Lone Candle
Champion of Truth
“contrary to the impression left by movies and TV shows, criminal cases almost never go to trial. In the United States, nearly 98 percent of criminal convictions result from guilty pleas”
https://reason.com/2023/12/13/the-multiplying-charges-against-hunter-biden-exemplify-a-profound-threat-to-trial-by-jury/
“Few figures in American history, however, have less credibility to speak about the importance of the right to a jury trial, as Gorsuch’s very first major Supreme Court opinion was a direct attack on that right. In Epic Systems v. Lewis (2018), Gorsuch wrote for the Court’s Republican majority that employers have a right to force their employees to sign away their right to sue them in any court at all — including courts that protect the right to a jury trial — and to shunt those cases into private arbitration.
Indeed, the Court’s GOP-appointed majority has long been vocal advocates of forced arbitration, dismissing arguments that these privatized forums violate the Seventh Amendment, and often mangling the text of federal statutes to maximize employers’ power to avoid jury trials.
So why is the Court’s right flank suddenly so concerned that unscrupulous hedge fund managers might not get to present their case to a jury? The most likely answer is that the six Republican appointees have sought to centralize power within the Article III courts, often at the expense of federal agencies supervised by the president. The Supreme Court’s recent “major questions doctrine” cases, for example, have given the justices a virtually unlimited veto power over any policy enacted by a federal agency that a majority of the Court does not like.
Chief Justice John Roberts, in particular, was quite explicit during the Jarkesy argument about his belief that federal agencies are too powerful, and that much of this power should be transferred to him and his fellow Article III judges. The Atlas Roofing decision, he noted, is 50 years old, and he argued that the role of federal agencies has become “enormously more significant” in that time.
Roberts also characterized administrative law judges — who, again, are in-house at various federal agencies, but also enjoy robust job protections to insulate them from political pressure — as the executive branch’s “own employees.” His implication appeared to be that Jarkesy’s Seventh Amendment argument is as good of a reason as any to shift power away from these administrative law judges, and towards the Article III branch that Roberts leads.
That said, Roberts and some of his fellow Republican appointees also appeared to cast about for a way to rule in Jarkesy’s favor, without completely upending the government’s ability to resolve cases in administrative forums.
The federal government employs nearly 2,000 administrative law judges, in addition to about 650 non-Article III judges who hear immigration cases. Meanwhile, there are fewer than 900 Article III judges authorized by law. So, if the United States suddenly loses its ability to bring cases in administrative forums, the entire federal system will lose the overwhelming majority of its capacity to adjudicate cases — forcing litigants to wait years before an Article III judge has the time to take up their case.”
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“Meanwhile, both Gorsuch and Justice Brett Kavanaugh suggested drawing a line between cases where the government seeks to impose a “penalty” on a defendant, and cases about whether a particular individual is entitled to a federal benefit. That would require most SEC enforcement actions to be heard by an Article III court that can conduct a jury trial, but would also allow the Social Security Administration’s more than 1,600 administrative law judges to continue to determine who is entitled to federal benefits.
In any event, the bottom line is that Jarkesy appears likely to prevail. And the Court’s GOP-appointed majority appears likely to send his case to an Article III court where Jarkesy can receive a jury trial. The Seventh Amendment, it appears, protects hedge fund managers, but not workers.
But, while that result is unlikely to satisfy anyone who does not share Neil Gorsuch’s political views, it would also be a relatively minor attack on the federal government’s ability to enforce the law — and a much less severe attack on US state capacity than the Fifth Circuit’s decision.”
https://www.vox.com/scotus/2023/11/29/23980966/supreme-court-sec-jarkesy-administrative-law-judges
“”If Kate can’t get an abortion in Texas, who can? Kate’s case is proof that exceptions don’t work, and it’s dangerous to be pregnant in any state with an abortion ban,” Duane said.”
https://www.yahoo.com/news/texas-woman-sought-court-order-233120702.html
“The code, in other words, codifies the same rules that Justice Clarence Thomas followed when he spent nine days vacationing on Republican billionaire Harlan Crow’s superyacht — a trip which “could have exceeded $500,000” in value, according to ProPublica. The code also locks in place the same rules Thomas followed during his frequent summer trips to Crow’s private resort in the Adirondacks. The code “represents a codification of principles” that Thomas followed when he bought a $267,230 RV that was underwritten by Anthony Welters, another of the many wealthy individuals who have lavished gifts on Thomas since he joined the Court.”
