The Supreme Court: Clarence & Ginni Thomas Jet Set Edition

[goofy]

The repercussions of Bruen continue, with federal judges now deciding that common-sense regulations that even Antonin fucking Scalia thought were reasonable in 2008

…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings…

are actually intolerable assaults on fundamental American rights:

Judge Blocks Much of New Jersey Law Limiting Guns in Public

A federal judge ruled on Monday that a central component of a new law that limited where handguns may be carried in New Jersey was unconstitutional, severely undercutting the state’s effort to create gun-free zones in public places where crowds gather.

In a sharply worded decision, Judge Renée Marie Bumb of the U.S. District Court of New Jersey concluded that a half-dozen restrictions in the legislation, adopted less than three weeks ago, were “so extensive and burdensome” that they rendered the right to “armed self-defense in public a nullity.”

New Jersey, like New York, established an extensive list of places where handgun owners were not permitted to carry weapons in response to a Supreme Court ruling in June that loosened restrictions on carrying guns in public.

Judge Bumb’s order at least temporarily blocks New Jersey from enforcing much of the new law, and immediately permits licensed handgun owners to carry weapons in nightclubs, theaters, arenas, concert halls, racetracks and museums, among other places, pending further court action.

Attending Jets games should be fun.

[commonWealth]

@goofy

Attending Jets games should be fun.

Does this ruling prohibit venues from imposing their own restrictions? I mean holy shit, someone can literally shoot a player on the field for fucking up?

[ViridianDreams]

It’s not at the Supreme Court yet, but a gambling company is pushing a lawsuit (Maverick Gaming, LLC v. United States, et al.) that will probably end up in the Supreme Court challenging gaming compacts as being unconstitutional because they are based on race. Similar arguments are being used right now in the Supreme Court to argue that Native American families shouldn’t have preference over non-native families in adoption cases that involve native children. This legal theory has pretty significant implications for tribal sovereignty throughout the US. It focuses the arguments on race rather than on tribal sovereignty seriously undermining tribal sovereignty as a concept.

[goofy]

@ViridianDreams

Similar arguments are being used right now in the Supreme Court to argue that Native American families shouldn’t have preference over non-native families in adoption cases that involve native children. This legal theory has pretty significant implications for tribal sovereignty throughout the US. It focuses the arguments on race rather than on tribal sovereignty seriously undermining tribal sovereignty as a concept.

You’ve probably listened to this, but for anyone who hasn’t the 5-4 episode on Adoptive Couple v. Baby Girl goes into a lot of detail on this subject. And yeah, SCOTUS loves to conveniently pretend that the issue here is “race” and not “treaties made with sovereign nations” so they can just point at their “in this courtroom we are not allowed to acknowledge race exists” sign.

[Jman220]

Tribes might have.a1-up because Gorsuch seems to be generally sympathetic to tribal rights for whatever reason.

[goofy]

They need one more tho. The liberals + Gorsuch won the day in McGirt and then Ginsburg croaked and they lost the followup (Castro-Huerta) for no other reason than “lol your side lost one and our side gained one”.

[goofy]

While we’re on the subject, also worth noting that a case (Haaland v. Brackeen) is pending before SCOTUS where a bunch of red states want them to declare ICWA (Indian Child Welfare Act, the law at the center of Adoptive Couple v. Baby Girl) unconstitutional, and since they’re a bunch of shitheads they’ll probably do it.

[goofy]

In rare good Supreme Court news:

https://www.cnn.com/2023/01/09/politics/escobar-capital-case-supreme-court-dna-evidence/index.html

SCOTUS overturns a guy’s death row conviction which was based on faulty DNA evidence. The story of how this got to the Supreme Court, however, is sickening. A longer NYT story on the subject from October:

A Prosecutor’s Change of Heart in a Capital Case at the Supreme Court...

