SCOTUS Catch-all |

[nycfan]

https://www.supremecourt.gov/opinions/24pdf/25a11_2cp3.pdf

 

[UNCMSinLS]

I guess with the shadow docket, the Supremely Corrupt Court no longer has terms. You could just end the title of this thread with "2025-?".

 

[nycfan]

I guess with the shadow docket, the Supremely Corrupt Court no longer has terms. You could just end the title of this thread with "2025-?".

 

[nycfan]

 

[mpaer]

Oh geee I can't wait for a ruling on this from SCOTUS

 

[heelinhell]

So after striking down sections 4 and 5 of the voting rights act , Roberts said at the time that these decisions "in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2

and yet it looks like section 2 is next up on the chopping block. I am not a lawyer so I would welcome an opinion from Super and our other board legal beagles

'Ominous' Supreme Court order buried in 'obscure' weekend filing: expert

A legal expert flagged an "ominous" order the U.S. Supreme Court slipped into view over a summer weekend that could even further erode voting rights.The court's intentions can be difficult to parse through cryptic orders or offhand comments justices make and the questions they ask during oral...

www.rawstory.com

 

[superrific]

and yet it looks like section 2 is next up on the chopping block. I am not a lawyer so I would welcome an opinion from Super and our other board legal beagles

I wouldn't be the entirety of section 2, just the part about electing minority candidates. Of course, that's in large measure because they already fucked up section 2 ruthlessly. [BTW, they didn't strike down section 5; it's just that section 5 is useless without a coverage formula, and that's what they struck down.]

Some thoughts:

1. My first instinct when I saw this last week was the same as Rick Hasen's: Citizens United redux. That's the most obvious inference. Why else would they call for briefing on this issue unless they are going to decide the case on that basis, and you wouldn't need briefing to maintain the status quo. Wrinkle: I don't know know whether it requires four or five votes to call for additional briefing. Since it only takes four to grant cert, one might think four is how many needed to call for additional briefing. But I suspect the difference between four and five isn't going to be part of this story.

2. The weird twist is that they just decided this very issue, on almost this exact same case, just two years ago. And for them to now hold that majority minority districts are unconstitutional would be to say that what they did two years ago was unconstitutional. That is, that they fucked up. I mean, I wouldn't put it past them and of course they will blame something else, but still -- why now?

3. In the case two years ago, Allen v. Milligan, Kavanaugh concurred. It was a 5-4 judgment that he joined almost all of, but not quite all. And here's how he closed that opinion:

the authority to conduct race-based redistricting cannot extend indefinitely into the future. But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.

So the plaintiffs in this case (who are not the state of Louisiana -- it's the defendant!) raised that temporal argument, so now Kav has to consider it? I don't know, he could have considered it last time around. They are very selective as to when they decide issues not raised by the parties. He could also have asked for additional briefing them (I'm sure the four dissenters would have gone along with it). So why now?

4. Here's the best explanation I have: in 2023, the conventional wisdom was that minorities vote Dem. And so the majority-minority district requirement was actually a form of legally required gerrymandering that hurt Dems, because it required that black voters be packed into districts. I don't know the extent to which the racial gerrymanders still hurt Dems. It did once upon a time for sure; it might be possible now that with such surgical precision, creating majority black districts mostly overlaps with political gerrymandering. I don't know.

But if we go with the conventional wisdom, then in 2023, undoing racial gerrymanders would have helped the Dems.

Now? Well, the GOP did well with Latino voters, and Latinos also have protections against vote dilution in the form of majority-minority districts. And if Latinos are more or less a swing constituency, then undoing the gerrymander doesn't help the Dems.

AND, the place where the majority-minority district fucks up the most stuff is, by far, Texas. Nevada's districts would look the same with or without the Voting Rights Act. Same with New Mexico and I think Arizona. The Latino population is diffuse in those states and they don't have enough districts to pack and crack too much. Calheel knows way about the districting in CA than I do, so he can speak better to the issue there. But in terms of activity in court, it's Texas where this rule as applied to Latinos makes the most difference.

