SCOTUS is on a Roll

[Alli]

But it would come with risks for both sides. Take Alabama for example, which is the subject of the current case. Right now Alabama has one majority black district, which yields them 1 Black Rep. Based on population, it should be 2. But what if a "dumb" computer spits out a map that has no majority Black districts because it isn't taking this into account?

As long as the map isn’t drawn just to avoid Black voters in White districts.

 

[lizkat]

According to a piece in The Hill, Americans should get used to the high court actively and quickly seeking to push rule of law to the hard right, now that they have a 6-3 majority. Whenever Roberts is in the minority on a ruling, sometimes seeking to protect his court's legacy from evidence of overwhelming political bias, Clarence Thomas as the most senior justice in the majority can assign the writing of the majority opinion, so for example having handed off the Dobbs opinion (overturning Roe v Wade) to Alito rather than to Kavanaugh.

Also, and in the matter of taking up cases, while Roberts as Chief Justice still gets to pick which cases will be discussed at Friday sessions, it only takes four justices to vote to accept a petition to hear a case, and so the conservatives have ample room now to shape an overall theme for case loads during a term. There are not enough liberals on the court to force a case to be heard,unless they can get one conservative to support them.

To imagine that GOP state lawmakers, activists and lobbies are not aware of this process and the court's lean is to be naive. They will appeal --as they did last term-- multiple cases that received unfavorable rulings on laws they have found ideologically most onerous. In this manner they hope to get at least one or two of their ideologically focused cases accepted, and they are not likely to have to hear many cases that liberals might rather hear.

Why the Supreme Court is taking on so many politically divisive cases

On Fridays at the Supreme Court, justices gather behind closed doors to discuss the petitions for appeal filed from across the country. Roughly 98 percent of the time, the justices deny an appeal, …

thehill.com

During its roughly first hundred years, the Supreme Court decided the merits of virtually all appeals within its jurisdiction, but over the course of its lifetime, justices have gained an increasing amount of control over the court’s caseload.

The present-day docket is now shaped according to the preferences of the justices, though certain factors — like the existence of conflicting decisions among intermediate appeals courts — make the justices more likely to take up a case. It’s worth noting that this procedure does not reflect the activity that occurs on an emergency basis under the court’s so-called “shadow docket.”

“Last term showed six conservative justices who have a very conservative agenda for the law and are aggressively implementing it,” said Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. “I think we’ll see that again this year.”

Last term, the court chose to confront the constitutional right to abortion, which it scuttled; took on the Second Amendment, which it expanded; and chose to confront the federal government’s power to regulate the environment, which it narrowed. This term, the court is weighing voting rights, affirmative action in higher education and LGBTQ discrimination.

Of course, agreeing to hear a case is not the same thing as deciding a case. And the court has declined to hear a number of hot-button issues already this term, turning away a challenge to the ban on gun bump stocks and a push for the legal recognition of fetal personhood, for instance. It’s also worth noting that the court often issues unanimous opinions on below-the-radar legal disputes concerning civil procedure and other technical matters.

Still, court watchers have grown less tentative about predicting that the most politically divisive cases placed on the court’s docket will ultimately shake out along ideological lines.

With only three members, the court’s liberal justices lack even enough votes to satisfy the “rule of four” needed to add cases to the court’s docket without conservative support. The court does not typically disclose how the justices voted on a petition for appeal. But logic dictates that if a case was added to the court’s docket, it was not done so by the liberals acting alone.

The Supreme Court’s liberals, outnumbered 6-3 last term, repeatedly found themselves on the losing side of landmark rulings, which seems likely to continue going forward.

Increasingly, the liberal wing has used dissenting opinions as a platform for articulating the role of liberal judicial ideas in public life, to lay down a historical marker for a future court and to sound the alarm over the conservative-led legal upheaval. Dissenting from the court’s abortion ruling in June, liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor accused their conservative counterparts of sowing legal chaos.

Chemerinsky, of Berkeley Law, said he expects the court this term to eliminate affirmative action in both public and private colleges, further narrow the Voting Rights Act and allow violations of anti-discrimination law based on claims of free speech and free exercise of religion.

“Again, we’ll see dramatic changes in the law,” he said, “all in a very conservative direction.”

 

[lizkat]

I'm not gonna livestream this Alito speech to be hosted by the Heritage Foundation tonight, although I might look at it later or look up assessments of it. Schedule start time is 6:30pm ET.



In fact I keep wondering why these SCOTUS justices (any of them) think it's okay to be giving speeches anyway. It's not like we can expect Alito's next one to be held under the auspices of, say, the Brennan Center for Justice.

And it's not like it's just right-leaning justices that engage in this partisan behavior. At best they risk making some remark that could even cause them to have to recuse from a case.

https://www.usnews.com/news/the-report/articles/2017-06-02/supreme-court-justices-blur-lines-with-political-speeches

 

[lizkat]

Justice Alito certainly expressed some opinions last night in his speech at the Heritage Foundation.

Alito Says Leak of Ruling Overturning Roe Put Justices’ Lives at Risk (WaPo, paywall removed)

Even as he took some of the blame for pointed, passionate language in the court’s opinions and dissents, Alito emphasized that the justices “have always gotten along well on a personal level” and are eager to return to normal after coronavirus restrictions and the “changed” atmosphere at the court after the unprecedented leak last spring.

“We have not in recent years been all that restrained about the terms in which we express our disagreement. I’m as guilty as others on that score,” Alito said, but “none of that is personal.”

"None of that is personal," eh? I have news for Alito. It may possibly be true that the three remaining justices perceived as "liberals" on the high court do not regard his remarks during case deliberations or even his written case opinions as "personal."

