Tag: judiciary
Federal judge rips into Florida’s ban on gender-affirming care for kids
“A federal judge delivered a stinging rebuke to Florida Gov. Ron DeSantis and the Republican-controlled Legislature over rules and a new state law that banned minors from receiving “puberty blockers” and other types of gender-affirming care.
U.S. District Judge Robert Hinkle on Tuesday blocked the state from applying the ban to three minors whose parents are part of an ongoing lawsuit, saying they would “suffer irreparable harm” if they were not allowed to continue access to hormones and other types of treatment.”
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“The American Academy of Pediatrics and the American Medical Association support gender-affirming care for adults and adolescents. But medical experts said gender-affirming care for children rarely, if ever, includes surgery. Instead, doctors are more likely to recommend counseling, social transitioning and hormone replacement therapy.”
The Supreme Court rediscovers humility — in a case about pigs
https://www.vox.com/politics/2023/5/11/23719825/supreme-court-pigs-california-national-pork-producers-ross-neil-gorsuch
The real reason for the Supreme Court’s corruption crisis
“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
“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.”
The uproar over Dianne Feinstein, explained
“Feinstein, who is 89, is presently on leave from the Senate due to a case of shingles. She’s been away from the Senate since early March, and it’s not yet clear when she’ll be back. In a statement shared last week, Feinstein noted that her return has been delayed due to “complications related to my diagnosis.” In the interim, she’s said she’ll work remotely and have another Democrat serve in her stead on the Senate Judiciary Committee.
That plan, however, hit a major snag on Tuesday as Senate Republicans made clear that they wouldn’t help Democrats add a temporary replacement to the panel.
In order to fill Feinstein’s Judiciary seat while she’s out, Democrats need to have unanimous consent — the agreement of all senators — or, failing that, 60 votes in support. With Feinstein out, that means Democrats would need the backing of every Democrat and independent in the Senate, plus at least 10 Republicans.
Senate Minority Leader Mitch McConnell announced Tuesday that Republicans are not inclined to provide those votes. “Senate Republicans will not take part in sidelining a temporary absent colleague off the committee just so Democrats can force through their very worst nominees,” he said in a floor speech.
McConnell’s announcement adds to the pressure on Feinstein, given how big of a priority judges are for Democrats this term. With too few votes to overcome the filibuster and a Republican House majority, filling the judiciary with their nominees is one of the few things Democrats could feasibly accomplish. But due to Feinstein’s ongoing absence, Democrats haven’t had the majority they need to continue approving judges on the Judiciary Committee, prompting concerns about a backlog as President Joe Biden tries to counter GOP stacking of the courts.”
Rampant Plea Bargaining Is a Raw Deal for Defendants
“A new report from the American Bar Association (ABA) presents more evidence that the ubiquitous use of plea bargains distorts the justice system and puts defendants at a disadvantage. Roughly 98.3 percent of federal criminal convictions result from guilty pleas, as do roughly 95 percent of state convictions. “Some jurisdictions have not had a criminal trial in many years,” the report notes. Nor is a guilty plea an absolute assurance of guilt: 18 percent percent of documented exonerations had previously pleaded guilty, as did nearly 11 percent of defendants exonerated by DNA evidence since 1989.”
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“The “trial penalty” defendants incur when they refuse to plead guilty is reflected in the sentencing data reported by the ABA. In federal felony cases, average sentences handed down at trial are seven years longer than convictions resulting from a plea bargain. “Although a modest reduction in sentence is justified in some cases resolved through guilty pleas because a defendant accepts responsibility, sentences should not be punitively inflated simply because a defendant exercised a fundamental right,” the report argues.
