“On Wednesday, the New York Court of Appeals ruled that the congressional map New York Democrats enacted back in February was a partisan gerrymander that violated the state constitution and tossed it to the curb. The decision was a huge blow to Democrats, who until recently looked like they had gained enough seats nationally in redistricting to almost eliminate the Republican bias in the House of Representatives. But with the invalidation of New York’s map, as well as Florida’s recent passage of a congressional map that heavily favors the GOP,1 the takeaways from the 2021-22 redistricting cycle are no longer so straightforward.
That’s because much of Democrats’ national redistricting advantage rested on their gerrymander in New York.”
…
“There are still congressional maps that could get struck down in court, like Florida’s. And there are still states that have yet to finalize a map — like, oh yeah, New York!
In its decision, the New York Court of Appeals endorsed the idea that a neutral special master — essentially, an expert in drawing political maps — should draw New York’s next congressional map. That would presumably lead to a relatively fair map, but the details and exact partisan breakdown are, of course, still a mystery; Democrats could still gain seats from New York’s map when all is said and done (just not as many as from their gerrymander).”
“After President Joe Biden nominated Ketanji Brown Jackson for the Supreme Court, Reason’s Damon Root noted that she “has shown admirable judgment in criminal justice cases.” One especially telling example is Jackson’s handling of people charged with possessing or sharing child pornography, who face absurdly long sentences under federal law even when they have never committed any offenses involving contact with a victim.
Questioning those sentences is politically perilous, since people tend to erroneously assume that anyone who looks at such pictures is a current or future child molester. Yet as a judge on the U.S. District Court for the District of Columbia, Jackson frequently imposed sentences below the range recommended by federal guidelines. Sen. Josh Hawley (R–Mo.), a former Missouri attorney general, thinks those decisions reveal an “alarming pattern” of “sentencing leniency for sex criminals,” whom he equates with “child predators.”
Hawley has no idea what he is talking about. His mindlessly punitive attitude elides crucial distinctions and ignores the fact that many federal judges agree with Jackson that the recommended sentences for possessing child pornography are frequently excessive.
Jackson, who is currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit, was a member of the U.S. Sentencing Commission (USSC) from 2009 to 2014. During that time, Jackson recognized that people caught with child pornography do not necessarily pose a threat to public safety. Hawley cites a hearing at which Jackson said she had mistakenly “assumed that child pornography offenders are pedophiles” and was “trying to understand this category of nonpedophiles who obtain child pornography.”
While Hawley implies that Jackson’s interest in this subject is clearly crazy, it is consistent with research that underlines the importance of a distinction that Hawley ignores in his haste to score cheap political points. As Karl Hanson, a senior research scientist at Public Safety Canada and a leading expert on sex offenders, told me more than a decade ago, “there does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending.”
Recidivism research supports that observation. A 2021 USSC study, for example, tracked 1,093 nonproduction child pornography offenders who were released from prison in 2005. Three years later, it found, 3.3 percent had been arrested for a “non-contact sex offense” (which would include possession of child pornography). Just 1.3 percent had been arrested for a “contact sex offense.” Even allowing for crimes that were not reported, these finding suggests this category of sex offenders is far less dangerous than people commonly imagine.
Hawley is completely uninterested in such findings. He even faults Jackson for referring to “less-serious child pornography offender[s],” a complaint that bizarrely implies there are no differences among such defendants that might be relevant to the punishment they receive. As far as lawmakers like Hawley are concerned, there is no such thing as an excessively severe sentence for possessing child pornography.”
…
“In fiscal year 2019, the USSC found, 59 percent of nonproduction offenders received sentences below the guideline range, compared to less than 16 percent in FY 2005. “There had been a steady increase in the percentage of sentences imposed below the applicable guideline range in non-production child pornography cases,” the USSC notes, “which indicate[s] that courts increasingly believed the sentencing scheme for such offenders was overly severe.”
In other words, the downward departures that Hawley presents as aberrant, marking Jackson as especially soft on “sex criminals,” are actually typical.”
…
“Hawley’s case against Jackson is based entirely on the unquestioned assumption that the current sentencing scheme is just and that any downward deviations from it must be inappropriately lenient. He cites one defendant, for example, who “had more than 600 images and videos and posted many on a public blog.” The guidelines recommended a sentence of 151 to 188 months, but “Judge Jackson settled on 60 months, the lowest possible sentence allowed by law.”
While a sentence of 12 to 15 years might be appropriate (or even too lenient) for someone who sexually abuses a child, Hawley thinks it’s obviously just for a defendant whose crimes consisted of nothing more than collecting and sharing images of such abuse. He likewise thinks it’s obvious that a five-year sentence for such conduct is akin to a slap on the wrist. Many people, including many federal judges, disagree.