Anyway, so Texas is trying to redistrict again, right? And a thorn in the GOP's side is the need for majority-minority Latino districts. It interferes with their packing and cracking if they have to keep Latinos together. It would be a wash with regular districting, but this extreme redistricting is cutting so close to the bone that they need a sharper bone saw.

5. Is it a coincidence that Texas is doing this redistricting now, and the court decides now is the time to decide whether the VRA can impose requirements on redistricting? You be the judge. I wouldn't say the evidence is overwhelming for it being intentional as opposed to coincidental, so if I were dealing with an ordinary court, I would say, "eh, can't rule out coincidence." Which remains true, except the default has changed. The question is no longer whether you can rule out coincidence: rather, it's whether you can rule it in. Intentional fuckery should be considered the default baseline with this court, in my opinion.

 

[heelinhell]

I wouldn't be the entirety of section 2, just the part about electing minority candidates. Of course, that's in large measure because they already fucked up section 2 ruthlessly. [BTW, they didn't strike down section 5; it's just that section 5 is useless without a coverage formula, and that's what they struck down.]

Some thoughts:

1. My first instinct when I saw this last week was the same as Rick Hasen's: Citizens United redux. That's the most obvious inference. Why else would they call for briefing on this issue unless they are going to decide the case on that basis, and you wouldn't need briefing to maintain the status quo. Wrinkle: I don't know know whether it requires four or five votes to call for additional briefing. Since it only takes four to grant cert, one might think four is how many needed to call for additional briefing. But I suspect the difference between four and five isn't going to be part of this story.

2. The weird twist is that they just decided this very issue, on almost this exact same case, just two years ago. And for them to now hold that majority minority districts are unconstitutional would be to say that what they did two years ago was unconstitutional. That is, that they fucked up. I mean, I wouldn't put it past them and of course they will blame something else, but still -- why now?

3. In the case two years ago, Allen v. Milligan, Kavanaugh concurred. It was a 5-4 judgment that he joined almost all of, but not quite all. And here's how he closed that opinion:

the authority to conduct race-based redistricting cannot extend indefinitely into the future. But Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.

So the plaintiffs in this case (who are not the state of Louisiana -- it's the defendant!) raised that temporal argument, so now Kav has to consider it? I don't know, he could have considered it last time around. They are very selective as to when they decide issues not raised by the parties. He could also have asked for additional briefing them (I'm sure the four dissenters would have gone along with it). So why now?

4. Here's the best explanation I have: in 2023, the conventional wisdom was that minorities vote Dem. And so the majority-minority district requirement was actually a form of legally required gerrymandering that hurt Dems, because it required that black voters be packed into districts. I don't know the extent to which the racial gerrymanders still hurt Dems. It did once upon a time for sure; it might be possible now that with such surgical precision, creating majority black districts mostly overlaps with political gerrymandering. I don't know.

But if we go with the conventional wisdom, then in 2023, undoing racial gerrymanders would have helped the Dems.

Now? Well, the GOP did well with Latino voters, and Latinos also have protections against vote dilution in the form of majority-minority districts. And if Latinos are more or less a swing constituency, then undoing the gerrymander doesn't help the Dems.

AND, the place where the majority-minority district fucks up the most stuff is, by far, Texas. Nevada's districts would look the same with or without the Voting Rights Act. Same with New Mexico and I think Arizona. The Latino population is diffuse in those states and they don't have enough districts to pack and crack too much. Calheel knows way about the districting in CA than I do, so he can speak better to the issue there. But in terms of activity in court, it's Texas where this rule as applied to Latinos makes the most difference.

Anyway, so Texas is trying to redistrict again, right? And a thorn in the GOP's side is the need for majority-minority Latino districts. It interferes with their packing and cracking if they have to keep Latinos together. It would be a wash with regular districting, but this extreme redistricting is cutting so close to the bone that they need a sharper bone saw.

5. Is it a coincidence that Texas is doing this redistricting now, and the court decides now is the time to decide whether the VRA can impose requirements on redistricting? You be the judge. I wouldn't say the evidence is overwhelming for it being intentional as opposed to coincidental, so if I were dealing with an ordinary court, I would say, "eh, can't rule out coincidence." Which remains true, except the default has changed. The question is no longer whether you can rule out coincidence: rather, it's whether you can rule it in. Intentional fuckery should be considered the default baseline with this court, in my opinion.

