The Supremes Ain't As Supreme As We the People

 

Eventually, the Supreme Court will have to face this question squarely: If Trump can selectively go after his enemies without sufficient evidence and against the recommendations of his U.S. Attorney on the case, and can cite old or even fake facts to justify his actions with respect to federal troops, then there are no real limitations on his power.

--Jay Quo, The Status Quo (Substack)

Epic corruption in plain sight,
along with the arrogance

Jay Quo thinks "our chances are iffy at best" that the conservative majority on the Supreme Court will ever act to stop Trump. I think he's right. The justice system has been compromised and corrupted at every level:

If the majority of justices greenlight Trump to pursue his revenge prosecutions and troop deployments with no meaningful judicial checks upon his power, the only guardrail that will remain will be the people themselves, who will need to rise up together peacefully to oppose in the streets what cannot be stopped in the courts.

My only concern is that protests don't turn violent and give Donald Jethro Trump Stephen Miller the pretext he wants to push through enactment of the Insurrection Act and the imposition of martial law, which is their wet dream. All Miller needs is an opposition that can be depended on to do the wrong thing -- which historically (let's face it) has been the Left's particular talent forever.

Trump already gaslights his fans with fantasies of Portland burning, of Chicago imploding, of Memphis more dangerous than unrefrigerated meat, and Fox News does its best to underline fear and loathing of the rebellion. But the rebellion only grows. 

See you on October 18th!

What They Do in the Shadows

 

The shadow docket provides no rationale for overruling the detailed and persuasive opinions of the district court and the court of appeals. Instead, lower court judges are left to “guess” why the reactionary majority overruled the lower courts.

--Robert Hubbell on Substack 

What Happens When Six Justices on the US Supreme Court Go Slimy?

The Six on the Supreme Court are using their "shadow docket" to pet and enable Trump. It's alarming and fucking infuriating.

The Court has for a very long time had an "emergency docket" for true emergencies, like for example, last-minute appeals from deathrow seeking a stay of execution. The bright lawyer who called it the shadow docket -- a nickname that stuck -- saw the darker implications of unsigned opinions issued on much weightier, Constitutional matters. It's the "shadow docket" because its deeds are shady in the moral and ethical sense.

According to ScotusBlog, in the past two months, the Court has issued a number of important rulings on its shadow docket concerning the legality of actions by President Donald Trump. Virtually all have been 6-3 rulings, with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissenting.

May 22, in Trump v. Wilcox, the Court overturned a preliminary injunction by a district court that prevented Trump from removing Gwynne Wilcox from serving as a commissioner on the National Labor Relations Board and Cathy Harris from the Merit Systems Protection Board. The law says they can't be fired without “cause,” but there was no claim that standard was met.

June 6, in Social Security Administration v. American Federation of State, County, and Municipal Employees, the Court paused the district court’s preliminary injunction blocking Department of Government Efficiency (DOGE) team members and affiliates from accessing Social Security Administration record systems.

June 23, in Department of Homeland Security v. D.V.D., the Court lifted a district court order that prevented immigrants from being deported to countries not listed on their removal orders. The district court had found that the individuals were not given due process. Without explanation, the Court allowed the deportations to go forward while the case winds its way through the justice system, which could take years. On July 3, the Court reaffirmed this, allowing individuals to be sent to South Sudan even though they had no contact with anyone there.

July 8, in Trump v. American Federation of Government Employees, the Court issued a stay of a district court’s preliminary injunction preventing firings of government employees in many federal agencies.

July 14, in McMahon v. New York, the Court lifted a district court’s preliminary injunction against mass firings at the Department of Education. 

July 23, in Trump v. Boyle, the Court overturned a preliminary injunction preventing the firing of three members of the Consumer Product Safety Commission who were protected from removal except for “cause.” No cause was given.

Sept. 8, last Monday, the Court granted Trump's goon squads at ICE the ability to use racial profiling to detain anyone in America. The Court sez that ICE can rely on factors such as “apparent race or ethnicity,” accent, employment status, or generalized location to detain someone they believe to be a non-citizen. In a rare signed postscript, Justice Brett Kavanaugh suggested that ICE agents can simply rely on their “common sense.”

