“In fact, most federal criminal prosecutions are immigration, drug and gun cases. The largest numbers of federal inmates are in custody because they were convicted of drug, weapon and sex offenses. The story is similar in state prison systems, where roughly 90 percent of the inmates are in custody because they were convicted of a violent offense, property crime or a drug offense.
The legal system is far from flawless — and plenty of Americans sincerely believe that there are too many laws and regulations in the country — but Gorsuch’s selective and misleadingly presented case studies do not tell us anything particularly useful about it.
To be sure, there are some redeeming features of the book. Gorsuch criticizes occupational licensing requirements, the exorbitant cost of legal services in this country and the ways in which they burden working- and middle-class Americans.
But what’s left out of the book is often just as instructive — if not more so — than what’s in it. His interest in government overreach stops short when it comes to liberal causes.
In an anecdotal book about overzealous prosecutors, there are no stories about people being sent to prison because they mistakenly tried to vote when they weren’t eligible or about laws that make it illegal to give voters water while they wait in line. There are no stories about women being arrested because they had miscarriages, part of the ongoing fallout from the decision by Gorsuch and his fellow Republican appointees to overturn Roe v. Wade.”
“It’s astonishing how little thought many past presidents put into their Supreme Court appointments. In the past, justices were often chosen for idiosyncratic personal reasons, or to please a particular interest group or voting bloc, and without much, if any, inquiry into how the nominee was likely to decide cases.
President Woodrow Wilson, for example, appointed Justice James Clark McReynolds — an awful judge and an even worse human being who Time magazine once described as a “savagely sarcastic, incredibly reactionary Puritan anti-Semite” — in large part because Wilson found McReynolds, who was US attorney general before he joined the Court, to be so obnoxious that the president promoted him to get him out of the Cabinet.
Similarly, President Dwight Eisenhower complained late in his presidency that appointing Justice William Brennan, one of the most consequential left-liberal jurists in American history, to the Supreme Court was among the biggest mistakes he made in office. But Ike’s White House never vetted Brennan for his ideological views, and Brennan was selected largely because Eisenhower was running for reelection when he made the nomination, and he thought that appointing a Catholic like Brennan would appeal to Catholic voters.
Even in 1990, after top Republican officials had published lengthy documents laying out their party’s vision for the Constitution, they still hadn’t developed a reliable system for vetting Supreme Court nominees to ensure that they were on board with the party’s agenda. Bush chose the center-left Justice Souter over other, more right-wing candidates largely due to misguided advice from his top legal advisers.
As journalist Jan Crawford Greenburg reported in a 2007 book, Souter beat out early frontrunner Ken Starr — the same Ken Starr who would go on to hound President Bill Clinton in the Monica Lewinsky investigation — in large part because Bush’s right-wing advisers feared that Starr was too liberal. According to Crawford Greenburg, then-Deputy Attorney General Bill Barr opposed Starr because of a low-stakes dispute over “a federal law that permitted private citizens to sue for fraud against the federal government.”
Much has changed since 1990. On the Republican side, the Federalist Society — a kind of bar association for right-wing lawyers with chapters on most law school campuses and in most major cities — now starts vetting law students for elite legal jobs almost as soon as they begin their studies. And Republican presidents can rely on the Federalist Society to identify ideologically reliable candidates for the bench. As Trump said in 2016 while campaigning for president, “We’re going to have great judges, conservative, all picked by the Federalist Society.”
Nor is the Federalist Society the only way Republicans vet potential Supreme Court nominees. Every single one of the Court’s current Republican members except for Barrett previously served as a political appointee in a GOP administration, roles that allowed high-level Republicans to observe their work and probe their views.
Democrats’ vetting process, meanwhile, is more informal. But it’s been no less successful in identifying Supreme Court nominees who reliably embrace their party’s stance on the most contentious issues. The last Democrat appointed to the Supreme Court who broke with the party’s pro-abortion rights stance, for example, was Justice Byron White — a dissenter in Roe v. Wade appointed by President John F. Kennedy in 1962.
The result is a modern-day Supreme Court where every single member was carefully selected by their party to ensure that they will not stray on any of the issues where the two parties have settled views. Every Republican justice voted to abolish affirmative action on nearly all university campuses, with every Democratic justice in dissent. Every Republican voted to give the leader of the Republican Party broad immunity from criminal prosecution, with every Democrat in dissent. Every Republican except for Roberts voted to overrule Roe (and Roberts merely argued that the Court should have waited a little longer), while every Democrat dissented.”
“All three of the Court’s Democrats, meanwhile, appeared sympathetic to Glossip’s arguments, and spent much of the case batting down Alito’s proposals to dismiss the case on procedural grounds — though Justice Ketanji Brown Jackson showed some openness to forming an alliance with Thomas to send the case back down to the state courts in order to gather additional evidence.
That leaves Justices Brett Kavanaugh and Amy Coney Barrett, conservative Republicans who asked some questions that appeared sympathetic to Glossip, as the wild cards in this case. It is possible that they could provide the fourth and fifth vote to save Glossip’s life, but far from certain.