A state judge in Texas ruled that Areli Escobar, a death row inmate there, had been convicted based on junk science produced by a police DNA lab so riddled with problems that it had to be shut down.
…
When the case reached the Texas Court of Criminal Appeals, the state’s highest court for criminal matters, Mr. Garza did something surprising. He joined lawyers for Mr. Escobar in urging the court to order a new trial, one that would exclude the evidence he had come to doubt. But the appeals court upheld Mr. Escobar’s conviction this year in a short unsigned opinion that did not acknowledge the prosecution’s changed position.

A state court judge overturned the conviction, and the district attorney joined on to be like “yeah I think we fucked that one up”. Texas’ highest court still sent the guy to death row anyway!!!

Mr. Escobar was convicted in 2011 of murdering Bianca Maldonado Hernandez, who lived in the same apartment complex. The prosecution presented some circumstantial evidence, including cell tower records and a partial fingerprint, but the centerpiece of its case was evidence from the Austin Police Department’s DNA lab.

At a later court hearing on a challenge to Mr. Escobar’s conviction, a juror said that the DNA evidence had been crucial.

The Texas appeals court took the opposite view, saying the remaining evidence was sufficient to support the conviction notwithstanding “the general deficiencies discovered” by the commission’s audit.

What in the fuck!

[goofy]

Roundup of SCOTUS news & articles from this week’s Balls & Strikes newsletter:

The Case For Sonia Sotomayor and Elena Kagan Calling It Quits

Written by Peter from 5-4:

If Democrats are going to embrace the fact that the Supreme Court is part of the modern political battlefield, they will need to confront a simple truth: Justices Sonia Sotomayor and Elena Kagan should retire, too.

Sotomayor is a phenomenal jurist. Unlike Breyer, whose milquetoast ideals veered into outright conservative territory with some frequency, Sotomayor is the clearest liberal voice on the Court. She is a reliable liberal vote across every major issue, and a notably poignant writer on criminal justice matters, to give just one example. Kagan, though notably more moderate, is nonetheless also a consistent liberal vote, not to mention one of the most articulate defenders of voting rights in a generation. It’s the political reality, not the quality of their work, that should compel them to retire.

When Kagan and Sotomayor leave the Court, there’s no doubt that something will be lost. Given that, it’s natural that many people are asking, “Who could possibly replace them?” It’s the wrong question. The correct question is, “Who will replace them?”

We’ve had this conversation before. In 2014, when many were calling for the retirement of the then-81-year old Justice Ruth Bader Ginsburg, Ginsburg fired back in a July interview. “Tell me who the president could have nominated this spring that you would rather see on the Court than me,” she asked the journalist Joan Biskupic. Her defenders echoed the sentiment. Professor Garrett Epps took to The Atlantic to chastise academics calling for Ginsburg to step down, and Slate’s Dahlia Lithwick authored a piece bluntly titled “Justice Ginsburg is Irreplaceable.” It was a nice compliment, but Lithwick should have thought about Ginsburg’s replaceability less figuratively, because it was Justice Amy Coney Barrett, who did, in fact, replace her.

Moreover, the idea that certain justices are irreplaceable has never been grounded in reality. Sotomayor and Kagan are exceptional jurists with unique perspectives. But so is Myrna Pérez, currently a federal appeals court judge and previously the director of the Brennan Center’s voting rights program. So is Holly Thomas, now a judge on the Ninth Circuit Court of Appeals, whose career has taken her from the NAACP Legal Defense Fund to California’s Department of Fair Employment and Housing. So is Rachel Bloomekatz, an accomplished public interest attorney whose nomination to the Sixth Circuit is currently pending. The proposition that no one else could do the job is institutional mythmaking, and a disservice to the array of talented lawyers who are capable of doing the work.

100% facts. Nonetheless, bring up the idea of Kagan and Sotomayor retiring on Twitter and you’ll get some angry libs in your mentions.

Michigan Supreme Court Justice “Completely Disgusted” By Concept Of Working...

So much for serving your time and rejoining society as a full member:

On New Year’s Day, Justice Kyra Harris Bolden took her oath of office and became the first Black woman ever to ascend to the state’s highest court. Bolden was driven to law school by her family history—after her great-grandfather was lynched, his murderers were acquitted by an all-white jury. Bolden went on to serve as a criminal defense attorney and then in the state legislature. When Governor Gretchen Whitmer announced the appointment last year, she said that Bolden, as a Black woman and the mother of a newborn, would “bring a unique perspective” to the court “that has been too long left out.”

