Supreme Court – Page 3 – Sheila Kennedy

Losing My Faith

Faith isn’t only important for religions that emphasize faith over works.

Living emotionally healthy lives also involves having faith in our families and friends, and in our social institutions. Faith in the trustworthiness of government is critically important to the maintenance of a democratic polity–and after many years, I’ve lost my (undoubtedly naive) faith in part of America’s government–the Supreme Court.

It was bad enough watching Brett Kavanaugh engage in his very un-judicial hysterical rant during his confirmation. It was infuriating when Mitch McConnell publicly displayed the game-playing that goes into elevating nominees to the highest court in the land. And of course, the almost-daily revelations about Justice Thomas are enough to make an ethical lawyer gag.

The rank dishonesty of today’s Court–on display when Alito’s theocratic impulses won majorities in Hobby Lobby and Dobbs–are far from the only evidence that the Court is not the collection of thoughtful, dispassionate legal analysts I once fondly believed.

A recent book by Stephen Vladeck focuses on the Court’s increased use of the shadow docket. Vladeck shows how the conservative justices ignored decades-old norms by using that docket, which doesn’t require briefing or consideration of the merits, to issue a series of shadowy unsigned and unexplained emergency orders.

The Shadow Docket was created as a mechanism to deal with issues requiring an immediate ruling on procedural matters, such as scheduling, or situations requiring maintenance of the status quo until the case could be considered on the merits, to avoid irreparable harm to a litigant.

Vladeck’s book describes the largely unnoticed shift towards what he calls “furtive justice.” “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” argues that rightwing justices have “abused the court’s emergency powers to run roughshod over the longstanding norm that shadow docket orders should be used sparingly and with extreme caution.”

Rightwing justices are now deploying such orders dozens of times each term. Over three terms alone, from 2019 to 2022, the court granted emergency relief in more than 60 cases: effectively overturning the considered decisions of lower courts through rushed, unexplained rulings.

It shouldn’t surprise us that the current Court is experiencing a crisis of legitimacy, but like many lawyers, I stubbornly believed that the Court’s dysfunctions were of relatively recent vintage. (Thanks, McConnell!)

Then I read Erwin Chemerinsky’s 2015 book: The Case Against the Supreme Court.

Chemerinsky is one of my legal heroes. He’s an American legal scholar widely respected for his studies of constitutional law and federal civil procedure. Since 2017, he’s been the dean of the UC Berkeley School of Law. (I was once on a panel with him, and he was erudite and self-effacing and altogether charming.)

The book is a scathing critique of the Supreme Court for failing–throughout its history– to carry out its most important responsibilities at critical moments. According to Chemerinsky, the two “preeminent purposes of the Court are to protect the rights of minorities who cannot rely on the political process and to uphold the Constitution in the face of any repressive desires of political majorities.”

In the book, Chemerinsky goes through the Court’s jurisprudential history, identifying case after case in which the Court failed to take a stand for constitutional rights and principles. He gives example after example of the Court’s “decades-long support for government-sanctioned slavery, racial segregation, corporate favoritism, and suppression of speech during times of crisis.” “Throughout American history,” Chemerinsky writes, “the Court usually has been on the side of the powerful—government and business—at the expense of individuals whom the Constitution is designed to protect.”

Chemerinsky acknowledges that the Court has occasionally performed as we would hope, in cases like Brown v. Board of Education, but even the Warren Court–a high-water Court in the opinion of most legal scholars– doesn’t escape reproof. (He details in one chapter how “it did so much less than it needed to and should have done, even in the areas of its greatest accomplishments.”)

Chemerinsky absolutely eviscerates the Roberts Court–and that was in 2015, before Gorsuch, Kavanaugh and Barrett– enumerating the many ways in which that Court continues to favor the powerful over citizens in a wide range of areas from generic drug manufacturers to voting rights.

The book does provide a laundry list of reforms that might ameliorate the deficiencies: term limits for the Justices, several changes to the way the Court communicates, and –importantly–rigid ethical requirements and recusal procedures.

Vladeck and Chemerinsky–and the Roberts Court–have disabused me of my prior, naive faith in the Court. The domination of Congress by the GOP’s version of the Keystone Kops had previously removed any remaining confidence or faith in that body.

