, I’d suggest a read of it.

What has gone wrong with the Supreme Court’s sense of smell?

I joined the federal bench in 1984, some years before any of the justices currently on the Supreme Court. Throughout my career, I have been bound and guided by a written code of conduct, backed by a committee of colleagues I can call on for advice. In fact, I checked with a member of that committee before writing this essay.
….
The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

This is FAR beyond “the appearance of impropriety”, it is actual impropriety. Any judge and/or lawyer with even an ounce of ethics knows this, and it is patently obvious. It is wrong.

Let me give you an analogy that demonstrates how absurd Thomas and Alito really are.

Many, many years ago, a junior partner in our firm decided to be nice to the local county level judges we practiced in front of. So she got a bunch of boxes of Christmas cookies from a local custom cookie place and tried to deliver them to the pertinent judges for Christmas.They were just local superior court judges, not SCOTUS level. They turned them down, and there were a bunch of cookies suddenly in our kitchen and lounge.

There were a lot of attorneys, including me, both prosecution and defense, that used to drink at a local downtown dive bar after 5 pm. Judges, both federal and state, came in too. The lawyers always swapped rounds. But not the judges, they always paid for their own.

Nobody in the world would have carped about it if the judges would have eaten the cookies, nor had the judges gotten a free drink. They just did not. It was pretty admirable.

And now, when such things should be far more apparent, we have a Supreme Court that thinks they are entitled to the graft and grift. Do I think that makes them “corrupt” per se? I do not know that, we shall see how it all plays out further.

SCOTUS Takeover Continues

SCOTUS released opinions in three big cases, the affirmative action case, the student loan forgiveness case, and the anti-LGBT case. I haven’t had time to read them carefully, but it’s clear that they suck. The only bright spot is the emergence of Justice Ketanji Brown Jackson. I can offer some intitial impressions.

1. We now know that the 14th Amendment has an expiration date, at least as far as Black people are concerned. I wish the majority would tell us the date they ended racism so we could have a new holiday.

2. The major questions “doctrine” has a corollary: if enough money is involved, you can make up your own standing requirement. None of the plaintiffs in the student loan case could show injury. The majority says that Missouri has standing because Mohela is an instrumentality of the state. Mohela has the power to sue and be sued, but it refused to sue. I’m just sure the majority offers a not-gibberish explanation.

3. If a plaintiff is trying to inflict damage on the LGBT community they don’t need to show standing.

4. None of the plaintiffs in the affirmative action case could show injury, nor could they show a remedy that would help them. But they all have standing.

5. Standing is a meaningless concept.

Most important, John Roberts has a message for you in Bien v. Nebraska at 25-6:

It has become a disturbing feature of some recent opinions to criticize the decisions whith which they disagree as going beyond the proper role of the judiciary. Today we have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri; that the words “waive or modify” do not mean “completely rewrite”; and that our precedent — old and new — requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial decisionmaking in doing so. Reasonable minds may disagree with our analysis — in fact, at least three do. See post, p. ___ *KAGAN, J. , dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.

So once again, I remind you: you mustn’t criticize SCOTUS by pointing out it’s a corrupt power-grabbing rabble intent on imposing their minority views. Also, you mustn’t point out that they make stuff up to do so, or that theyrecognize no constraints on their power. At all times we must remember that theirs is a holy calling without which our great nation would collapse in disorder and chaos.

This is an open thread.

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.

SCOTUS Is Wrecking The Societal Safety Net

The right-wing wrecking crew on SCOTUS is destroying the safety and security that make it possible to live in our society. They oppose governmental power when it’s used to protect us from guns and disease, and they strike at rights people need to participate fully in our complex capitalist society.

The Constitution doesn’t give SCOTUS the power to make these decisions. An earlier version of SCOTUS arrogated the power of judicial review to itself. Whereas the other branches have to justify their exercise of power by reference to the Constitution, SCOTUS justifies its power by pointing to an ancient precedent set by itself. For a discussion of this history and a defense of judicial review, see this article by Erwin Chemerinsky in The American Prospect.

To defuse protest against this power grab, for a long time SCOTUS exercised its power sparingly, and only in egregious cases. Perhaps the first instance of overreach was Dred Scott, which was reversed by the Civil War and the Reconstruction Amendments.

When SCOTUS got out of control in the 1930s, striking down New Deal legislation repeatedly, the other branches took aggressive action to protect their Constitutional powers.

