Supreme Court – Sheila Kennedy

And So It Begins…..

As predicted, it’s beginning. “It” is the regulatory dismantling that became inevitable when our rogue Supreme Court overruled “Chevron deference” and held that judges, rather than subject-matter experts, should decide regulatory policies.

A court has now struck down Net Neutrality.

If you are unfamiliar with this policy, or unsure why it matters, Vox had a comprehensive explanation back in 2016, when the Trump administration attacked it. Basically, Net Neutrality prohibits Internet Service Providers (ISPs) from discriminating among users.

Trump’s prior assault on Internet equality was just one of his efforts to make America “great” for the powerful and wealthy. Now, Trump’s remade Court has super-charged the fight against the government’s ability to impose fair “rules of the road.”

As the New York Times reported,

A federal appeals court struck down the Federal Communications Commission’s landmark net neutrality rules on Thursday, ending a nearly two-decade effort to regulate broadband internet providers as utilities.

The U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said the F.C.C. lacked the authority to reinstate rules that prevented broadband providers from slowing or blocking access to internet content. In its opinion, a three-judge panel pointed to a Supreme Court decision in June, known as Loper Bright, that overturned a 1984 legal precedent that gave deference to government agencies on regulations….

The F.C.C. had voted in April to restore net neutrality regulations, which expand government oversight of broadband providers and aim to protect consumer access to the internet. The regulations were first put in place nearly a decade ago under the Obama administration and were aimed at preventing internet service providers like Verizon or Comcast from blocking or degrading the delivery of services from competitors like Netflix and YouTube. The rules were repealed under President-elect Donald J. Trump in his first administration.

I have previously explained why the Loper Bright decision was so wrongheaded–and another stunning departure from longstanding precedent.

Robert Hubbell has addressed the ruling with his usual common sense explanation.

One of the major controversies of the Court’s 2024 term was the termination of the Chevron doctrine that afforded deference to federal experts charged with rulemaking pursuant to congressional regulation. The reactionary majority on the Supreme Court concluded that federal judges—with crushing caseloads—are better equipped to make discretionary policy judgments about rules authorized by Congress to regulate industries as varied and complex as nuclear energy, general aviation, drug testing, coal mine safety, and deep-water oil drilling. See Loper Bright Enterprises v. Raimondo,

In short, the Roberts’ Court substituted itself for tens of thousands of subject-matter experts with hundreds of thousands of years of experience regulating complex industries.

The first significant casualty of the Court’s hubris in Loper Bright was the “net neutrality” doctrine. A three-judge panel of the Sixth Circuit overruled the FCC’s interpretation of whether broadband internet service is “an information service” or a “telecommunications service for purposes of the Telecommunications Act of 1996.”

Hubbell goes on to quote Chris Geidner’s Substack.

In the relatively brief, 26-page decision, [Judge] Griffin declared that three judges sitting on an appeals court representing four states in the middle of the country were better suited to decide what a law in place since the mid-1990s means than the experts or political appointees at the FCC.

Instead of the executive branch issuing its interpretation, subject to electoral constraints and judicial review (and with the benefit of those subject experts on the agency’s staff), a man who has been a judge since the 1980s wrote the Sixth Circuit’s opinion deciding the matter on Thursday . . . .

Welcome to the brave new world of federal judges overruling experts charged with rulemaking by Congress.

As I have previously explained, Chevron deference was a well-considered judicial doctrine that had been applied for 40 years in over 18,000 decisions. It applied to the multiple situations in which Congress sends “ambiguous” directions to executive agencies staffed with people who are experts in the particular area. That ambiguity is intentional and necessary; Congress isn’t equipped to determine the proper levels of contaminants in water or to identify carcinogenic chemicals–and even if such specifics were part of the legislation, they would be incredibly difficult to monitor and/or update as technical knowledge advances.

Under Chevron, technocrats didn’t have the last word–if a plaintiff could show that a regulation was unreasonable, courts could and did overrule it. The rule simply recognized the complexity of the world we inhabit–and the importance of specialized expertise–an importance this arrogant Court dismisses.

