“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.”
“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.”
“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.””
“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.”
“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.”
“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.”
“Trent Taylor says his cell, in a Texas psychiatric unit operated by the state’s prison system, was covered in human excrement. Feces smeared the window and streaked the ceiling. Someone had painted a shit swastika on the wall, alongside a smiley face. According to Taylor’s allegations in a federal lawsuit, there was such a thick layer of dried human dung on the floor of the cell that it made a crunching sound as he walked naked across the cell.
Taylor alleged that he was kept in this cell for four days, where he neither ate nor drank due to fears that the excrement, which was even packed inside the cell’s water faucet, would contaminate anything he consumed. Then, on the fifth day, he was moved to a bare, frigid cell with no toilet, water fountain, or bed. A clogged drain filled the new cell with choking ammonia films. With nowhere to relieve himself, Taylor held his urine for 24 hours before he could do so no longer. And then he had to sleep alone on the floor while covered in his own waste.
The Supreme Court eventually ruled 7–1 that Taylor’s lawsuit against the corrections officers who forced him to live in these conditions could move forward, and that lawsuit settled last February. But the Supreme Court had to intervene after an even more conservative court, the United States Court of Appeals for the Fifth Circuit, attempted to shut down these claims against the prison guards.
A unanimous panel of three Fifth Circuit judges held that it was unclear whether the Constitution prevents prisoners from being forced to remain in “extremely dirty cells for only six days” — although, in what counts as an act of mercy in the Fifth Circuit, the panel did concede that “prisoners couldn’t be housed in cells teeming with human waste for months on end.”
This decision, in Taylor v. Stevens, is hardly aberrant behavior by the Fifth Circuit, which oversees federal litigation arising out of Texas, Louisiana, and Mississippi. The Fifth Circuit’s Taylor decision stands out for its casual cruelty, but its disregard for law, precedent, logic, and basic human decency is ordinary behavior in this court.
Dominated by partisans and ideologues — a dozen of the court’s 17 active judgeships are held by Republican appointees, half of whom are Trump judges — the Fifth Circuit is where law goes to die. And, because the Fifth Circuit oversees federal litigation arising out of Texas, whose federal trial courts have become a pipeline for far-right legal decisions, the Fifth Circuit’s judges frequently create havoc with national consequences.
The Fifth Circuit has, in recent months, declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. Less than a year ago, the Fifth Circuit forced the Navy to deploy sailors who defied an order to take the Covid vaccine, despite the Navy’s warning that a sick service member could sideline an entire vessel or force the military to conduct a dangerous mission to extract a Navy SEAL with Covid.
As Justice Brett Kavanaugh wrote when the Supreme Court restored the military’s command over its own personnel, the Fifth Circuit’s approach wrongly inserted the courts “into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
And this is just a small sample of the decisions the Fifth Circuit has handed down in 2022.”
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“while the Fifth Circuit is so extreme that its decisions are often reversed even by the Supreme Court’s current, very conservative majority, its devil-may-care approach to the law can throw much of the government into chaos, and even destabilize our relations with foreign nations, before a higher authority steps in. Worse, the Fifth Circuit’s antics could very well be a harbinger for what the entire federal judiciary will become if Republicans get to replace more justices.”
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“the Supreme Court only hears a tiny percentage of the cases decided by federal appeals courts, and it almost never hears cases brought by extraordinarily vulnerable litigants like Trent Taylor. Indeed, it hears these cases so infrequently that, when the Court decided to intervene on Taylor’s behalf, Justice Samuel Alito wrote a brief opinion complaining that Taylor’s case “which turns entirely on an interpretation of the record in one particular case, is a quintessential example of the kind that we almost never review.”
The Fifth Circuit hears a steady diet of ordinary immigration cases, which will often decide whether an individual immigrant can remain with their family in the United States or whether they must be deported to a nation they may barely know, or where they may fear for their physical safety. These cases are now heard by judges like Andrew Oldham, Trump’s sixth appointment to the Fifth Circuit, who spent much of his time both on and off the bench seeking to make federal immigration policies harsher to immigrants.
Similarly, the court hears a steady diet of employment discrimination cases.”
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“there are reforms that Congress or the Supreme Court could implement, which would diminish both the Fifth Circuit’s power and the power of litigants to channel political lawsuits to highly ideological judges. Congress, for example, may strip the Fifth Circuit of its jurisdiction over certain cases, or require certain suits to be filed in a federal court that is not located in the Fifth Circuit. It could also add seats to the court, which would then be filled by President Biden.