A Shameless Stooge -- What Trump Looks For in a Judge

 

Remember when that old comedian Mitch McConnell voted against convicting Trump for his January 6 coup attempt and explained his vote as logical, because there was no need for Congress to act: "We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one." We didn't know that was a laugh-line. We know it now.

In July of 2024, Chief Justice John Roberts, in his notorious "presidential immunity" ruling, declared that a president, any president, enjoys “absolute” or “qualified” immunity from criminal prosecution for any action taken in his “official” capacity. An appellate judge who heard the immunity argument ahead of the Supreme Court summed up the Trump position with a hypothetical: Absolute immunity means that Trump could well avoid criminal consequences for using SEAL Team Six to murder opponents. 

The Roberts Court swallowed that hypothetical like a guppy.

Roberts and the other court conservatives guaranteed our current constitutional crisis: Trump won. He's indulging himself with power-grabs and entrepreneurial corruption, secure in the assurance that he will never face criminal accountability. (Goddamn! What a country to pull that off!) As Justice Sotomayor put it in her dissent, the Court made the president into a "king above the law.” 

So far the balance of judges who've ruled on Trump 2.0 have not been stooges. Quit the contrary. There are courageous men and women wearing the robes, and we have historically respected their independence (if cussing them sometimes/always anyway), and thanked Gawd that the judiciary was there to protect us from tyranny.

But of course the district court judges are only the bottom rung of the judicial ladder, and we know it always ends with Roberts and his conservatives. They've already proven themselves stooges. Will they stooge again?

To bluff and bluster and keep those and other judges in line, Trump has called for impeachment (with maybe hanging thrown in) of federal judges who rule against him. His mean girl spokesblond proclaims that judges are usurping the powers and prerogatives of the popularly elected president, essentially unleashing the dogs to harass, to stalk, to hunt. Trump dares to skirt. Is there any doubt that he's lied and defied the court in that abduction case of immigrants with tattoos? This is a constitutional crisis of the highest order. Will the system hold? Will the Roberts Court repent?

There's a General Election coming up. Time is actually short. Just eight months to find Democratic candidates at all levels. The filing period for '26 candidates in both parties is the first two weeks of December 2025.

Coming to the U.S. Supremes -- Another Opportunity To Destroy the Separation of Church and State

 

St. Isidore of Seville

Amy Coney Barrett has already recused herself from St. Isidore of Seville Catholic Virtual School v. Drummond, the church/state case arising out of Oklahoma which the Supreme Court decided on Friday to put on its docket. Oklahoma, even more problematic than my native Texas, has that statewide Superintendent of Schools who wants to include mandatory Bible reading in every curriculum of every public school in the state. No, really. So it's not necessarily shocking that the St. Isidore case would be Oklahoma-born.

St. Isidore, owned by the Archdiocese of Oklahoma City, would become the nation’s first religious charter school, plus it would be entirely online, and its curriculum "would embed [Roman Catholic] religious teachings throughout lessons, including in math and reading classes. As a charter school, it would be run independently from traditional public schools. But public taxpayer dollars would pay for the school, and it would be free for students to attend" (Troy Closson).

The Archdiocese made application to the 5-member state board of education in June 2023. It proved controversial. The board ultimately voted 3-to-2 to approve it, but the Oklahoma Supreme Court blocked its creation:

"Justice James Winchester wrote in the majority opinion that state law requires a public charter school to be nonsectarian, arguing that the Oklahoma Constitution prohibits the state from using public money for the benefit or support of any religious institution. A 2016 ballot measure in the state would have repealed that measure, but voters rejected that effort." (OSV News)

So now it's before the Alito Court (who is himself Catholic), supported by all kinds of people who see no problem forcing the Christian religion into people's faces. Barrett was previously a law professor at Notre Dame who recused possibly because she is close friends with a Notre Dame law professor who has helped advise the St. Isidore team.

The Drummond who's defendant is Oklahoma Attorney General Gentner Drummond.