As Tom Nichols has amply documented, in the age of MAGA, education, knowledge and expertise have become unacceptably “woke”–and certainly not entitled to respect.

Comments

The End Of Ethics?

Americans were recently treated to the official results of the U.S. House’s ethics investigation of Matt Gaetz. The concluding paragraph of the 37 page report says it all:

The Committee determined there is substantial evidence that Representative Gaetz violated House Rules and other standards of conduct prohibiting prostitution, statutory rape, illicit drug use, impermissible gifts, special favors or privileges, and obstruction of Congress.

This was the person Trump initially chose to head up the Department of Justice. (I’ve lost a lot of respect for Merrick Garland due to his timidity and what has evidently been an overly zealous desire to avoid politicizing DOJ, but the contrast between a compulsively ethical Attorney General and a thoroughgoing degenerate is representative of the difference between today’s Democratic Party and the cult of Trump–aka the GOP.)

Because it isn’t just Gaetz. Trump has chosen nominees who mirror many of his own numerous legal and ethical failings–a clown show composed not only of ignoramuses and conspiracy theorists, but sexual predators, racists and businessmen with falsified resumes and glaring conflicts of interest. Long gone are the days when political figures were held to a high moral standard–when those aspiring to leadership positions took care to project an ethical and probative public persona, even if their private behaviors were somewhat less exemplary.

To be fair, the Trumpian mafia being assembled to run the Executive branch has its counterpart in the current, rogue Supreme Court; Rolling Stone, among others, has reported on recent, added discoveries of highly unethical behaviors by the Court’s “usual suspects.”

A new 20-month Senate investigation into ethical conflicts and legal violations at the Supreme Court has uncovered and underscored a raft of dubious behavior by justices both living — and dead.

The new 95-page report reveals that deceased Supreme Court Justice Antonin Scalia — who expired in 2016 on a “free” quail hunting trip, paid for by a benefactor — was a conflicted mess, and effectively patient zero for the corruption now dogging the court. The arch conservative justice accepted “at least 258 subsidized trips” from wealthy patrons, including “several dozen hunting and fishing trips with prominent Republican donors.” Scalia accepted more such gifts “than any other justice,” the report states, and failed to properly disclose them “in violation of federal law.”

The report, issued by Democrats on the Senate Judiciary Committee, also excoriates current conservative Justices Clarence Thomas and Samuel Alito for violations of federal law over undisclosed travel, including luxury fishing and yacht vacations. It targets Thomas in particular for having “accepted lavish gifts from billionaires with business before the court for almost his entire tenure as a justice,” adding that “the number, value, and extravagance of the gifts accepted by Justice Thomas have no comparison in modern American history.

Dick Durbin, chair of the Judiciary Committee, issued a statement underscoring the effect of these ethical lapses, saying that “justices are losing the trust of the American people at the hands of a gaggle of fawning billionaires.”

Disclosure of the repeated failures of Supreme Court justices to recuse themselves from cases affecting the interests of the billionaires whose largesse they’ve enjoyed comes at a time when trillionaire Elon Musk has assumed a de facto role as “co- President,” and as Trump is preparing to install a cohort of shady billionaires with massive conflicts of interest in important government positions–positions for which most of them are massively unqualified.

As ABC News recently reported,

President-elect Donald Trump has shown no qualms about making or sticking by picks for his Cabinet no matter the baggage they carry — even some accused of sexual assault.

It’s a far cry from the days when much smaller-scale scandals, such as marijuana use or hiring an undocumented worker as a nanny, sunk candidates put forward by Presidents Ronald Reagan and Bill Clinton, experts said.

“We’re in untested waters,” Jonathan Hanson, a political scientist and lecturer in statistics at the University of Michigan’s Gerald R. Ford School of Public Policy, told ABC News.

I suppose it shouldn’t surprise us. After all, American voters just elected a mentally-ill convicted felon who has also been found liable for sexual abuse by a civil jury.

Apparently, MAGA’s version of “Making America Great Again” is limited to its (very obvious) goal of “Making America White Again.”

Ethics? They don’t need no stinkin’ ethics!

