U.S. Supreme Court: Post-Nino Edition

http://i2.cdn.turner.com/cnnnext/dam/assets/150625123238-will-mullery-justice-scalia-large-169.png

aaaaand here we go:

President Obama is to confer in the Oval Office on Tuesday with Senator Mitch McConnell of Kentucky, the Republican majority leader, and Senator Charles E. Grassley of Iowa, the Republican chairman of the Senate Judiciary Committee, about filling the Supreme Court vacancy left by the death of Justice Antonin Scalia. If everyone maintains previously stated positions, it might be a very short meeting.

Mr. Obama is adamant that he will name a nominee to the court, most likely in the next few weeks. Republicans remain just as adamant that they will not even meet with Mr. Obama’s nominee, let alone hold confirmation hearings.

Then again, the meeting on Tuesday will bring together six men who have rarely been accused of keeping their remarks brief. Besides Mr. Obama, Mr. McConnell and Mr. Grassley, the invited participants include Senator Harry Reid of Nevada, the minority leader; Senator Patrick Leahy of Vermont, the senior Democrat on the Judiciary Committee; and Vice President Joseph R. Biden Jr.

Thomas speaks!

“Ms. Eisenstein, one question,” he started, according to a transcript released by the court. “This is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?”

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After some back and forth, Ms. Eisenstein said she could not think of one, though she added that First Amendment rights could be affected in comparable settings.

“O.K.,” he said. “So, can you think of a First Amendment suspension or a suspension of a First Amendment right that is permanent?”

Here again, Ms. Eisenstein offered a concession. “Your Honor,” she said, “it’s not necessarily permanent as to the individual, but it may be permanent as to a particular harm.”

The barrage of sharp, pointed questions continued, with Justice Thomas seeming to have the better of several of the exchanges.

Chris Christie says there should be hearings. So you can all exhale now.

“Ms. Eisenstein, one question,”

wish I could see video of Eisenstein's reaction to this

Ha! Yeah, jaw must've hit the floor.

"Shit, I thought this was going well - I'm dreaming, aren't I?"

Dust and cobwebs covering Thomas' mike.

“Ms. Eisenstein, one question,”

http://i.imgur.com/jrbn9oI.gif

"Wha? Who said that!"

and of course the motherfucker asks a question to which any non-lawyer could have given a reasonable answer: yeah, many constitutional rights have had court-imposed limits.

The cause that inspired Thomas to break a ten year silence: men convicted of domestic violence who wish to own guns.

Voisine v. United States involves a fairly technical question of whether two men with previous domestic assault convictions are subject to federal law prohibiting individuals convicted of a “misdemeanor crime of domestic violence” from possessing firearms. Justice Thomas, however, appeared deeply troubled by the idea that these men may not be able to carry a firearm.

Noting that the right to carry a gun is ordinarily “a constitutional right” under existing law, Thomas began his questioning by asking if Ilana Eisenstein, the attorney arguing the case on behalf of the federal government, could “give me another area where a misdemeanor violation suspends a constitutional right.”

There are many possible answers to this question. The Supreme Court has long recognized that U.S. citizens have a constitutional right to travel within the United States, yet a person convicted of a misdemeanor could be arrested and jailed for up to a year. Similarly, the First Amendment protects a right of “expressive association” with other individuals, but such an association may be difficult to maintain while an individual is incarcerated. The Constitution also provides fairly robust protections for property rights, but someone convicted of a misdemeanor may lawfully be fined.

In any event, Thomas continued to press Eisenstein for several pages of the argument transcript. At one point, he appeared bothered by the fact that domestic abusers have their right to own a gun suspended indefinitely. At another point, he seemed to suggest that the particular domestic abusers at issue in this case should not lose their ability to carry guns because they’ve never actually “use[d] a weapon against a family member.”

Thomas appeared unmoved when Eisenstein pointed out that “individuals who have previously…­­ battered their spouses, pose up to a six­fold greater risk of killing, by a gun, their family member.”