Hawley’s sense of justice does not even comport with the views of average citizens who serve on federal juries. In a 2014 case involving a defendant who was caught with 1,500 child porn images on his computer, for example, James Gwin, a federal judge in Cleveland, asked the jurors what they thought an appropriate sentence would be. On average, they recommended a prison term of 14 months—far shorter than the mandatory minimum (five years), the sentence recommended by prosecutors (20 years), and the term indicated by federal sentencing guidelines (27 years).
Taking a cue from the jury, Gwin sentenced the defendant to five years, the minimum required by statute, which was one-quarter the term that prosecutors wanted but still four times longer than the jurors deemed fair. No doubt Hawley would consider five years insufficient in that case as well. But he does not bother to defend that position, except by lazily and ignorantly classifying all such defendants as “sex criminals” who are “preying on children.”
As a federal judge in Iowa, Mark W. Bennett likewise found that jurors did not agree with the sentences that Hawley believes are self-evidently appropriate. “Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,” Bennett told The Marshall Project’s Eli Hager in 2015, “every time—even here, in one of the most conservative parts of Iowa, where we haven’t had a ‘not guilty’ verdict in seven or eight years—they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that’s baloney.””
…
“”Protecting the most vulnerable shouldn’t be up for debate,” Hawley says. “Sending child predators to jail shouldn’t be controversial.” But the issue is not whether “child predators” should go to jail. It is whether defendants who are not “child predators” should be imprisoned for, say, 14 months (as the jurors in the Ohio case recommended), five years (the mandatory minimum in that case), or, as Hawley presumably would prefer, the 27 years recommended by federal sentencing guidelines.”
“It’s incredibly rare for a draft opinion to be leaked like this and this leak has been roundly condemned.”
…
“If the opinion is issued as-is or somewhere near it, constitutional protection of abortion access will be null and the decision of whether or not to permit abortion will return to the states.
Thirteen states have enacted laws saying that abortion is immediately illegal should Roe be overturned (Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming). Others retain (currently unenforced) pre-Roe bans that will be triggered again.
Overall, some 23 states “have laws that could be used to restrict the legal status of abortion,” according to the Guttmacher Institute. This includes nine states with “unconstitutional post-Roe restrictions that are currently blocked by courts but could be brought back into effect with a court order in Roe’s absence.”
Meanwhile, other states have passed laws guaranteeing abortion access in Roe’s absence, and others are poised to do so. According to the Guttmacher Institute, “16 states and the District of Columbia have laws that protect the right to abortion.””
“Three Republicans voted to confirm Jackson: Romney, and Sens. Lisa Murkowski of Alaska and Susan Collins of Maine. Of those three, only Romney voted last year against confirming Jackson to the U.S. Court of Appeals for the District of Columbia Circuit, often considered the second-highest court in the land.
After meeting with Jackson last month and reviewing her confirmation hearings, Romney changed his mind, saying he had “concluded that she is a well-qualified jurist and a person of honor.” It was an implicit rejection of the narrative that his fellow Republicans had pushed about the first Black woman to be put forward for the Supreme Court, who many of them portrayed during her confirmation hearings as a liberal extremist who was soft on crime.
“While I do not expect to agree with every decision she may make on the court, I believe that she more than meets the standard of excellence and integrity,” Romney said in a statement this week.
He is, at the moment, seemingly in the middle of everything. He just brokered a bipartisan deal to salvage a $10 billion coronavirus response package that had stalled amid partisan haggling, this time fully paid for by previously allocated federal funds. He is part of bipartisan efforts to rewrite the Electoral Count Act of 1887, which President Donald Trump sought to manipulate to keep himself in office after losing the 2020 election.
And Romney has appealed to Democrats to work with him on legislation to support children and families, now that the expanded child tax credit has expired and President Joe Biden’s Build Back Better safety net legislation is moribund. All of that is coming after he helped deliver what might be the crowning achievement of Biden’s first year in office: the $1 trillion infrastructure bill.
As Democrats have struggled to pull together 50 senators to advance social safety net legislation, they may find that Romney is a more persuadable bet for that pivotal 50th vote than Sen. Joe Manchin of West Virginia, the Democrat who has stymied their efforts so far.
“Whenever there is a bipartisan effort to tackle an issue, its success is nearly guaranteed,” Romney said in a recent interview. “Bipartisan efforts pass. What does not pass in a 50-50 Senate is legislation crafted entirely by one party.””
“We now know that Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, spent the weeks after the 2020 election cheerleading the Trump White House’s efforts to overturn President Joe Biden’s victory in that election. One detail we do not yet know, however, is what Justice Thomas knew about his wife’s communications, and whether he tried to use his office to protect her.