We Won! (But We Still Lose)

 

Paul Newby

The people of North Carolina won in Moore v. Harper. The Supreme Court ruled 6-3 that a state legislature can't do anything it dreams up about elections and voting without facing judicial review. But our continuing problem in North Carolina is more basic than the ability to have judicial review of gerrymandering, because we have a state Supreme Court that's more permissive than hippy parents in the 1960s. Our Supremes have already signaled that it has no interest in reviewing -- and heavens no! Never forbidding -- whatever Berger/Moore wants to do with gerrymandering and ballot access.

Chief Justice Paul Newby leads a solid 5-2 partisan gang on the NC Supreme Court. In April they proved their allegiance by reversing an earlier decision that found partisan gerrymandering illegal in North Carolina. No, no, no, Newby and his pals said. Partisan gerrymandering is perfectly legal, and we really regret our previous colleagues' busybody interference in the business of the General Assembly.

So we're all trapped and waiting, like teenagers in a cabin in the woods in the last reel of a slasher flick, waiting for the next round of redistricting of all congressional and General Assembly seats that the Republicans have promised we'll see in September ... or maybe October ... or at the latest November, because candidates will have to file to run in those new districts by December 4, 2023. What are the odds that Republicans will wait to the last minute to let Democrats know the full extent of their disenfranchisement, while favored Republican candidates will be very much in the know?

This is only part of the reason I trust the gods will eventually punish Berger/Moore, because nothing attracts divine retribution like arrogance.

Are the Alito Five Capable of Regret?

 

Linda Greenhouse, long-time Supreme Court reporter and an expert on its history, titled an opinion piece, "Is There Any Twinge of Regret Among the Anti-Abortion Justices?" After a lengthy discussion of all the personalities among the Alito Five and the wealth of history and legal precedents and arguments contained in an avalanche of friend-of-the-court briefs filed in the matter of Dobbs v. Jackson Women's Health Org., Greenhouse concludes her essay bluntly:

So no, I don’t think the Dobbs justices are sorry. They did what they were put there to do, what they wanted to do, and they were quite explicit in washing their hands of the consequences.

The consequences? You may be oblivious to the mounting numbers of women in extremis, with potential fatalities resulting from gone-wrong pregnancies, untreated because doctors in anti-abortion states are now terrified of new rules:

A report titled “Care Post-Roe: Documenting cases of poor-quality care since the Dobbs decision,” published in mid-May by teams of experts from the University of California at San Francisco and the University of Texas at Austin, ... consists largely of excerpts from submissions by 50 health care providers, many of whom felt, as one wrote, that “our hands are tied” as they waited anxiously for their patients’ conditions to deteriorate to the point where the pregnancy could be terminated within the narrow exceptions permitted by the state laws. When doctors turned women away, their next encounter was sometimes in the emergency room or intensive care unit as the patient lay bleeding or even near death.

Unable to get an abortion in their own home states, many women are fleeing to neighboring states, and paying the fare (which ain't light). Chaos has added to the misery fourfold, which moved Greenhouse to consider whether Alito, Kavanaugh, Gorsuch, Thomas, or Coney Barrett felt even a glimmer of regret for overturning what had been for 50 years a basic right of women.

"No."

On the way to that not surprising conclusion, Greenhouse gets into Court history about when regret over a decision leads to a reversal. She recounts the interesting reversal in 1942 of a previous decision in 1940 that allowed school systems to enforce rules for demonstrating patriotism, expelling students who didn't salute the flag or say the Pledge of Allegiance. In 1942, the West Virginia Board of Education required public schools to include salutes to the flag by teachers and students as a mandatory part of school activities. The children in a family of Jehovah's Witnesses refused to perform the salute and were sent home from school for non-compliance. The case, West Virginia State Board of Education v. Barnette, ended up with the Supremes, who had previously, just three years before, ruled that school systems could penalize children for not saluting the flag, actually expel students. But in 1942, the Court reversed itself.

Three men on the Court had voted in 1940 to allow for the expulsion of non-saluting children, and the same three voted to change their minds in 1942, admitting openly that they had been wrong. They regretted the chaos and misery for Jehovah Witness families and tried to correct it. 

