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1Supreme Court Empty Supreme Court 10/19/2020, 11:59 am



From 2001, a reminder of what happened, and a warning of what may come:

None Dare Call It Treason

Five Supreme Court Justices are criminals in the truest sense of the word.

By Vincent Bugliosi  JANUARY 18, 2001

"In the December 12 ruling by the US Supreme Court handing the election to George Bush, the Court committed the unpardonable sin of being a knowing surrogate for the Republican Party instead of being an impartial arbiter of the law. If you doubt this, try to imagine Al Gore's and George Bush's roles being reversed and ask yourself if you can conceive of Justice Antonin Scalia and his four conservative brethren issuing an emergency order on December 9 stopping the counting of ballots (at a time when Gore's lead had shrunk to 154 votes) on the grounds that if it continued, Gore could suffer "irreparable harm," and then subsequently, on December 12, bequeathing the election to Gore on equal protection grounds. If you can, then I suppose you can also imagine seeing a man jumping away from his own shadow, Frenchmen no longer drinking wine.

From the beginning, Bush desperately sought, as it were, to prevent the opening of the door, the looking into the box–unmistakable signs that he feared the truth. In a nation that prides itself on openness, instead of the Supreme Court doing everything within its power to find a legal way to open the door and box, they did the precise opposite in grasping, stretching and searching mightily for a way, any way at all, to aid their choice for President, Bush, in the suppression of the truth, finally settling, in their judicial coup d'état, on the untenable argument that there was a violation of the Fourteenth Amendment's equal protection clause–the Court asserting that because of the various standards of determining the voter's intent in the Florida counties, voters were treated unequally, since a vote disqualified in one county (the so-called undervotes, which the voting machines did not pick up) may have been counted in another county, and vice versa. Accordingly, the Court reversed the Florida Supreme Court's order that the undervotes be counted, effectively delivering the presidency to Bush.

Now, in the equal protection cases I've seen, the aggrieved party, the one who is being harmed and discriminated against, almost invariably brings the action. But no Florida voter I'm aware of brought any action under the equal protection clause claiming he was disfranchised because of the different standards being employed. What happened here is that Bush leaped in and tried to profit from a hypothetical wrong inflicted on someone else. Even assuming Bush had this right, the very core of his petition to the Court was that he himself would be harmed by these different standards. But would he have? If we're to be governed by common sense, the answer is no. The reason is that just as with flipping a coin you end up in rather short order with as many heads as tails, there would be a "wash" here for both sides, i.e., there would be just as many Bush as Gore votes that would be counted in one county yet disqualified in the next. (Even if we were to assume, for the sake of argument, that the wash wouldn't end up exactly, 100 percent even, we'd still be dealing with the rule of de minimis non curat lex–the law does not concern itself with trifling matters.) So what harm to Bush was the Court so passionately trying to prevent by its ruling other than the real one: that he would be harmed by the truth as elicited from a full counting of the undervotes?..."

(This article is much too long to repost).  


Dark Money for Supreme Court Briefs Tied to Former Federalist Society Leader

Supreme Court 2020_1013-leonard-leo-1200x680
Leonard Leo speaks at the National Catholic Prayer Breakfast in Washington, D.C., on April 23, 2019.
Lisa Graves, PR Watch

October 13, 2020

A new review of grant documents, first published on the dark web, provides a snapshot of how groups tied to Leonard Leo — the man who put Amy Barrett on President Trump’s list for the Supreme Court — have been secretly funded to file briefs with the Supreme Court to overturn U.S. laws, including the Affordable Care Act.

Leo, the co-chair of the Federalist Society’s board, was previously the group’s Executive Vice President. Earlier this year, he announced the launch of a for-profit firm called CRC Advisors, which is working closely with Leo-tied non-profits that were being rebranded — including one previously known only as the “Judicial Education Project” (JEP).

His move came in the aftermath of an in-depth investigation of Leo in 2019 by Robert O’Harrow and Shawn Boberg of the Washington Post’s investigative unit, which documented how Leo directed millions from big donors to groups spending big to get nominees of Trump confirmed and to block Merrick Garland’s confirmation to the Supreme Court. Senators Stabenow, Schumer, and Whitehouse recently announced that they will be issuing a new series of reports about the impact of court capture on Americans’ rights, following on earlier white papers, and Senator Whitehouse recently testified about these issues before the House.

Last year, the Post tallied the Leo network’s spending to get federal and state judges appointed and to influence the law at more than $250 million over the past few years — not counting money given in 2018, which was not publicly available due to tax filing deadlines. Leo-tied groups, like the legally separate Judicial Crisis Network, have also recently funneled money from major donors, who are not publicly known, to fund activities by the Republican State Leadership Committee, which has used a related entity to spend big on negative ads the week before state supreme court elections, and the Republican Attorneys General Association. Earlier this year, JEP filed for the use of a “fictitious name” to do business in Virginia, calling itself the “Honest Elections Project.” This new Leo-connected group is amplifying claims of voter fraud and downplaying evidence of voter suppression measures, assertions that have been widely assailed.