Comments

San Diego Shames Supreme Court

I’ve previously posted about a number of recent Supreme Court cases that have ignored long-time precedents, cherry-picked history, or otherwise done violence to the philosophical basis of the Constitution and the rule of law. One that I haven’t previously addressed falls into a somewhat different category: it’s just wrong and mean-spirited.

The case–Grants Pass v. Johnson–involved an Oregon city that had passed ordinances prohibiting people from sleeping outside in public using a blanket, pillow or cardboard sheet to lie on, even if those people have no other option, i.e., are homeless.

Those challenging the ordinances relied upon the earlier case of Robinson v. California, which had held that it is “cruel and unusual” to criminalize a person’s status, but the majority held that Robinson didn’t apply–that the ordinances penalize behavior rather than status. As a result of that analysis, municipalities can do what Grants Pass did, and subject unhoused people to hundreds of dollars in fines and even jail time for sleeping outside, even when the city admittedly lacks enough shelter beds for them.

The decision reversed a far more reasonable opinion by the Ninth Circuit; that Court held that punishing unhoused people for sleeping in public when they have no access to shelter violates the Eighth Amendment’s protection against cruel and unusual punishment.

The ACLU submitted a brief on behalf of the challengers, and issued a statement on the decision.

“It is hard to imagine a starker example of excessive punishment than fining and jailing a person for the basic human act of sleeping,” said Scout Katovich, staff attorney in the Trone Center for Justice and Equality. “As Justice Sotomayor’s dissent powerfully acknowledged, sleep is a biological necessity, not a crime. We cannot arrest our way out of homelessness, and we will continue litigating against cities that are emboldened by this decision to treat unhoused people as criminals.”

The American Civil Liberties Union submitted a friend-of-the-court brief arguing that punishing unhoused people for sleeping outside when they lack access to shelter violates the Eighth Amendment protection against cruel and unusual punishment. As the brief highlights, the original intent and meaning of the Eighth Amendment and its application in more than a century of Supreme Court cases make clear that the government cannot impose punishment that is disproportionate to the crime.

There is obviously a great deal more that can be said about this decision, but the practical reality is that it allows local governments to criminalize a social problem. Allowing municipalities to punish homelessness does absolutely nothing to ameliorate the problem. (For that matter, allowing fines to be assessed is asinine; people who cannot afford a bed don’t have resources to pay fines.)

San Diego takes a very different, and far smarter approach to the issue. People who are unsheltered or living in their cars can access parking lots that have been modified to provide more than just a place to stay.

San Diego currently operates four lots where people living in cars or RVs can park overnight, with access to restrooms, services and treatment.

The H Barracks location adds 190 parking spaces, which will nearly double the capacity of the city’s safe parking program.

It’ll be located on five acres between the airport and Liberty Station, and it would serve the large population of people living in oversized vehicles in the Peninsula area.

The pet-friendly lot will be open overnight — 6pm-7am — with onsite security, as well as bathrooms and showers, according to the report.

The lots provide onsite services for case management, housing, health care, mental and behavioral health, plus substance-abuse treatment resources, and patrons are prohibited from drug and alcohol use. Registered sex offenders are not allowed.

The Supreme Court’s tone-deaf opinion effectively allowing municipalities to criminalize homelessness is a classic example of hitting people when they’re down. As a matter of law, it is fatally flawed; as a matter of policy, it’s clueless.

Calling homelessness a “behavior” rather than a status suggests that it is chosen–that it represents a decision made by an individual to forego habitation. Allowing local officials to punish unhoused people is simply cruel. As numerous critics of the decision have pointed out, governments cannot punish their way out of homelessness and poverty. What is needed is evidence-based solutions.

Officials in San Diego obviously recognize that. It will be interesting to see whether that city’s innovative approach results in a reduction of the number of homeless, and whether it will develop follow-up measures aimed at more permanent solutions.

Meanwhile, We the People really need to do something about our rogue Supreme Court…

Comments

So Long, America–It Was Nice Knowing You…

The New York Times summarized the rogue Supreme Court’s immunity ruling in a sentence: “the Supreme Court has extended sweeping legal protections to presidents that apply to no one else in the country.”