In the 1970s conservatives and radicals rebelled against the Civil Rights cases and other changes wrought by the Warren and Burger Courts. In response, Republicans stacked SCOTUS with right-wing ideologues who have now run amok.

When I say “run amok”, I mean that all of the important decisions of the six SCOTUS right-wingers ignore the interests we all share in living in a safe and secure environment. It’s as if they believe that, as Margaret Thatcher put it, there is no such thing as society. Worse, the individuals affected by the outcomes are never heard, and the decisions only recognize the interests of a tiny minority. This post is focused on gun cases, but there are others equally vile.

New York State Rifle And Pistol Ass’n. Inc. v. Bruen holds that no restriction on the ownership of guns is Constitutional unless “… it is consistent with the Nation’s historical tradition of firearm regulation.” The Holy Six bluntly tell us we can’t protect ourselves from the climate of fear created by today’s weaponry.

In US v. Perez-Gallan, the defendant was charged with carrying a gun while subject to two court orders barring such possession. The District Judge, David Counts, held that there weren’t laws barring people subject to domestic abuse protective orders from having guns in 1792; therefore that can’t be Constitutional today.

In Cargill v. Garland, the 5th Circuit en banc ruled 13–3 to invalidate an ATF regulation banning bump stocks. It claims that a firearm equipped with a bump stock is not a machine gun within the statutory definition, so the ATF regulation banning them is not within its statutory power. There’s a conflict among the Circuits, so the SCOTUS death panel has the opportunity to promote murder by machine-gun equivalents.

It’s worth noting that John Roberts demands governmental protection for all these judges to insulate them from the dangers they create.

None of the endangered parties are before these courts. Perez-Gallan’s ex-wife isn’t there. In the bump-stock case none of the people murdered in Las Vegas are there, nor are their families and friends, or the people who ran or cowered in fear. None of us normal people from Chicago testified about the impact of guns on our lives after months of deadly violence, car-jackings, road-rage shootings, and mass killings like the attack on the Highland Park Fourth Of July Parade.

So who was present? Well, in Bruen the Appellants are the New York State Rifle and Pistol Assn, and a couple of losers who don’t qualify for a concealed carry permit under New York law. In Cargill, the Appellant is a gun nut who turned in several bump stocks and then sued. Perez-Gallan is a truck driver who is subject to a domestic abuse protective order from Kentucky barring him from gun ownership and a separate order barring possession of guns while released on an assault charge. In each case, the opposing parties are government officials.

In other words, murder-neutral courts make these decisions in a bubble, where the only parties are government officials and gun fanatics.

Now I’m sure that the defenders of these laws and their lawyers are dedicated, hard-working, and skilled. But that’s not the issue. The issue is that courts are free to decide societal questions without regard to the specific tangible concerns of the people whose lives are at stake in these cases. After Bruen, the interests of normal people are irrelevant. Only the interests of gun fanatics are relevant. Courts, parties, and lawyers don’t have to look at the coffins of the dead, or the scars of the damaged. They don’t have to consider the psychological impact of shattered bodies on the families of the dead and wounded. They are instructed to ignore the consequences of their decisions. They pretend it’s all just words in a game of legal Scrabble.

They can also ignore the purposes of the Constitution, set out in the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

These decisions don’t insure domestic tranquility, they don’t promote the general welfare, and they don’t secure the blessings of liberty for the vast majority.

Instead, they insure domestic violence and homicide. They insure that none of us can go to a Church, a grocery store, a concert, or a Fourth of July parade without fear of being shot. They endanger the lives and liberty of every last one of us.
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Photo by Arvell Dorsey Jr. via Flickr.

Year-End SCOTUS Rant

This past year brought us the full flowering of a central project of the filthy rich white people who fund the insurrection party: the takeover of SCOTUS by a gang of hardline fanatics. Big Wallet Boys don’t care about religion, they worship money. They want SCOTUS to screws up any government regulation that slows down their plundering of the American economya and Planet Earth. But they don’t care what SCOTUS does on culture war issues because they are not affected.

Of course SCOTUS has always been politically conservative and a blight on the promises America made to each of us. The few sprinkles of decency we’ve gotten over the centuries were either a) tiny steps towards enabling all Americans to benefit from Constitutional rights enjoyed by white men, or b) grudging reversals of old precedents inflicting the prejudices and hatreds of dead rich white men on we the living. For a detailed look at the disgusting history of SCOTUS on individual rights, see The Case Against The Supreme Court, by Erwin Chermerinsky

The provocateurs supported by the rich use culture war issues to anger up the rubes and while they’re distracted, SCOTUS can work toward the goal set by the rich: enabling their moneymen to steal the country blind and route us to an unlivable future.

