The Supreme Court fight over whether religious schools can discriminate against LGBTQ people
https://www.vox.com/policy-and-politics/2022/9/12/23348953/supreme-court-yeshiva-university-yu-pride-religious-liberty-first-amendment-lgbtq
Tag: Supreme Court
Why Won’t the Biden Administration Join Gorsuch in Seeking To Overrule These Racist SCOTUS Precedents?
“Between 1901 and 1904, the U.S. Supreme Court decided a series of cases, collectively known as the Insular Cases, which asked whether the Constitution should fully apply to the residents of Puerto Rico and other territories recently acquired by the U.S. after its victory in the Spanish-American War. The Court held that the Constitution did not fully apply in those U.S.-held territories.
The Insular Cases have been severely criticized—then and now—for being the product of racist and imperialist thinking. The legal scholar Walter F. Pratt Jr., author of The Insular Cases: The Role of the Judiciary in American Expansionism, described the legal arguments involved as “largely racially motivated,” since the Court effectively held that “the people of the new territories were unfit to become citizens.”
A similar criticism of the Insular Cases was recently voiced by Justice Neil Gorsuch, who argued that “the Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.””
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“Gorsuch also added his voice to those calling for the Insular Cases to be wiped off the books. “The time has come to recognize that the Insular Cases rest on a rotten foundation,” Gorsuch wrote. “And I hope the day comes soon when the Court squarely overrules them.”
Alas, the Department of Justice under President Joe Biden apparently sees things differently. As The Washington Post’s Robert Barnes recently reported, “the Biden administration told the Supreme Court Monday that it should not take up a case [Fitisemanu v. United States] about citizenship rights for American Samoa even though advocates say it would give justices a chance to upend a series of century-old precedents that have been roundly denounced as racist.””
The Wisconsin Supreme Court Just Made Ballot Drop Boxes Illegal
“the Wisconsin Supreme Court..rendered most ballot drop boxes illegal in the state. The Court found that state law, which requires that mail-in ballots be delivered to a “mailbox,” does not allow “delivery to an unattended ballot drop box.””
Elena Kagan’s Valid Critique of the Supreme Court’s ‘Shadow Docket’
“In April, the U.S. Supreme Court voted 5–4 to reinstate an Environmental Protection Agency rule promulgated during the Trump administration that had been vacated by a lower court. Why did the Supreme Court reinstate the rule? The majority offered no explanation. Nor did it technically need to do so. The case, Louisiana v. American Rivers, was decided on an emergency basis. Without receiving merits briefing from the parties and without holding oral arguments, the majority simply granted a motion to stay the lower court’s decision. And that was that.
Critics have dubbed this sort of emergency action the “shadow docket.” It is, in the words of University of Chicago law professor William Baude, “a range of orders and summary decisions that defy [the Court’s] normal procedural regularity.” Foremost among the shadow docket’s foes is Justice Elena Kagan, who dissented in American Rivers, joined by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor. “The Court goes astray,” Kagan declared. The emergency docket has become “only another place for merits designations—except made without full briefing and argument.”
Kagan had a point. As George Washington University law professor Richard J. Pierce Jr. put it, “no one can read the opinion unless the court writes it. That is the problem with the shadow docket.” The outcome in American Rivers may have been beautifully reasoned and correctly reached. But we have no way of actually knowing that—let alone of fully judging the outcome for ourselves— because the majority offered zero rationale.”
Impact of Supreme Court’s climate ruling spreads
“Fallout from the Supreme Court’s attack on federal climate regulations is spreading throughout the executive branch, creating legal uncertainty for rules on topics as far afield as abortion, immigration and even amateur auto racing.
Opponents of federal actions on pipelines, asbestos, nuclear waste, corporate disclosures and highway planning are also seizing on the logic of the court’s June 30 decision, which imposed sharp limits on the Environmental Protection Agency’s authority to regulate greenhouse gases.”
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“In their decision, the high court’s six conservative justices invoked what they called the “major questions” doctrine to declare that agencies such as EPA need explicit congressional approval before “asserting highly consequential power” over almost any policy area. But they did not offer a precise definition of what would cause a regulation to qualify as major — a question that agencies and lower courts may now need to spend years wrestling with.”
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““If anything’s ambiguous at all, you get people challenging on major questions grounds, and you have to go find out if Congress gave you an extra clear statement,” said Nathan Richardson, a law professor at the University of South Carolina. He called it a reversal of the long-standing tradition of courts deferring to agencies’ policy expertise. “It’s not deference, it’s anti-deference.””
Opinion | The Supreme Court Reform that Could Actually Win Bipartisan Support
“There is one idea, though, that has longstanding bipartisan support, a proven record of success, and practical wisdom behind it: term limits. Imposing term limits on Supreme Court justices would be good for the country and the court. It would help ease the bitterness of the confirmation process and make the court more representative of the public’s views. And while conservatives might currently balk in light of their 6-3 majority, it’s a change that would not necessarily advantage either side over the long run.