In other words, in the most recent of a string of appalling and unprecedented rulings, this disgraceful Court has eviscerated the essence of the rule of law: that no one is above the law. Sources close to the Rightwing extremists behind Project 2025 immediately began planning how to use the Court’s decision to help them implement their unAmerican policy agenda, and Trump immediately called for jailing his political opponents.

The Court has demonstrated the naiveté of those Republican voters who justified sticking with Trump because “there are guardrails–laws that will keep him from doing the craziest shit.” Not anymore, there aren’t.

Toto, we aren’t in Kansas anymore.

I have never been so afraid for my country. Lest you think I am over-reacting, I will turn the rest of this post over to the considered reactions of people I respect.

There were the pundits, of course, many of whom bring solid legal credentials to the discussion. I can sum up their reactions by citing to Washington Post columnist Ruth Marcus, whose opinion piece was titled “God Save Us from this Dishonorable Court” and was subtitled “An egregious, unconscionable ruling on presidential immunity from the Supreme Court.”

But the most incisive and horrified analyses came from the scholars.

Historian Heather Cox Richardson wrote:

This is a profound change to our fundamental law—an amendment to the Constitution, as historian David Blight noted. Writing for the majority, Chief Justice John Roberts said that a president needs such immunity to make sure the president is willing to take “bold and unhesitating action” and make unpopular decisions, although no previous president has ever asserted that he is above the law or that he needed such immunity to fulfill his role. Roberts’s decision didn’t focus at all on the interest of the American people in guaranteeing that presidents carry out their duties within the guardrails of the law….

There is no historical or legal precedent for this decision. The Declaration of Independence was a litany of complaints against King George III designed to explain why the colonists were declaring themselves free of kings; the Constitution did not provide immunity for the president, although it did for members of Congress in certain conditions, and it provided for the removal of the president for “high crimes and misdemeanors”—what would those be if a president is immune from prosecution for his official acts? The framers worried about politicians’ overreach and carefully provided for oversight of leaders; the Supreme Court today smashed through that key guardrail…

Today, observers illustrated what Trump’s newly declared immunity could mean. Political scientist Norm Ornstein pointed out that Trump could “order his handpicked FBI Director to arrest and jail his political opponents. He can order the IRS to put liens on the property of media companies who criticize him and jail reporters and editors.” Legal analyst Joyce White Vance noted that a president with such broad immunity could order the assassination of Supreme Court justices, and retired military leader Mark Hertling wrote that he was “trying to figure out how a commander can refuse an illegal order from someone who is issuing it as an official act.”

Lawyer and legal scholar Robert Hubbell minced no words:

Today, the Supreme Court overthrew the American Revolution and anointed the US president as a modern-day king. Their betrayal of the American revolutionaries, Founders, and Framers is all the worse because they did so to promote the most corrupt, dangerous, depraved person to disgrace the office of the presidency…

Trump v. United States will be overruled. The decision is so bad it will not stand. Like Dred Scott (holding that enslaved people are not citizens entitled to judicial protections), Plessy v. Ferguson (upholding segregation), Koramatsu v US (upholding the Japanese internment camps), today’s decision will be overturned by the acclamation of history in due course. It will be remembered as a mark of shame for the Roberts Court just as Dred Scott tarnishes Chief Justice Taney’s legacy to this day.

It may take a few years or decades to overturn Trump v. US, but the American people are the ultimate power under the Constitution. Majorities in the House and Senate can pass a bill to expand the Supreme Court, and a Democratic president can sign it. The reactionary majority can be overwhelmed by the appointment of four new justices, although expanding the Court by eight or more would be appropriate given the nearly hundred-fold growth in the US population since six justices were appointed in 1789.

The problem is, if Donald Trump wins in November–or if MAGA neo-fascists control either the House or Senate– there won’t be a United States in which the judicial process can self-correct.

America as we’ve known it will be gone.

Comments

Deconstructing America

The Founders would be dumbfounded.

Remember what you learned (maybe) in high school government class about the three “co-equal” branches of government? Well, our rogue Supreme Court says that was wrong–that judges should be the imperial, all-powerful arbiters of national life, because they know far better than the experts serving in various government agencies what government can (or really, cannot) do about elements of our common lives like air and water quality, unfair competition…you name it.

