Supreme Court – Page 15

The Supreme Court decides not to break the internet

Posted on June 18, 2023 by Lone Candle

“Both Justice Clarence Thomas’s unanimous opinion in Twitter v. Taamneh and the Court’s brief, unanimous, and unsigned opinion in Gonzalez v. Google show admirable restraint. The justices add clarity to a 2016 anti-terrorism law that, if read broadly, could have made tech companies whose products form the backbone of modern-day communications liable for every violent act committed by the terrorist group ISIS.
Instead, the Court’s Twitter and Google decisions largely ensure that the internet will continue to function as normal, provided that websites like Twitter or YouTube do not actively provide assistance to terrorism.

The cases involve similar facts. Google concerns a wave of murders ISIS committed in Paris — one of the victims of those attacks was Nohemi Gonzalez, a 23-year-old American student who died after ISIS assailants opened fire on the café where she and her friends were eating dinner. Twitter, meanwhile, involves an ISIS attack on a nightclub in Istanbul, in which 39 people were killed including Nawras Alassaf, a Jordanian man with American relatives.

At this point, you’re probably wondering what these horrific acts have to do with tech companies like Google or Twitter. The answer arises from the US Justice Against Sponsors of Terrorism Act (JASTA), which permits lawsuits against anyone “who aids and abets, by knowingly providing substantial assistance” to certain acts of “international terrorism.”

The plaintiffs in both cases, relatives of Gonzalez and Alassaf, essentially allege that Twitter, Facebook, and YouTube (which is owned by Google) provided substantial assistance to ISIS by allowing it to use the companies’ social media websites to post videos and other content that promoted ISIS’s ideology and sought to recruit individuals to their cause. In effect, the plaintiffs argued that these tech platforms had an affirmative duty to stop ISIS from using their websites, and that the tech companies could be held liable if ISIS terrorists use a service that is freely available to billions of people across the globe.

It’s a breathtaking legal argument. As Thomas writes in the Twitter opinion, “under plaintiffs’ theory, any U.S. national victimized by an ISIS attack could bring the same claim based on the same services allegedly provided to ISIS.” The three tech companies, in other words, would potentially be liable for any American or relative of an American who is killed by ISIS.

The JASTA statute, moreover, authorizes a successful plaintiff to recover three times the loss inflicted upon them by a terrorist, which in a case similar to Twitter or Google could mean three times the cost of a mass murder. So even a corporate behemoth like Google could potentially be brought to its knees by the amount of money they would have to pay out in future cases if these lawsuits had prevailed.

The Court’s unanimous opinion, however, rejects that outcome. Though the plaintiffs’ theory rests on a plausible reading of the vaguely worded JASTA statute, the Court’s decision establishes that, at the very least, a company has to do more than provide its product to any customer in the world — including customers who may use that product for evil purposes — in order to be held liable for a terrorist act.”

A new Supreme Court opinion is terrible news if you care about clean water

Posted on June 13, 2023 by Lone Candle

“”As Justice Brett Kavanaugh writes in a dissenting opinion, Justice Samuel Alito’s majority opinion in Sackett v. EPA is likely to hobble the law’s ability to protect several major waterways, including the Mississippi River and the Chesapeake Bay.
The case involves an admittedly quite difficult question of how to read a vague provision of the law. The Clean Water Act prohibits “discharge of pollutants” into “navigable waters.” But it also defines the term “navigable waters” counterintuitively, to include all “waters of the United States, including the territorial seas.”

Both the courts and the federal agencies that enforce this law have struggled over the last half-century to determine which “waters” can be regulated under this uncertain statutory language — a problem exacerbated by the fact that pollutants discharged far from a major waterway can nonetheless migrate into that waterway. A toxic chemical dumped miles from the Mississippi River might find its way to that river through the network of streams, creeks, wetlands, and similar geographic features that feed into it.”

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“As an amicus brief filed by professional associations representing water regulators and managers warned, this new definition will “exclude 51% (if not more) of the Nation’s wetlands” from the Act’s protections. Wetlands often act as filtration systems that slow the seepage of pollutants into major waterways, and as sponges that help control floods.

In short, this opinion will significantly curtail the federal government’s ability to protect American waters.”