Thank you for weighing in

So should I be worried that SCOTUS may be taking up and deciding this case in 2026 ? Am I off base worrying that their decision may further weaken the VRA ?

 

[superrific]

Thank you for weighing in

So should I be worried that SCOTUS may be taking up and deciding this case in 2026 ? Am I off base worrying that their decision may further weaken the VRA ?

Depends on what you mean by worried. I mean, it's almost a certainty that they will weaken it in some fashion. There's a very good chance they wipe it out. There's perhaps even more of a chance that they wipe it out when doing so benefits the GOP (which is to say that they might find some Louisiana-specific factor on which to rest their holding, and then later expand it in another GOP-favored case).

There's also something of a weird timing here. There's something called the Purcell principle, which counsels federal courts against changing election rules close to an election. Kav is a big fan, and also the swing vote here. So one would think that the Purcell principle would caution against requiring wholesale changes to voting district maps in an election year, given how much chaos that would create. Kav is the one conservative who sometimes cares about the disruptive effect of his decisions. Not that it necessarily stops him, but he has based opinions -- at least a couple -- on real-world consequences.

So it would not surprise me if the Court decimates the voting rights act but doesn't require new maps to be drawn until most redistricting is done in 2030.

But really, predicting what the Supreme Court is going to do has become impossible. At least for me. I have trouble imaginatively stooping that low.

 

[heelinhell]

Depends on what you mean by worried. I mean, it's almost a certainty that they will weaken it in some fashion. There's a very good chance they wipe it out. There's perhaps even more of a chance that they wipe it out when doing so benefits the GOP (which is to say that they might find some Louisiana-specific factor on which to rest their holding, and then later expand it in another GOP-favored case).

There's also something of a weird timing here. There's something called the Purcell principle, which counsels federal courts against changing election rules close to an election. Kav is a big fan, and also the swing vote here. So one would think that the Purcell principle would caution against requiring wholesale changes to voting district maps in an election year, given how much chaos that would create. Kav is the one conservative who sometimes cares about the disruptive effect of his decisions. Not that it necessarily stops him, but he has based opinions -- at least a couple -- on real-world consequences.

So it would not surprise me if the Court decimates the voting rights act but doesn't require new maps to be drawn until most redistricting is done in 2030.

But really, predicting what the Supreme Court is going to do has become impossible. At least for me. I have trouble imaginatively stooping that low.

I was reluctant to speculate that the entire VRA could be wiped out down a short road. I feared I would be considered a chicken little.

Your post does not reassure me but it does reassure me that my fear has not veered into crazy town.

Thanks Super for your feedback and hope you and your family are doing well

 

[nycfan]

“… The justices granted an emergency appeal from President Trump’s lawyers and set aside a Boston’s judge order that blocked the canceling of $783 million in research grants.

The justices split 5-4. Chief Justice John G. Roberts joined the court’s three liberals in dissent and said the district judge had not overstepped his authority.

The court’s conservative majority has repeatedly sided with the administration and against federal judges in disputes over spending and staffing at federal agencies.

In the latest case, the majority agreed that Trump and his appointees may decide on how to spend health research funds allocated by Congress.

… [the solicitor general] said the new administration decided these DEI-related grants “do nothing to expand our knowledge of living systems, provide low returns on investment, and ultimately do not enhance health, lengthen life, or reduce illness.””

 

[nycfan]

“… The justices granted an emergency appeal from President Trump’s lawyers and set aside a Boston’s judge order that blocked the canceling of $783 million in research grants.

The justices split 5-4. Chief Justice John G. Roberts joined the court’s three liberals in dissent and said the district judge had not overstepped his authority.

The court’s conservative majority has repeatedly sided with the administration and against federal judges in disputes over spending and staffing at federal agencies.

In the latest case, the majority agreed that Trump and his appointees may decide on how to spend health research funds allocated by Congress.

… [the solicitor general] said the new administration decided these DEI-related grants “do nothing to expand our knowledge of living systems, provide low returns on investment, and ultimately do not enhance health, lengthen life, or reduce illness.””

