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: judiciary
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.””
How Republicans rigged Texas’s federal courts against Biden
“One of the biggest impediments to President Joe Biden’s ability to govern is a small crew of Republican-appointed federal trial judges, all of whom sit in Texas.
In August of 2021, for example, a Trump-appointed judge named Matthew Kacsmaryk ordered the Biden administration to reinstate a Trump-era immigration policy, known as “Remain in Mexico,” which forced many migrants to live in awful conditions on the Mexican side of the US/Mexico border. Although the Supreme Court eventually determined that Kacsmaryk egregiously misread federal immigration law, it left his order in place for nearly a year — and the Court’s most recent decision concerning Remain in Mexico makes it very easy for Kacsmaryk to seize control of federal border policy once again.”
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” This one Trump judge’s ability to override an elected president’s policies and assume the powers of a Cabinet secretary is just one aspect of a much larger problem. With the Supreme Court’s tacit blessing, Texas officials and other right-wing litigants can handpick the trial judge who will hear their challenges to Biden administration policies. And when those handpicked judges overreach in ways that even this Supreme Court deems unacceptable, decisions by men like Kacsmaryk can remain in place for as much as a year — effectively replacing governance by an elected presidential administration with rule by unelected Republican judges.
In another, similar case, the Supreme Court allowed a Trump judge named Drew Tipton to temporarily strip Homeland Security Secretary Alejandro Mayorkas of much of his authority over Immigration and Customs Enforcement (ICE). This is the same Drew Tipton who issued a legally dubious order six days after Biden took office, which blocked the Biden administration’s call for a 100-day pause on deportations while the new administration was figuring out its immigration policies.
And then there’s Judge Reed O’Connor, the Fort Worth, Texas, judge known for rubber stamping nearly any legal outcome requested by Republicans. O’Connor is best known for his order in Texas v. United States, holding that Obamacare must be repealed in its entirety. That decision was so poorly reasoned that seven justices — including four Republican appointees — eventually ruled that no federal judge had any business hearing Texas’s anti-Obamacare lawsuit in the first place.
But that experience did nothing to humble the Rubber Stamp of Fort Worth. In January, O’Connor forced the US Navy to deploy personnel that it deemed unfit for deployment because they are not vaccinated for Covid-19. The Supreme Court blocked most of O’Connor’s ruling in March, with Justice Brett Kavanaugh writing that the highly partisan judge “in effect inserted [himself] into the Navy’s chain of command, overriding military commanders’ professional military judgments.””
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“The fact that all these cases — and this is just a sample of the many policy-setting lawsuits being shunted to a handful of the most conservative judges in Texas — are winding up before a few GOP-appointed judges is not a coincidence. It is a deliberate strategy, made possible by procedural rules that effectively allow litigants to select which judge will hear their lawsuits, and by all appearances, intentionally pursued by the Texas attorney general’s office.”
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“the Biden administration’s policies are routinely blocked, not because an impartial judge gives those policies a fair hearing and determines them to be illegal, but because Republican litigants can ensure that lawsuits seeking to undermine President Biden are heard by some of the most partisan judges in the country.”
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“the Texas AG’s office has not filed a single case in Austin — the city where that office is actually located — a choice that most likely can be explained by the fact that half of all federal cases filed in Austin are heard by Judge Robert Pitman, an Obama appointee.”
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“Although the Supreme Court has, at times, disagreed with the judges Texas’s Republican leaders selected to hear their lawsuits, it’s done nothing to discourage the Texas AG’s judge-shopping. Indeed, if anything, it’s encouraged it.”
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“If the courts want to solve the problem of judge-shopping, it would not be hard for them to do so. One solution is to apply the same rule to Texas’s anti-Biden litigation as the Western District of Texas now applies to patent litigation — if a party seeks an order blocking a federal policy, that case will be randomly assigned to any judge within the entire district court where it is filed, not just one in the smaller division.
Alternatively, a court could assign lawsuits seeking a nationwide injunction against a federal policy to a panel of three judges. That’s the solution Fifth Circuit Judge Gregg Costa proposed in a 2018 piece published by the Harvard Law Review’s blog.
In any event, the details of such a solution don’t matter all that much. The important thing is that litigants who are actively trying to sabotage the United States government should not be allowed to handpick judges who share their agenda. For the moment, however, the courts seem to lack the will to address this problem. Texas Republicans can shop around for the judges they want, and that seems to suit a Supreme Court dominated by Republican appointees just fine.”
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.”
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.”
A Trump judge seized control of ICE. Will the Supreme Court stop him?
https://www.vox.com/23204150/supreme-court-ice-texas-united-states-drew-tipton-immigration
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.””