We can identify the goals of the longer serving members. John Roberts is dead set against the Voting Rights Act, and has never missed a chance to use a case with a voting-related issue to subvert it. Clarence Thomas and Sam Alito have been stewing in their own bile so long they are fully rotted; they both live to stick it to the libs.

In 2022, though, we got bitch-slapped by the revanchists, including the three religious zealots appoint by Trump and McConnell. The Holy Six imposed their religious views in a number of cases, ruling that women have no right to control their own bodies, that coaches are free to dragoon their players into worshipping the god of the coach’s choice, and that religious leaders are free to spread a pandemic.

The big casualty is rational jurisprudence. In case after case, SCOTUS has ignored the trial record, made up its own facts, reached out to take cases before a record can be made, ignored precedent, including precedent about rejecting precedent, invented new Constitutional “doctrines”, taking faked-up cases for the sole purpose of striking down actions the Holy Six, the rubes, or rich people don’t like, and delaying justice through the shadow docket.

The result of these deviations from normal practice is the utter lack of stability. On Twitter law profs ask what they should teach about Constitutional law. The Fox News Six make it too easy: the Constitution means only whatever five of them say on any given day. The same question can be asked about Administrative law: is there any? And the power of Congress: does it have any? And the power of the Executive: does a Democratic President have any power? Not if SCOTUS doesn’t like it.

We have historically entrusted courts with the task of determining which rights belong to the people, and the extent to which governments at all levels can exercise their Constitutional powers in controlling people. Courts do this by interpreting and applying terms like liberty and due process found in the Constitution. Courts have always lagged behind the consensus of the American People on issues of rights, but change has come, if at a frustrating pace. For example, at least for now, governments don’t execute very many mentally ill people.

SCOTUS doesn’t care about any of this. Read Bruen, where Spouse of Insurrectionist Clarence Thomas says that the only restrictions on guns that are Constitutional are those in place at the time of the adoption of the Second Amendment, 1792. At that time, there was no concept of domestic violence. So, a Texas law prohibiting people subject to domestic abuse protective orders from owning guns is unconstitutional.

In other words, you don’t have the liberty of not being murdered by an abusive spouse. And you don’t have the liberty of going to a school, a place of worship, a concert, a grocery store, or a parade unless you are willing to take a bullet from a person armed by SCOTUS.

We can’t protect ourselves from corporate depredations either. SCOTUS restricts government regulation for years if not forever. It strikes down every law it doesn’t like, by which I mean any law rich people don’t like. In West Virginia v. EPA, it ignored the long-standing rule that SCOTUS doesn’t issue advisory opinions when it struck down a regulation of air pollution that was withdrawn before it ever took effect. And it invented a brand spanking-new doctrine, the major question doctrine, to arm itself further against Congress trying to regulate anything.

In Shelby County v. Holder, the Court announced that Congress hadn’t done enough investigation to justify the reauthorization of the Voting Rights Act. That act offended the Dignity Of The States, another brand new invention. That same logic can be used with the major questions doctrine to argue that Congress hasn’t done enough to justify authorizing agencies to regulate anything SCOTUS doesn’t like. And of course SCOTUS gets to decide whether a question is a major question.

Congress and executive agencies aren’t allowed to make rules to protect us from deadly pandemics. Only SCOTUS is allowed to do that. They killed mask mandates in the workplace, freed up unscrupulous religious leaders to infect their followers, and just recently interfered with international diplomacy by enjoining the Biden Administration from junking a Trump rule barring entry of asylum seekers because Covid is so terrifying. So much for consistency.

Neither Congress nor the President have resisted the hijacking of their power. They didn’t impose any limits on SCOTUS, by restricting its jurisdiction, cutting its funding, publicly attacking decisions as overtly political or poorly reasoned, holding hearings, or even taking the mild step of imposing ethical requirements. They just sit and watch the Holy Six enjoying their self-declared role of Philosopher Kings, the Platonic Ideal. Democracy? That’s not in the Constitution.

The worst part is that they expect you and me to respect them. We “cross a line”, in Alito’s words, when we say they are illegitimate. They are spitting on us and telling us we are powerless to stop them.