Plea bargaining in many cases allows prosecutors to circumvent the defendant’s right to an attorney—particularly in misdemeanor cases and in rural areas. And even with counsel, a hastily accepted plea deal forecloses the opportunity to expose potential governmental abuse. “Challenges to police misconduct are typically resolved through pretrial litigation, but the death of the trial has also increasingly meant the death of pretrial litigation, including those hearings that would bring to light police misconduct,” the report states. “Trial and pretrial litigation are essential for holding police and other state actors accountable, and plea bargaining has eroded these systems of accountability.” Moreover, many “defendants are often denied discovery, including exculpatory evidence, before they make the decision to plead guilty.””
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“Plea bargains have a single great advantage: They increase the efficiency of the justice system. “Efficiency has a role to play in criminal law policymaking, but it should not be the primary goal of that policy,” the report counters. “Rather, the goal should be a criminal justice system where defendants are guaranteed due process, victims receive justice, and the rule of law can flourish.””
How Biden could surpass Trump’s record on judges
“Republicans began ignoring the blue slip process for circuit court judges when they had Senate control in 2018, a policy Democrats have continued. Activists now want Democrats to do the same for district court nominees, who could potentially get held up by Republicans looking to slow Biden’s selections. The idea is that if Republicans don’t want a seat to get filled, they could theoretically keep it open by refusing to submit blue slips regardless of who the nominee is.
Some advocating for the change, like those at the Times, argue the system is fundamentally undemocratic. Others, including many progressive activists, say that it should be changed to ensure Democrats can confirm every judge they can in the next two years.
“If they remove the blue slip impediment, they can fill all their vacancies. If they don’t, they won’t be able to fill all those vacancies,” says Alliance for Justice president Rakim Brooks.”
Appeals Court Panel Seems Skeptical That FOSTA Doesn’t Violate the First Amendment
“Among other provisions, FOSTA created the new federal crime of owning, managing, or operating an “interactive computer service” with “the intent to promote or facilitate the prostitution of another person.”
In court last week, U.S. attorneys still clung to the argument that FOSTA merely targets illegal conduct, not protected speech.
The government has “essentially made a single argument, which is that FOSTA is essentially just an aiding and abetting statute, despite the language that it uses—it doesn’t use the terms and abetting—and as a result of that, it’s constitutional,” explains Greene. And last week in court, “they got a lot of pushback against that from at least two of the judges,” he says.
“In my mind, it’s not an aiding-and-abetting law. We know how to write ’em when we want to,” Harry Edwards, one of the three judges on the panel, said during the hearing. “This doesn’t look like anything that I understand to be an aiding-and-abetting law.”
“That immediately tells me the government’s got great concern that the statute, as actually written, has problems—so let’s make it something that it’s not,” Edwards continued. He characterized U.S. attorneys’ reasoning as “let’s call it aiding and abetting, and maybe we can cause the court to believe that the reach of the statute is limited because we’ve called it something that it’s not.””
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“Greene and his team argue that FOSTA violates the First Amendment “because it’s overbroad [and] can apply to a substantial amount of protected speech,” he explains. “And that’s principally because the language that it uses includes not just things that are in themselves the commission of illegal acts of sex trafficking or prostitution.” Rather, “it uses language like ‘promote or facilitate the prostitution of another person’ without being clear on what that means.”
The language of FOSTA “can be reasonably read to include protected [speech]—and not just protected speech, but speech that’s really highly important, like providing harm reduction, health and safety information to sex workers, to advocating on particular sex workers’ behalf, to advocating for decriminalization, and things like that,” Greene says.
During last week’s hearing, Judge Patricia Millett pushed back on the government’s claims that FOSTA didn’t criminalize advocating for legal prostitution.
“If someone actively promotes on their website the legalization of prostitution … how is that not [promoting prostitution]?” she asked.”
‘The most important election nobody’s ever heard of’
“Control of the Wisconsin state Supreme Court is on the ballot this spring, and the contest could decide the fate of abortion rights, redistricting and more in the critical swing state.
Should a more liberal-leaning jurist win the job in the April election, it would flip the balance of the state’s highest court for at least two years.”