—> https://www.wsj.com/us-news/law/sup...9?st=D8hoeP&reflink=desktopwebshare_permalink

“… Justice Amy Coney Barrett provided the key fifth vote for both parts of the high court’s order. The litigation is ongoing, and Thursday’s order from the Supreme Court isn’t a final ruling in the case….”

 

[nycfan]

Supreme Court allows Trump administration to terminate $783 million in NIH grants linked to DEI initiatives

By a vote of 5-4, the Supreme Court on Thursday agreed to allow the National Institutes of Health, the largest public funding source for biomedical research in the world, to […]

www.scotusblog.com

“… In a four-paragraph order issued on Thursday afternoon, the court indicated that it was granting the government’s request to block the part of Young’s ruling that required NIH to continue to fund the terminated grants. Citing its decision in the Department of Education case, the court stated that the district court did not have the power to rule on claims “‘based on’ the research-related grants or to order relief designed to enforce any ‘obligation to pay money’ pursuant to those grants.”

And, according to the court, the federal government would face “irreparable harm” if it paid the money for the grants and then was not able to recover that money.

In a concurring opinion, Barrett indicated that she agreed that “the District Court likely lacked jurisdiction to hear challenges to the grant terminations.” But the district court likely does have the power to review a challenge to the guidance documents, she continued, even if those documents describe “internal policies related to grants.” Moreover, she observed, “vacating the guidance does not necessarily void decisions made under it.”

In an opinion concurring in part and dissenting in part, Roberts argued that this case was different from the Department of Education case precisely because Young had thrown out the guidance documents – relief, Roberts wrote, that “has prospective and generally applicable implications beyond the reinstatement of specific grants” and that “falls well within the scope of the District Court’s jurisdiction.” “And if the District Court had jurisdiction to vacate the directives,” Roberts continued, “it also had jurisdiction to vacate the ‘Resulting Grant Terminations.’”

Gorsuch, joined by Kavanaugh, wrote his own opinion concurring in part and dissenting in part. He emphasized that “[l]ower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.” He acknowledged that “decisions regarding interim relief are not necessarily ‘conclusive as to the merits,’” but he stressed that a decision’s reasoning does carry weight going forward. “And California’s reasoning,” he wrote, “was clear” and “binds lower courts.”

In her own separate opinion, Jackson contended that the court’s decision in the Department of Education v. California case “was an even bigger mistake than” she had realized at the time because it “now apparently governs all” challenges under the federal law governing administrative agencies concerning “grant-funding determinations that the Governmentasks us to address in the context of an emergency stay application.” “With potentially life-saving scientific advancements on the line,” she concluded, “the Court turns a nearly century-old statute aimed at remedying unreasoned agency decisionmaking into a gauntlet rather than a refuge.”

In another separate opinion, Kavanaugh pushed back against Jackson’s suggestion that the court could avoid the dilemma of deciding what forum the claims will proceed in “by simply denying the application. That is wrong,” Kavanaugh wrote. “We have to decide the application” and make “that interim forum-channeling decision.”“

 

[nycfan]

“… In the past 10 weeks America has witnessed an extraordinary outpouring of decisions from its highest court that should make Trump very happy indeed. The six rightwing justices who control the court – three of them given their lifetime seats by Trump himself – have effectively greenlighted the president’s explosive and law-busting agenda.

The supermajority has granted Trump 18 straight victories in the administration’s requests for emergency relief. Steve Vladeck, a leading supreme court scholar at Georgetown University Law Center, has tracked the decisions in his Substack, One First, noting that the rulings have been handed down largely in the legal darkness.

They have been piped through the court’s so-called “shadow docket”, where important affairs of state are decided at speed and with little or no debate or deliberation. By Vladeck’s count, seven of the orders have been issued without any explanation, leaving the American people clueless as to the justices’ thinking.

Yet the emergency rulings, though temporary in nature, could have seismic consequences. For as long as they hold they have the potential to cause untold suffering to millions of people targeted by Trump.…”

 

[nycfan]

“… In the past 10 weeks America has witnessed an extraordinary outpouring of decisions from its highest court that should make Trump very happy indeed. The six rightwing justices who control the court – three of them given their lifetime seats by Trump himself – have effectively greenlighted the president’s explosive and law-busting agenda.