A less radical reform, proposed by former Fifth Circuit Judge Gregg Costa, would prevent litigants like the Texas AG’s office from handpicking judges who are likely to rule in their favor — and whose decisions are equally likely to be affirmed by the Fifth Circuit. Costa proposed having all lawsuits seeking a nationwide injunction against a federal law or policy be heard by three-judge panels, rather than a single judge chosen by the plaintiff. These panels’ decisions would then appeal directly to the Supreme Court, bypassing the Fifth Circuit (although a single Fifth Circuit judge might sit on some of these panels).
Realistically, however, systemic reforms to the problem of judge-shopping — and to the problem of a lawless court of appeals — are unlikely to happen anytime soon. The House of Representatives will soon be controlled by Republicans, who are unlikely to support legislation that reduces the power of their partisan allies on the bench. And the Supreme Court has six justices appointed by Republican presidents.
And so the Fifth Circuit will continue to hand down its decrees, confident that no one with the power to stop them is likely to do so.”
“The Teamsters, the union in this case, allegedly timed a 2017 strike so that it would begin after some of Glacier Northwest’s mixing trucks were already filled with concrete, forcing the company’s non-union employees to race to dispose of this material before it hardened in the trucks. But the company was able to remove this wet concrete from the trucks before they were damaged, and there are a wealth of cases establishing that workers may strike even if doing so will cause some of their employer’s product to spoil.
In one case, for example, the National Labor Relations Board (NLRB) — a kind of quasi-court that hears disputes between unions and employers — sided with milk truck drivers who struck, even though their strike risked spoiling the milk before it was delivered to customers. Another case, handed down by a federal appeals court, reached a similar conclusion regarding striking cheese workers.
That said, there are also some cases establishing that workers may not walk off the job at a time that could result in truly egregious damage to their employer’s business. In one such case, for example, a federal appeals court ruled that foundry workers who work with molten lead could not abruptly walk off the job and leave the lead in a state where it could melt the employer’s facilities or injure other workers.
In any event, the Supreme Court’s decision in San Diego Trades Council v. Garmon (1959) lays out the process that employers must use if they believe their workers timed a strike so recklessly that the union should be held liable. In nearly all cases, the employer must first obtain a ruling from the NLRB establishing that their workers’ strike was not protected by federal law. Only then may they file a lawsuit against the union.
The employer in Glacier Northwest, however, wants the Supreme Court to water down Garmon considerably, potentially enough to render that decision toothless.
If that happens, it would be a tremendous blow to workers. One important reason the Garmon process exists is that it shields unions from lawsuits that could drain their finances and discourage workers from exercising their right to strike — after all, that right means very little if well-moneyed employers can bombard unions with lawsuits the union cannot afford to litigate.”
“Gorsuch didn’t say that there aren’t problems at the border or that the transition from Title 42 wouldn’t prove challenging. “But the current border crisis is not a COVID crisis,” he wrote. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”
Policy makers would be wise to scrap the pandemic-era Title 42 order. It’s accomplished the opposite of what proponents promised, leading to more frequent and less predictable migrant inflows. Since a Title 42 expulsion carries no reentry penalty, repeat crossings roughly quadrupled in 2021 compared to their 2019 rate. Smugglers have taken advantage of repeat crossings by charging migrants more for the inflated number of northward journeys. With asylum largely inaccessible at ports of entry, migrants desperate to enter the country have attempted to cross the border in less surveilled, more dangerous terrain. These things have all contributed to chaotic scenes at the border, providing fodder for immigration restrictionists.”
“This is not a new argument, and numerous courts have rejected similar challenges to publicly funded family planning programs, in part because the Deanda plaintiff’s legal argument “would undermine the minor’s right to privacy” which the Supreme Court has long held to include a right to contraception.
But Kacsmaryk isn’t like most other judges. In his brief time on the bench — Trump appointed Kacsmaryk in 2019 — he has shown an extraordinary willingness to interpret the law creatively to benefit right-wing causes.
This behavior is enabled, moreover, by the procedural rules that frequently enable federal plaintiffs in Texas to choose which judge will hear their case — 95 percent of civil cases filed in Amarillo, Texas’s federal courthouse are automatically assigned to Kacsmaryk. So litigants who want their case to be decided by a judge with a history as a Christian right activist, with a demonstrated penchant for interpreting the law flexibly to benefit his ideological allies, can all but ensure that outcome by bringing their lawsuit in Amarillo.”