Justice Thomas has a record of near absolutism on the Second Amendment. Last December, while the nation was still mourning the mass killing of more than a dozen people at a facility for the developmentally disabled in San Bernadino, California — a crime that was committed with assault rifles — Thomas penned a dissenting opinion suggesting that assault rifle bans are unconstitutional.

Indeed, it now appears that Thomas believes that the Second Amendment should be read so broadly that even domestic abusers must be allowed to own guns. And that he is so committed to this cause that it is the only thing that he’s spoken about in ten years of Supreme Court hearings.

http://thinkprogress.org/justice/2016/02/29/3754773/justice-thomas-just-broke-his-ten-year-silence-to-complain-that-domestic-abusers-cant-have-guns/

The Notorious RBG at work:

That’s odd that you point to the New Mexico facility,” Ginsburg said, in a clear and firm voice. New Mexico, after all, doesn’t force abortion clinics to meet the same standards that Texas would—standards which, Texas claims, are absolutely critical to protect women.

“So if your argument is right,” Ginsburg continued, “then New Mexico is not an available way out for Texas, because Texas says: To protect our women, we need these things. But send them off to New Mexico,” to clinics with more lenient standards, “and that’s perfectly all right.”

“Well,” Ginsburg concluded, with just a hint of pique in her voice, “If that’s all right for the women in the El Paso area, why isn’t it right for the rest of the women in Texas?”
http://www.slate.com/blogs/the_slatest/2016/03/02/ruth_bader_ginsburg_asks_the_most_important_question_of_oral_arguments_in.html

However, per the NY Times, if the court deadlocks 4 to 4, the stringent Texas law upheld by the conservative Appeals Court could stay in effect:

Although Justice Antonin Scalia’s death last month may have muted the prospect of truly bold action in the case, even a 4-to-4 tie would have enormous consequences because it would leave in place the appeals court decision, which challengers say could drive down the number of abortion clinics in Texas to about 10 from roughly 40. On the other hand, Justice Scalia’s death means the court is very unlikely to weaken constitutional standards affecting abortion in the rest of the nation, as the four liberal justices would not go along.

yeah this is not a good outcome

TPM publishes one of those speculative pieces:

The current situation has put the chief justice in an awkward position. Senate Republicans have picked this fight with the White House in the hopes that a future GOP president can ultimately pick a Scalia successor, restoring the conservative majority on the Supreme Court. But in doing so, they also embroiled the court in the very partisan contentiousness from which Roberts tries to insulate the court.

“He’s in an interesting place, personally, because on the one hand, I’m sure he would like a reliable conservative vote, and on the other hand, I can’t imagine he wants to operate with a court of eight for two terms, which is what it effectively would be,” Barry Friedman, a professor at the New York University School of Law, told TPM. “My guess is he would rather have the position filled and get the court out of this particular spotlight.”

Unless Roberts makes the unlikely decision to speak out about the hardball Senate Republicans are playing, we won’t know how he feels about it. And even if he did object to their refusal to restore the full bench, at least for another year, saying so publicly might only make matters worse. But a review of Roberts’ record suggests the current standoff presents competing interests for the chief justice, and legal experts argue, at the very least, he would be torn.

“In his heart of hearts, he probably has views on these things. It would be very hard not to,” Arthur Hellman, a professor at the University of Pittsburgh School of Law, said in an interview with TPM. "He really is very concerned about preserving the court’s legitimacy and its stature as an institution.”

the TRAP laws case is so very infuriating to me; these fuckers trying to pretend their objection is not entirely moral but is about "helping women" is the most hypocritical load of bullshit

"He really is very concerned about preserving the court’s legitimacy and its stature as an institution.”