The newly reviewed grant documents include emails showing that the Bradley Foundation’s grant officer conferred with Leo at the Federalist Society about how the foundation could fund “two Supreme Court amicus projects” without funneling the money through DonorsTrust, in 2014. Leo connected them to Neil Corkery, a long-time ally of his in an array of groups, and the listed leader of JEP. That group was launched in 2004 alongside another group Leo has deep ties to: the Judicial Confirmation Network, which is now known as the Judicial Crisis Network (JCN). JCN was created at a small dinner party Leo attended with Corkery and others that Justice Antonin Scalia attended too, after the 2004 election.

Corkery is also a central figure in the now-defunct Wellspring Committee, which transferred millions from one secret source to JCN, as it fought to block Merrick Garland’s confirmation to the Court and to advance Neil Gorsuch to that seat. Corkery has been on the board of a number of anti-choice and anti-gay rights groups and other entities — sometimes with Gary Marx or Dan Casey. At the time of the Bradley grant, Corkery was operating JEP as president, with Carrie Severino as staff and on the Board. She is a former law clerk for Justice Clarence Thomas.

Severino is now the leader and spokesperson of JCN, which recently announced a multi-million dollar ad campaign in support of Barrett’s confirmation. As the Washington Post documented, during the fight over Brett Kavanaugh’s nomination she had an office just down the hall from the Federalist Society.

The Bradley grant summary states that the request for funding for JEP’s amicus briefs was “initiated by Bradley Prize recipient Leonard Leo of the Federalist Society for Law and Public Policy Studies.”

According to that document, JEP provided Bradley with a proposal seeking $200,000 to help subsidize the cost of two amicus briefs, which were described by Bradley as costing $250,000 each. Bradley’s grant officer recommended that its board approve $150,000 to help underwrite the costs of those briefs to the Supreme Court, stating:

At this highest of legal levels, it is often very important to orchestrate high-caliber amicus efforts that showcase respected high-profile parties who are represented by the very best lawyers with strong ties to the Court. Such is the case here, with King and Friedrichs, even given Bradley’s previous philanthropic investments in the actual, underlying legal actions. (Bradley Grant Proposal Record of the Judicial Education Project)

Bradley’s proposal summary expressly stated that the funding was needed “for two important cases pending before the U.S. Supreme Court.”

The King Litigation Was an Attack on Health Care

“King” is a reference to King v. Burwell, which the Court decided later that year, in 2015. That case involved a challenge by four individual plaintiffs to an IRS rule providing federal-exchange subsidies nationwide as part of the implementation of the Affordable Care Act (ACA), the signature health insurance reform bill of the Obama administration.

Bradley’s recommendation to provide funding to support JEP’s amicus brief noted that “the King statutory interpretation case itself was brought with Bradley support by the Competitive Enterprise Institute” (CEI). The Supreme Court’s Rule 29.6 required disclosure in the case notes that the plaintiffs were four individuals. There is no reference to CEI in the Supreme Court’s docket sheet for the case as a lawyer or litigant, but the group’s website stated that CEI “is coordinating and funding both the King v. Burwell case and the D.C. Circuit Halbig v. Burwell case.” There is no mention of CEI as an intermediary for Bradley funding of this litigation.

After the Supreme Court ruled against the four plaintiffs and upheld the ACA, the Bradley summary for CEI’s grant stated:

[T]he U.S. Supreme Court handed CEl, and perhaps conservatism in general, one of its biggest legal losses ever. The Court ruled against CEI’s ambitiously creative challenge to Obamacare’s tax subsidies to individuals purchasing insurance coverage through the federal health-insurance exchange. CEI acknowledges that the loss was deeply disappointing — not only because it kept intact subsidies not authorized by statute, but also because it signaled a shift in the Court’s respect for the plain meaning of laws enacted by Congress. Nonetheless, it argues, the case succeeded in reshaping the country’s public discourse about health-care policy, the rule of law, the role of Congress, and agency accountability. (Bradley Grant Proposal Record of the Competitive Enterprise Institute)

Bradley’s grant summary also specifies that CEI has long been funded by the Koch family fortune, Sarah Scaife, Barre Seid, Exxon, Murray Energy, and Pfizer. It also noted that Leo was on CEI’s board of legal advisors alongside Michael Greve of George Mason’s law school, which has received many millions in Koch money. (CEI was founded by Fred Smith in the 1980s after he worked with Charles Koch at his Council for a Competitive Economy, the predecessor of Citizens for a Sound Economy, now known as Americans for Prosperity. CEI has a long history of peddling climate change denial.)

Billionaire Charles Koch’s political arm, Americans for Prosperity, has announced that it will spend millions to push for the quick confirmation of Barrett to the Supreme Court. Koch has spent tens of millions through organizations he controls to attack the ACA over the past decade. He began subsidizing litigation against anti-corruption election laws in the 1970s.