Are we?

Justice Jackson’s Brilliant Debut

On her second day of oral argument at the Supreme Court, Justice Ketanji Brown Jackson showed the wisdom of her appointment and confirmation. A short clip of one of her questions in Merrill v. Milligan made the rounds on Twitter, giving everyone a taste of her skill and understanding. Her point was so powerful I wondered how the lawyer responded.

The case involves an Alabama redistricting map. Plaintiffs alleged that the map unfairly discriminated against Black voters by reducing the number of majoirity-minority congressional districts unfairly. A three-judge district court ruled that the map violated Section 2 of the Voting Rights Act.

Here’s a fairly neutral discussion of the legal context in which the case was argued. Sec. 2 gives individuals the right to sue to prevent any state action to dilute minority voting power. The leading case on Sec. 2 is Thornburg v. Gingles, 478 US 30 (1986). The case sets out three factors which the plaintiff must prove to establish a violation of Sec. 2.

1.The racial or language minority group is “sufficiently large and geographically compact to constitute a majority in a single-member district”;

2. The minority group is “politically cohesive” (meaning its members tend to vote similarly); and

3. The “majority votes sufficiently as a bloc to enable it … usually to defeat the minority’s preferred candidate.”

The colloquy between Justice Jackson and Alabama Solicitor General Edmond Lacour concerns the first Gingles test. Lacour argues that plaintiffs were required to present a race-neutral map as a benchmark to show that Alabama’s map diluted Black voting power. The transcript can be found here. We start at page 52. Justice Amy Coney Barrett asks Lacour this question:

…if you were forced to adopt a map proposed by the plaintiffs that was racially gerrymandered because race was predominant in its drawing, that you would be violating the Fourteenth Amendment.

Therefore, the first factor of Gingles required to get past the hurdle that Justice Jackson was talking about, to get past that hurdle, it required race neutrality.

Is that your central argument?

MR. LACOUR: Yes, that –that is our core argument that it –it cannot be that they can come forward with a map that we would never be allowed to draw, call it reasonably configured and then force us to draw a map we would never be allowed to constitutionally draw.

You can think of that either –the problem is either race predominance or the problem is, when race enters in to the equation, then traditional districting principles necessarily have to yield, which is what the district court found on page 214 of the Milligan stay appendix, non-racial considerations had to yield to race.

He’s saying that the Constitution bars Alabama from drawing a map that uses race to create majority Black districts. After further discussion, Justice Jackson takes over.

JUSTICE JACKSON: Yes. I am so, so glad for Justice Barrett’s clarification because I had the same thought about what you were arguing, and I’m glad that you clarified that your core point is that the Gingles test has to have a race-neutral baseline or that the –the first step has to be race-neutral.

And –and what I guess I’m a little confused about in light of that argument is why, given our normal assessment of the Constitution, why is it that you think that there’s a Fourteenth Amendment problem? And let me just clarify what I mean by that.

I don’t think we can assume that just because race is taken into account that that necessarily creates an equal protection problem, because I understood that we looked at the history and traditions of the Constitution at what the framers and the founders thought about and when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the equal protection clause, the Fourteenth Amendment, the Fifteenth Amendment, in a race conscious way.

That they were, in fact, trying to ensure that people who had been discriminated against, the freedmen in –during the reconstructive –reconstruction period were actually brought equal to everyone else in the society.
So I looked at the report that was submitted by the Joint Committee on Reconstruction, which drafted the Fourteenth Amendment, and that report says that the entire point of the amendment was to secure rights of the freed former slaves.

The legislator who introduced that amendment said that “unless the Constitution should restrain them, those states will all, I fear, keep up this discrimination and crush to death the hated freedmen.”

That’s not –that’s not a race-neutral or race-blind idea in terms of the remedy. And –and even more than that, I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required, right? They drafted the Civil Rights Act of 1866, which specifically stated that citizens would have the same civil rights as enjoyed by white citizens. That’s the point of that Act, to make sure that the other citizens, the black citizens, would have the same as the white citizens. So they recognized that there was unequal treatment, that people, based on their race, were being treated unequally.

And, importantly, when there was a concern that the Civil Rights Act wouldn’t have a constitutional foundation, that’s when the Fourteenth Amendment came into play. It was drafted to give a foundational –a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.