The supermajority has granted Trump 18 straight victories in the administration’s requests for emergency relief. Steve Vladeck, a leading supreme court scholar at Georgetown University Law Center, has tracked the decisions in his Substack, One First, noting that the rulings have been handed down largely in the legal darkness.

They have been piped through the court’s so-called “shadow docket”, where important affairs of state are decided at speed and with little or no debate or deliberation. By Vladeck’s count, seven of the orders have been issued without any explanation, leaving the American people clueless as to the justices’ thinking.

Yet the emergency rulings, though temporary in nature, could have seismic consequences. For as long as they hold they have the potential to cause untold suffering to millions of people targeted by Trump.…”

“…
Prominent jurists have held Roberts responsible for emboldening Trump’s drive towards an authoritarian presidency. J Michael Luttig, who served on a federal appeals court for 15 years, put the criticism starkly.

“The chief justice is presiding over the end of the rule of law in America,” Luttig told the Guardian.

In Luttig’s view, the court under Roberts is “acquiescing in and accommodating the president’s lawlessness. And it is doing so without briefing, without argument, without deliberation – and without even a single word of explanation of its decisions.”

For Luttig, this is more than just the 6-3 supermajority of the court expressing its conservatism. This is a fundamental distortion of the American legal system.

“The supreme court was never intended to function like this. Never before has it entertained such challenges from the president, and never before has it decided them so flippantly.”…”

 

[nycfan]

“…
Prominent jurists have held Roberts responsible for emboldening Trump’s drive towards an authoritarian presidency. J Michael Luttig, who served on a federal appeals court for 15 years, put the criticism starkly.

“The chief justice is presiding over the end of the rule of law in America,” Luttig told the Guardian.

In Luttig’s view, the court under Roberts is “acquiescing in and accommodating the president’s lawlessness. And it is doing so without briefing, without argument, without deliberation – and without even a single word of explanation of its decisions.”

For Luttig, this is more than just the 6-3 supermajority of the court expressing its conservatism. This is a fundamental distortion of the American legal system.

“The supreme court was never intended to function like this. Never before has it entertained such challenges from the president, and never before has it decided them so flippantly.”…”

“…Roberts asked Luttig to be a groomsman at his wedding in 1996.

“I have had four decades of knowing and respecting him,” Luttig said.

Having had a ringside seat for so many years, Luttig has no doubts about how the chief justice is conducting himself in the current fraught moment.

“John Roberts knows exactly what he is doing,” the judge said, “and he knows exactly the message he is sending to America.”

… At the justice department [in the Reagan Administration] he [Roberts] wrote a series of spiky legal memos in which he let down his mild-mannered guard. Out came a stream of aggressive and combative missives designed to boost Reagan’s power and stature.

The memos make for a chilling read in the context of today. Roberts lambasts fellow government officials whom he accused of standing in the way of the Reagan agenda – an echo of Trump and Doge’s war on the “deep state” civil service. He railed against affirmative action programs seeking to redress the balance for women and Black people – a view that was made manifest in 2023 when his court put an end to affirmative action in universities.

The future head of the US judiciary went so far in his memos as to berate federal judges for what he called “unwarranted interference” in executive branch affairs. Fast forward four decades, and we now see the Roberts court repeatedly overturning the rulings of lower court judges who have resisted Trump’s lawless actions.

Roberts’s early musings on the importance of a strong executive in the White House, so evident in those Reagan memos, run as a theme through his jurisprudence. It culminated with him authoring Trump v US.

That was last year’s shattering ruling that gave Trump absolute immunity from criminal prosecution for his official presidential acts.

The chief justice justified this extraordinary decision to shield the president from basic accountability by invoking the desire of the framers – the men who drafted the US constitution – for a “vigorous” and “energetic” executive.

He conveniently overlooked the framers’ other core executive requirements: “responsibility”, and an obligation to “take care that the laws be faithfully executed”.

… Graves believes that Roberts’s immunity ruling has had devastating consequences. “It paved the way for Trump’s return. It sent a signal to some sections of the American people that not only did Trump do no wrong, he could do no wrong – that if he returned to power, he would be above the law.”…”

 

[nycfan]

“…Roberts asked Luttig to be a groomsman at his wedding in 1996.