The Koch-founded and -funded Cato Institute also submitted an amicus brief in the King case, urging that the Supreme Court strike down the ACA.

The JEP brief that Bradley mentioned as worthy of its philanthropic subsidy had been filed in 2014 by Severino and other lawyers on behalf of seven elected officials: Senators John Cornyn, Ted Cruz, Orrin Hatch, Rob Portman, and Marco Rubio as well as Reps. Dave Camp and Darrell Issa. The main law firm on the brief with JEP was Cooper & Kirk, one of the firms Bradley noted in its grant write-up. The discussion with Leo about funding occurred about two weeks before this brief was submitted to the Court.

So, in essence, the Bradley Foundation wanted to subsidize an amicus brief to the U.S. Supreme Court prepared by a for-profit law firm for GOP Members of Congress by funding a non-profit group working with that firm.

The Bradley proposal documents also noted that it was funding two other groups that submitted amicus briefs in the King litigation: the Pacific Research Institute (PRI) and the Galen Institute. Both groups specifically requested Bradley funding for amicus briefs seeking to get the Supreme Court to overturn the ACA. PRI’s brief is here. The Galen Institute’s brief is here, on the website of C. Boyden Gray’s law firm.

Galen also received funding for its amicus briefs against the ACA from the Randolph Foundation, which is controlled by Vicks VapoRub heir, Heather Higgins, who leads the Independent Women’s Voice (IWV) and Independent Women’s Forum (IWF). IWV received $150,000 from JCN in 2014, and later received $4 million from Leo’s Freedom and Opportunity Fund over two years as it opposed Garland’s confirmation and supported Gorsuch’s confirmation. Her groups also played a prominent role in defense of Brett Kavanaugh’s nomination, and JEP gave $300K to IWF in 2018. IWF and IWV leaders are actively pressing for Barrett’s rapid confirmation. Notably, Higgins has used claims about the ACA in outreach to swing-state voters right before the election in 2016, and she took credit for moving women in Wisconsin toward Trump in sufficient numbers to help him win the presidency.

IWF joined forces with the Cato Institute in the follow-on case to King, a consolidated set of cases under the name Zubik v. Burwell. IWF has received both Koch and Bradley funding for other work over the years. It has deep ties to Koch — even being led for years by the former top lobbyist for Koch Industries and being co-led and co-located with Citizens for a Sound Economy/Americans for Prosperity.

Judge Barrett, Trump’s nominee for Justice Ruth Bader Ginsburg’s seat on the Supreme Court, has criticized the Affordable Care Act. The Court has schedule oral arguments for November 10 in the latest case attacking that law — which extended access to health care to millions of Americans and which makes it illegal for insurance companies to discriminate against people with pre-existing conditions.

Trump has attacked the ACA repeatedly and sought its repeal, and never forgave Senator McCain for refusing to go along with his plan. Trump’s recently issued declaration “policy” about pre-existing conditions would provide no actual enforceable protections, if the Court were to strike down the law as he seeks. That declaration is little more than a talking point that was issued right after Justice Ginsburg died, as he prepared to nominate Barrett to the Supreme Court. With covid-19 spreading in the U.S., millions of Americans may now or in the future have significant pre-existing conditions as a result of this deadly pandemic.

The Friedrichs Litigation Was an Attack on Unions
The “Friedrichs” case mentioned by Bradley in its funding document was Friedrichs v. California Teachers Association. That case attacked the dues collected by unions from employees to negotiate for benefits for all non-management employees.

Bradley noted in early 2015 that “Various amici in Friedrichs likely will include current and former governors, state attorneys general, First Amendment scholars, and leading Bradley-supported education-reform entities — including PRl. At this writing, two or three others may be commissioned.” The Koch-funded Cato Institute also filed an amicus brief in Friedrichs.

It is noteworthy that in its evaluation of which groups to fund on these issues, Bradley touted that the Friedrich’s case and a related case could be a “powerful one-two punch” against unions that could cause them to “lose an estimated $60 million annually.: (That was part of the summary of the Bradley grant recommendation for the group StudentsFirst in 2015.)

After Justice Antonin Scalia died in early 2016, the Court was deadlocked 4-4 in the Friedrichs case, which resulted in affirming a lower court decision that had refused to overrule “agency shop” rules for public sector unions. Those long-standing rules prevent free riders from benefiting from union negotiations without dues. However, after Gorsuch was confirmed, the Court struck down those rules in a 5-4 decision with a different plaintiff, Mark Janus, pursuing the same line of arguments as those subsidized by the Bradley Foundation. (A brief history of the roots of the Janus litigation and the so-called “right-to-work” laws that undermine collective bargaining rights is available here.)