So with that as the framing and the background, I’m trying to understand your position that Section 2, which by its plain text is doing that same thing, is saying you need to identify people in this community who have less opportunity and less ability to participate and ensure that that’s remedied, right? It’s a race-conscious effort, as you have indicated. I’m trying to understand why that violates the Fourteenth Amendment, given the history and -and background of the Fourteenth Amendment?

Lacour says:

The Fourteenth Amendment is a prohibition on discriminatory state action. It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.

That contradicts what Justice Jackson just said. She repeats her point using shorter words. Lacour repeats his earlier statement that Alabama shouldn’t have to sacrifice “other redistricting principles” for the sake of racial fairness unless plaintiffs prove Alabama’s map is discriminatory. He says plaintiffs have to prove specific racial discrimination before thay can use race as a factor in drawing lines. That would require plaintiffs to produce a race-neutral map as a matter of evidence. Justice Jackson says that the point of the Gingles test is to make that determination as required by Sec. 2. Lacour says:

Not if they’re allowed to sacrifice our principles to come up with their maps.

“They” refers to the Black Plaintiffs. Justice Jackson pokes at this response and Lacour says some words. Roberts moves to the next lawyer.

Discussion

1. Justice Jackson is right on the original purpose of the Fourteenth Amendment. In The Slaughter-House Cases SCOTUS construed it so narrowly that it became useless for equalizing government treatment of newly freed slaves, or anyone else, except in very rare cases. But recent scholarship has recovered the original intent. See, e.g. R. Barnett and E. Bernick, The Original Meaning Of The Fourteenth Amend: It’s Letter And Spirit (2018). I haven’t read this book, but based on reviews, it generally tries to extricate the original breadth of the Fourteenth Amendment in Line with Justice Jackson’s analysis. Barnett is a well-known originalist.

2. Lacour’s position is absurd. How can you not laugh at the idea that Alabama has sacred principles of drawing district lines? Of course it does: draw the lines so White people always win. Even if we could imagine some other principle, why should it be so important as to justify diluting minority voting power?

3. John Roberts has devoted his career to destroying the Voting Rights Act. The other right-wingers follow him because it suits their own partisan purposes. They all follow in the tradition of the revanchist SCOTUS of the Slaughter-House Cases. The idea that the Fourteenth Amendment is color-blind is madness.

4. The six right-wingers pretend that their decisions are guided by originalism. When this opinion comes out, look for the tortured logic dismissing the originalist argument so clearly laid out by Justice Jackson.

5. The coward Ben Sasse said that he couldn’t vote to confirm Justice Jackson because he only supported originalists. Obviously she is intellectually rigorous, using originalism as one of the tools of interpretation, just as she said in her confirmation hearing. The six right-wingers only care about original intent when it can be made to fit their preferred outcome.

6. The revanchist six claim that their opinions are driven by their judicial philosophy, not by political ends. They scold their critics for questioning their legitimacy. But the reality is that their so-called judicial philosophy is indistinguishable from right-wing Republican ideology.

How Trump’s SCOTUS Appeal Shows Why He’s Got a Weaker Legal Argument than a [Former] Gitmo Detainee

Trump has appealed the part of the 11th Circuit’s decision that ruled DOJ did not have to share classified documents as part of the Special Master process. Trump did not appeal the part of the decision lifting the stay on using the classified documents as part of the criminal investigation.

The parts of this pertaining to classified documents and Presidential authority are even more of a shit-show than the 11th Circuit response was, and for an audience that has actually considered these issues.

But parts of it are jurisdictional and would not be frivolous if this were simply a discovery dispute (as Chris Kise treats it), and not one pertaining to classified information. But it does pertain to classified records.

And that’s why I think this is the most important part of the argument. Trump attempts to dismiss the government’s argument that it could appeal Judge Cannon’s order that it share classified records with Judge Raymond Dearie and Trump.

In its reply before the Eleventh Circuit, the Government made a fleeting statement that orders to disclose classified information are immediately appealable as collateral orders. App. F at 10 (citing Mowhawk Indus., 558 U.S. at 113 n.4; Al Odah v. United States, 559 F.3d 539, 542–44 (D.C. Cir. 2009)). This assertion is without merit.