However, a majority of ordinary Americans --the ones who believe that pregnancy termination is a decision best left to a woman or couple and their physician-- can't help but to have found Justice Alito's mean-spirited opinion in the Dobbs case as reflective of his very personal and longstanding goal to overturn Roe v Wade.

There can be NOTHING more personal to a woman than a pregnancy. Nothing.

It's a travesty of human rights that six people in black robes have now decided -- yeah, "for" women-- that it is constitutional for any or all of the states in the USA to mandate that a woman's pregnancy shall continue until she either gives birth, nearly dies or actually dies from effects of delaying proper termination of a pregnancy gone irremediably wrong.

What business is it of the high court to interfere with any medical decision of such import? So far I don't see any rulings that the state shall interfere with a man's decision to have a vasectomy...

I found it ironic that Alito was whining about the leak of the Roe v Wade draft ruling, stating that the leak put the lives of anti-choice justices at risk, and mentioning the attempt on Kavanaugh's life. He did not mention any of the deaths and near deaths of women already affected by draconian new abortion bans in states like Texas. It's even constitutional to deny abortion now in some states in case of incest or rape. Your 13 year old.... may make you a grandmother while you're still a 20-something yourself. What an "opportunity," as one female legislator in Ohio phrased it, even while conceding such a pregnancy would impose hardships. That state now has a six weeks limit on abortions, although it is currently blocked and so a 20-week rule persists until further action.

Total or nearly total bans on abortion are now constitutional thanks to Alito and the other five justices who enabled the Dobbs decision to be made broadly rather than to deal solely with that case at hand. The bans alarm physicians and law enforcers alike: they are unsure when and how they can treat emergency room situations like ectopic pregnancies, which are common and MUST be terminated or harm the health and future reproductive prospects of the woman.

For the law enforcers, the question is when is the moment at which the woman's life is in danger? How to signal or deny permission to the doctor when it's one minute to midnight? Or must the woman go into sepsis to prove she's about to die? Alito does not mention the economic dead zones that will develop around decisions of physicians to practice medicine in states where they feel they can operate without a district attorney wearing scrubs in the OR. No one in the medical profession doubts the brain drain that will occur. Who needs the extra hassle? Being a physician is already fraught with prospects for litigation. A criminal charge over proper response to ectopic pregnancy surely seems like a bridge too far.

Alito went on in his remarks at the Heritage Society last night to castigate (without naming her) Justice Elena Kagan for her remarks suggesting that the court has indeed made politicized decisions of late that go against the clear grain of public opinion, and that the court's integrity has thereby been thrown into question.

Looking at the Dobbs decision alone, and the opinion of a majority of Americans, I have to laugh at Alito even trying to suggest that Kagan was wrong.

She was correct in her assessment, and impolitic but courageous in trying to raise public awareness and that of the court itself about how out of step it has been in 2022, and how dangerous it is for the court's decisions to suggest that the will of the American people has no standing under the very Constitution that was written to ensure that we do have rights, including a fundamental right to consent to our governance.

Next step: codify a version of Roe v Wade that recognizes a woman's very personal right to consent to giving birth. The Congress will have to accede to will of the people in this matter, even if it does not happen immediately. The Dobbs ruling's aftereffects, the shortage of OB/GYN in states with draconian abortion laws, the slaughter of women burdened by rule of law over pregancies gone wrong (or aborted as in the old days without medical assistance for those without funds to ensure a safe, clinical termination of an unwanted pregnancy) will take its other toll on either the House and Senate membership, or on enough Americans to make them think about changing the makeup or term lengths of the High Court itself.

Alito disparaged those possibilities in his remarks last night, suggesting that packing the Court was the ultimate in politicization. But is it? How about the fact that Alito and his five pals, elected by no one, have brought the USA's women back nearly to status of chattel with one case ruling?

There's a reason Roe v Wade stood for 50 years (even while Congress dodged its foreseeable duty to codify a woman's right to choose). The court was evenly divided, with a swing vote that often had to navigate both precedent and the will of the people. That all changed with Trump's three appointments. There is nothing apolitical about the Dobbs decision at all. Absolutely nothing.

Packing the court is not something even a majority of Americans would prefer at this time. It does not have to happen. But the high court has to quit slinging majority-conservative votes against rule of law that a majority of Americans prefer remain interpreted with some respect to precedent. The SCOTUS track record of late does not speak convincingly to Alito's claim that the court is not politicized. The court itself now advertises its conservative lean by hastening to take on cases that the older conservatives on the bench have long wanted to consider, in order to weaken or overturn precedents established during the time that the court had a swing vote to moderate its lean.

 

[GermanSuplex]

Ironic that Alito expressed concerns that his leaked opinion endangered the lives of justices, but seems to give no f***s that his decision endangers the lives of millions of women. What a selfish and arrogant statement, given the circumstances.

 

[shadow puppet]

Wasn't sure which SCOTUS thread to pop this into so putting it here.
Stick with it all the way through. Trust me, it's worth it to see Al call out her right wing arse.

https://www.twitter.com/i/web/status/1591953056043671552/

 

[fooferdoggie]

Wasn't sure which SCOTUS thread to pop this into so putting it here.
Stick with it all the way through. Trust me, it's worth it to see Al call out her right wing arse.

https://www.twitter.com/i/web/status/1591953056043671552/

Plus good good old Moscow Mitch throw that so-called precedent out the window when trump was president.

 

[lizkat]

Wasn't sure which SCOTUS thread to pop this into so putting it here.
Stick with it all the way through. Trust me, it's worth it to see Al call out her right wing arse.

https://www.twitter.com/i/web/status/1591953056043671552/

And now we have Coney Barrett cracking jokes about abortion rights protesters outside her house when she's riffing at a Federalist Society dinner, yeah.