In January, the Supreme Court permitted the US House committee investigating the January 6 attacks on the Capitol to obtain hundreds of pages of White House records that may shine a light on former President Donald Trump’s efforts to thwart the peaceful transfer of power to Biden. These records may or may not contain additional evidence linking Ginni Thomas to January 6.
If Clarence Thomas had his way, the House committee and the public would never know. Thomas was the only justice to publicly dissent from the Supreme Court’s decision to let the House committee obtain these records — though he offered no explanation for why he dissented.
But here’s the thing: Yes, Thomas’s vote in this case, Trump v. Thompson, may have been an underhanded effort to protect his own wife. But his vote in Trump was entirely consistent with his record in cases where his spouse does not have a personal interest.
In more than three decades on the Supreme Court, Thomas has consistently voted to make it harder for many Americans to have their vote count; to erode institutions, like a free press, that are essential to democracy; and to dismantle nearly a century’s worth of democratically enacted laws on spurious constitutional grounds. Thomas’s opposition to democracy is not rooted in nepotism. It appears to be quite principled.
Among other things, Thomas is the only sitting justice who voted to install a Republican president in Bush v. Gore (2000) — although three other current justices were part of Republican George W. Bush’s legal team in that case. Thomas would allow Republican administrations to deactivate the entire Voting Rights Act so long as they are in power. He would strip journalists of First Amendment rights that allow them to safely provide critical coverage of government officials. And he would invalidate a long list of laws including the federal bans on child labor and on whites-only lunch counters, based on a widely rejected reading of the constitutional provision that grants Congress most of its power over the private sector.
No matter how the scandal with his wife’s texts shakes out, it’s worth remembering how the Court’s longest-serving justice would shape the world. In Clarence Thomas’s America, elections would be skewed so heavily in the Republican Party’s favor that Democrats will struggle to ever gain power. And if Democrats somehow do manage to squeak into office, Thomas would ensure that they cannot govern.”
…
“In 1960, civil rights activists aligned with Martin Luther King, Jr. ran an advertisement in the New York Times, which alleged that Alabama police used brutal tactics to suppress student protests. The ad, however, contained some minor factual errors. It misidentified the song that protesters sang at a particular demonstration, for example, and it also claimed that police had arrested King seven times, when he’d in fact only been arrested four times.
Pointing to these small errors, a Jim Crow police official won a $500,000 verdict against the Times in an Alabama court — close to $5 million in 2022 dollars. Had this verdict stood, it would have chilled journalism of all kinds, because it would have meant that any newspaper or other outlet that prints even very small factual mistakes could have been hit with a verdict large enough to bankrupt the outlet.
The New York Times decision, however, prevented this outcome by holding that the First Amendment imposes limits on defamation lawsuits. When someone speaks about a public figure and about a matter of public concern, the Court held, they cannot be held liable for making false statements unless that statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
Thomas argued in McKee v. Cosby (2019) that New York Times should be overruled. Indeed, Thomas’s opinion suggests that states should be free to define their own defamation law free of constitutional constraints. “The States are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm,” Thomas wrote.
If this approach were to prevail, state officials could once again use malicious defamation lawsuits to target journalists. Suppose, for example, that I mistakenly report that “500 people attended a rally protesting Florida Gov. Ron DeSantis,” when in fact the rally was attended by only 450 people. If states can set their own defamation laws, free of constitutional constraint, then DeSantis could sue me and Vox Media for millions, endangering our ability to continue reporting on DeSantis — and potentially bankrupting Vox in the process.”
“GOP senators who are attacking President Joe Biden’s Supreme Court pick seem weirdly unaware of how our justice system works. By focusing in part on Ketanji Brown Jackson’s former role as a criminal defense attorney, they act as if it’s wrong to provide a defense to people accused of a crime—and that if the government levels a charge, it must be right.
Hey, if you haven’t done anything wrong, you have nothing to fear—or something like that. “Like any attorney who has been in any kind of practice, they are going to have to answer for the clients they represented and the arguments they made,” Sen. Josh Hawley (R–Mo.) said in reference to Jackson and other Biden nominees. Apparently, defense attorneys should only defend choirboys.
Yet I guarantee if Hawley—known for his fist pump in support of Jan. 6 protestors at the U.S. Capitol—became the target of an overzealous prosecutor who accused him of inciting an insurrection, he’d be happy to have a competent defense attorney to advocate on his behalf. That attorney shouldn’t be forever stained for defending someone as loathsome as Hawley.”
…
“Jackson will be the nation’s first Supreme Court justice to have served as a public defender, with Thurgood Marshall being the last justice to have criminal defense experience.”