The amicus brief JEP submitted in the Friedrichs case, after receiving Bradley funding, was on behalf of eight law professors, all of whom were then and are still leading voices in the Federalist Society, including one of its co-founders: Steven Calabresi. (One of them has since passed away.) In 2010, the Bradley Foundation awarded Calabresi, Leonard Leo, and other founders or leaders of the Federalist Society the Bradley Prize, a gift of $250,000, which it has also given to others like Paul Gigot, when he was on the Wall Street Journal editorial board.

So, in the case of Friedrichs, the Bradley Foundation was in touch with the Executive Vice President of the Federalist Society about helping to subsidize an amicus brief for the U.S. Supreme Court that was later written and filed on behalf of professors, all of whom were contributors to the Federalist Society.

This is only one snapshot of the role that the Bradley Foundation and others have played in funding amicus briefs submitted to the Supreme Court to try to get laws overturned. In this instance, one of the groups that submitted amicus briefs the foundation subsidized is part of Leo’s dark money network, which has spent millions to get the judges he wants on our nation’s highest court.

The documents used to illustrate this story in the public interest are only a few of the thousands of pages of documents in the Bradley files trove, which the Center for Media and Democracy (CMD) began examining in 2017. It noted:

“The documents were made public in October 2016 on two Twitter accounts that cyber security analysts have linked to one of the Russian hackers alleged to have breached the Democratic National Committee. The Bradley Foundation confirmed in a statement that the hack had taken place and was reported to the FBI. More information about how the Bradley files became public is available here.

The documents open a window to the behind-the-scenes workings of one of America’s largest right-wing foundations. With $835 million in assets as of June 2016, the Bradley Foundation is as large as the three Koch family foundations combined, yet receives much less attention as a significant funder of the right.”


Supreme Court is about to have 3 Bush v. Gore alumni sitting on the bench

Posted: Oct 17, 2020 9:51 AM EDT

Supreme Court T4Oh2-1602942678-177023-blog-hypatia-h_6262495a8717f37cae37d3fccd336936-h_8b7e94d64ce04efde9ea806b4cd59184-300
Chief Justice John Roberts, Justice Brett Kavanaugh and Judge Amy Coney Barrett assisted the legal team of then-Texas Gov. George W. Bush in the Florida ballot-recount battle that came down to a single vote at the Supreme Court.
By Joan Biskupic, CNN legal analyst & Supreme Court biographer

(CNN) -- Judge Amy Coney Barrett, once confirmed, will be one of three current Supreme Court justices who assisted the legal team of then-Texas Gov. George W. Bush in the Florida ballot-recount battle that came down to a single vote at the Supreme Court.

The court's December 12, 2000, decision cutting off Florida recounts tore apart the justices and the nation, and the case hovers in the air today as America approaches the November 3 presidential election.

Other current justices benefited from the decision giving Bush the White House over Vice President Al Gore, as they eventually became Bush appointees to the bench. Conversely, a pending judgeship for one of the current members was derailed by Bush v. Gore -- temporarily.

Of the original nine who decided the case two decades ago, only two remain, Justices Clarence Thomas and Stephen Breyer. And they were on opposite sides.

Following are descriptions of the justices' associations -- some predictable, some serendipitous -- with the milestone that would haunt any litigation reaching the justices in the race between President Donald Trump and former Vice President Joe Biden.

Three who assisted Bush
Chief Justice John Roberts

Roberts flew to Florida in November 2000 to assist Bush's legal team. He helped prepare the lawyer who presented Bush's case to the Florida state Supreme Court and offered advice throughout.

Roberts also faced a singular personal challenge during the 36-day ordeal that extended from the November 7 Election Day to the court's late-hour December 12 ruling. Then in private practice, Roberts was preparing to argue before the justices in a separate business case on November 29, and within days in December, the baby boy he and his wife had planned to adopt was born.

After Bush became president, he nominated Roberts to the US Court of Appeals for the DC Circuit (the Senate confirmed him in 2003); Bush then elevated Roberts to the chief justice position in 2005, to succeed William Rehnquist. During his Senate confirmation hearing, Roberts declined to reveal his view of the justices' 2000 decision, saying a disputed election could come to the court again.

"Obviously, the particular parameters in that case won't" return to the court, he said, "but it is a very recent precedent, and that type of decision is one where I thought it inappropriate to comment on whether I think they were correct or not."

Justice Brett Kavanaugh

He was also in private practice in 2000 and helped the Bush legal team. He wrote on a 2018 Senate questionnaire that his work related to recounts in Volusia County, Florida.

In an interview with CNN in Washington after the justices had heard oral arguments but before they ruled, Kavanaugh said the justices were concerned about "the arbitrary, standardless nature of the recount process in Florida." He dismissed a question about political differences, saying, "I don't think the justices care if it's Bush v. Gore, or if it were Gore v. Bush. What they care about is how to interpret the Constitution and what are the enduring values that are going to stand a generation from now."