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“The specific dispute in Sackett involved Idaho landowners who wanted to fill in what a federal appeals court described as a “soggy residential lot” with dirt and rocks so that they could build a house on it. The lot is near a tributary that feeds into a creek, which itself feeds into Priest Lake, a sufficiently large body of water that no one really questions if it is subject to the Clean Water Act.

Although all nine justices agreed that the Clean Water Act does not apply to this particular lot, they split 5-4 on how to read the act, with Kavanaugh joining the three liberal justices in dissent. (Technically, both Kavanaugh’s opinion and Justice Elena Kagan’s separate opinion, which also disagrees with Alito, are opinions “concurring in the judgment,” because all nine justices agreed that the property owners should prevail. But both of those opinions dissent from Alito’s reading of the law.)

The Clean Water Act is not the most precisely drafted law, and its text offers few hints as to what the “waters of the United States” might be. But it does include one pretty clear indication of how the law treats wetlands. One provision of the Clean Water Act applies the law to “wetlands adjacent” to waterways covered by the act.

As Justice Kagan writes in her opinion, “in ordinary language, one thing is adjacent to another not only when it is touching, but also when it is nearby. So, for example, one house is adjacent to another even when a stretch of grass and a picket fence separate the two.”

But Alito’s opinion does not apply the act to all wetlands that are “adjacent” to nearby waterways. Under Alito’s approach, only wetlands that have a “continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands” are subject to the law’s restrictions on pollution.”

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“regardless of whether the Sackett opinion can be squared with the actual language of the Clean Water Act, it is a binding opinion by the Supreme Court of the United States, and its narrow reading of that act could drastically limit the nation’s ability to fight water pollution.”

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“Near the end of his opinion dissenting from Alito’s approach, Kavanaugh lays out several ways that “the Court’s rewriting of ‘adjacent’ to mean ‘adjoining’ will matter a great deal in the real world.” He warns that this decision “may leave long-regulated and long-accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority.””

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“The fundamental challenge facing any water regulator is that water systems are interconnected. As Kavanaugh writes, “because of the movement of water between adjacent wetlands and other waters, pollutants in wetlands often end up in adjacent rivers, lakes, and other waters.”

This explains why Congress not only extended the Clean Water Act to significant waterways, it also extended it to wetlands that are “adjacent” to those waterways. It makes no sense to prohibit pollution dumped directly into the mighty Mississippi, but to permit pollution to be dumped on nearby wetlands that feed directly into the river.

Nevertheless, five justices ruled that Congress’s decision to apply the law to adjacent waterways does not matter.”

The real reason for the Supreme Court’s corruption crisis

Posted on May 24, 2023 by Lone Candle

“after ProPublica revealed that Justice Clarence Thomas frequently takes lavish vacations funded by billionaire Republican donor Harlan Crow, Thomas attempted to defend himself by claiming that this sort of “personal hospitality from close personal friends” is fine because Crow “did not have business before the court.”
As it turns out, that’s not true. As Bloomberg reports, the Supreme Court — including Justice Thomas — did briefly consider a $25 million copyright dispute involving a company that Crow was a partial owner of in 2005. At that point, Crow had already given a number of gifts to Thomas, including a $19,000 Bible that once belonged to Frederick Douglass.

As ProPublica later revealed, Crow even paid for the private school education of Thomas’s grandnephew, who Thomas said he is raising “as a son.” That includes tuition at a boarding school that charged more than $6,000 a month.

Similarly, if the rule is that justices must be extra careful when dealing with people who have business before the Supreme Court, then Justice Neil Gorsuch may also have violated this rule. According to Politico, a tract of land that Gorsuch owned with two other individuals was on the market for nearly two years before it found a buyer — nine days after Gorsuch was confirmed to the Supreme Court. The buyer was the chief executive of Greenberg Traurig, a massive law firm that frequently practices before the Supreme Court.

As Politico notes, “such a sale would raise ethical problems for officials serving in many other branches of government,” but the rules governing the justices are particularly lax.

There is a federal statute which requires all federal judges, including Supreme Court justices, to recuse themselves from any case “in which his impartiality might reasonably be questioned,” but there is no effective enforcement mechanism to apply this vague law to a Supreme Court justice.