The most common version of this reform contemplates justices serving nonrenewable 18-year terms, staggered so that one term ends every two years. This would mean that presidents would get to nominate new justices in the first and third years of their own administrations. Retirements and nominations would occur like clockwork. The result would be a court whose membership, at any given time, would reflect the selections of the past 4 1/2 presidential administrations.
Because Article 3 of the Constitution confers life tenure upon all federal judges, term limits would likely require a constitutional amendment.”
Opinion | The Supreme Court Decisions on Guns and Abortion Relied Heavily on History. But Whose History?
“History has always played a role in constitutional interpretation, for some jurists more than others. But if history is going to be a key driver for the Supreme Court’s decisions — on the assumption that it is more legitimate than other forms of judicial discretion — then it is imperative to ask where the justices are getting their historical sources, whether those sources are fact-checked, and (most importantly) who is narrating the history.
Increasingly, the justices are relying on amicus briefs for historical information. Amicus briefs — also called “friend of the court” briefs — are submitted by third parties and have gone through a tremendous growth spurt at the Supreme Court in recent years.”
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“These amicus briefs — sometimes signed by historians, sometimes not — are virtually all written by lawyers and often filed by motivated groups that are pressing for a particular outcome. The history they present, in other words, is mounted to make a point and served through an advocacy sieve. That distinguishes this type of history from the work product of professional historians who (even when they have a point of view) are trained to gather evidence dispassionately. As historian Alfred H. Kelly once put it, “The truth of history does not flow from its usefulness.” But usefulness is exactly the point when litigating a case at the Supreme Court — and historical sources are being used by the advocates to win.”
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“The modern reality is the justices look to their friends and allies for historical sources, and rather than fact-check them — which they don’t have the time, resources, or expertise to do — they accept these historical narratives at face value. In the end, this creates an echo chamber where the history the justices cite is the history pressed to them by the groups and lawyers they trust, which conveniently comports with their preexisting worldviews and normative priors.”
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“Professional historians are already complaining that the court got the history wrong in its recent cases, either by cherry-picking authorities or leaving out important nuance or both. When it came to the history of gun regulation, the court was awash in competing historical amicus briefs. The court chose one side, and in so doing caused historians to cry foul that the other history was ignored or distorted. In the abortion case, historians of the Middle Ages say some of the texts the court cites as proof that abortion was a crime in the 13th century are not about what we would think of as crime at all, but instead about “penance” imposed by the Church — an ambiguity easily lost on people who are unfamiliar with medieval Latin. Indeed, it is worth noting that much of the 13th-century history the court recounts seems to have come from a brief filed not by historians, but by professors of jurisprudence who publish on the moral implications of abortion — well-respected professors in their fields, perhaps, but certainly not medievalists.
This reveals a systemic problem about relying on amicus briefs for historical narratives: The amicus market is dominated by motivated scholars. Because many neutral experts do not pay attention to the courts or participate in advocacy, the historical accounts presented to the justices are necessarily incomplete and motivated to build a particular argument.”
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“the Supreme Court should require anyone who files an amicus brief to disclose who paid for it. Current rules require disclosure only of whether the party contributed financially or otherwise to the brief, but they do little to shed light on briefs filed by neutral-sounding organizations that are in reality funded by those with an interest in the case (even if not the party).”
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“the justices should borrow a practice from the laws of evidence and forbid any amicus brief presenting historical or other factual claims from adding accompanying legal argument. At trial in lower courts, there are strict limits on expert witnesses offering opinions on the law or generally opining on the case’s outcome. The idea is that this legal commentary detracts from the status of the expert as a neutral adviser, and that it oversteps the value and point of an expert witness in the first place.”
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“justices should build in a process to request the specific history they are interested in earlier in the case’s timeline — in an attempt to recruit historians who may not be following the court’s every move but who are actual experts in the matter. If historians of medieval law knew their knowledge on abortion in the 13th century was so valuable when the court took the case (as opposed to after the leak in Dobbs) there might be incentive for more of them to participate in the briefing process.”
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“If we are going to empower judges to referee history we must start paying more attention to the process through which they acquire that history. Many Americans see the court’s recent decisions as a threat to judicial legitimacy; perhaps one under-recognized threat to that legitimacy lies in the process used to make them.”
The Forgotten Constitutional Weapon Against Voter Restrictions
“perhaps a largely forgotten provision of the Constitution offers a solution to safeguard American democracy. Created amid some of the country’s most violent clashes over voting rights, Section 2 of the 14th Amendment provides a harsh penalty for any state where the right to vote is denied “or in any way abridged.”
A state that crosses the line would lose a percentage of its seats in the House of Representatives in proportion to how many voters it disenfranchises. If a state abridges voting rights for, say, 10 percent of its eligible voters, that state would lose 10 percent of its representatives — and with fewer House seats, it would get fewer votes in the Electoral College, too.”