After the election, Bush hired Kavanaugh to be a counsel and then staff secretary. In the West Wing, Kavanaugh met his future wife, Ashley, who was Bush's personal secretary. Bush appointed Kavanaugh to the US Court of Appeals for the DC Circuit, where Roberts had first served. In 2018, Trump elevated Kavanaugh to the Supreme Court.

During Kavanaugh's Senate confirmation hearings, Democratic senators referred to his involvement in the Bush v. Gore litigation, but they did not ask him about the case.

Judge Amy Coney Barrett

Barrett wrote on the questionnaire she submitted to the Senate for her Supreme Court confirmation review, "One significant case on which I provided research and briefing assistance was Bush v. Gore." She said the law firm where she was working at the time represented Bush and that she had gone down to Florida "for about a week at the outset of the litigation" when the dispute was in the Florida courts. She said she had not continued on the case after she returned to Washington.

During her hearings this week, she told senators she could not recall specifics of her involvement.

"I did work on Bush v. Gore," she said on Wednesday. "I did work on behalf of the Republican side. To be totally honest, I can't remember exactly what piece of the case it was. There were a number of challenges."

Separately, under questioning from Democratic senators, Barrett declined to commit to recusing herself from any Trump election case. Trump has speculated that the Supreme Court could face another major lawsuit over the November presidential contest. "I think this will end up at the Supreme Court," he said last month. "And I think it's very important that we have nine justices."

On the bench
Justice Clarence Thomas

He is the only remaining member of the five-justice majority that resolved Bush v. Gore. Thomas joined the unsigned opinion that said Florida had run out of time to recount disputed ballots without violating the constitutional guarantee of equal protection. The decision cemented the state's late November certification of a 537-vote margin for Bush over Gore (from nearly 6 million ballots cast) and gave Bush Florida's decisive electoral votes.

Thomas, a 1991 appointee of Bush's father, President George H.W. Bush, also joined a concurring opinion with Rehnquist and Justice Antonin Scalia, finding additional constitutional flaws in a Florida state Supreme Court decision that had allowed the recounts to continue.

The day after Bush v. Gore was handed down, Thomas kept a previously scheduled meeting with high school students at the court. He told them the weeks preceding the decision had been "exhausting" but that he believed the process showed "the strength of our system of government." He said politics had not been involved in the decision.

It was at this session that Thomas happened to reveal for the first time a "personal reason" for his habit of not asking questions at oral arguments. Born in rural Pin Point, Georgia, Thomas said he spoke with a Geechee dialect and was self-conscious as a child: "I just started developing the habit of listening," he told the students.

Thomas is the only justice in the past 20 years who has cited Bush v. Gore as precedent in any subsequent case, with a footnote in a 2013 solo dissent. The court in 2000 had deemed its decision "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Justice Stephen Breyer

He was one of the four dissenters and, with the September 18 death of Justice Ruth Bader Ginsburg, is the only one left on the bench. Each of the dissenting justices wrote separate opinions, although they signed on to parts of their colleagues' views. In Breyer's opinion, he declared that the majority seemed to abandon its "self-restraint" and traditional check on its exercise of power.

"(W)e do risk a self-inflicted wound -- a wound that may harm not just the Court, but the Nation," he wrote.

Breyer, a 1994 appointee of President Bill Clinton, for years afterward recalled his disappointment but referred to the upside of an ordered democracy. "Bush v. Gore's mandate was followed without paratroopers being dispatched, without bullets being fired, without rocks being hurled, and even without punches being thrown," he said in a 2009 appearance in Boston.

"To be sure," he added, "people were angry with the decision and they continue to disagree with it. But they have also agreed to follow the decision because that is what occurs in countries that have judicial independence and are ruled according to law."

The late Ginsburg criticized the majority in her separate opinion for abandoning its usual federalism and deference to state courts on state law. "Rarely has this Court rejected outright an interpretation of state law by a state high court," she said. As she closed her opinion, she highlighted the stakes for the country: "In sum, the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States."

Over the years, the 1993 Clinton appointee expressed her despair that December 12 evening and her delay in leaving the building, until Scalia telephoned and said, "Ruth, why are you still at the court? Go home and take a hot bath." Ginsburg's response: "Good advice I promptly followed."

Other conservative justices
Justice Samuel Alito

He had been appointed in 1990 to the 3rd US Circuit Court of Appeals by President George H.W. Bush. At the time of Bush v. Gore, Alito was a decade into the job, writing opinions in his Newark, New Jersey, chambers and widely regarded as a possibility for the younger Bush's "short list" of Supreme Court candidates.

The opportunity came in late 2005, when Bush tapped him to replace retiring Justice Sandra Day O'Connor. During Alito's confirmation hearing in January 2006, senators asked his views about Bush v. Gore. "I hope ... that sort of issue does not come before the Supreme Court again," Alito said, observing that controversy swirled not only around what the justices had decided but also whether they should even have taken up the case.

Pressed on what he thought of the outcome, Alito begged off, saying, "I have not studied it in the way I would study the issue if it were to come before me as a judge and that would require putting out of my mind any personal thoughts that I had on the matter."