[snip]

In Al Odah, the Government appealed from an order granting defendant’s counsel access to unredacted “classified” information. 559 F.3d at 543. The District of Columbia Circuit, applying the Cohen test, determined it had jurisdiction to hear the appeal of the collateral order in that case. Id. at 543-44. However, the present case is distinguishable from Al Odah, primarily due to whom the “classified” or “privileged” documents are being disclosed. Unlike in Al Odah, where the unredacted classified documents were ordered to be disclosed to defendant’s counsel, here the materials in question will be provided to the Special Master—a Senior United States District Judge with years of FISA court experience. As Special Master, Judge Dearie will effectively act as an arm of the District Court. It can hardly be suggested that Judge Dearie’s review of these records is in any way akin to dissemination of previously unshared, unredacted, classified information to counsel for Guantanamo Bay detainees.

Additionally, the fact this dispute involves potential Presidential records14 creates a fundamental and significant distinction. Since any purported “classified records” may be Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the Presidential Records Act (“PRA”). 44 U.S.C. § 2205(3). Accordingly, President Trump (and, by extension, the Special Master) cannot in any event be denied access to those documents. Given this absolute right of access under the PRA, there is therefore no valid basis to preclude such review. Moreover, there cannot possibly be any valid claim of injury resulting from a statutorily authorized grant of access to a former President and/or his designee.

The Government argued on appeal, without explanation, that showing the purportedly classified documents to Judge Dearie would harm national security. App. D at 17. However, in seeking to stay the Injunction Order pending appeal, the Government then argued it needed to use those same documents to interview witnesses and submit to the grand jury. ECF No. 69 at 17. These positions cannot be reconciled.

14 Even the Government’s own Motion for Stay in the Eleventh Circuit acknowledged the obvious, that any purported “classified records” may be Presidential records. App. D at 10 [my emphasis]

At first, Trump argues that Cannon has not ordered DOJ to share classified records with anyone but Dearie. That’s false: She ordered DOJ to share classified records with Trump’s lawyers.

In fact, in the very next paragraph, Trump admits that Cannon’s order is worse to that in Al Odah a DC Circuit case decided per curiam by a panel including Merrick Garland. Fawzi Khalid Abdullah Fahad Al Odah was a plaintiff in a habeas petition — as an enemy combatant he hadn’t and never was charged with a crime — but he was challenging indefinite detention with inadequate due process. By comparison, Trump has not been charged and if and when he is charged, his lawyers will get to see the classified evidence against him. For now, he’s just a plaintiff and the record is uncontested that the warrant executed on his beach resort involved no gross abuse of his rights.

Without acknowledging that the claim Cannon only ordered DOJ to share with Dearie is false, Trump makes the argument that DOJ should have to share with Trump’s designees under the Presidential Records Act. As DOJ has already noted, of course, that’s only true of the records are where they are supposed to be: In the possession of the Archives. They’re not, and that’s part of the problem.

Another part of the problem is that, elsewhere in this appeal, Trump unquestioningly invokes EO 13526, which governed classified information for the entirety of his term and still does. As I’ve noted, that explicitly says even former Presidents must get waivers of Need to Know requirements to access classified information. Trump never changed that order before he became a former President.

In the next paragraph, Trump then complains that DOJ might complain about sharing all of this information with Dearie (and Trump’s lawyers) but might decide to share some of the information with witnesses. Again, elsewhere in this appeal, Trump unquestioningly invokes Navy v. Egan, which is the Supreme Court precedent that says the President — not the former President — gets to decide who needs access to classified information or not.

And nowhere in this argument do Trump’s lawyers admit something that DOJ laid out explicitly before the 11th Circuit: At least one of them, Evan Corcoran, is a witness or possibly even a co-conspirator (DOJ referred to his lawyers, plural, as potential witnesses, suggesting Lindsey Halligan (who was at Mar-a-Lago during the search) or Jim Trusty has had a role in the obstruction process as well. Of course, Trump also neglects to mention the obstruction part of the investigation, which makes all documents with classification marks proof that Trump defied a subpoena.

In other words, Trump is even more poorly situated than Al Odah, who at least had lawyers uninvolved in his potential security concerns. The only one of Trump’s lawyers who’s definitely not a witness, Kise, is also the one who recently was a registered agent of Venezuela.

As I keep saying in this matter, no one really knows how any of this will turn out. Trump’s argument that Ginni Thomas’ favorite President is no Gitmo detainee surely will work with Clarence, who will decide whether to take this appeal (or ask the entire court to weigh in). But along the way, Trump has compared himself unfavorably — legally, at least — with a former Gitmo detainee.