Dobbs Opened Up an Attack on Doctors
“The whole sorry affair should remind us of one key reason why Roe was decided in the first place: to protect doctors.
It is a sad fact that some doctors will avoid providing essential medical care if the treatment in question is politically controversial. These doctors understandably fear that an overzealous prosecutor might use a vague law against them, just as Indiana’s attorney general threatened to do here.
Doctors who deal in certain types of pharmaceuticals run the same risks. In fact, just three days after Dobbs, the Supreme Court actually enhanced the legal protections for doctors who prescribe opioids. In an ironic twist, the Court did so while effectively reviving a pre-Roe case that protected the medical privacy rights of abortion providers.”
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“The Dobbs decision obliterated those medical privacy protections by a narrow 5–4 vote. Yet by a 6–3 vote just three days later, the Supreme Court embraced the logic of Roe’s most important predecessor (Vuitch) when it strengthened the medical privacy rights of doctors who prescribe opioids (Ruan).
This contradictory and confusing state of affairs is bad both for medicine and for the law, and it ought to be fixed as soon as possible. Whenever a poorly drafted statute is open to abuse by an overreaching prosecutor, the Supreme Court has the option of using the void-for-vagueness doctrine to strike down the offending law. The Court could also require that all abortion regulations conform to the doctor-friendly rules spelled out in Ruan and Vuitch. Particularly egregious laws, meanwhile, can be invalided by the courts for lacking a rational basis.
The Constitution provides firm procedural safeguards whenever the government interferes with life, liberty, property, or privacy. The Supreme Court needs to ensure that doctors still enjoy those safeguards’ benefits.”
What It Would Mean For Elections If The Supreme Court Embraces An Extreme Legal Theory
“Do state courts have the power to interpret their own state constitutions? The Supreme Court could be poised to say “no” — at least when it comes to redistricting and election law.
Last week, the Supreme Court agreed to hear the case Moore v. Harper in the coming fall term. In that case, Republican legislators in North Carolina are asking the court to overturn the state Supreme Court’s decision to throw out their gerrymandered congressional map and impose one of the court’s own.
Their argument rests on an extreme reading of the elections clause of the U.S. Constitution that posits that only state legislatures and Congress have the authority to decide how federal elections are run. Under this school of thought, known as the “independent state legislature” theory, state courts would no longer be able to intervene — even when a legislature violated the state’s constitution, as was found to be the case in North Carolina.
The independent state legislature theory is fewer than 25 years old, and for most of its life, it’s been relegated to the fringes of academia. But it was widely promoted by former President Donald Trump and his allies as they attempted to first undermine — and then overturn — the outcome of the 2020 presidential election. And several Supreme Court justices have already suggested that they’re on board with the theory. During litigation over election laws in Pennsylvania and Wisconsin in 2020, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch endorsed some version of the idea that state legislatures should have nearly unfettered power over how federal elections are run, and earlier this year, they said in an emergency-docket ruling that they would have ruled in favor of the North Carolina legislature.
If the Supreme Court sides with North Carolina Republicans in this case, it would have massive implications for election law. Depending on how the court rules, state courts might no longer be allowed to strike down legislatures’ proposed congressional maps for being gerrymandered. And if this happens, the way American elections are conducted would change in dramatic and destabilizing ways.”
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“An extreme embrace of the theory by the Supreme Court would hand legislatures power over every aspect of how federal elections are run, to the exclusion of not only state courts but also possibly other state actors like governors and election administrators. “It would be a voter suppressor’s fever dream,” Wolf said.”
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“the impact wouldn’t stop at redistricting. The Constitution’s elections clause also covers every aspect of how federal elections are run. That includes the 56 voting restrictions passed since the 2020 election — laws that require ID in order to vote, discourage absentee voting, move up voter deadlines, cut early voting, purge voters from the rolls and ban giving food and water to voters waiting in line.”
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“Similarly, courts would not be able to unilaterally change federal election laws in an emergency, like the Pennsylvania Supreme Court did in 2020 when it extended the deadline for absentee ballots to be received amid widespread delays in postal service. “If the state legislature says, ‘Polls close at 7 p.m.,’ and on Election Day, there’s a hurricane and the [state] Supreme Court says, ‘Keep them open until 10,’ the legislature wins,” Vladeck said.”
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“Some Trump allies have also argued that the independent state legislature theory empowers legislatures to appoint an alternate set of state electors — which, in 2020, could have overturned the presidential election. However, Leah Litman, a law professor at the University of Michigan, said that it’s important to remember that even the independent state legislature theory doesn’t mean state legislatures would be completely unchecked, because the U.S. Constitution would still apply. But she added that part of what alarms her about the theory is that it’s so unclear what embracing it would actually do. “It’s just kind of a mess,” she said of the theory. “We really don’t know what it would look like.””