But these guys in 2023? Greenhouse concludes that regret isn't a part of their makeup. They're too busy enjoying their status as billionaire accessories, riding the boat but not steering it.

An Illegitimate US Supreme Ct Will Bend Everything To the Benefit of Billionaires

 

BREAKING NEWS: Weather

WASHINGTON, May 1, 2023 -- The Supreme Court announced it will hear a case that could significantly scale back federal agencies’ authority, with major implications for the future of environmental and other regulations.

The justices next term will consider whether to overturn a decades-old precedent that grants agencies deference when Congress left ambiguity in a statute.

Named for the court’s decision in Chevron U.S.A. v. Natural Resources Defense Council, the Chevron deference has become one of the most frequently cited precedents in administrative law since the decision was first handed down in 1984.

It involves a two-step test: first, judges decide if Congress has in the statute directly spoken to the precise question at issue. If it is ambiguous, courts defer to agencies as long as their actions are based on a “permissible construction.”

Some of the high court’s conservatives have raised concern about the precedent and how it has expanded the reach of agencies’ authority....

Zack Schonfeld, in The Hill

 

If Your Hair Isn't on Fire About Moore v. Harper, You Haven't Been Paying Attention

 

Last Friday, some good folks from Common Cause were in Boone to sound the alarm about Moore v. Harper, the election law case arising out of North Carolina gerrymandering that will be heard at the Supreme Court very soon. I wrote about this case back in July, and already my hair was smoldering. It's fully on fire now.

They only need 5 of these votes

After the North Carolina Supreme Court threw out the first set of Congressional district maps, the Republican leaders of the NC General Assembly -- I call them BergerMoore for short -- appealed to the US Supremes and used a novel theory, arguing an extremist version of state's rights, "the independent state legislature doctrine," which maintains that no state court can interfere in a state legislature's desire to seize partisan power and hold it by gerrymandering and other means (like creating barriers to vote, purges of voters, cuts to popular early voting options, fewer protections against voter intimidation).

At the time the US Supremes declined to override the NC Supremes, justices Thomas, Alito, and Gorsuch dissented and said they thought the independent state legislature doctrine had merit and would welcome a test case going forward. That's the case they'll hear argued on December 7th (Pearl Harbor Day!), and there's every chance in this twisted conservatives-uber-alles world that Thomas, Alito, and Gorsuch will get the votes of Kavanaugh and Barrett, and BergerMoore will be unleashed to do their worst.

The Dobbs decision officially turned pregnant women into second-class citizens and was perhaps just the opening act of a complete scenery-sweeping arrival of the new authoritarianism that was always Trump's wet dream.

The independent state legislature "doctrine" originates (favorite word among extremist judges) from the U.S. Constitution’s election clause, which says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” That last clause has previously been interpreted to mean "by the legislative process," which would include voter petition initiatives to establish independent redistricting commissions, for example, or challenges via law suits in state courts. The independent state legislature doctrine could also give lawmakers control over issues such as voter qualification, voting by mail, and other election procedures, effectively taking voting procedures out of the hands of the State Board of Elections and giving them to BergerMoore.

Heed the Call for Citizen Action

Many of the most conservative legal minds in the nation have come out strongly against the independent state legislature doctrine, including J. Michael Luttig, who was shortlisted for a Supreme Court seat by the George W. Bush White House and who mentored many of the conservative legal elite as his law clerks, including Senator Ted Cruz. The Conference of Chief Justices, representing all 50 state supreme court justices from both parties, filed a brief squarely rejecting the notion that state courts and state constitutions cannot check state legislatures when they regulate federal elections.

Common Cause, along with partners Southern Coalition for Social Justice and DemocracyNC, will be leading the effort to alert voters to this threat to fair and free elections and will be calling for street demonstrations in both Washington and in Raleigh as December 7th approaches. Heed their call.

Find out how to help: https://bit.ly/moorevharper.