That leaves one leg of a three-legged stool……

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Tennessee, Clarence Thomas And The Corruption Of American Democracy

Question: What do Clarence Thomas and the Republican legislators in Tennessee have in common? Answer: They both epitomize the corruption of American democracy–a corruption that has led to a precipitous decline in public confidence in America’s governing institutions.

Several media outlets have reported on recent polling from Gallup that shows trust in the judicial branch at record lows. Only 47 percent of Americans have “a great deal” or “a fair amount” of trust in the federal judiciary– a drop of 20 percentage points from two years earlier. When asked about the Supreme Court, it was worse: 58 percent disapproved of the high court’s performance.

Those numbers are unlikely to improve following the most recent disclosures about Justice Thomas and his “dear friend” Harlan Crowe. The initial revelations about Thomas’ acceptance of luxurious trips were stunning enough, but the Justice’s argument that he hadn’t needed to report them since they were just “hospitality”–while unconvincing–left him some rhetorical wiggle-room.

The latest revelations don’t.

This time, Thomas directly received money from Crow — perhaps in excess of the market value of the Chatham County, Ga., properties that Crow purchased from Thomas and his kin. This is no longer about receiving “personal hospitality.” It’s about a financial transaction between Thomas and a GOP donor who has also subsidized his vacations.

There is no doubt that the sale of personal real estate to Crow should have been reported on the justice’s financial disclosure form for 2014, and there is no excuse for failing to do so. The most logical explanation is that Thomas, whose relationship with Crow had already been the subject of unflattering news reports, wanted to keep it from public view.

The linked article also notes that Thomas has failed to report his wife’s considerable income from Rightwing organizations–although the law clearly requires that income to be reported.

Inescapable bottom line: Clarence Thomas is corrupt, and his judicial decisions are compromised.

Then there is the emerging information about the Tennessee legislature–information that probably would not have been uncovered or widely disseminated had that body not over-reacted to a breach of House decorum by expelling two young Black Democrats.

Democracy Docket has taken a deeper dive into that gerrymandered legislature’s disdain for representative democracy. Tennessee, like Indiana, has a Republican super-majority–courtesy of gerrymandering–that routinely acts to disempower state Democrats.

Some examples:

Tennessee’s Democratic cities have come under a coordinated attack from lawmakers. In March, Gov. Bill Lee (R) signed a law that forces the Nashville Metro Council to reduce its membership by half. Two lawsuits were filed challenging the law and on April 10, a Tennessee court temporarily blocked portions of the law while litigation continues.

After the expulsion of Pearson, GOP legislators threatened to withdraw funding from important projects in Memphis’ Shelby County if Pearson was reappointed.

In the latest round of redistricting, the Legislature divided Davidson County, home to Nashville, into three separate districts, dismantling the city’s Democratic-held seat. The lawmakers also approved state legislative districts that entrenched Republican supermajorities in both chambers of the Legislature. (Notably, the recent expulsions were only possible because of GOP supermajority control.)

Tennessee denies voting rights to over 470,000 citizens with one of the strictest (and most complicated) felony disenfranchisement laws in the United States. The state disenfranchises 21% of its Black voting-age population, the highest percentage in the country.

Tennessee has restrictive voting laws, leading to a low democracy tally by the Movement Advancement Project. Instead of improving voting access, the Legislature’s priorities have included laws requiring state and local officials to consult with the legislative leadership before changing certain state election laws and prohibiting election offices from accepting any private grant for election administration.

And we wonder why Americans no longer trust our political institutions…why so many of us have moved from skepticism to cynicism.

Political trust is generally described as citizens’ confidence in their political institutions. As political scientists repeatedly warn, that trust is an important component and indicator of political legitimacy; its erosion is not something to be taken lightly.

As I used to tell my students, an enormous number of American laws depend upon voluntary compliance by citizens–everything from filing taxes to obeying traffic signals. The ability of the authorities to catch and punish scofflaws depends upon the fact that the rule-breakers are relatively few. When citizens no longer trust that those in power are following the rules, rising numbers of them will feel justified in breaking those rules as well.

And it’s all inter-related

A properly functioning Supreme Court would have outlawed the rampant gerrymandering that produced Tennessee’s –and other state’s–rogue legislature.

As NASA might put it: Houston, we have a problem.