Well, what fun is it to be the Chief Justice of a despised and disrespected institution? People just spit on you in public or chant your name in a funny voice.

once you determine on a bone level that fetuses are children and abortion is murder, whatever machiavellian notions you put to bear in support of anti-abortion laws are totally self justifying to these pontificating assholes
housing/feeding/clothing the child and the mother however is SOCIALISM and not the state's business. these bastards are willing to put actual lives in danger in practice rather than risk their principals not being fully executed
so angry

Don't we all do that? I mean, don't some of us trade security for freedom/privacy?

it's a bit different when you're risking lives of people that you're not even remotely connected to because you want to save their miraculous soul babies but don't give a damn about what happens post partem

Sadly, George Clinton can no longer make Richard Pryor minister od education

Oops, wrong thread

true though

once you determine on a bone level that fetuses are children and abortion is murder, whatever machiavellian notions you put to bear in support of anti-abortion laws are totally self justifying to these pontificating assholes

OTM -- these people see themselves as fetus Harriet Tubmans and John Browns.

with respect to the case, it's not a "good outcome" but it doesn't strike me as a worse outcome than you'd likely get if Scalia were alive.

i saw this a few weeks ago and some of the actual cases these laws impact are utterly heartbreaking
http://www.trappeddocumentary.com/

https://www.youtube.com/watch?v=gjgVPPEoFt8

Same director as the outstanding 'Gideon's Army'; she spent months at the clinics in question to see what the actual work that they're doing is about and it's utterly damning to the "for the safety of women" argument.

https://www.youtube.com/watch?v=iHIvZuypso4

http://www.reuters.com/article/us-usa-court-adoption-idUSKCN0W91N5?utm_source=twitter

omg the bunk as Clarence Thomas, so much would watch

Fuck. Fuck fuck fucking fuck. Fuuuuuuuuuuuuuuck.

that actress looks like Ginny!

that parent's rights case djp cites upthread is some bullshit

I am so much less terrified of SC thread revives post-Nino

right?

http://www.sfgate.com/nation/article/Supreme-Court-upholds-same-sex-adoptions-6875630.php

that is the same story that DJP linked, no?

ah sorry

https://www.washingtonpost.com/politics/here-are-the-five-judges-the-white-house-is-considering-for-the-supreme-court/2016/03/06/2e785858-e0a4-11e5-9c36-e1902f6b6571_story.html

One of my wife's classmates from undergrad (Ketanji Brown Jackson) made the shortlist.

The U.S. Supreme Court has refused to hear an appeal by an anti-Muslim group who wanted to post ads on buses in Washington state showing photos of wanted terrorists

the Scalia Effect in full effect

hahaha wait, why didn't they just resubmit the ad without the claim of a reward

were they THAT enamored of the wild west aesthetic that they couldn't take out the patently false info that made their shitty ads unlawful to print?

I would assume the identities of the people in the "photos of militants" are also legally problematic (that link doesn't say if all 16 people were actually wanted by the FBI or not)

you can't just throw up a photo of anybody on a bus w/a "WANTED TERRORIST" caption, that seems p blatantly illegal

I would bet a dollar that if he nominates a woman, there will be mindbendingly stupid hot takes from Nat'l Review types saying that a man should be nominated in place of a man

*crumples sketch, fumes*

(xpost)

The article pretty clearly states that it was rejected because the claim of a reward was false; I'm not going to speculate on the rest of it without knowing who these alleged "militants" are.

you can't just throw up a photo of anybody on a bus w/a "WANTED TERRORIST" caption, that seems p blatantly illegal

― Οὖτις, Tuesday, March 8, 2016 2:26 PM (5 minutes ago) Bookmark Flag Post Permalink

So out of curiosity I looked it up, and apparently a majority of states do not have criminal defamation laws (seventeen states and two territories do). However you'd have a pretty strong civil case because in nearly all states falsely accusing someone of criminal activity is a level of defamation you don't have to prove damages for. As a result, it's unlikely that any public bus system would allow such ads or that anyone could successfully sue them for refusing to display such ads.

(and presumably a court would uphold the right of a public bus company to refuse to display blatantly defamatory ads).

It appears that the FBI Puget Sound office came up with the ads originally but their version didn't include 16 profile pics - it wasn't until this other group picked up the ball and put up altered versions of the ads (including adding the pics and the false award claim) that legal challenges arose.

http://talkingpointsmemo.com/livewire/cornyn-pinata-scotus-nom

Sen. John Cornyn (R-TX), the No. 2 Republican in the Senate, said Monday that President Obama's yet-to-be-named Supreme Court nominee would be like a "piñata."

"I think they will bear some resemblance to a piñata," Cornyn told reporters on Capitol Hill, according to CNN.