First Day of a New Supreme Court Term

 

Abortion Access in NC Took a Major Hit Yesterday

 

A law prohibiting abortions after the first 20 weeks of pregnancy has been on the books in North Carolina in some form since 1973. But it has not been enforced recently. Federal Judge William L. Osteen Jr. of the Eastern District of North Carolina ruled the law unconstitutional in 2019, based on Supreme Court precedent at the time. Osteen's decision was affirmed by the 4th Circuit Court of Appeals in 2021.

Then came Amy Coney Barrett who joined all the Catholic boys on the Court, and they overturned Roe v. Wade.

Osteen reinstated the 20-week ban on abortions yesterday, essentially saying his hands were tied by Coney Barrett et al. "Under Dobbs [v. Jackson Women's Health Org.], there is now no constitutional right to a pre-viability abortion, thus depriving the injunction of any constitutional basis from which to enjoin the challenged North Carolina laws regulating abortion .... Neither this court, nor the public, nor counsel, nor providers have the right to ignore the rule of law as determined by the Supreme Court."

Attorney General Josh Stein had refused to seek the overturning of Osteen's original injunction. Stein had announced last month that the N.C. Department of Justice would not “take action that would restrict women’s ability to make their own reproductive health care decisions.” But BergerMoore were only too happy to take up the crusade against women's rights: “North Carolina’s abortion statutes are undeniably lawful under Dobbs, and there is no longer any basis for an injunction to shackle the state from pursuing its legitimate interests,” Berger and Moore wrote in their brief to Osteen.

So now North Carolina is minutes closer to midnight.

BergerMoore's Wet Dream

 

The conservative super-majority on the US Supreme Court has already signaled that they'll be only too happy to take up next term the novel and radical theory that state courts have no right to overturn state legislatures (the ones dominated by Republican majorities, natch!) in the drawing of congressional districts. The case will come from North Carolina -- Moore v. Harper.

See, last March the North Carolina Supreme Court threw out BergerMoore's new congressional maps, which would likely have produced a 10-4 Republican dominance of the state's congressional delegation, saying the maps violated the state's constitutional promise of free and fair elections. BergerMoore appealed to the US Supremes, arguing an extremist version of state's rights, "the independent state legislature doctrine," which maintains that no state court can interfere in a state legislature's desire to seize partisan power and hold it by gerrymandering and other means. But at that time, and without explanation, the Supreme Court refused to reinstate BergerMoore's maps and allowed the election to proceed with new, slightly less horrendous maps for Democrats.

The independent state legislature "doctrine" originates (favorite word among extremist judges) from the U.S. Constitution’s election clause, which says that the “Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” That last clause has previously been interpreted to mean "by the legislative process," which would include voter petition initiatives to establish independent redistricting commissions, for example, and suits in state courts. The independent state legislature doctrine could also give lawmakers control over issues such as voter qualification, voting by mail, and other election procedures, effectively taking voting procedures out of the hands of the State Board of Elections and giving them to BergerMoore.

BergerMoore

Last March, even while the Court as a whole was rejecting the appeal to overturn the NC Supremes, justices Thomas, Alito, and Gorsuch dissented and said they thought the theory advanced by BergerMoore was probably correct and that they were eager to consider such a challenge going forward. Kavanaugh expressed interest too but said it was too close to the May primaries to intervene.

Now with Amy Coney Barrett on the Court, the conservatives have already announced that they'll be hearing Moore v. Harper when the new term begins in October. If you don't think there'll be a radical outcome for North Carolina elections -- and for other states as well -- you haven't been paying attention.

The Future Made Clear

 

Now the States Can Mandate Pregnancy

 

The dead eyes of an ideologue

The only thing keeping North Carolina from becoming Mississippi is Roy Cooper and a veto-sustaining minority of Democrats in the North Carolina General Assembly.

That's a fragile bulwark against the darkness unleashed today by The Supremes.

This is the legacy of a total crook who put those three people on the Court.

Virginia Foxx's Statement on the Alito Opinion Striking Down Roe

 

I was just reading reporting by Jonathan Weisman about how congressional Republicans, who've spent decades spitting mad about Roe v. Wade, have suddenly gone very quiet about the leaked Samuel Alito decision to overturn Roe -- partly at least "to avoid a backlash against their party ahead of the midterm elections."