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The Challenges Of Modern Life

The Supreme Court’s docket this year has two cases that will require the Court to confront a thorny challenge of modern life–to adapt (or not) to the novel realities of today’s communication technologies.

Given the fact that at least five of the Justices cling to the fantasy that they are living in the 1800s, I’m not holding my breath.

The cases I’m referencing are two that challenge Section 230, social media’s “safe space.”

As Time Magazine explained on February 19th,

The future of the federal law that protects online platforms from liability for content uploaded on their site is up in the air as the Supreme Court is set to hear two cases that could change the internet this week.

The first case, Gonzalez v. Google, which is set to be heard on Tuesday, argues that YouTube’s algorithm helped ISIS post videos and recruit members —making online platforms directly and secondarily liable for the 2015 Paris attacks that killed 130 people, including 23-year-old American college student Nohemi Gonzalez. Gonzalez’s parents and other deceased victims’ families are seeking damages related to the Anti-Terrorism Act.

Oral arguments for Twitter v. Taamneh—a case that makes similar arguments against Google, Twitter, and Facebook—centers around another ISIS terrorist attack that killed 29 people in Istanbul, Turkey, will be heard on Wednesday.

The cases will decide whether online platforms can be held liable for the targeted advertisements or algorithmic content spread on their platforms.

Re-read that last sentence, because it accurately reports the question the Court must address. Much of the media coverage of these cases misstates that question. These cases are not about determining whether the platforms can be held responsible for posts by the individuals who upload them. The issue is whether they can be held responsible for the algorithms that promote those posts–algorithms that the platforms themselves developed.

Section 230, which passed in 1996, is a part of the Communications Decency Act.

The law explicitly states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” meaning online platforms are not responsible for the content a user may post.

Google argues that websites like YouTube cannot be held liable as the “publisher or speaker” of the content users created, because Google does not have the capacity to screen “all third-party content for illegal or tortious materia.l” The company also argues that “the threat of liability could prompt sweeping restrictions on online activity.”

It’s one thing to insulate tech platforms from liability for what users post–it’s another to allow them free reign to select and/or promote certain content–which is what their algorithms do. In recognition of that distinction, in 2021, Senators Amy Klobuchar and Ben Ray Lujan introduced a bill that would remove tech companies’ immunity from lawsuits if their algorithms promoted health misinformation.

As a tech journalist wrote in a NYT opinion essay,

The law, created when the number of websites could be counted in the thousands, was designed to protect early internet companies from libel lawsuits when their users inevitably slandered one another on online bulletin boards and chat rooms. But since then, as the technology evolved to billions of websites and services that are essential to our daily lives, courts and corporations have expanded it into an all-purpose legal shield that has acted similarly to the qualified immunity doctrine that often protects policeofficers from liability even for violence and killing.

As a journalist who has been covering the harms inflicted by technology for decades, I have watched how tech companies wield Section 230 to protect themselves against a wide array of allegations, including facilitating deadly drug sales, sexual harassment, illegal arms sales and human trafficking — behavior that they would have likely been held liable for in an offline context….

There is a way to keep internet content freewheeling while revoking tech’s get-out-of-jail-free card: drawing a distinction between speech and conduct.

In other words, continue to offer tech platforms immunity for the defamation cases that Congress had in mind when Section 230 passed, but impose liability for illegal conduct that their own technology enables and/or promotes. (For example, the author confirmed that advertisers could easily use Facebook’s ad targeting algorithms to violate the Fair Housing Act.)

Arguably, the creation of an algorithm is an action–not the expression or communication of an opinion or idea. When that algorithm demonstrably encourages and/or facilitates illegal behavior, its creator ought to be held liable.

It’s like that TV auto ad that proclaims “this isn’t your father’s Oldsmobile.” The Internet isn’t your mother’s newspaper, either. Some significant challenges come along with the multiple benefits of modernity– how to protect free speech without encouraging the barbarians at the gate is one of them.

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Originalism And Corruption

At what point does an ideological lens morph into dishonesty and corruption? I don’t know the answer to that, but it is a pressing question raised by some highly dubious and arguably corrupt behaviors by two current Supreme Court Justices.