“I have had four decades of knowing and respecting him,” Luttig said.

Having had a ringside seat for so many years, Luttig has no doubts about how the chief justice is conducting himself in the current fraught moment.

“John Roberts knows exactly what he is doing,” the judge said, “and he knows exactly the message he is sending to America.”

… At the justice department [in the Reagan Administration] he [Roberts] wrote a series of spiky legal memos in which he let down his mild-mannered guard. Out came a stream of aggressive and combative missives designed to boost Reagan’s power and stature.

The memos make for a chilling read in the context of today. Roberts lambasts fellow government officials whom he accused of standing in the way of the Reagan agenda – an echo of Trump and Doge’s war on the “deep state” civil service. He railed against affirmative action programs seeking to redress the balance for women and Black people – a view that was made manifest in 2023 when his court put an end to affirmative action in universities.

The future head of the US judiciary went so far in his memos as to berate federal judges for what he called “unwarranted interference” in executive branch affairs. Fast forward four decades, and we now see the Roberts court repeatedly overturning the rulings of lower court judges who have resisted Trump’s lawless actions.

Roberts’s early musings on the importance of a strong executive in the White House, so evident in those Reagan memos, run as a theme through his jurisprudence. It culminated with him authoring Trump v US.

That was last year’s shattering ruling that gave Trump absolute immunity from criminal prosecution for his official presidential acts.

The chief justice justified this extraordinary decision to shield the president from basic accountability by invoking the desire of the framers – the men who drafted the US constitution – for a “vigorous” and “energetic” executive.

He conveniently overlooked the framers’ other core executive requirements: “responsibility”, and an obligation to “take care that the laws be faithfully executed”.

… Graves believes that Roberts’s immunity ruling has had devastating consequences. “It paved the way for Trump’s return. It sent a signal to some sections of the American people that not only did Trump do no wrong, he could do no wrong – that if he returned to power, he would be above the law.”…”

“… Roberts’s willingness to preside over a court that sides with Trump over the judiciary itself, even in cases involving brazen defiance of federal judges, has profoundly shocked the legal world.

… Some supreme court watchers have cautioned against assuming that the justices’ emergency rulings are their final word. Bob Bauer, Barack Obama’s White House counsel who co-chaired Joe Biden’s presidential commission on the supreme court, has pointed out that the court has yet to rule on several of Trump’s biggest provocations.

… It is true that, if and when those issues are fully addressed by the supreme court, Roberts could surprise us once again. He could dust off his old umpire’s uniform, revisit his carefully crafted posture as a moderate institutionalist, and confound us all – Trump included – with nuanced rulings.

But for his longtime friend Luttig, that is besides the point. The price of what Roberts is doing here and now, in the legal darkness of the shadow docket, is just too high.

“The supreme court has pulled the rug out from under the lower federal courts, and it has done so deliberately and knowingly,” Luttig said. “The chief justice has no higher obligation than to protect the federal judiciary from attacks by this president, and in my view he has utterly failed.”“

 

[nycfan]

“… Their fast-track appeal urged the justices to confirm that immigration agents have “reasonable suspicion” to stop and question Latinos who work in businesses or occupations that draw many undocumented workers.…

… “Reasonable suspicion is a low bar — well below probable cause,” administration lawyers said. “Apparent ethnicity can be a factor supporting reasonable suspicion,” they added, noting that this standard assumes “lawful stops of innocent people may occur.”…”

The Supreme Court could give immigration agents broad power to stop and question Latinos

The Trump administration urged the Supreme Court to confirm that immigration agents have 'reasonable suspicion' to stop and question Latinos whose occupations draw many undocumented workers.

www.latimes.com

 

[superrific]

When the conservative SCOTUS has lost LUTTIG it really should rethink what it's doing, if it cares at all about being a juridical body.

 

[lawtig02]

When the conservative SCOTUS has lost LUTTIG it really should rethink what it's doing, if it cares at all about being a juridical body.

I had hope for a long time that some combination of Roberts, Barrett and Kavanaugh would hang on to prevent the worst of Trump’s authoritarian plan. Oh well. They’re clearly gone. As is the constitution.