When pressed, Cornyn clarified, "I believe that the nominee will be covered in papier-mâché and decorated with many colorful bits of paper and fringe. I also believe that the nominee will be filled with delicious candy and wonderful toys that I will grasp with both fists after he or she bursts open on the Senate floor."

"It's my birthday!" Senator Cornyn added excitedly.

xp -- true (though from my understanding it can't possibly be done in time for the really big one, i.e., any potential supreme court cases about the election.)

not really convinced that an expanded court mitigates one justice retiring or dying, though. 100-99 is the same thing as 5-4 when it counts, the court is probably not getting less predictably partisan anytime soon, and you see the same kind of thing happen with, say, senators being absent or present

Wait, wouldn't a 49 member Supreme Court make more sense?

s/cases/decisions

yeah the way SC justices are doled out is insane and an easy system to game, all you have to do is convince your old folks to retire early and nominate young folks in their place

each president should get 2, end of story

also xp -- probably, the point is, you can still have a decision rest on one member no matter how many people you have

Sure, but governors can appoint senators and it happens w/out fuss b/c no legislative body confirmation is required.

The strongest argument for expanding the court IMO is that the death or retirement of a single justice doesn't radically swing the balance in any particular direction.

well now that it's going to be a 6-3 court that problem is obsolete

If you are packing the court, why would you make it slightly partisan? Make it 15-6 or gtfo. It's going to get challenged regardless, so might as well go large.

we got used to the 5-4 split, but it was a product of a regular flipping of the presidency between parties, and is finally being broken due to bad luck/selfishness

We also, thanks to the mythos propping up the Warren Court (which only became the liberal touchstone we remember in 1962 when Goldberg joined), tend to forget the Court has been a nightmare of revanchist counter-revolution for most of its existence.

exactly. It's designed that way and the fact that it ever wasn't was a historical anomaly.

a historical anomaly but one worth re-creating if possible, ASAP.

even if it weren't for McConnell's sinister godawful smug grinning bullshit actions, there would be something truly blood-boiling about Trump getting more justices in one term than Obama got in two. and, obviously, it's hard not to contemplate the alternate universe where 2016 went just slightly differently, and Clinton had gotten three picks. (haha obviously i know Mitch and Cruz and company would have just spent the past four years refusing to vote on them.) i mean this is just more evidence for "all of our rights and fates should probably not hinge on these nine people" but in the day-to-day living under that system it just eats away at you to contemplate it. we were in hindsight THIS close to a 6-3 court of Democratic appointees.

at this point all i can hope for, ghoulishly, is a Trump loss followed swiftly by the retirement/death of Thomas and, in some actuarial alignment, the comparatively spry Alito. also let's be real, the moment a passably liberal appointment can be assured, Stephen Breyer needs to to hang up his robe also. also fuck anthony kennedy forever for condemning the world to possible decades of Associate Justice Brett Kavanaugh. in conclusion i'm so angry.

Stephen Breyer needs to to hang up his robe also

^^fucking this. like, immediately.

at this point I wouldn’t be surprised if Thomas bows out in Trump’s watch

(I don’t think it will happen, just that it would have zero shock value for me)

I assumed Thomas would resign this year as a fuck you to dems, but maybe not

xp -- I don't remember the Warren Court, the first very clear memory I have of a decision is Citizens United

(more pertinently, I don't remember a point in my lifetime where half the country -- realistically speaking, way more than half, and not just this country -- was not fundamentally selfish and cruel and compassionless, a mindset that naturally extends to court decisions)

sorry if this point has been made but I really don't see much comfort in the idea of packing the court, because when the republicans take office again they'll just re-pack the court again, and this could go on essentially forever given that roughly half of the country supports trump

― like, I’m eating an elephant head (katherine), Tuesday, September 22, 2020 1:51 PM (one hour ago) bookmarkflaglink

IMO, part of the idea behind expanding the court would be to entrench power while we can and make it less likely for Republicans to gain power again unless they moderate. Trump is *not* supported by a majority of the country, but rulings by the Roberts court on things like campaign financing, voting rights, and gerrymandering have made it easier for Republicans to win elections.

otm

I think speculation about Thomas retiring strategically underestimates how much of a bona fide weirdo he is

my understanding of voting rights/gerrymandering is that a lot of the restrictions either flout SC rulings or rely on the fact that SC rulings will be handed down too late to count (more of an issue in a redistricting year)

the local/state restrictions that is

I can easily imagine Justice Thomas thinking "my millions of enemies would love nothing more than to see me off the court and I will never give them that satisfaction as long as I have breath in my body", then smiling at the thought.

