“In recent years, the Roberts Court has shown greater and greater impatience with criminal defendants’ efforts to forestall punishment — even if the outcome would be cruel, needlessly painful or simply unjustified. The effect of this new hostility to delay is most sharply felt in the death penalty context. But a general hostility to foot-dragging in criminal cases is a through line in the court’s docket.
Justice Neil Gorsuch set the tone for this approach in 2019, when he complained that legal challenges to the death penalty were often used to stall or even derail execution. Courts, said Gorsuch, should “police carefully against attempts” to use constitutional challenges as tools to interpose unjustified delay.” In particular, he warned, “last-minute stays should be the extreme exception, not the norm.”
The court has since followed Gorsuch’s lead with an unsavory relish. Before 2020 and the death of Justice Ruth Bader Ginsburg, it was common for the Supreme Court to grant stays to hear legal questions that arose at the last stage of a capital case. Since then, it has only granted two such stays. In the same period, it has also vacated nine stays on death sentences imposed by lower courts.
The result has been predictable: Many of the convictions the court has let stand are plausibly described as “riddled with errors.” And in January, the court declined to hear a challenge to Alabama’s novel use of nitrogen gas to execute Kenneth Smith. Witnesses described Smith’s resulting death as horrific — extended and torturous — and not at all painless as the state promised.
The same is true of federal prosecutions. In the last half of 2020, the court stepped aside as the federal government sprinted to execute 13 people — as many as had been killed in the previous six decades. Justice Sonia Sotomayor noted that the court “repeatedly sidestepped its usual deliberative processes” to enable an “expedited spree of executions.” In its haste to see punishment done, the court waved away its usual rules.
Outside the capital punishment cases, the Supreme Court has added more and more constraints upon prisoners’ ability to challenge constitutional errors. Gorsuch and Justice Clarence Thomas in particular have urged that the longstanding right to challenge state court convictions in federal court be effectively gutted. The effect of their proposal would be to streamline even further the criminal justice process — shutting down almost all efforts to raise objections before they had even started.
All this makes the Supreme Court’s decision to hear Trump’s appeal for absolute immunity from all criminal charges even more unusual, and troubling.
Start with the weakness of Trump’s argument. There is absolutely no constitutional text, no precedent and no authority in the original debates over the Constitution’s ratification to support the idea for a former president’s absolute immunity. The argument advanced by Trump’s counsel is patently absurd. The idea that senators could impeach a president who threatened them with deadly violence and so no criminal justice process is needed, is facetious. The District of Columbia Court of Appeals rightly ridiculed it — and issued a comprehensive, tightly reasoned and unanimous opinion that presented no good cause for further review.
Trump is within his right to appeal the decision, but there’s no good reason for the Supreme Court to take it up and review it as a matter of law — especially given how thorough the D.C. Circuit was.
In fact, the court’s erstwhile concern with “unjustified delay” in criminal cases would seem to cut hard against hearing the case. It is, after all, a matter of common knowledge that the former president’s legal strategy is to run out the clock and thus prevent a trial prior to the election. Here then is a case where justice delayed may well be justice derailed.
Indeed, the grounds for the court rejecting Trump’s request to take up the immunity question appear much stronger than in Kenneth Smith’s challenge to the use of nitrogen gas. If Smith had been successful, Alabama could have found another, permissible way to kill him. If Trump’s trial is delayed enough, it may never happen. If Trump is back in the White House, he can easily quash the Justice Department’s case.
The Supreme Court’s attention, moreover, is a precision good. In the court’s 2022-23 term, the court issued just 58 decisions. Given that this scarce commodity is so infrequently used to prevent the miscarriage of criminal justice, the question must be asked: Why now? And why for this defendant?
There is no good answer. It is hard to see any legally sound reason why the Supreme Court should have decided to step in to hear Trump’s implausible and constitutionally destructive claim for absolute criminal immunity — especially when it has refused to hear so many other criminal defendants’ far more meritorious claims.”
“The Court’s latest decision, Trump v. Anderson, took on the question of whether a provision of the 14th Amendment, which prevents former high-ranking officials who “have engaged in insurrection or rebellion against” the United States from serving in a high office again, disqualifies Trump from office. Their answer is as big a victory as Trump could have hoped for.
The five-justice majority opinion does not simply hold that Trump may seek the presidency again, despite his role in inciting the January 6 insurrection at the US Capitol. It effectively neutralizes this provision of the 14th Amendment altogether — at least as applied to the 2024 election.