Hmmm, sez I, wonder what Madam Virginia Foxx is saying, so I went and looked, and what I saw is truly a remarkable performance of avoidance and misdirection.

The Foxx news release begins:

I have long held that the truth about abortion and the deceitfulness of Roe would be inevitably revealed to the American people. Until that day comes, I will never yield in my mission of exposing that truth.

What? What the hell is she talking about? "The deceitfulness of Roe"?

Second paragraph:

Former Supreme Court Justice William Rehnquist once observed that, ‘The Constitution protects judicial independence not to benefit judges, but to promote the rule of law.’ That sentiment rings true to this day even as both the independent judiciary and the Constitution have been subjugated by the actions of a rogue, partisan actor. The Founders foretold of this threat, and they were right.

She's clearly not interested in actually addressing the content of Alito's opinion, so she quotes an odd nugget from William Rehnquist which is apropos of nothing at hand. And who's the "rogue, partisan actor" who has "subjugated" (subjugated? Really?) "both the independent judiciary and the Constitution." What the fuck? This is like reading something badly translated from the Russian politburo.

The final paragraph makes clear she's not interested in talking about the content of Alito's opinion but about the person who leaked it:

The political predilections of one individual have led to an unprecedented breach of confidentiality within the Supreme Court – one that will yield irreparable damage to the confidence of the American people and the rule of law itself. Politically motivated attacks directed at the Supreme Court, whether it be in the form of court packing or undermining judicial independence, must be opposed to the strongest degree possible. The future of our republic hangs in the balance.

Perhaps it's unnecessary to remind you that when I first knew Virginia Foxx -- and I've known her for 50 years -- she was pro-choice and fiercely pro-ERA, which may explain why she's so obtuse right now about the ending of a constitutional right for women. 

Action Required

 

It's exhausting. Finding the energy to be outraged all over again. Let alone motivated to take action  -- and what action would that be? What did we do in the post-Reagan age? We did a lot of marching in the street, rallied in DeeCee. (Gotta remember to get my walker oiled!) That was specially during the time -- the first Bush -- when the President was publicly siding with Right-to-Life extremism for the elimination of Roe, and the US Supreme Court was considering Webster v. Reproductive Services (1989) and Planned Parenthood v. Casey (1992). I remember being at three big rallies and marches, including the march in April 1992 past the White House, with smart alecks chanting "Free Barbara Bush" and some others -- many, including me -- throwing tennis balls over the White House fence and yelling "Giving George Bush back his balls!"

All that street activity likely had nothing whatsoever to do with the Court's reaffirming the fundamentals of Roe in Casey, but maybe? Only an ideological thinker (here come de Judge!) of very brittle steel would fail to see the widespread harm he could cause, or to care about it. And vote accordingly.

Since Trump unleashed what has always been locked in the frozen tundra of the "American character" --a burning intolerance for anyone in the way -- it's been "balls to the walls" to end the progressive era, from DeSantis in Florida to the big-haired woman who likes to disrupt the school board. Trump thawed out the mastodon of frank jingoism (which couples nicely with a self-interested politician with a talent for stirring hate). Since Trump, it's authoritarians and bullies everywhere across the American landscape, bent on bringing back their strongman leader. 

Voting rights? Harder to attain in many states, especially for the young, the brown, and the Black. 

Iron control not only over elections but over their tabulations? (In some states, but still) 

Elimination of regulations -- and the actual regulatory authority of government (except in the teensiest matter of women's bodies)

Religious intolerance actually licensed against LGTBQ and against certain religions and certain nationalities and certain shades of color

How we got here, see, was the failure of whole swaths of citizens to vote, -- or to while away their time with such contenders as Gary Johnson and Jill Stein, or sit at home and complain "I don't like either one of them but especially her, ... and anyway, there's no difference between the political parties." Meanwhile, O my cool ones, a corrupt bossman seizes power and calls for a renaissance of selfish greed, for which there's talent all over the place for aping his style of demagoguery. They mean to tear the house down, with us in it. 

