Tag Archives: Supreme Court

The Constitution And The Court

When Trump first began issuing his blatantly unconstitutional Executive Orders, Women4Change Indiana–recognizing that simply labeling an Order unconstitutional lacked substance– asked me to draft “quick and dirty” explanations of why these Orders deserved that label. I agreed, and proceeded to offer brief explanations I titled “Your Constitutional Minute” which the organization posted to its website.

As we hurtle into even more uncharted waters–as we discover that our rogue Supreme Court is far less interested in protecting our constitutional liberties than either their predecessor or the lower courts–I thought it might be useful to share some of those posts, so that readers might draw their own conclusions about the increasingly dangerous legal territory we inhabit.

Let’s just look at the first of those “Constitutional Minutes.”

Section One of the 14th Amendment reads as follows:                

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Donald Trump’s Executive Order, in pertinent part, reads:               

It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons:  (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The Law:

A president cannot repeal part of the Constitution by executive order. Congress cannot repeal a Constitutional provision by passing a new law. Amending the Constitution requires a two-thirds vote in both the House and Senate, and subsequent ratification by three-quarters of the states.

Every statement in that brief explanation is accurate. Thus far, they all remain accurate. But the Supreme Court just undermined the application of the constitutional language–not by ruling that it doesn’t apply, but by issuing a ruling that will make it more difficult for people to claim its protection.

The Court did not rule on the merits of Trump’s effort to undermine the clear language of the 14th Amendment. Instead, the majority addressed a procedural question: whether lower federal courts have the authority under the Judiciary Act of 1789 to issue nationwide injunctions. Injunctions are judicial orders that block government actions, and nation-wide injunctions block such actions against everyone, not just the plaintiffs. In other words, if a court finds a government action to be unconstitutional, a national injunction prohibits the government from taking that action anywhere–not just in the state or circuit in which the case arose.

By a 6–3 vote, the Court—led by Justice Amy Coney Barrett—held that district courts generally lack the power to grant nationwide injunctions if that relief is broader than necessary to provide “complete relief” to the plaintiffs who brought the case. The Court granted the government’s request for a partial stay of the nationwide injunctions against Trump’s clearly improper birthright-citizenship Executive Order—although “only insofar as the injunctions exceeded the scope” needed to grant relief to the plaintiff in the lawsuit.

Confused? It was intentional.

Basically, the Court declined to agree that Trump could change the clear language of the 14th Amendment. That outcome was predictable, given the clear language of the Amendment and the history of its jurisprudence. So the radical members of the majority helped the autocrat in the White House by undermining the available remedy.

Justice Sonia Sotomayor called the decision out for what it was, in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson. Saying that “No right is safe in the new legal regime the Court creates,” Sotomayor wrote “Today, the threat is to birthright citizenship. Tomorrow, a different administration may try to seize firearms from law abiding citizens or prevent people of certain faiths from gathering to worship… That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.”

In law school, we learn that there is no right without a remedy. 

Welcome to Trump’s America.

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The New York Times Finally Figured It Out

One of the political facts of life in today’s America is the distance between popular opinion and electoral results. Polls and academic surveys consistently show support for policies that are inconsistent with–and loudly rejected by–candidates who win elections. That is especially true for those who are elected to the House of Representatives.

For as long as I’ve been writing these daily meditations (okay, rants), I’ve attributed that state of affairs to gerrymandering–the partisan redistricting that I am increasingly convinced lies at the very heart of America’s political dysfunctions.

Partisan redistricting–the drawing of congressional districts by legislators who are choosing their voters, rather than the other way around–subverts democracy by enabling minority rule. The practice was dubbed “gerrymandering” to “honor” Elbridge Gerry, who was responsible for drawing districts in Massachusetts that one publication said “looked like salamanders.”  Gerry was born in 1744, so the practice of manipulating district lines is nothing new. What is relatively new is the precision in that line drawing that can now be accomplished with the aid of computers.

In states where one party controls redistricting, legislators can carve out districts with majorities of their voters, and cram the opposing party’s voters into a remaining few.

If you wonder where looney-tune officeholders like Jim Jordan, Marjorie Taylor Greene and Lauren Boebert come from, that’s the explanation.

The New York Times has just figured that out–and documented it.

A New York Times analysis of the nearly 6,000 congressional and state legislative elections in November shows just how few races were true races. Nearly all either were dominated by an incumbent or played out in a district drawn to favor one party overwhelmingly. The result was a blizzard of blowouts, even in a country that is narrowly divided on politics.

Just 8 percent of congressional races (36 of 435) and 7 percent of state legislative races (400 of 5,465) were decided by fewer than five percentage points, according to The Times’s analysis.

Consequences from the death of competition are readily apparent. Roughly 90 percent of races are now decided not by general-election voters in November but by the partisans who tend to vote in primaries months earlier. That favors candidates who appeal to ideological voters and lawmakers who are less likely to compromise. It exacerbates the polarization that has led to deadlock in Congress and in statehouses.

The result of this practice is the wide gulf between voters’ actual policy preferences and the ideologues who emerge victorious. And–as the Times grudgingly acknowledged–although both parties engage in the practice, Republicans overwhelmingly do most of it.

The Times noted that demographic shifts and “political sorting” — the tendency of like-minded citizens to live in the same community–also have played a role, but the study confirmed the pre-eminent role of redistricting in creating  unrepresentative Representatives.

While it is easy to focus on the candidates, the money, the message or the economy, increasingly it is the maps that determine the outcome. In North Carolina, they may have decided control of the U.S. House of Representatives.

Only one of the state’s 14 congressional districts was decided by fewer than five points. A Republican won the state’s next closest race — by 14 points.

In 2022, the State Supreme Court ordered a more competitive map, but it was tossed out after midterm elections shook up the balance of the court. The replacement, which was drawn by the Republican-led Legislature, gave three Democratic seats to the G.O.P. while making nearly every district safer for the party that held it.

It is impossible to know how elections held under the first map would have turned out. But, according to Justin Levitt, a redistricting law expert at Loyola Law School in Los Angeles, “had every seat stayed the same as in 2022, those three seats would have made the difference, and Democrats would have had a one-seat majority” in Congress.

The Times article focused on several states where partisan line-drawing has produced results incompatible with the will of a majority of that state’s voters.

Even before Trump’s justices corrupted the Supreme Court, that body refused to put an end to the practice, calling partisan gerrymanders a “political problem” outside federal courts’ jurisdiction. Thanks to that unconscionable evasion, citizens in states which, like Indiana, lack referenda or initiatives, are helpless to correct the situation. Only the legislature–filled with “representatives” who benefit from the practice–can overturn it.

The only hope for Hoosiers is Democratic control of the U.S. House and Senate, and passage of the John Lewis Voting Rights Act.

Our first chance is 2026, when–hopefully–Trump will have infuriated enough voters to spur turnout.

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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.

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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! 

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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…

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