The alleged constitutional violation that is before the Court — that prosecutors withheld evidence that a key witness has a serious mental illness, and failed to correct this witness when he lied on the stand — is fairly marginal. It turns on four words in handwritten notes by prosecutor Connie Smothermon that were not turned over to Glossip’s lawyers until January 2023. The state agrees with Glossip’s legal team that these four words reveal a sufficiently serious constitutional violation to justify giving him a new trial.
But while this narrow legal issue, which is the only issue before the Supreme Court, is the kind of legal question that reasonable judges could disagree upon, Smothermon’s notes are only one piece of a wide range of evidence suggesting that Glossip’s criminal conviction is unconstitutional: Oklahoma conducted two independent investigations, both of which concluded that Glossip’s trial was fundamentally flawed.
Among other things, those investigations found that Justin Sneed — the man who actually committed the murder at issue here — was pressured by police to implicate Glossip in the crime. They also show that police and the prosecution lost or destroyed evidence that could potentially exonerate Glossip. And they show that police inexplicably did not question potentially important witnesses or search obvious places for evidence.
Now, however, Glossip’s life likely turns upon whether Kavanaugh and Barrett are moved by the procedural arguments pressed by the Court’s right flank, or by the arguments pressed by both Glossip and the state: That four words in Smothermon’s notes reveal a serious constitutional violation.”
“Donald Trump’s lawyers have asked the judge who oversaw his Manhattan hush money trial, which ended in a conviction on 34 felony counts, to throw out the case now that Trump is president-elect.
Dismissing the case is “necessary to avoid unconstitutional impediments to President Trump’s ability to govern,” Trump’s lawyers wrote in a letter to the court made public Tuesday.
In light of Trump’s request, Justice Juan Merchan agreed to pause all proceedings in the case, including a ruling that had been expected Tuesday on whether the Supreme Court’s July decision on presidential immunity requires that Trump’s conviction be tossed.
“a judge struck down Arlington, Virginia’s missing middle reforms that had briefly allowed smaller, four- to six-unit multifamily developments in the D.C. suburb’s single-family neighborhoods.
In a Friday ruling, Judge David Schell said that the county had violated a number of procedural requirements when it unanimously passed its Enhanced Housing Option (EHO) last year and had failed to adequately study the impact of increased residential density.”
“The law, Assembly Bill 2839 makes it illegal for an individual to produce “knowingly distributing an advertisement or other election communication, as defined, that contains certain materially deceptive content,” within 120 days of an election and up to 60 days after. Affected candidates can file for a civil action enjoining distribution of the media, and seek damages from its creator.”
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“content creator Christopher Kohls filed a lawsuit arguing the law was overbroad, violating his First Amendment rights to make parody content. Kohls has a YouTube channel with more than 300,000 subscribers, and his videos often consist of political parodies featuring political candidates seemingly mocking themselves.”
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“Judge John A. Mendes, a judge on the United States District Court for the Eastern District of California, sided with Kohls, ruling that the law doesn’t pass constitutional muster because it does not use “the least restrictive means available for advancing the State’s interest.”
“Counter speech is a less restrictive alternative to prohibiting videos such as those posted by Plaintiff, no matter how offensive or inappropriate someone may find them,” Mendez’s opinion reads. “AB 2839 is unconstitutional because it lacks the narrow tailoring and least restrictive alternative that a content based law requires under strict scrutiny.”
Mendez’s ruling argues that the law, which is aimed at cracking down on “deepfakes” and other forms of false speech intended at misrepresenting an opponent’s views and actions, ends up making illegal a much wider range of speech than these specific statements.
“While Defendants attempt to analogize AB 2839 to a restriction on defamatory statements, the statute itself does not use the word ‘defamation’ and by its own definition, extends beyond the legal standard for defamation to include any false or materially deceptive content that is ‘reasonably likely’ to harm the ‘reputation or electoral prospects of a candidate.'”
While the law did contain a provision exempting parody content that contains a disclosure, the requirement was onerous, mandating that it be “no smaller than the largest font size of other text appearing in the visual media.”
Just one part of the law was found to pass constitutional muster—a requirement audio-only media be disclosed at the beginning at the message, and every two minutes during the duration of the content.
“While the Court gives substantial weight to the fact that the California Legislature has a ‘compelling interest in protecting free and fair elections,’ this interest must be served by narrowly tailored ends.” Mendez writes. “Supreme Court precedent illuminates that while a wellfounded fear of a digitally manipulated media landscape may be justified, this fear does not give legislators unbridled license to bulldoze over the longstanding tradition of critique, parody, and satire protected by the First Amendment.””
“there are scenarios in which intentionally lying about a fire in a crowded theater and causing a stampede might lead to a disorderly conduct citation or similar charge.”
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“Although the Supreme Court has never had the occasion to adjudicate an actual dispute involving a person yelling “fire” in a crowded theater, the Court did at least narrow its “clear and present danger test” in 1969, setting a higher standard for imminent incitement of lawless action.””