What do you get when you let a Trump take over? A Supreme Court that has a 3-out-of-5 majority -- Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett (the dead-eyed one) -- who knew they were destined by history to be a part of overturning a fundamental right of women, yet said the opposite to the Senate committee examining their character. They give the power to Alito and Thomas to finally get their wet dream.

It's time, folks, to get back in the street. (And to goddamn vote in these midterm elections.)

The Trump Court Is Delivering the Theocracy You've Dreaded

 

"Unreasoned, inconsistent and impossible to defend”

Bounty hunters

The Supreme Court refused just before midnight on Wednesday to block a Texas law prohibiting most abortions, less than a day after it took effect and became the most restrictive abortion measure in the nation.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.

The majority opinion was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application to the court had not made their case in the face of “complex and novel” procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.

But the ruling was certain to fuel the hopes of abortion opponents and fears of abortion rights advocates as the court takes up a separate case in its new term this fall to decide whether Roe v. Wade, the landmark 1973 decision establishing a constitutional right to the procedure, should be overruled. It also left Texas abortion providers turning away patients as they scrambled to comply with the law, which prohibits abortions after roughly six weeks.

All four dissenting justices filed opinions.

“The court’s order is stunning,” Justice Sonia Sotomayor wrote in her dissent. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”

“The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation,” Justice Sotomayor wrote. “The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”

Chief Justice Roberts wrote that he would have blocked the law while appeals moved forward.

“The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”

The chief justice underscored the tentative nature of the majority’s ruling. “Although the court denies the applicants’ request for emergency relief today,” he wrote, “the court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”

Justice Elena Kagan criticized the court’s practice of deciding important issues in rushed decisions without full briefing or oral argument — on what Supreme Court specialists call its “shadow docket.”

“Today’s ruling illustrates just how far the court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process,” she wrote. “That ruling, as everyone must agree, is of great consequence.”

“Yet the majority has acted without any guidance from the court of appeals — which is right now considering the same issues,” she wrote. “It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”

“In all these ways,” Justice Kagan wrote, “the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”

[Source: The New York Times]

Virginia Foxx Joins Mob Attempting To Pressure the Supremes to Overturn a Fair, Free, and Sovereign Election

 

Part of the pressure campaign the Trumpists have mounted to force the US Supreme Court to declare Trump reelected is an amicus brief appended to the Texas lawsuit that seeks to overturn election results in Georgia, Wisconsin, Pennsylvania, and Michigan so that Trump can win. Some 106 Republican members of Congress have signed onto that amicus brief, including Virginia Foxx of the 5th NC. 

Other NC congressmen also signing ... Dan Bishop, Ted Budd, Richard Hudson, Greg Murphy, David Rouzer. Republican holdouts: George Holding, Mark Walker, and Pat McHenry. The first two are lame ducks, but Patrick McHenry?  

Also the attorneys general from 18 Republican-led states have joined the push to solicit the court to dismiss the results in those four swing states that Biden won. Trump had those guys to lunch at the White House yesterday to celebrate their mutual mythology.

When one state (Texas, bless its heart) sues another state or states, the case can go directly to the Supreme Court without the usual stops in district and appellate courts. We might actually hear today what the Supremes think of this attempted overthrow -- either by the close of business or whenever Kavanaugh brings in the kegger, whichever comes first.

In all, some 20 states, along with the District of Columbia, Guam, and the U.S. Virgin Islands, have filed a motion calling on the high court to reject the Texas request as one of the silliest and most potentially destructive suits in the history of the Republic. Trump said all along that he wanted Amy Coney Barrett on the court to help the others simply anoint him per curiam.

That Virginia Foxx has signed on to this attempted demolition of the whole structure of the Republic should not be forgotten when she starts screaming about how God told her how sacred the Constitution is.