Update: This tweet thread from Steve Vladeck notes that Trump never describes what irreparable harm he faces if Dearie can’t review the classified records now.

Update: One more thing Trump doesn’t tell SCOTUS: That Judge Cannon has altered her own order, taking the classified documents out of it altogether, which makes Vladeck’s point about emergency relief even more hysterical.

Update: Justice Thomas has given the government a week to respond, which suggests even he doesn’t see this as the emergency it would have to be for SCOTUS to get involved.

Open Thread: SCOTUS End of Term Releases

This is an open thread focused on Supreme Court orders and decisions released this week, the final week of the court’s term.

Check these Twitter accounts for more updates and analysis:

SCOTUS updates: https://twitter.com/USSupremeCourt – Updates

SCOTUSblog: https://twitter.com/SCOTUSblog – Analysis

Steve Vladeck: https://twitter.com/steve_vladeck – Dedicated thread with updates and analysis

Chris Geidner: https://twitter.com/chrisgeidner – Dedicated thread with updates and analysis

If you want to suggest any other Twitter accounts to follow for SCOTUS news and analysis, please share in comments.

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the day progresses.

All comments related to the House January 6 Committee hearings should be shared in those dedicated threads, not here

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

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Community guidelines

If you are leaving a comment, please be concise; 100 words is the optimum length.

If you are sharing active links your comment may be delayed by auto-moderation.

If contributors and moderators seem slow, it’s because they’re dealing with higher than usual volume of comments including trolling.

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~ ~ ~

28-JUN-2022

Ardoin, LA Secretary of State, et al. v. Robinson, Press, et al.

Certiorari Granted

Stay granted 6-3 by SCOTUS, essentially fucking over Black voters in Louisiana for this mid-term election by way of the shadow docket.

~ ~ ~

29-JUN-2022

Oklahoma, Petitioner v. Victor Manuel Castro-Huerta

5-4 decision, Kavanaugh majority opinion, Gorsuch with dissent

Blackhawk’s next tweet encapsulates much of the problem with this particular SCOTUS iteration:

This court is not legitimate because it fails to recognize previous SCOTUS decisions, undermines fundamental human rights, and tears at democracy, while re-colonizing Native American nations without the express approval of U.S. legislature, or the re-colonized by nation, or by bodily autonomy.

It is a superlegislature supplanting the role of the legislative branch while frustrating the executive branch’s ability to fulfill functions outlined in legislation.

Given what it has already done this term, what are the odds this same court further destroys the executive branch’s long-recognized functions in its last decisions on West Virginia v. EPA and Biden v. Texas this term?

~ ~ ~

29-JUN-2022

Le Roy Torres, Petitioner v. Texas Department of Public Safety

5-4 decision, Breyer majority opinion, Kagan concurring, Thomas dissent

SCOTUS finds in favor of U.S. veterans’ rights. Texas agreed upon becoming a state that its sovereignty was subordinate to federal policy; this will tweak the noses of Texas secessionists.

The disturbing part of this decision:

It’s as if the four dissenters don’t realize they’re arguing against their own legitimacy. If federal law isn’t supreme, why is their court supreme?

Or is that the point, they’re making yet another argument for states’ rights?

~ ~ ~

Open Thread: SCOTUS Release Day 2 of 2

This is an open thread focused on Supreme Court orders and decisions expected to be released today, Thursday June 23, 2022.

Check these Twitter accounts for more updates and analysis:

SCOTUS updates: https://twitter.com/USSupremeCourt – Updates

SCOTUSblog: https://twitter.com/SCOTUSblog – Analysis

Steve Vladeck: https://twitter.com/steve_vladeck/status/1539971356204212226 – Dedicated thread with updates and analysis

Chris Geidner: https://twitter.com/chrisgeidner/status/1539971614690840576 – Dedicated thread with updates and analysis

If you want to suggest any other Twitter accounts to follow for SCOTUS news and analysis, please share in comments.

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the day progresses.

All comments related to the House January 6 Committee hearings should be shared in those dedicated threads, not here

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

Comment policy

Community guidelines

If you are leaving a comment, please be concise; 100 words is the optimum length.

If you are sharing active links your comment may be delayed by auto-moderation.

If contributors and moderators seem slow, it’s because they’re dealing with higher than usual volume of comments including trolling.

Caution: moderators will have much lower tolerance for trolling.

~ ~ ~

 

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