The Supreme Court discovers that ending affirmative action is hard
https://www.vox.com/policy-and-politics/2022/10/31/23433183/supreme-court-affirmative-action-harvard-unc-race
Tag: courts
A Federal Judge Says Trump Knowingly Endorsed False Fraud Claims in an Election Lawsuit
“Former President Donald Trump’s reaction to the 2020 election arguably violated several federal and state laws. But any effort to prosecute him for those alleged violations would face the possibly insurmountable challenge of proving criminal intent.
Given Trump’s long history of embracing self-flattering assertions at odds with reality, it seems plausible that he sincerely believed, despite all the countervailing evidence, that the election was subverted by systematic fraud. If so, his various efforts to prevent Joe Biden from taking office would have been, from his perspective, attempts to correct a grievous wrong rather than attempts to illegally obstruct the peaceful transfer of power.
The select committee investigating the January 6, 2021, Capitol riot showed that people close to Trump recognized who had actually won the election and tried to dissuade him from embracing wild conspiracy theories to the contrary. But that testimony did not conclusively prove that Trump privately agreed with those advisers even while publicly promoting the stolen-election fantasy. A recent ruling by a federal judge in California supplies further evidence to support that interpretation, suggesting that Trump knowingly submitted false claims about election fraud in Georgia as part of a federal lawsuit.”
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“Carter ruled that the crime-fraud exception applies to four emails related to Trump and Eastman’s “knowing misrepresentation of voter fraud numbers in Georgia when seeking to overturn the election results in federal court.” Carter says the emails indicate that Trump made those claims even though he knew they had been discredited.
In a state lawsuit filed on December 4, 2021, Carter notes, “President Trump and his attorneys alleged…that Fulton County improperly counted a number of votes,” including “10,315 deceased people, 2,560 felons, and 2,423 unregistered voters.” When they decided to file a federal lawsuit challenging the election results, Trump and his lawyers “discussed incorporating by reference the voter fraud numbers alleged in the state petition.” But in a December 30 email, Eastman “relayed ‘concerns’ from President Trump’s team ‘about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.'”
The next day, Eastman elaborated on those concerns: “Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.”
Trump apparently was unfazed. “President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them,” Carter writes. “President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers ‘are true and correct’ or ‘believed to be true and correct’ to the best of his knowledge and belief.”
In other words, Carter says, “the emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public.” The emails therefore “are sufficiently related to and in furtherance of a conspiracy to defraud the United States.””
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
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 DOJ Files a Lawsuit Challenging Idaho’s Strict Abortion Ban
“Idaho’s abortion trigger ban, which was passed in 2020 and is slated to go into effect on August 25, bans all abortions outright. Rather than offering a narrow list of exceptions, as other anti-abortion laws do, Idaho’s law simply provides an affirmative legal defense for doctors arrested and charged with performing abortions. If a doctor can prove by a “preponderance of the evidence” that “[he] determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman,” or if the physician has a copy of the patient’s police report of rape, such doctors cannot be found guilty of performing an illegal abortion. However, if doctors charged with providing abortions fail to meet this standard, they can face up to five years in prison.
“Laws will exist that ask [physicians] to deprioritize the person in front of them and to act in a way that is medically harmful,” Louise King, an OB-GYN at Brigham and Women’s Hospital in Boston, told NPR, referring to new abortion restrictions taking effect across the U.S. “The penalty for not doing so will be loss of license, money loss, potentially even criminal sanctions.” Idaho’s law would likely incentivize doctors to delay care for dangerous pregnancy complications until a woman’s death is imminent.
“When a hospital determines that an abortion is the medical treatment necessary to stabilize the patient’s emergency medical condition, it is required by federal law to provide that treatment,” Garland said during a press conference on August 2, noting that Idaho’s law “would subject doctors to arrest and criminal prosecution, even if they perform an abortion to save a woman’s life.”
The DOJ is suing Idaho over this law, arguing that its blanket ban on abortions, even when the procedure is necessary to save a woman’s life or preserve her health, violates federal law. The Emergency Medical Treatment and Labor Act (EMTALA) is a 1986 federal law requiring hospitals that receive Medicare funds (which includes the vast majority of hospitals) to provide stabilizing care to their patients before discharging them. The DOJ argues that by banning abortions when they are necessary to stabilize a patient’s medical condition (such as when an abortion prevents a deadly septic infection during an incomplete miscarriage or is necessary to begin treatment for newly diagnosed cancer), Idaho’s abortion ban violates federal law and, therefore, must be struck down in accordance with the Supremacy Clause of the Constitution.”