Culture Wars Update: US Supremes Rule That It's Okay to Spread the Virus at Church

 

Chief Justice John Roberts,
in the minority now

Governor Andrew Cuomo of New York had imposed very tight restrictions on some church services in "hot spot" areas. As New York got the pandemic under more control, Cuomo relaxed those restrictions. But the Catholic Diocese of Brooklyn sued anyway (later joined by Jewish temples), and just before midnight last night the Supreme Court ruled 5-4 that the governor couldn't impose those restrictions any more. Chief Justice John Roberts was one of those in the minority and wrote a dissent.

Roberts noted that while the case was wending its way to the court, Cuomo had eased the restrictions. So why would the court intervene now? “It is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic,” Roberts wrote.

In her dissent, Justice Sonia Sotomayor said the court was intervening where it should not: “The Constitution does not forbid States from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives. Justices of this court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”

But go ahead, brethren. Pack those pews! The best way to spread Christian cheer is singing loud for all to hear. The aerosols you share are witness to your faith.

SCOTUS Lets Stand New Extended Deadline in NC for Mailed Ballots

 

Berger/Moore

In a 5-3 decision yesterday, the Supreme Court of the United States declined to order North Carolina to return to an old deadline of November 6th for receiving mailed absentee ballots. The revised deadline of November 12th was allowed to stand, but all mailed ballots still have to be postmarked by next Tuesday, November 3rd.

Newest Justice Amy Coney Barrett did not take part in the deliberations or the decision.

The tag-team of Phil Berger and Tim Moore had brought the suit as a further effort to squelch the legitimate votes of distracted voters, people working two jobs, laggards, and idle layabouts who couldn't get their ballots mailed earlier.

Previous SCOTUS rulings about extended timelines for receiving and counting absentee ballots are confusing some people, particularly Trumpists who don't read. For example, SCOTUS ruled 5-3 on Monday night that Wisconsin could not extend its deadline for accepting mailed ballots.

The difference between North Carolina and Wisconsin is that SCOTUS was dealing with state court decisions in the case of NC, with Federal court decisions in the case of Wisconsin, and so far at least Chief Justice John Roberts is not willing to overrule state courts that are carrying out the mandates contained in their own constitutions. (Justices Thomas, Alito, and Gorsuch feel no similar restraint.)

That reluctance for SCOTUS to impose itself on individual state courts (at least in matters of ballot access) is likely to dissolve once Coney Barrett gets unpacked in her new office.

Republicans Are Better at Party Discipline

 

I believe Senate Majority Leader Mitch McConnell waited a respectable one hour after the death of Ruth Bader Ginsberg before announcing that his statement made in February 2016 shortly after Barack Obama nominated Merrick Garland to SCOTUS was no longer operable: “The American people should have a voice in the selection of their next Supreme Court Justice . . . . Therefore, this vacancy should not be filled until we have a new President.”

Republican senators -- most of whom had loudly and piously agreed with McConnell's new doctrine in 2016 -- began falling in line. They'll vote -- the vast majority of them anyway -- to confirm whomever Trump nominates because they can and they must because "pretty much everybody is a hypocrite when their interests are on the line, and American politics have always been about the naked exercise of power. As Thucydides wrote 2,500 years ago, as the world’s first democracy was collapsing around him, the 'strong do what they can, and the weak suffer what they must.' Mitch McConnell, like any politician, will do what the people let him get away with" (Michael Austin).

We're all calculating right now what McConnell can get away with. Still no word from Mitt Romney and Chuck Grassley about how they'll vote on the power-grab. If they joined Lisa Murkowski and Susan Collins, that would be the four to stop McConnell from getting Trump's third appointment to SCOTUS -- as doubtful as that scenario is -- because of the Republican long habit of strict party discipline, exacerbated now by a president with a mean Twitter-finger. Democrats, on the other hand, have no discipline and don't seem likely to develop any in my lifetime.

I heard ex-Senator Claire McCaskill talking this morning. She said she had been speaking over the weekend with some of her former colleagues in the Senate from both parties, and she floated the plausible scenario that McConnell might wait until the lame-duck period after the election to force a vote because having the fate of a new appointment to SCOTUS hanging in the precarious balance would do more for boosting Republican turnout than getting that person confirmed right away before November 3rd. 

It's an interesting theory, and I certainly hope it makes perfect sense to Mitch McConnell.