All nine justices agreed that the state of Colorado, whose highest court determined that Trump was disqualified, was not allowed to make this determination. As the Court’s three Democratic appointees write in a cosigned opinion dissenting from the majority’s reasoning, states have limited authority to decide questions that “‘implicate a uniquely important national interest’ extending beyond a State’s ‘own borders.’” So the decision whether or not to disqualify Trump should have come from a federal court, or some other federal forum, not from state courts.
Fair enough, but the majority opinion (which is unsigned, and joined by all of the Court’s Republican appointees except for Justice Amy Coney Barrett) goes much further than that. It holds that the Constitution “empowers Congress” — and only Congress — to determine which individuals are disqualified from public office because they previously engaged in an insurrection.
Then it points to a single statute, a criminal law that calls for imprisonment and disqualification from office for anyone who “engages in any rebellion or insurrection against the authority of the United States or the laws thereof” as the sole existing vehicle to enforce the 14th Amendment’s anti-insurrection provision. Trump has not yet been charged with violating this law, although he has been charged with violating other federal criminal laws because of his alleged attempt to overthrow the 2020 election.
This means that any attempt to disqualify Trump is almost certainly dead. Even if special counsel Jack Smith can amend his indictment to bring charges under the insurrection statute, the Court’s decision to slow-walk Trump’s trial means that the election will most likely be over before that trial takes place.
The courts, it is now crystal clear, are not going to do much of anything to prevent an insurrectionist former president from occupying the White House once again. And the Supreme Court appears to be actively running interference on Trump’s behalf.”
“Frozen embryos are “children” under Alabama law, the state’s Supreme Court says. Its decision could have major implications for the future of fertility treatments in the state.
Frozen embryos are “unborn children” and “unborn children are ‘children,'” Justice Jay Mitchell wrote in the court’s main opinion. Only two of nine justices dissented from the holding that an 1872 wrongful death statute applies to the destruction of frozen embryos.
The ruling seems to represent a turn toward judicial activism among members of Alabama’s Supreme Court, which for a long time held that the law’s text could not justify reading it to include “unborn children”—let alone frozen embryos.”
…
“In IVF, the process of preparing the body for ovulation and harvesting eggs can be extremely taxing on women’s bodies, as well as time-consuming and expensive. After this, not all of the eggs collected may be successfully fertilized. And when viable embryos are created, it may take multiple tries at transferring one into a woman’s body before implantation is successful. For all of these reasons, it makes sense for doctors to collect myriad eggs at one time, fertilize these eggs, and then freeze the viable embryos for later transfer, rather than harvesting eggs and creating a single new embryo for each transfer. (This also helps people who may want to create embryos when they are younger to use when they are somewhat older, or who may face illness that will impede their future fertility.) And to maximize the chances of success, doctors sometimes transfer two or more embryos at once.
Treating embryos as having the full legal rights of children could imperil all of these practices.”
“freedom of expression is crucial and central to the American project. It’s also not a force field by which people are shielded from other rules. If I want to get people’s attention by, say, driving 120 miles an hour while sporting a Palestinian flag, I cannot tell the officer who pulls me over for reckless driving that I’m simply exercising my free speech rights. The First Amendment does not give carte blanche to violate the law.”
The high court did not offer any comment on its decision, which means Powell, Wood and the other defendants must pay a total of $132,693.75 to the city of Detroit and another $19,639.75 in legal fees to the state of Michigan.
In their unsuccessful effort to overturn the 2020 election results in Michigan, Powell, Wood and their co-defendants made wild claims in a lawsuit brought in the state alleging that Dominion voting machines were involved in fraud.
A district court judge ruled that the lawyers’ court challenges represented a “historic and profound abuse of the judicial process.”
The Sixth Circuit Court of Appeals later upheld the bulk of the district court judge’s ruling, calling the fraud claims “simply baseless.”
In their appeal to the Supreme Court, the defendants continued to argue that they were simply pursuing “legitimate election challenges.”
Powell has pleaded guilty to misdemeanor charges stemming from her efforts to overturn the 2020 election results in Georgia and has agreed to testify against Trump and 14 others still charged there.
Dominion is suing Powell for $1.3 billion over her false claims that the company rigged the election against Trump.
Wood has been subpoenaed to testify in the Georgia case.”