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“The new code also seeks to “dispel” any impression that the justices “regard themselves as unrestricted by any ethics rules,” which may have been created when Justice Samuel Alito accepted a $100,000 private jet flight to Alaska from Republican billionaire Paul Singer, where Alito stayed in a fishing lodge that ordinarily charges more than $1,000 a day to guests, and where Alito was reportedly served wine that costs more than $1,000 a bottle.
The new code, which, again, by its own explicit terms largely seeks to put in writing the same rules that these justices followed when they accepted luxurious gifts from major Republican Party donors, is also almost entirely unenforceable. If a litigant, or one of the more than 300 million Americans governed by the Supreme Court, believes that one of the justices is violating the newly written-down rules, there is no mechanism to enforce those rules against a justice.”
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“The new code imposes no meaningful obligations on the justices. It explicitly disclaims any desire to do so. It accuses the Court’s critics of “misunderstanding” the justices’ past behavior, when it really isn’t hard to understand the ethical implications of taking a $500,000 gift from a major political donor.”
https://www.vox.com/scotus/2023/11/14/23960027/supreme-court-new-ethics-code-clarence-thomas-unenforceable
“When the right to abortion is on the ballot, it wins. It wins in red states that voted for President Donald Trump. It wins in counties President Joe Biden lost by more than 20 points. It wins when popular Republican officials campaign for it and when they ignore it. And it wins even when the outcome has no immediate effect on abortion access.
Support for abortion cuts across party lines, performing significantly better at the ballot box than Biden and other Democrats. In fact, abortion outruns Biden most in the most Republican areas”
https://www.politico.com/news/2023/11/09/abortion-rights-elections-red-states-00126225
“The core question in Rahimi, in other words, is whether the Court will back away from its decision in Bruen, which has led to all kinds of disastrous results, including the Fifth Circuit’s decision holding that abusive husbands have a right to keep a weapon they could use to murder their wives.”
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“Bruen held that, in order to justify nearly any law regulating firearms, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” This means that lawyers defending even the most widely accepted gun laws, such as the federal ban on gun possession by domestic abusers, must show that “analogous regulations” also existed and were accepted when the Constitution was framed — particularly if the law addresses “a general societal problem that has persisted since the 18th century.” If they cannot, the challenged gun law must be struck down.
This places an extraordinarily high burden on any lawyer defending a gun law. When the historical record is ambiguous or indeterminate, the government loses, and a gun law is effectively repealed by the courts. And lawyers defending gun laws face an especially heavy burden when they defend laws that seek to address a problem, like domestic abuse, that has existed for centuries.
Almost immediately, the Bruen decision sparked mass confusion in the federal courts. Judges have reached contradictory results in a multitude of post-Bruen challenges to gun laws. Courts applying Bruen have struck laws prohibiting guns in places of worship, requiring guns to have serial numbers that allow them to be tracked by law enforcement, and prohibiting underage ownership of guns — all claiming that these laws are inconsistent with “historical tradition.””
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“On the day Bruen was decided, Justice Stephen Breyer warned in a dissenting opinion that, by requiring judges to dive into often-vague and indeterminate historical records, Bruen “imposes a task on the lower courts that judges cannot easily accomplish.” “Courts are, after all, staffed by lawyers, not historians,” Breyer continued. And “legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems.””
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“One fundamental problem with Bruen, as Judge Miller’s critique of the decision emphasizes, is that the six Republican-appointed justices who joined it appear to have no understanding of why changes in American society over the past 250 years make it difficult or impossible to draw meaningful analogies between modern gun laws and those that existed when the Constitution was written.”
https://www.vox.com/scotus/2023/10/24/23914235/supreme-court-domestic-violence-abusers-gun-policy-us-rahimi
“In 2018, a federal court issued a consequential decision about homelessness in America: People without housing can’t be punished for sleeping or camping outside on public property if there are no adequate shelter alternatives available.
The Ninth Circuit’s decision, Martin v. Boise, said that punishing homeless people with no other place to go would violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Ever since, cities and states have struggled to comply with it, crafting convoluted policies like a new camping ban in Portland, Oregon that prohibits homeless camping during the hours of 8 am to 8 pm.