Justice Neil Gorsuch

Like Kavanaugh, he worked in the George W. Bush administration and was appointed by Bush to a federal appeals court. But Gorsuch remained in private practice through the early 2000s. He joined the Bush administration in the second term, serving 2005-2006 in the Department of Justice. Bush selected the Colorado native in 2006 for the Denver-based 10th US Circuit Court of Appeals. Gorsuch was then elevated to the Supreme Court by Trump in 2017.

When then-Senate Judiciary Chairman Chuck Grassley, an Iowa Republican, asked Gorsuch about Bush v. Gore, he responded, "I know some people in this room have some opinions on that, I am sure, Senator. But as a judge, it is precedent of the US Supreme Court, and it deserves the same respect as other precedents of the US Supreme Court when you are coming to it as a judge."

Obama's nominees
Justice Elena Kagan

She was nominated to the federal appeals court for the DC Circuit by Clinton in 1999, after serving his administration in senior domestic-policy positions. Later that year, Kagan become a visiting professor at the Harvard Law School.

The Republican-controlled Senate never acted on her appeals court nomination, and the ruling in Bush v. Gore ensured that she would not be renominated by Clinton's successor. Kagan continued to teach and in 2003 was appointed dean of the Harvard Law School.

When Democrat Barack Obama succeeded Bush in 2009, he named Kagan US solicitor general and then in 2010 appointed her to the Supreme Court. During her Senate confirmation hearing, Kagan declined to give her view of Bush v. Gore. "The question of when the court should get involved in ... disputed elections is, I think, one of some magnitude that might well come before the court again."

Added Kagan: "It's hard to think of a more important question in a Democratic system."

Justice Sonia Sotomayor

In 2000, Sotomayor was a US appellate judge for the 2nd Circuit. Hearing cases in New York, she was removed from the election fallout in Florida and Washington. She had first been tapped to be a US district judge in 1992 by George H.W. Bush, then elevated to the appeals court by Clinton in 1998. When Obama came to office in 2009, he chose Sotomayor for his first appointment to the high court.

During her confirmation hearing, she said her reaction as a judge to Bush v. Gore "was not to criticize it or to challenge it."

Of the Supreme Court's down-to-the-wire involvement, she said, "It's only happened once in the lifetime of our country" and added that since 2000, "enormous electoral process changes" have occurred.

Sotomayor concluded by telling senators: "That is a tribute to the greatness of our American system, which is whether you agree or disagree with a Supreme Court decision, that all of the branches become involved in the conversation of how to improve things."


Telstar and zsomething like this post

2Supreme Court Empty Re: Supreme Court 10/28/2020, 12:08 pm



A Court of One’s Own


October 26, 2020

Tonight, the Senate confirmed Justice Amy Coney Barrett to the Supreme Court of the United States to take the seat of the late Justice Ruth Bader Ginsburg. The vote was 52 to 48, with no Democrats voting to confirm Barrett. One Republican, Senator Susan Collins of Maine, voted against the confirmation, saying it is too close to an election to fill the seat. Collins is in a tight reelection race against Democrat Sara Gideon, and since Majority Leader Mitch McConnell did not need Collins’s vote, she could vote no on procedural grounds and hope to push fewer voters to Gideon.

Barrett is an originalist, and will cement a 6-3 majority of justices eager to unwind the judicial decisions of the past seventy years that protect civil rights, business regulation, and a social safety net. Today is former Secretary of State Hillary Clinton’s birthday, and as soon as the vote went through, the Twitter account for the Republicans on the House Judiciary Committee tweeted: “Amy Coney Barrett, confirmed. Happy Birthday, [Hillary Clinton]!”

McConnell promptly adjourned the Senate until November 9 without taking up a coronavirus relief bill.

An hour later, Trump held a public ceremony for Barrett at the White House, in an echo of the coronavirus super spreader event on September 26 at which he announced her nomination. The ceremony seemed designed to demonstrate that he rejects scientific recommendations about the virus. Barrett took the constitutional oath, administered by Justice Clarence Thomas, on the South Lawn of the White House. (Chief Justice John Roberts will administer the second oath she must take, the judicial oath, on Tuesday in a private ceremony at the court.) Trump congratulated her in a short speech.

Take A Look

Shortly after the ceremony, Trump released a video of the event with Barrett walking alongside him through the doors of the White House onto a balcony where the two stood for the crowd. It was a triumphant demonstration of Trump’s power, and undermined the illusion that Barrett will be a nonpartisan judge. Traditionally in America, Supreme Court justices keep a distance from political leaders, yet she has just appeared in a campaign commercial for the president.