But as it turns out, not all “unique” or “long left out” perspectives are welcome in the judiciary. One of Bolden’s first acts on the bench was hiring a law clerk who spent much of his young adult years behind bars; Peter Martel, 48, was incarcerated in Michigan between 1994 and 2008 for robbing a Flint-area convenience store and shooting at police officers while fleeing. Bolden’s colleague on the bench, Justice Richard Bernstein, responded to news of Martel’s hire with relentless public criticism, describing it as a “slap in the face to every police officer in Michigan.” Privately, he gave Bolden the silent treatment, telling a local news outlet, “I’m no longer talking to her. We don’t share the same values.”

Peter ultimately resigned after just one day on the job. Bolden announced that he “did not want to be a distraction or in any way divert the Court from its important work.”

The irony here is stunning. Bernstein chastised Bolden for “making a political statement” by hiring Martel without considering that his opposition to that hiring could have political meaning, too. Bernstein said that Martel isn’t an “appropriate” choice to work in the legal system because of his time on the wrong side of it. But Bernstein’s “intense” support for cops and “disgust” with Martel’s hiring are purportedly unbiased sentiments with no bearing on Bernstein’s decisions in cases that will affect police officers and criminal defendants.

Bernstein is a Dem.

The Supreme Court’s Conservative Supermajority May Sabotage Unions’ Right to...

Oral arguments were held Tuesday for a case (Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local Union 174) where a company is suing their workers for economic damages caused by their strike. The Washington State Supreme Court unanimously sided with the union in being like “lol fuck off”, but the conservative SCOTUS might have some THOUGHTS on this one.

While its decision in Glacier is not a foregone conclusion, the court has already erred badly simply by accepting the case. There was no need to do so: The Washington Supreme Court had decided unanimously in the union’s favor, there was no split in the circuit courts, and there was long-standing precedent that didn’t need to be examined anew.

The employer’s argument in the case proposes a stark departure from long-standing federal labor law, while disingenuously framing its position as seeking just a wee clarification. The National Labor Relations Act, which dates back to 1935, protects workers’ right to strike and recognizes that when they do, economic harm to the employer may occur (and is, actually, kind of the point).

The employer in Glacier wants to change that. In an extraordinary leap of logic and chutzpah, Glacier’s attorney (former Donald Trump Solicitor General Noel Francisco) began his argument yesterday by comparing the spoilage of a partial day’s worth of concrete with: federal security guards leaving their posts in the middle of a terrorist threat; a ferryboat crew abandoning ship in the middle of a river; and steelworkers walking out in the middle of a molten iron pour, risking extensive damage to factory equipment. In such situations, Francisco argued, employer lawsuits would be allowed—just as, in his view, they should be in Glacier.

These analogies wouldn’t fly on the SAT, and they shouldn’t prevail in the Supreme Court either. A terrorist threat is not the same as some spoiled Gorgonzola. An abandoned ferryboat in the middle of a river is not like the loss of a partial day’s worth of product (about $11,000 worth, in Glacier’s case). The employer’s comparisons involve risk to human life as well as extensive damage to property; they’re nothing like the facts in Glacier. Perhaps to corporate oligarchs the thought of losing even a nickel’s worth of product because of striking workers is too much to bear. But their view isn’t the law, at least not yet.

Francisco’s core argument involved a sleight of hand: He labeled the loss of a perishable product as the “intentional destruction of property.” Because that phrase can also describe actions that are not protected—like violence, vandalism, or arson—Francisco claimed that this strike must also be unprotected.

Lastly:

Want to own an automatic rifle? A federal appeals court just said it’s legal.