As municipal backlash to Martin grew, so has the nation’s homelessness crisis, especially in the nine Western states under the Ninth Circuit’s jurisdiction, where some 42 percent of the country’s homeless population now lives.
The Supreme Court declined to hear Martin in 2019. But they now could reconsider the decision. A petition was filed in late August concerning a similar case in Grants Pass, Oregon, a city of 38,000 people. In 2022, the Ninth Circuit decided it would be unconstitutional for Grants Pass to fine homeless people sleeping on public property if there was nowhere else for them to go. The city is challenging that decision.”
https://www.vox.com/2023/10/10/23905951/homeless-tent-encampments-grants-pass-martin-boise-unsheltered-housing
“California politicians have been unable to make meaningful headway on a deteriorating homelessness crisis, and the conflict has shifted to a new arena out of their control: courtrooms. A series of rulings in California and beyond has barred cities from clearing encampments even as mayors are contending with lawsuits that accuse them of failing to do so. Sacramento’s top prosecutor hit the city with such a complaint, and Los Angeles spent years in legal limbo after a judge ordered the city and county to shelter every person in a sprawling encampment.”
https://www.politico.com/news/2023/10/04/california-homelessness-crisis-judges-00119504
“Gov. Gavin Newsom is pressing the U.S. Supreme Court to review a controversial ruling that has prevented cities from clearing homeless encampments.
In a brief filed to the high court Friday, Newsom’s office warned a ruling invalidating anti-camping ordinances in Grants Pass, Ore. had “paralyzed” cities around California by imposing an “insurmountable roadblock” that effectively bars cities from moving people from parks and sidewalks.”
https://www.politico.com/news/2023/09/22/newsom-scotus-encampment-california-00117762
“Publicly, President Joe Biden accused the platforms of “killing people” by failing to suppress speech that discouraged vaccination against COVID-19. Murthy likewise said that failure was “costing people their lives.” White House Press Secretary Jen Psaki declared that social media companies “have a responsibility related to the health and safety of all Americans to stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections.” If they failed to meet that responsibility, Murthy said, “legal and regulatory measures” might be necessary. Psaki floated the possibility of new privacy regulations and threatened social media companies with “a robust anti-trust program.” White House Communications Director Kate Bedingfield said the platforms “should be held accountable,” which she suggested could include reducing their legal protection against civil claims based on users’ posts.
Privately, administration officials pressed Facebook et al. to delete or downgrade specific posts and banish specific speakers, to take action against content even when it did not violate the platforms’ rules, and to expand those rules so that any speech federal officials viewed as dangerous to public health could be deemed a violation. Their “requests” were sometimes phrased as demands.”
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“Flaherty emphasized that he was acting on the president’s behalf, that his concerns were “shared at the highest (and I mean highest) levels of the [White House].” White House officials invoked previous perceived failures at content moderation, which they said had been disastrous. “When Facebook did not take a prominent pundit’s ‘popular post[]’ down,” the 5th Circuit notes, senior White House COVID-19 adviser Andrew Slavitt “asked ‘what good is’ the reporting system, and signed off with ‘last time we did this dance, it ended in an insurrection.'” In another exchange, Flaherty “demand[ed] ‘assurances’ that [Facebook] was taking action” and “likened the platform’s alleged inaction to the 2020 election, which it ‘helped increase skepticism in,'” adding that “an insurrection…was plotted, in large part, on your platform.'”
When social media companies failed to do what the administration wanted, White House officials reacted angrily. Flaherty noted that a flagged Facebook post was “still up,” asking, “How does something like that happen?” Facebook was “hiding the ball,” Flaherty complained. “Are you guys fucking serious?” he said in another email to Facebook. “I want an answer on what happened here and I want it today.” Because Facebook was “not trying to solve the problem,” Slavitt said, the White House was “considering our options on what to do about it.””
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“By and large, especially after Biden and Murthy accused social media companies of killing people, the platforms did what the White House wanted. They were eager to appease the president, repeatedly asking how they could work together to address his concerns. In this context, the 5th Circuit says, it is likely that the pressure campaign amounted to “coercion” and that the White House unconstitutionally shaped moderation decisions.”
https://reason.com/2023/09/11/the-5th-circuit-agrees-that-federal-officials-unconstitutionally-coerced-or-encouraged-online-censorship/