In the case of Clarence Thomas, highly questionable behavior has been obvious–and criticized–for years. More recently, with the revelations about his wife Ginni and her deep involvement in Trump’s attempted coup, his refusal to recuse himself in cases that might well implicate her is nothing short of scandalous. Now, there are growing, serious concerns about the degree of dishonesty characterizing Samuel Alito’s jurisprudence and (if recent accusations are found to be accurate) improper behaviors.

The purported basis upon which these justices have based controversial opinions goes under the rubric of “originalism.”

So what, exactly, is “originalism”? As a recent post to the History News Network began,

“Originalism.”

That’s the touchstone of constitutional jurisprudence over which Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett obsess.

It makes them feel righteous to do it, because for people like themselves the doctrine is faith.

They presume that the words of the Constitution possess essentially one “original” meaning. And they also presume they have the power to determine this meaning and then lord it over everyone else.

They believe this.

As the post proceeds to note, historians, linguists, and anyone possessing an ounce of intellectual integrity consider that iteration of originalism to be simple-minded dogma.

As an article about Amy Comey Barrett put it, arguments for originalism have always rested on flimsy foundations–and conservative judges have routinely ignored the doctrine when it interfered with a desired result.

It turns out that originalism’s real utility is its transactional value as a vehicle for other legal principles. The deeper structure of constitutional jurisprudence is the pervasive and foundational but largely unacknowledged influence of Catholic natural law moral philosophy. Barrett represents more than simply the latest link in the chain of custody for originalist jurisprudence that extends from her mentor, and one of originalism’s founding fathers, former Justice Antonin Scalia, to the present day.

The article argues that a medieval form of Catholicism, rather than Evangelical fundamentalism, permeates the judiciary–and especially the current Supreme Court. The article asserts that it is Catholicism that today forms the linchpin of culture-war conservatism in the United States.

The underlying organizational and intellectual impetus for this influence derives from Thomist Catholic perspectives—on natural law, in particular—that have achieved resurgence in the last 50 years and have infused conservative foundations and think tanks alongside vast amounts of donor money.

As Ruth Marcus noted in a recent column,

When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.

Marcus’ column is lengthy, but well worth reading; she traces the evolution of the doctrine and its embrace by conservatives unhappy with the Warren Court’s approach, which I would characterize as a correct understanding of “original intent”–namely, looking to the values the Founders were trying to protect, and endeavoring to protect those values–free speech, freedom of religion, etc.–from previously unanticipated threats emerging from an environment the Founders could never have envisioned. (The Founders said nothing about free speech on the Internet…)

Multiple historians have objected to Alito’s highly inaccurate historic references in Dobbs, and recently a former leader of the anti-abortion movement has alleged that Alito leaked his equally troubling decision in the Hobby Lobby case to one of that leader’s colleagues..

To return to my initial question: when does a fervently held ideology become a corrupt enterprise? There is, after all, a difference between bringing a particular philosophical “lens” to the law and facts of a case (as any lawyer will confirm, it is impossible not to do so) and distorting and/or fabricating those facts and mischaracterizing that law in order to reach a desired result.

Corruption is not always financial. The dictionary defines corruption as “the process by which something is changed from its original use or meaning to one that is regarded as erroneous or debased.” Alito’s jurisprudence–which many lawyers, including this one, have criticized over the years–has arguably devolved into precisely such debasement.

Senator Durban has announced that the Senate Judiciary Committee will investigate the allegations of that former leak, and there are renewed calls for the Court to adopt a binding code of ethics, which–unlike lower courts–it currently lacks.

Both that investigation and an undertaking to abide by the ethical principles that bind the rest of the legal profession are long overdue.

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A Dishonest Court. A Dishonest Case.

I’ll begin with a warning: This will be a bit longer than my usual post, because I’m livid.

I began to write about 303 Creative v. Elenis, the case brought by a website designer who wants an exemption from Colorado’s civil rights/public accommodation law. She claims her “sincere religious beliefs” prevent her from “endorsing” same-sex marriages, and wants the Supreme Court to exempt her from the law’s non-discrimination requirement. She is asserting that the First Amendment–which among other things prohibits government from compelling speech–protects “artists” and those engaged in “expressive” work from endorsing behaviors they consider sinful, and further asserts that the act of providing a wedding website would constitute such endorsement.

Initially, I just intended to argue that framing this conflict as a Free Speech issue is dishonest.