5th Circuit upholds Texas law forbidding social media ‘censorship’ — again
https://www.politico.com/news/2022/09/16/5th-circuit-upholds-texas-law-forbidding-social-media-censorship-again-00057316
Civil rights group files first lawsuit against DeSantis over ‘illegal’ migrant flights
“The 35-page complaint filed in U.S. District Court in Boston offers one of the most detailed accounts yet of how roughly 50 migrants found themselves on two planes that unexpectedly landed in Martha’s Vineyard last week, and trauma their new lawyers say they’ve suffered from their ordeal and from being thrust into the center of the national debate over immigration.
The plaintiffs include three Venezuelan migrants who boarded the planes to Martha’s Vineyard along with their family members as well as Alianza Americas, a Chicago-based advocacy group for Latino immigrant communities.
The complaint alleges that people working for DeSantis were “trolling streets outside of a migrant shelter in Texas and other similar locales, pretending to be good Samaritans offering humanitarian assistance,” including $10 McDonalds gift cards and free hotels while making “false promises and false representations” of employment, housing and educational opportunities awaiting the migrants in either Boston or Washington, D.C.
They were also allegedly told they would receive assistance with their immigration proceedings at their final destination and were “intentionally sequestered” before their departure from Texas “so they could not discuss the arrangement” and so that the migrants “would be less likely to leave or change their minds.”
Instead, the migrants were flown to Martha’s Vineyard off the coast of Massachusetts, where “no one” on the island or “anywhere in Massachusetts” knew they were coming. They were given pamphlets “lifting language” from the state’s Refugee Resettlement Program — which the lawsuit argues none of the migrants are eligible for. And the people who recruited the migrants for the flights were “unreachable by phone” after they landed in Massachusetts.
“These immigrants, who are pursuing the proper channels for lawful immigration status in the United States, experienced cruelty akin to what they fled in their home country,” the plaintiffs argue. “Defendants manipulated them, stripped them of their dignity, deprived them of their liberty, bodily autonomy, due process, and equal protection under law, and impermissibly interfered with the federal government’s exclusive control over immigration in furtherance of an unlawful goal and a personal political agenda.””
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“DeSantis has continued to defend his actions, claiming last week that the migrants voluntarily boarded the flights and weren’t coerced. He has argued that Florida’s Republican-led Legislature approved $12 million to transport migrants out of the state, though Democrats have claimed the flights are improper uses of the allocated funds.”
Special master to Trump’s lawyers: ‘You can’t have your cake and eat it’
https://www.politico.com/news/2022/09/20/trump-special-master-judge-mar-a-lago-00057805
A 25-Year Prison Sentence for Beating Up a Dog Is Not Justice
“In early February 2019, a passerby filmed Fonseca as he punched his dog on his porch. He kicked and choked him and hit him with a piece of wood. The video was shared with Animal Care Services (ACS) of San Antonio, which questioned Fonseca, who told them that that was his way of disciplining Buddy. The dog was removed from Fonseca’s home, aided to a full recovery, and placed with a new family that presumably has a better handle on obedience training.
Fonseca, meanwhile, will spend the next 25 years in prison. While I love dogs as much as the next person, this is not justice. Fonseca’s sentence for beating up his pet—which was his property under Texas law—grossly exceeds most punishments Texas dispenses for those convicted of assaulting a human being. Defendants found guilty of an assault causing physical harm face up to a year in prison. When the alleged victim is a government official, security officer, emergency services worker, family member, or date, that punishment may be anywhere from two to 10 years behind bars. And when someone brandishes a deadly weapon and causes serious physical harm, they may land behind bars for anywhere from two to 20 years.
The city of San Antonio boasted about forcing taxpayers to house Fonseca in a steel cage for the next 25 years—for $22,751 annually, well over half a million dollars total—for losing his temper and beating an animal.”
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“So why is Fonseca, 56, getting what amounts to a life sentence for hurting his dog? While Norwood’s statement suggests this is about sending a message to other dog punchers, the government says Fonseca had felony priors for crimes of retaliation and drug possession.
It’s difficult to argue with a straight face that a years-old drug possession conviction should be used to increase his sentence for hurting Buddy. Fonseca’s consumption habits may harm himself, but invoking that offense at sentencing is not about keeping San Antonio safe. It is about securing a sentence that would otherwise be impermissible under the law. Access to that kind of leverage is one of the primary reasons law enforcement groups oppose ending the war on drugs.
And while the same cannot be said for “crimes of retaliation,” in which people threaten government workers, Fonseca had already paid his debt to society for that, just as he had for possessing drugs. It’s certainly reasonable to consider a criminal defendant’s history at sentencing—someone who assaults people over and over again, for example, should not receive the same sentence each time.
But even if you find animal cruelty to be abhorrent, as I do, a decades-long prison term is not the appropriate response to all objectionable behavior—something we often forget in the context of the U.S. system, which is utterly addicted to lengthy prison terms. Desensitized bystanders may view Fonseca’s punishment as normal. It shouldn’t be.”