“You can’t yell fire in a crowded theater. I’m sure you’ve heard somebody say that before when discussing free speech and limitations on free speech and the First Amendment. Well, it’s actually one of the most widely misunderstood quotes in American law. It’s routinely parroted as the status of why there can be or are limitations on free speech, but it is a big fat myth. I will explain here in just a moment, so stick around.”
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“the interesting about it is the Schenck case wasn’t about fires, it wasn’t about theaters, it kind of wasn’t even about free speech. It was in a way, but it was really about a guy that was being charged with violations of the Espionage Act because he was a member of the socialist party and he was speaking out against the draft. And the other bizarre thing about why this quote gets attributed to why it’s okay to limit free speech is, the Schenck case, which has now actually been overturned and has been for like 60 years, actually stood for the exact opposite. The Schenck case was applying a pretty large degree of censorship on free speech. That’s why it was overturned is because it was actually found to be completely contrary toward what the First Amendment stood for.
So, the idea that you can’t yell fire in a crowded theater, Justice Holmes was using that as an analogy to simply say that free speech can’t go completely unchecked. And that idea has maintained it’s truth throughout the years. That’s still true. There are limitations on what is considered protected speech and what is not considered protected speech, and that’s a topic for a different video. But it’s just always been interesting to me that this quote, which is just dicta, it’s not the holding of the case, it’s not really the law of the land, and it’s not Justice Holmes saying that’s what the law of the land should be, has somehow withstood the test of time and is still, to this day”
“the Texas Supreme Court handed down an extraordinary order saving Robert Roberson from execution — but potentially not for very long.
Roberson was convicted in 2003 of murdering his daughter on the theory that she died of “shaken baby syndrome.” However, in an extraordinary turn of events, it now appears likely that Roberson is innocent. Not only that, but it is far from clear that his daughter was even a victim of murder in the first place.
One reason to doubt the conviction is that modern science looks at shaken baby syndrome with increasing skepticism. More importantly, however, the evidence in Roberson’s case suggests that his poor girl actually died from a combination of pneumonia and medications that should never have been prescribed to such a young patient, and that the injuries that a 2003 jury attributed to child abuse may have resulted from a surgery.
Another reason why the order in In re Texas House of Representatives is so extraordinary is that it involves what may be an unprecedented conflict between the state’s legislature and its governor. Texas Gov. Greg Abbott (R) has the power to issue a 30-day pause on Roberson’s execution (although not to grant him permanent clemency) but has thus far refused to do so”
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“a bipartisan group of state lawmakers issued a subpoena seeking Roberson’s testimony before a committee of the state’s House of Representatives. This hearing isn’t scheduled until Monday, and Roberson obviously could not comply with this subpoena if he had been killed Thursday night.
So Roberson’s case raises what may be a unique separation of powers issue under the Texas Constitution: Can Texas’s executive branch of government carry out an otherwise lawful execution if doing so would prevent its legislative branch from hearing testimony from a witness it has already subpoenaed?”
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“The striking thing about this case, however, is that virtually everyone who has touched it wants Roberson to live except for the few people in Texas’s government (the Court of Criminal Appeals, the pardon board, and Abbott) who actually have the power to save him.”
“The program works like this: Registered voters in Arizona, Pennsylvania, North Carolina, Georgia, Michigan, Nevada, or Wisconsin — all swing states that could go for either Vice President Kamala Harris or Trump come Election Day — can sign the petition, which claims to be a “Petition in Favor of Free Speech and the Right to Bear Arms” until Monday, October 21, which happens to be the voter registration deadline in Pennsylvania.
The petition is being circulated by Musk’s America PAC, which has taken over much of Trump’s ground operation in key swing states. Musk has made Pennsylvania a particular focus of his personal outreach, hosting events there, including one on Sunday where he handed a woman in a Trump-Vance shirt a giant $1 million check.
Though the petition does not require signers to be registered Republicans, the focus on the First and Second Amendments does seem to appeal to potential Trump voters who fear Democrats will take away their gun rights and who subscribe to Musk’s idea of “free speech.” The net effect, then, is that Musk is promising $1 million a day to a program aimed at getting pro-Trump voters registered in swing states.
Because his contest is only open to registered voters, there may be a case for it to be understood as an illegal financial incentive to get people to register to vote, as Public Citizen’s complaint alleges. One issue Musk faces, said David Becker, executive director of the nonpartisan Center for Election Innovation & Research, is that what constitutes payment for voting-related activity has been broadly interpreted in the past.
“This could involve anything of value,” Becker said. The law “has been applied to things like Ben & Jerry’s offering everyone who has an ‘I Voted’ sticker an ice cream cone on Election Day. They received a cease-and-desist letter and changed [the promotion to give] everyone a free ice cream cone on Election Day.”
There is some ambiguity in Musk’s promotion, compared to what Ben & Jerry’s offered, however. The uncertainty arises from the fact that Musk’s PAC is asking people to sign a petition for the chance to win $1 million, not explicitly rewarding them for registering to vote.
Daniel Weiner, director of the Brennan Center’s Elections & Government Program, told Vox that the issue at hand really comes down to whether entering a specific group of people in a lottery if they sign a petition counts as paying people to register to vote.”