…
“A study last year by the libertarian Cato Institute found the Trump administration’s judicial appointments tilted in favor of prosecutors over those who represented individuals by a 10-to-one margin. Only 14 percent of the liberal Obama administration’s appointees defended individuals. Most judges strive to be fair, but their backgrounds color their worldview.”
“Now the West Virginia plaintiffs raise several different legal arguments against the nonexistent Clean Power Plan, several of which could permanently hobble the federal government’s power to regulate if adopted by the Court.
A brief filed by several senior red-state officials, for example, rests heavily on the “major questions” doctrine, a legal doctrine that is currently fashionable among Republican judges but that was also invented entirely by judges and has no basis in any statute or provision of the Constitution.
The major questions doctrine claims that there are fairly strict limits on federal agencies’ power to hand down particularly impactful regulations. As the Court most recently stated in NFIB v. OSHA (2022), “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” And several of the plaintiffs in West Virginia argue that the Clean Air Act isn’t sufficiently clear to justify a regulation like the Clean Power Plan.
One problem with this major questions doctrine is that it is vague. The Court has never explained what constitutes a matter of “vast economic and political significance,” or just how “clearly” Congress must “speak” to permit an agency to issue significant regulations. So, in practice, the major questions doctrine largely just functions as a veto power, allowing judges to justify blocking nearly any regulation they do not like. If a judge doesn’t like a particular regulation, they can just claim that it is too big.”
…
“Other briefs in the West Virginia case suggest that the Clean Power Plan violates the “nondelegation doctrine,” another judge-created doctrine that limits Congress’s power to delegate the power to issue binding regulations to federal agencies. This doctrine is even more vague than the major questions doctrine, and even more capable of being applied selectively to strike down regulations that a particular panel of judges do not like.
As Justice Neil Gorsuch described nondelegation in 2019, a federal law authorizing an agency to regulate must be “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain whether Congress’s guidance has been followed.” How “precise” must the law be? That’s up to judges to decide.
Notably because this doctrine outright forbids Congress from delegating certain powers to an agency, a Supreme Court decision that struck down the Clean Power Plan on nondelegation grounds could permanently strip Congress of its power to authorize the EPA to issue major regulations in the future. Indeed, depending on how broadly the Supreme Court worded such a decision, it could impose drastic new limits on every single federal agency.”
…
“the issues at stake in West Virginia can be summarized fairly concisely. It is a case about a regulation that does not exist, that never took effect, and that would have imposed obligations on the energy industry that it would have met anyway. It also involves two legal doctrines that are mentioned nowhere in the Constitution, and that have no basis in any federal statute.
And yet, West Virginia could wind up permanently hobbling the government’s ability to fight climate change.”
“For nearly a decade, the American Civil Liberties Union (ACLU) has been trying to lift some of the secrecy cloaking the operations of the federal court that oversees foreign intelligence warrants. But in November, the Supreme Court declined to consider an ACLU petition arguing that the public has a First Amendment right to see the court’s classified decisions.
The Foreign Intelligence Surveillance Court (FISC) approves electronic surveillance, physical searches, and demands for business records targeting “a foreign power or agent of a foreign power.” Agencies seeking warrants have to claim that the collection of foreign intelligence is a “significant purpose” of their investigations and follow “minimization” procedures aimed at limiting collection of information about U.S. citizens or legal residents.
Since 2013, the ACLU has been seeking the release of FISC opinions, redacted as necessary, regarding the National Security Agency’s mass collection of Americans’ telephone records and online data. That practice, which was revealed by whistleblower Edward Snowden, was based on a controversial interpretation of PATRIOT Act provisions that expired in 2015. The USA FREEDOM Act, which Congress approved that year, renewed those provisions but imposed new restrictions on bulk collection of telecommunication metadata.
Under the Foreign Intelligence Surveillance Act, the FISC is supposed to protect Americans from unjustified federal snooping. But it is hard to assess how well the court is doing that without seeing its rulings. Because those opinions are classified, the Justice Department argues, only the executive branch has the authority to release them.
When the Supreme Court declined to hear the ACLU’s petition, Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, dissented, noting that “FISC evaluates extensive surveillance programs that carry profound implications for Americans’ privacy and their rights to speak and associate freely.” Gorsuch took a dim view of the government’s argument that the courts have no authority to approve the release of FISC opinions.
“This case presents questions about the right of public access to Article III judicial proceedings of grave national importance,” he wrote. “Maybe even more fundamentally, this case involves a governmental challenge to the power of this Court to review the work of Article III judges in a subordinate court. If these matters are not worthy of our time, what is?””