“A federal appeals court has reinstated a First Amendment lawsuit filed by former Tampa-area reform prosecutor Andrew Warren against Florida Gov. Ron DeSantis, and now the DeSantis administration will have to argue that Warren’s job performance, not his ideology, was the controlling factor behind Warren’s removal from office.”
“”The mob was seeking to halt or overturn a core constitutional function at the seat of government, which can reasonably be described as an attempt to replace law with force,” Magliocca wrote. Furthermore, the criminal charges against some of the rioters indicated that they “intended to inflict bodily harm on members of Congress, which can be reasonably understood as a direct attack on the legislative branch itself and, more generally, the existing government.””
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Quite a mouthful, right? Let’s simplify. Here’s a streamlined version of the clause with only the most relevant parts highlighted:
“No person shall … hold any office, civil or military, under the United States, … who, having previously taken an oath, … as an officer of the United States, … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same …”
The justices are sure to delve into the precise meaning of those pivotal phrases. For example:
Was the Jan. 6, 2021, attack on the Capitol an “insurrection”? If not, the insurrection clause doesn’t apply.
Even if Jan. 6 was an insurrection, did Trump “engage” in it? If not, he is eligible to hold office again.
When Trump took his oath of office as president, did he take that oath as “officer of the United States”? If not, the disqualification provision does not apply to him.”
“a notoriously right-wing federal appeals court attempted to rewrite a federal law that, among other things, requires most US hospitals to provide abortions to patients who are experiencing a medical emergency if a doctor determines that an abortion will stabilize the patient.
The case is Texas v. Becerra, and all three of the United States Court of Appeals for the Fifth Circuit’s judges who joined this opinion were appointed by Republicans. Two, including Kurt Engelhardt, the opinion’s author, were appointed by former President Donald Trump.
The case involves the Emergency Medical Treatment and Labor Act (EMTALA), a federal statute requiring hospitals that accept Medicare funds to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.” (In limited circumstances, the hospital may transfer the patient to a different facility that will provide this stabilizing treatment.)
EMTALA contains no carve-out for abortion. It simply states that, whenever any patient arrives at a Medicare-funded hospital with a medical emergency, the hospital must offer that patient whatever treatment is necessary to “stabilize the medical condition” that caused the emergency. So, if a patient’s emergency condition can only be stabilized by an abortion, federal law requires nearly all hospitals to provide that treatment. (Hospitals can opt out of EMTALA by not taking Medicare funds but, because Medicare funds health care for elderly Americans, very few hospitals do opt out.)
This federal law, moreover, also states that it overrides (or “preempts,” to use the appropriate legal term) state and local laws “to the extent that the [state law] directly conflicts with a requirement of this section.” So, in states with sweeping abortion bans that prohibit some or all medically necessary abortions, the state law must give way to EMTALA’s requirement that all patients must be offered whatever treatment is necessary to stabilize their condition.”
…
“when an emergency room patient presents with a life-threatening illness or condition — or, in the words of the EMTALA statute, that patient has a condition that places their health “in serious jeopardy,” that threatens “serious impairment to bodily functions,” or “serious dysfunction of any bodily organ or part” — then Medicare-funded hospitals must provide whatever treatment is necessary.
The Texas case, in other words, asks whether a state government can force a woman to die, or suffer lasting injury to her uterus or other reproductive organs, because the state’s lawmakers are so opposed to abortion that they will not permit it, even when such an abortion is required by federal law.
And yet, despite the fact that the EMTALA statute is unambiguous, and despite the fact that this case only involves patients whose life or health is threatened by a pregnancy, three Fifth Circuit judges told those patients that they have no right to potentially lifesaving medical care.”
“Trump’s misconduct included his refusal to accept Biden’s victory, his persistent peddling of his stolen-election fantasy, his pressure on state and federal officials to embrace that fantasy, the incendiary speech he delivered to his supporters before the riot, and his failure to intervene after a couple thousand of those supporters invaded the Capitol, interrupting the congressional ratification of the election results. All of that was more than enough to conclude that Trump had egregiously violated his oath to “faithfully execute” his office and to “preserve, protect and defend the Constitution.” It was more than enough to justify his conviction for high crimes and misdemeanors in the Senate, which would have prevented him from running for president again.”