The significance of Barrett’s elevation to the court showed just minutes before the Senate confirmed her, when the Supreme Court ruled 5-3 for Wisconsin Republicans who want to block the counting of votes postmarked before Election Day but received up to six days after it. Democrats and civil rights groups wanted the extension because of the pandemic. For this year’s primary in Wisconsin, 80,000 ballots postmarked in time arrived after the election were counted; for the election, such late ballots will be rejected. The court’s decision follows originalist ideology: it says states get to run elections however its legislators wish. That principle trumps the right to vote.

That seemingly principled stand in favor of local democracy hides the reality of one-party rule. Wisconsin has been so thoroughly gerrymandered that although Democrats actually won a majority in state elections in 2018, Republicans hold 63 of the 99 seats in the legislature. It is virtually impossible for Democrats to win control of the state and thus the Republican legislature will get to decide who votes. We have seen such political dominance before… just ask any Black or Brown American.

In a footnote, Justice Kavanaugh went further to argue that states need to avoid “the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of the election. And those States also want to be able to definitely announce the results of the election on election night, or as soon as possible thereafter.” This is the argument Trump has been making to delegitimize mail-in ballots, and it is political, not judicial. Absentee ballots do not “flip” an election; they are a legitimate part of an election that cannot be decided until they are counted. And the idea of calling an election on the night it is held is a tic of the media. In fact, no state certifies its election results the day of the election. Some take weeks.

So what we have tonight is the Republican Party under Trump ramming through a third Supreme Court justice who is far out of sync with the vast majority of the American people, an authoritarian ceremony for an election ad, and a sign that partisans are working to steal the upcoming election.

This is not a sign of strength—it is a sign of weakness. Trump’s Republicans have gotten a reliable majority on the Supreme Court—for now—but they have delegitimized the Senate and the Supreme Court. It is the desperate act of a party that is so far out of favor with the American people it has given up winning elections fairly and is resorting to the tactics of strongmen. That McConnell pushed this confirmation through right before the election, rather than holding the seat open to fire up evangelicals as he did in 2016, suggests he thinks that even evangelicals cannot save the White House this time around.

The administration is sinking in bad news. It has given up on combatting the coronavirus, which infected 74,323 more Americans today and killed at least 534. Reflecting that the rising infection numbers mean a slower economic recovery, the stock market today had its biggest drop in a month. Financiers are so tired of Trump’s volatility, including his tweets, that they are pouring five times more money behind Biden. Meanwhile, White House chief of staff Mark Meadows, who admitted the coronavirus policy on Sunday, is so hated that 18 administration officials talked to Josh Dawsey of the Washington Post about him; one White House advisor said “It’s hard to count the ways Meadows has failed as a chief of staff…. It’s been an unmitigated disaster.”

A Trump appointee who chaired the Federal Salary Council overseeing federal pay resigned today in protest over Trump’s recent Executive Order enabling him to fire key federal workers. “[T]he Executive Order is nothing more than a smokescreen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process,” Ron Sanders wrote, “As a matter of conscience, I can no longer serve him or his administration.”

And staffers at the Department of Health and Human Services are openly looking for other jobs. Three of them told Politico’s Dan Diamond that they are voting for Joe Biden. “I’ve never voted for a Democrat for president, but Biden hit the sweet spot. I know he’s not too far left and he understands how to make government work,” one said. “And I know he’ll never make fun of [Anthony] Fauci in public.”

Biden’s campaign, run quietly and steadily, has picked up steam until he is ahead in the polls by about 9 or 10 points nationally, and there is no sign that Trump is closing that gap. Clearly, the president had hoped the malarkey about the Hunter Biden laptop story—which we learned today White House lawyers tried to pitch to the Wall Street Journal before Rudy Giuliani took it to the New York Post— would create the same stampede from Biden that the email laptop story caused from Clinton in 2016, but that stampede has not materialized.

On Sunday, nine days before the election, about 58.6 million Americans had already voted early, more than the total number who voted early or by mail in 2016. Registered Democrats have made up 51% of those votes, while registered Republicans have made up 31%, leading Trump officials to attack the legitimacy of mail-in ballots and to insist that “the huge majority of President Trump’s supporters” were planning to vote on Election Day. But Black Americans, the heart of the Democratic Party, are turning out in huge numbers. “This election is for saving the US” business consultant Dave Richards told CNN’s Faith Karimi.

People like Biden. They think he’s a decent man, who cares about someone other than himself. He has plenty of that old word, fallen into disuse in the last four years: character. He has principles, honor, a work ethic, and he treats people with respect—attributes we should demand in our officials. He has provided detailed plans about how he would address the country’s problems: systemic racism, economic inequality, and coronavirus, among others. At the same time, he offers a positive vision of America, a welcome contrast to Trump’s dark vision of American carnage. Biden constantly repeats that there is nothing Americans can’t do if we do it together.