Conservative courts want to make it easier for you to get mowed down in a mass shooting with illegal weapons:

In response to this shooting [the Las Vegas music festival one] — the deadliest mass shooting in recent US history — and others, even the Trump administration concluded that bump stocks are intolerable. Federal law makes it a crime to possess a “machinegun,” and a Justice Department rule that took effect in 2019 clarifies that a weapon that is modified by a bump stock to allow automatic fire qualifies as a machine gun.

Now, however, that rule is in grave danger. On Friday, the United States Court of Appeals for the Fifth Circuit handed down a decision striking down this Trump era rule. Given the Fifth Circuit’s political leanings — the Court routinely hands down legally dubious decisions implementing far-right policy goals — this outcome is not surprising. But, while much of the Fifth Circuit’s reasoning is difficult to defend, one of its arguments against the bump stock ban is plausible.

[commonWealth]

@goofy

In an extraordinary leap of logic and chutzpah, Glacier’s attorney (former Donald Trump Solicitor General Noel Francisco) began his argument yesterday by comparing the spoilage of a partial day’s worth of concrete with: federal security guards leaving their posts in the middle of a terrorist threat; a ferryboat crew abandoning ship in the middle of a river; and steelworkers walking out in the middle of a molten iron pour, risking extensive damage to factory equipment. In such situations, Francisco argued, employer lawsuits would be allowed—just as, in his view, they should be in Glacier.

Noel Francisco, welcome to Slapsgiving.

(Also the fact that SCOTUS took this is concerning, could we see a 5-4 in favor of the employer? We’ve talked in the past about how this SCOTUS was going to just absolutely demolish workers’ rights.)

[goofy]

The Supreme Court Justices Do Not Seem to Be Getting Along

I’ve been attending Supreme Court oral arguments since 2013. As The Economist’s SCOTUS correspondent, I’ve watched arguments in the most contentious cases of the past decade—a Church-state fight in 2013; the Affordable Care Act and same-sex marriage showdowns in 2015; clashes over affirmative action (2015), labor unions (2018), voting rights (2018), and abortion (2020); and dozens of others. Only the justices are privy to the mood in their private conference room where cases are discussed after the hearings. But what I have seen this term on open display inside the courtroom is an obvious departure from the collegiality of years past.

Based on the Court’s two most heated days of oral argument this fall, these tensions have not passed. The mood on the bench during these hearings was unrecognizable. With the exception of Gorsuch and Amy Coney Barrett (who look quite happy sitting next to each other), the justices do not seem to be getting along. Questions are long and tempers short. The seating arrangement—by tradition, the newest justices sit on the wings—exacerbates the tension. The three liberal justices are either sandwiched between members of the conservative bloc (Sonia Sotomayor flanked by Thomas and Gorsuch, Kagan by Alito and Brett Kavanaugh) or, in Jackson’s case, stranded at the end of the bench with only Kavanaugh at her side.

At the oral arguments I attended for the affirmative-action cases on October 31, the most conservative member of the Court, Thomas, and his new neighbor, the most progressive member of the Court, Sotomayor, paid each other no attention. Gorsuch, on Sotomayor’s other flank, raised an eyebrow in apparent derision when she asserted that segregation continues to plague American society in 2022. Roberts, whose opposition to all governmental uses of race, such as for hiring and contracting, is among his most strongly held views, tried to appear, as he often does, affable and open-minded. But he ended up holding his face in his right hand, taking in lawyers’ defenses of racial preferences with waning patience.

Justices were once at least somewhat circumspect during oral arguments. They would refrain from announcing their actual views, fostering a pretense of open-mindedness. But during the hearings for Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina—both challenges to race-based preferences in higher-education admissions—the justices dropped the charade. In 2016, when this question was last brought before the justices, Thomas had said nothing during oral argument. But he was now contemptuous of the idea that diversity is valuable—or even a coherent concept. It seems to him, he said with a look of consternation, that diversity is just “about feeling good and all that sort of thing.” (Maybe I’m “tone deaf,” he added.) Kagan, meanwhile, was incredulous that the plaintiffs apparently believed that “it just doesn’t matter if our institutions look like America.” She opened her eyes wide and said, “I guess what I’m asking you is, Doesn’t it? … These are the pipelines to leadership in our society!”