I have previously explained what was at stake in a case challenging what is called “the Chevron doctrine.” But Robert Hubbell’s Substack letter explains better than I could the appalling, immensely negative consequences of Friday’s decision over-ruling that doctrine, and I am going to quote liberally from his explanation/diatribe.

You will be able to tell your grandchildren that you lived through a judicial revolution that rewrote the Constitution to suit the financial interests of corporate America and the social agenda of an extremist minority that fetishizes guns, hates government, and seeks to impose their narrow religious views on all Americans. The open question in 2024 and beyond is whether we will reverse that revolution. The first step is to understand the earth-shaking consequences of the Court’s ruling…

The Roberts Court has anointed the judiciary as the ascendant branch of government. The person of the president—not the executive branch—is nearly omnipotent in Roberts’ schema. Congress has been neutered…

The US economy is the largest in the world by a wide margin. That size is attributable in no small measure to (a) the orderly markets and business conditions created by federal regulations and (b) the comparatively corruption-free nature of the US economy (also attributable to federal regulations).

Managing and maintaining the immense US economy is a monumental undertaking. We need regulations that control how and when fish stocks can be harvested, where medical waste can be stored, how thick concrete must be on bridge spans, what type and color of insulation must protect electrical wires, what temperature meat must be kept at when being transported across the country, and what type of information can be collected and stored in a retail transaction.

Multiply those issues by a million, and you will have a vague sense of the complexity and scale of the US economy….

Those millions of regulatory decisions demand broad and deep expertise by career professionals with advanced degrees and years of experience in their field of regulation. That expertise resides in the federal agencies housed in the executive branch under the president..Businesses hate federal regulation because they impose a trade-off: protecting the health and safety of Americans by reducing the maximum profits unrestrained businesses could earn in the short term in an unregulated economy.

The so-called “administrative state” of federal agencies has been wildly successful. It is why all international airline pilots speak English when flying between countries across the globe. It is why the US dollar is the world’s currency. It is why the world’s science, technology, and innovation hubs are located in the US. It is why every Chinese corporation that goes public in China has the goal of transferring from the Chinese stock exchanges to the New York Stock Exchange, Nasdaq, and the Chicago Options Exchange as soon as possible…

As Hubbell writes, Friday’s decision dramatically reduces the power of Congress by requiring that legislation be as specific as an instruction manual. Under Chevron, when Congress directed the Executive Branch to achieve a desired goal, agency personnel with deep expertise in the relevant area would determine how best to reach that goal. If a regulation was challenged, the Court could strike it down if evidence showed it was unreasonable, but absent such evidence, the courts deferred to the agency’s interpretation.

Hubbell provides an example:

If the Court requires Congress to specify the precise number of salmon that can be taken from the Klamath River each year rather than saying that the NOAA Fisheries Department shall establish fishing quotas to maintain healthy fish populations in inland waterways, Congress’s work will grind to a halt. Members of Congress have neither the time nor expertise to determine a healthy fish population for each inland waterway in the US. In the absence of “the administrative state,” Congress (or the courts) must serve as the regulators of the millions of daily transactions governed by federal regulations.

In the future, when a business challenges a regulation, federal judges rather than agency experts will interpret and apply–or more likely, overturn– the regulation. We’ve seen the arrogance and fact-free behavior of recent, ideologically-driven judicial appointees.

The Trump judges on the Supreme Court have accomplished things near and dear to the Rightwing heart. In addition to dramatically undermining the liberties protected by the Bill of Rights, they have substantially deconstructed the checks and balances of the Founders’ government structure. They certainly aren’t “originalists” in any sense that matters.

At best, it will take years–generations–to undo the damage. At worst, a Trump win in November and implementation of Project 2025, would foreclose any possibility of enlarging or otherwise restraining this rogue Court and beginning to reverse the enormous damage it has caused.

What is truly terrifying is how few Americans seem to understand the stakes.

This election is a choice between an elderly man who has been an exemplary President but a poor debater and an equally elderly man who, in service to his own monumental ego and his rabid White Christian Nationalist base, is intent upon destroying America as we know it.

Comments