Re Amy Coney Barrett -- I've always found it weirdly dissonant when a highly successful woman in a position of power appears to be in favor of female subservience. Is it a conservative elitist "those rules are really for the masses, not us" thing?

only the white kind of woman

lol she would have been a classmate of my ex-brother-in-law’s at Rhodes College, which is pretty small. I’d check and see if there’s any intel there but honestly that’s a hornets nest I’d rather not kick over. I suspect both he and my sister are secret (shy!) Trump voters this time around.

this is basically the federalist society https://t.co/HerGyZRSbU

— Republic City YIMBY ↙️↙️↙️😷 (@opinion_left) September 22, 2020

"The small-c conservatism that shaped Ginsburg’s public persona and decision-making could not be further out of step with the moment. Hope still exists, but it does not lie with the justices....Hope is in the streets." perfect from @onesarahjones https://t.co/jurwV6YqgN

— paris geller stan account (@tmavuram) September 24, 2020

once again - are SCOTUS justices SUPPOSED to be feminist activist heroes in their actual role? part of being a justice involves issuing rulings you don't necessarily agree with due to precedence/interpretation of law.

Is it?

I no longer think so. If the GOP nominates outright partisans, so should we.

Jurisrashness

If a belief in "originalism" affirms white male power before 1865, then we should make clear what "we" believe in.

Biden thinks a Dem partisan rules 'shoot him in the leg'

are SCOTUS justices SUPPOSED to be feminist activist heroes in their actual role?

SCOTUS justices are supposed to nullify or modify laws which infringe upon the valid rights of citizens. This is not activism, but duty.

Democrats prepare bill limiting U.S. Supreme Court justice terms to 18 years https://t.co/QIynBWPZkh pic.twitter.com/T7iQXBwzVm

— Reuters (@Reuters) September 25, 2020

wouldn't this require an amendment?

i suppose it's more an attempt to introduce the idea that they're willing to fight back, which i endorse

otm

The bill seeks to avoid constitutional concerns by exempting current justices from the 18-year rule. Those appointed under term limits would become “senior” upon retirement and rotate to lower courts.

cool, so this would only affect justices chosen by future Dem presidents. Problem solved!

i mean 'ex post facto' laws are barred via the Constitution, so any reform going forward is going to run into that

i don't think ex post facto clause would apply to this but the article said it exempts current justices from the term limit

its a good idea and it should have been implemented decades ago. the fact that the future of our country was staked on the health of a cancer-ridden 86 year old is insane

It's crazy that there should be lifetime appointments for a living, evolving thing that affects so many, like the law. It would be like lifetime doctor appointments at a hospital.

that Madison, he keeps on givin'

ex post facto is a principal typically applying to criminal law stating that you can't punish someone for something that wasn't a crime when they committed the act. I don't think it has any bearing on SCOTUS term limits.

It's honestly sort of incredible, considering how much power they hold, that no one has ever gone full Pelican Brief.

Here's a good explainer about one possible version of the term limit proposal (which IDK if the current bill is based on) that would arguably not require an amendment
https://fixthecourt.com/2019/11/myth-facts-scotus-term-limits/

sure do wish someone would have had this idea more than 18 years ago

I kind of agree with Alfred way upthread that we should probably start a new thread soon. Whatever you think of RBG, the post-RBG era deserves its own thread title, for obvious reasons no matter what happens over the next few months.

― sound of scampo talk to me (El Tomboto), Monday, September 21, 2020 10:45 PM

Alfred & El Tomboto otm

Done.

U.S. Supreme Court: Post-Ginsberg Edition