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“”At oral argument,” the opinion notes, “President Trump’s counsel, while not providing a specific definition, argued that an insurrection is more than a riot but less than a rebellion. We agree that an insurrection falls along a spectrum of related conduct.” But the court does not offer “a specific definition” either: “It suffices for us to conclude that any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
That description suggests a level of intent and coordination that seems at odds with the chaotic reality of the Capitol riot. Some rioters were members of groups, such as the Oath Keepers and the Proud Boys, that thought the use of force was justified to keep Trump in office. But even in those cases, federal prosecutors had a hard time proving a specific conspiracy to “hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power” by interrupting the electoral vote tally on January 6. And the vast majority of rioters seem to have acted spontaneously, with no clear goal in mind other than expressing their outrage at an election outcome they believed was the product of massive fraud.
They believed that, of course, because that is what Trump told them. But to the extent that Trump bears moral and political responsibility for riling them up with his phony grievance (which he does), his culpability hinges on the assumption that the rioters acted impulsively and emotionally in the heat of the moment. That understanding is hard to reconcile with the Colorado Supreme Court’s premise that Trump’s hotheaded supporters acted in concert with the intent of forcibly preventing “a peaceful transfer of power.”
Nor is it clear that Trump “engaged in” the “insurrection” that the court perceives. After reviewing dictionary definitions and the views of Henry Stanbery, the U.S. attorney general when the 14th Amendment was debated, the majority concludes that “‘engaged in’ requires ‘an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.'”
Trump’s pre-riot speech was reckless because it was foreseeable that at least some people in his audience would be moved to go beyond peaceful protest. Some 2,000 of the 50,000 or so supporters he addressed that day (around 4 percent) participated in the assault on the Capitol. But that does not necessarily mean Trump intended that result. In concluding that he did, the court interprets Trump’s demand that his supporters “fight like hell” to “save our democracy” literally rather than figuratively. It also notes that he repeatedly urged them to march toward the Capitol. As the court sees it, that means Trump “literally exhorted his supporters to fight at the Capitol.”
The justices eventually concede that Trump, who never explicitly called for violence, said his supporters would be “marching to the Capitol building to peacefully and patriotically make your voices heard.” But they discount that phrasing as cover for Trump’s actual intent. Given Trump’s emphasis on the necessity of “fight[ing] like hell” to avert the disaster that would result if Biden were allowed to take office, they say, the implicit message was that the use of force was justified. In support of that conclusion, the court cites Chapman University sociologist Peter Simi, who testified that “Trump’s speech took place in the context of a pattern of Trump’s knowing ‘encouragement and promotion of violence,'” which he accomplished by “develop[ing] and deploy[ing] a shared coded language with his violent supporters.”
That seems like a pretty speculative basis for concluding that Trump intentionally encouraged his supporters to attack the Capitol. Given what we know about Trump, it is perfectly plausible that, unlike any reasonably prudent person, he was heedless of the danger that his words posed in this context.”
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“The Colorado Supreme Court’s belief that Trump intentionally caused a riot also figures in its rejection of his argument that his January 6 speech was protected by the First Amendment. The relevant standard here comes from the U.S. Supreme Court’s 1969 decision in Brandenburg v. Ohio, which involved a Klansman who was convicted of promoting terrorism and criminal syndicalism. Under Brandenburg, even advocacy of illegal conduct is constitutionally protected unless it is both “directed” at inciting “imminent lawless action” and “likely” to do so.
The Colorado Supreme Court quotes the 6th Circuit’s elucidation of that test in the 2015 case Bible Believers v. Wayne County: “The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.”
It is hard to deny that Trump’s speech satisfies the third prong, which is why it provoked so much well-deserved criticism and rightly figured in his impeachment. But what about the other two prongs?
Applying the first prong, the court cites “the general atmosphere of political violence that President Trump created before January 6” as well as the “coded language” of his speech that day. As evidence of the “specific intent” required by the second prong, it notes that “federal agencies that President Trump oversaw identified threats of violence ahead of January 6.” It also cites what it takes to be the implicit message of Trump’s speech and his reluctance to intervene after the riot started.
“President Trump intended that his speech would result in the use of violence or lawless action on January 6 to prevent the peaceful transfer of power,” the court says. “Despite his knowledge of the anger that he had instigated, his calls to arms, his awareness of the threats of violence that had been made leading up to January 6, and the obvious fact that many in the crowd were angry and armed, President Trump told his riled-up supporters to walk down to the Capitol and fight. He then stood back and let the fighting happen, despite having the ability and authority to stop it (with his words or by calling in the military), thereby confirming that this violence was what he intended.””