(twitter entries omitted)



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5Supreme Court Empty Re: Supreme Court 2/8/2021, 10:10 am



Kagan Warns the Supreme Court’s New COVID Decision May Kill People

FEB 06, 202112:51 PM

Late on Friday night, the Supreme Court blocked California’s public health ban on indoor religious services in a splintered 6–3 decision that augurs a major shift in the law of religious liberty. Justice Elena Kagan’s extraordinary dissent accused her conservative colleagues of endangering lives by overruling public health officials and potentially facilitating the spread of COVID-19. But the court’s new conservative majority ignored her warning—and, in the process, gave itself new powers to strike down alleged burdens on religious freedom. The Supreme Court effectively tossed out decades of case law in a late-night emergency order, unsettling precedent that states have relied upon to craft COVID restrictions. As Kagan sharply noted, Friday’s order “injects uncertainty into an area where uncertainty has human costs.”

South Bay United Pentecostal Church v. Newsom is the latest in a long line of COVID cases to reach the Supreme Court. The plaintiffs challenged three pandemic-related restrictions on religious worship: a total ban on indoor services in areas where cases are surging (which covers much of the state right now); a 25 percent cap on indoor services where they are permitted; and a ban on singing and chanting during those services.

In a muddled order, SCOTUS shot down the total ban on indoor services, but upheld the 25 percent cap and the singing ban. The majority’s decision—issued as a highly infectious “California variant” of the coronavirus sweeps across the state—allows residents to resume indoor worship, the cause of countless superspreader events since the start of the pandemic. While there is no single majority opinion, five justices supported the proposition that California’s regime violates free exercise because it treats secular businesses more favorably than religious establishments. Notably, no justice in the majority even pretended to apply the appropriate standard for this emergency request, which requires plaintiffs to prove that the legal rights at issue are “indisputably clear” and that an injunction is “in the public interest.” They simply issued a decision on the merits, another example of the court making law through its shadow docket.

Kagan, joined by Justices Sonia Sotomayor and Stephen Breyer, dissented from this order in a blunt opinion highlighting the possibility that her colleagues’ decision will kill people. “Justices of this Court are not scientists,” Kagan began. “Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic. … That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.” She pointed out that, contrary to the court’s belief, California has not actually treated churches less favorably than secular businesses and assemblies: Political meetings, lectures, and plays are also banned, she wrote—and these “secular gatherings,” like religious worship, “are constitutionally protected” by the First Amendment. The court simply created “a special exception for worship services.”

“To state the obvious, judges do not know what scientists and public health experts do,” Kagan explained. “So it is alarming that the Court second-guesses the judgments of expert officials, and displaces their conclusions with its own. In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.” She continued:

I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict.

None of Kagan’s conservative colleagues heeded her advice. To the contrary, five justices—Clarence Thomas, Neil Gorsuch, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett—dove deeper into “armchair epidemiology” than ever before. Gorsuch complained that California allowed “movie studios, malls, and manicurists” to open while keeping churches shuttered. He simply ignored the extensive expert testimony that religious services pose a dramatically higher risk of spreading COVID infection than these secular businesses.

Gorsuch also castigated California for allowing singing during film production and not during worship, disregarding the stringent rules that apply to filmmaking (including thrice-weekly testing) that cannot possibly be applied to church services. He went so far as to suggest that California officials wrote “confusing” regulations to conceal this alleged unequal treatment. (Even Kavanaugh and Barrett backed away from this attack on the state’s singing rules because they found the record “unclear.”) And in a startling passage, Gorsuch accused public officials of issuing COVID restrictions in bad faith: “Government actors have been moving the goalposts on pandemic-related sacrifices for months,” he wrote, “adopting new benchmarks that always seem to put restoration of liberty just around the corner.”

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This five-justice ultraconservative majority also took a huge step toward overturning Employment Division v. Smith, the landmark 1990 precedent curtailing free exercise claims. In Smith, the Supreme Court held that religious plaintiffs cannot claim an exemption to laws that are neutral and generally applicable—that is, laws that don’t target religion. While Smith was authored by Justice Antonin Scalia and joined by his fellow conservatives, it is widely despised by today’s conservatives, who demand broader exemptions for religious liberty. The new majority either rewrote or implicitly reversed Smith on Friday by creating a new rule: If a law creates any exemption for any secular business or activity, then it is no longer neutral toward religion. Thus, the law must give an exemption to religious establishments and religious exercise, as well. This revision of what constitutes “neutrality” toward religion portends a new era of religious freedom jurisprudence in which churches, employers, colleges, and individuals are all able to flout laws that include a single secular exemption.

Chief Justice John Roberts attempted to find a middle ground on Friday, reiterating that “federal courts owe significant deference to politically accountable officials” but finding that California’s total ban on indoor services reflected “insufficient appreciation or consideration of the interests at stake.” But Roberts is no longer the court’s swing vote, and his five more conservative colleagues seized upon this case to dramatically undercut the ability of “politically accountable officials” to limit COVID’s spread—or impose any regulation that happens to burden religion. The short-term consequences of this newly extreme solicitude for religious freedom may be measured in human lives. The long-term consequences will give free exercise priority over all other constitutional rights, regardless of the harm it may inflict on others.


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