Meanwhile, while lower federal judges must comply with a lengthy Code of Conduct for United States Judges, the nine most powerful judges in the country are famously not bound by this code of conduct — although Chief Justice John Roberts has claimed that he and his colleagues “consult the Code of Conduct in assessing their ethical obligations.”

The result is that the nine most powerful officials in the United States of America — men and women with the power to repeal or rewrite any law, who serve for life, and who will never have to stand for election and justify their actions before the voters — may also be the least constrained officials in the federal government.

And much of the blame for this state of affairs rests with the Constitution itself.”

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“The last time Thomas’s relationship with this billionaire made national headlines was probably 2011, after a series of news stories described some of the expensive gifts Thomas received from Crow and from organizations affiliated with Crow. That same year, Chief Justice Roberts used his annual Year-End Report on the Federal Judiciary to defiantly rebut calls to apply additional ethical rules to the justices.””

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“The Constitution gives Congress the power to create lower federal courts, Roberts argued, and that empowers Congress to help oversee them. The Supreme Court, by contrast, is created by the Constitution itself, and that suggests that Congress has less power to constrain the justices.”

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” there is no higher court than the Supreme Court, and thus nobody that can review a justice’s refusal to recuse from a case — Roberts wrote that this is “a consequence of the Constitution’s command that there be only ‘one supreme Court.’” And Roberts argued that it would be “undesirable” to allow a justice’s colleagues to review their decision not to recuse because the other justices “could affect the outcome of a case by selecting who among its Members may participate.””

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“The Constitution provides that federal judges shall “hold their offices during good behaviour,” a provision that’s widely understood to require a judge to be impeached before they can be removed from office. And the impeachment process requires two-thirds of the Senate to vote to remove a justice from office — meaning that, in the current Senate, 16 Republicans would need to vote to remove Thomas, even if the GOP-controlled House agreed to begin an impeachment proceeding against him in the first place.”

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“both parties have an extraordinary incentive to appoint ideologically reliable judges to the courts, and to protect them. Once a staunch conservative like Thomas (or Gorsuch) is in office, Republicans have an overwhelming incentive to keep that justice in his seat regardless of whether the justice behaves unethically.”

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” The entire system is set up, in other words, in a way that rewards political parties that treat the judiciary as a partisan prize. It encourages presidents to appoint reliable partisans to the Supreme Court whenever they get the chance to do so. And, because neither party is likely to control 67 Senate seats any time soon, it also gives each party a veto power over any attempt to remove a justice — even if that justice is corrupt.”

Clarence Thomas’s brazen violation of ethics rules, briefly explained

Posted on May 6, 2023 by Lone Candle

“Supreme Court Justice Clarence Thomas has accepted luxury trips from a major Republican donor — and failed to disclose them — for over two decades, according to a bombshell ProPublica report that was published in early April. A second ProPublica report revealed that the same donor’s company purchased a house and two vacant lots from Thomas, a financial exchange he also did not disclose. And a Washington Post investigation found Thomas has repeatedly claimed income from a real estate company that no longer exists.
Thomas’s lack of disclosure about these trips and property sales is a clear violation of government ethics law, according to legal experts. A mistake may be behind the issue with his income statements — a new company with a similar name was formed after the first’s dissolution. That error, however, is reflective of a pattern of shoddy adherence to disclosure rules that has Thomas and his commitment to ethical conduct under new scrutiny.

Federal judges, including Supreme Court justices, are required to disclose such gifts and transactions under the Ethics in Government Act, which establishes rules for federal officials regarding what’s acceptable. As detailed by the law, transportation gifts, and most real estate sales above $1,000, need to be disclosed.

The recent reports follow Thomas’s refusal to recuse himself from litigation related to the January 6, 2021, Capitol insurrection, even as his wife, Ginni Thomas, played a direct role in trying to overturn the 2020 election results. More broadly, they serve as reminders that Supreme Court justices face limited oversight or accountability — and have long refused to publicly engage with calls for stricter ethics rules.

In the past, lodging and food provided on someone’s property have been exempted from disclosure requirements, but transportation, which Thomas accepted, has not been. Per ProPublica, the “extent and frequency” of gifts that Thomas received from Republican megadonor Harlan Crow — which included flights on private jets and trips on luxury yachts — have “no known precedent in the modern history of the U.S. Supreme Court.” The property sales that Thomas made would also not be exempted from such laws.”