.As David Cole pointed out in the New York Times,

The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.” Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”? Can a florist shop whose owner objects to Christianity refuse to serve Christians?

Cole points out that artists don’t have to open businesses in the first place.

Most writers, painters and other artists never do; they pick their subjects and leave it at that. The photographer Annie Leibovitz, for example, does not offer to take photographs of anyone who offers to pay her fee but chooses her subjects. She is perfectly free to photograph only white people or only Buddhists.

Cole also reminds us that businesses open to the public are free to define the content of what they sell. “A Christmas store can sell only Christmas items without running afoul of public accommodations laws. It need not stock Hanukkah candles or Kwanzaa cards. But it cannot put a sign on its doors saying, “We don’t serve Jews” or “No Blacks allowed.””

The lawsuit frames a website designer as an “artist” who should be exempt from public accommodation laws because her product includes an “expressive” element. As Cole points out, multiple businesses are expressive: interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among others.

I intended to argue that, on the ground of dishonest framing alone, the plaintiff should lose. But then I did some further research, and what I found appalled me.

I already understood that this case had been intentionally constructed–manufactured– to appeal to our newly theocratic Supreme Court majority. The plaintiff has the same lawyer who brought the bakery case a few years ago raising the same arguments. The Court essentially “punted” on that one, returning it to Colorado without reaching the merits, and this case has clearly been manufactured to try again.

But that isn’t the half of it. Robert Hubbell provides the ugly underside.

It turns out that this case does not involve an actual “case or controversy”—as required by the Constitution.( In the United States, courts are not allowed to issue advisory opinions, only to decide actual, existing conflicts.)

In general, the jurisdiction of federal courts is limited to real disputes in which the plaintiff can show actual injury. (That is a gross oversimplification of a complicated judicial doctrine, but stick with me for a moment!)

The 303 Creative “controversy” was manufactured by a religious advocacy organization (ADF). The plaintiff is a web design company that might—in the future—offer such services for weddings. But the plaintiff does not yet offer that service, may never do so, and (therefore) has not yet been asked to provide those services to a same-sex couple. Nonetheless, the plaintiff asks the Court for an advisory ruling about its obligations under a Colorado statute prohibiting discrimination on the basis of sexual orientation.

No same-sex couple has ever asked Smith to make them a wedding website; in fact, she has never made a wedding website for anyone. Her work to date focuses on local politicians, dog breeders, contractors, and houses of worship—not celebrations of life events.

Smith one day might be asked to make a same-sex couple’s website, ADF asserted. And when that day comes, she wants the right to say no.

The first question any lawyer–or any law student– would ask is: in the obvious absence of an actual case or controversy, why did the Court agree to hear this case? I’m afraid the answer to that is chilling: because this is a Court with a rogue, theocratic majority intent upon imposing religious beliefs held by a minority of Americans on the rest of us–intent upon making the U.S. a “Christian nation.”

There’s more. It turns out that the Colorado statute already has language that would allow Smith to refuse to make a custom website for same-sex couples. Only if the business offers “off the shelf” website designs for sale to the general public would she be required to sell them to anyone who wants one. This so-called “artist” wants the Court to say that she can refuse to sell a standardized product to same-sex couples.

Let’s get real. If a business owner really, sincerely doesn’t want to work with particular customers, it is supremely easy to evade nondiscrimination laws. The proprietor can always say something like, “Gee, Mrs. Smith, I am so backed up with orders that I can’t meet your timeline,” or “I’m so sorry, Mr. Jones, but I’m short-handed right now”…there are lots of ways these pious bigots can refrain from “participating in sin” without trumpeting their disdain or trying to change the law to encourage others to discriminate.

I will also note that the use of such all-purpose excuses would allow Smith to deny service to other “sinners”–surely her “sincere” religious beliefs would prohibit sales to adulterers or women who’ve had abortions, or atheists…interesting how these “godly” folks are laser-focused on just one sin…

It’s depressing enough to realize how many “Christian soldiers” are fixated on making life miserable for us “others.” It is absolutely terrifying to realize that the Supreme Court of the United States is controlled by theocrats intent upon eviscerating the wall of separation erected by the First Amendment’s religion clauses in order to enforce their version of “morality” on all Americans.

Iran has morality police. How’s that working out for them?

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