[goofy]

Conservative Judges Keep Inventing Facts to Reach Their Preferred Results

The 5-4 episode on the praying football coach case (Kennedy v. Bremerton School District) was an excellent example of this - the decision twisted and omitted so many facts of the case that Sotomayor spent a remarkable amount of space in her dissent correcting them and inserting photographs - but the Sixth Circuit brings us more, striking down a county law in Louisville that established a buffer zone of all of ten feet around an abortion clinic:

Louisville’s law is a narrow one: It prevents everyone except EMW patients, staff, and volunteers from blocking the sidewalk from the entrance of a healthcare facility to the closest sidewalk curb, and a ten-foot zone on either side. That’s all, though. It doesn’t prohibit, for example, screaming at the patients walking to the clinic. It doesn’t prohibit those screaming protesters from lining up along the sidewalk, forming an anti-choice gauntlet through which anyone seeking care must pass. It doesn’t prohibit anti-choice activists from holding signs with graphic images of aborted fetuses. It only prohibits, as the lower court explained, “physically obstructing a patient from entering the healthcare facility.” Anyone walking down the middle of the sidewalk is within five feet of the protesters, and can easily hear anything and everything the protesters have to say.

Given these facts, the lower court declined to block the buffer zone law from taking effect. But on appeal, a three-judge panel of George W. Bush appointees Jeffrey Sutton and Richard Allen Griffin and Trump appointee John B. Nalbandian reversed, holding the buffer zone unconstitutional because requiring the plaintiffs to stay ten feet away from patients inhibited their ability to share their message. The opinion placed great weight on the protesters’ contention that they engage with patients in a “quiet, caring, personal manner”: “The goal of the plaintiffs is not to harass or protest, whether loudly or violently,” Sutton wrote. “The point of their speech is to offer a compassionate ear.”

This “quiet, caring, personal” business is fiction. As the government explained, the so-called counselors “regularly harass, stalk, intimidate, and assault patients entering and exiting the clinic,” requiring a “constant police presence” at the clinic. The county routinely had to arrest and cite people for actions ranging from property destruction to intimidation and harassment to criminal trespass. Asking staff and patients to file complaints proved counterproductive, because those who complained face further retaliation from the protestors, including calls to their family and to clergy. EMW’s records tallied 1,447 protesters in two months between January and March 2021, with an average of 23 per day. A video submitted by the government shows a protester grabbing a patient and dragging them away from the entrance.

In the hands of the Sixth Circuit, however, this record of abuse, harassment, and violence just disappears. The buffer zone, Sutton concluded, makes “quiet” conversations “difficult if not impossible,” and requiring protesters to stop at the borders unfairly makes them appear “untrustworthy” or “suspicious.”

Conservative judges grant anti-abortion terrorists the full protection of the law at a level granted to no one else. Imagine these shitheads judging an identical case where the venue was instead Brett Kavanaugh’s home, I wonder if that would turn out the same?

[goofy]

SCOTUS announces that the leak investigation is over and did not find a culprit, so it was definitely Ginni Thomas:

Chris “Subscribe to Law Dork!” Geidner

Chris “Subscribe to Law Dork!” Geidner

[commonWealth]

Lol so they investigated everyone who could have leaked it except the justices and their families?

In before the right wing media starts blaming the investigators, Sotomayor, and Kagan. They might even manage to blame KBJ because there’s definitely nobody they’d RATHER blame, even if she wasn’t even on the Court yet.

[hammypotter]

Wonder if this is sufficient for 5-4 guy to admit it wasn’t a liberal clerk who leaked the opinion

[goofy]

Did they think it was a liberal? My vague recollection is that *I* initially assumed it was a liberal because that’s the ldo most obvious thing, but that it was savvier law people who suggested it could have been a conservative who wanted to lock in any timid conservatives who might have been on the fence.

[hammypotter]

Peter said he suspected a liberal law clerk was responsible

[eyebooger]

For those ignoring Trumpbot:

[hammypotter]

The Onion

[Danspartan]

RiotWomenn