Opinion | The Supreme Court Is Infected With the ‘Most Damaging’ Human Bias

“What is really different — and dangerous — about today’s justices is not partisanship, but rather a cognitive trap that Nobel Prize-winning psychologist Daniel Kahneman has called the “most damaging” of all human biases: overconfidence. Put simply, today’s justices possess a frightening degree of certainty that they can alone answer society’s most pressing problems with just the right lawyerly argument.

The roots of this certitude developed, perhaps surprisingly, from a noble place. When confronted with legal challenges to a slew of racially discriminatory laws in the mid-20th century, the justices needed the ability to proclaim those laws inconsistent with our Constitution’s one, true meaning. For good and important reasons, that is exactly what the court did.

But the power to declare the law’s meaning — and to override democratically enacted policies — is seductive. High constitutional theories such as living constitutionalism and originalism were advanced to justify judicial intervention in disputes ranging from guns to abortion and religion to the death penalty. And our overconfident Supreme Court was born.

The evidence of this overconfidence is everywhere around us, and it affects both sides of the political spectrum. One rough measure is the frequency with which the court overrules the judgment of our nation’s elected lawmakers. Whereas the court struck down less than one act of Congress per year between 1788 and 1994, the court has invalidated an average of more than three federal laws per year since then.”

“Perhaps most significantly, the court’s overconfidence problem is apparent in its opinions. In overturning the right to abortion, for example, Justice Samuel Alito’s opinion declared that the legal reasoning embraced by respected jurists such as Sandra Day O’Connor, Anthony Kennedy, and Thurgood Marshall was “far outside the bounds of any reasonable interpretation.” Never mind that the “most important historical fact” on which Alito rested his own conclusion — the number of states that banned abortion in 1868 — was riddled with historical inaccuracies.
Opinions reaching liberal results often reflect overconfidence bias, too. In Kennedy v. Louisiana, for example, the court struck down the death penalty for cases of aggravated child rape. Although the Constitution was far from clear on the matter and elected officials had reached differing views, a bare five-justice majority wrote that “in the end,” it is “our judgment” that must decide “the question of the acceptability of the death penalty.””

“Overconfidence bias has led to the court’s legitimacy crisis by unleashing the justices’ underlying partisan instincts. Humble justices can overcome those instincts by admitting uncertainty and deferring to others.”

https://www.politico.com/news/magazine/2023/08/30/supreme-court-partisanship-unpopular-00113401

Mexico’s Supreme Court decriminalizes abortion nationwide

“Mexico’s Supreme Court threw out all federal criminal penalties for abortion Wednesday, ruling that national laws prohibiting the procedure are unconstitutional and violate women’s rights in a sweeping decision that extended Latin America’s trend of widening abortion access.”

https://www.politico.com/news/2023/09/06/mexico-supreme-court-decriminalizes-abortion-nationwide-00114327

America’s Trumpiest court just put itself in charge of nuclear safety

“Judge James Ho is not a nuclear scientist, an expert in energy policy, an atomic engineer, or anyone else with any specialized knowledge whatsoever on how to store and dispose of nuclear waste.
Nevertheless, Ho and two of his far-right colleagues on the United States Court of Appeals for the Fifth Circuit just put themselves in charge of much of America’s nuclear safety regime — invalidating the power of actual nuclear policy regulators to decide how to deal with nuclear waste in the process.”

https://www.vox.com/2023/8/29/23849054/supreme-court-nuclear-safety-fifth-circuit-james-ho-radioactive-texas-commission

The Supreme Court may be running out of patience for Trump’s worst judges

“by sitting on this case, a Supreme Court dominated by conservative Republican appointees effectively let Tipton control ICE for more than a year.”

“Texas’s lawsuit was rooted in a federal statute which states that the United States “shall take into custody any alien” who commits certain immigration offenses. In effect, they argued that the word “shall” is a mandatory command that forces ICE to make mass arrests.
But this argument runs afoul of 150 years of well-settled law. As far back as Railroad Company v. Hecht (1877), the Supreme Court held that “as against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.”

One reason for this strong presumption that federal laws do not impose arrest or prosecution mandates on law enforcement is that it is often literally impossible for a law enforcement agency to arrest every single person who violates a law — imagine the massive police state that would be required, for example, to pull over every single driver who violates a traffic law.

As the Justice Department explained in a 2014 memo, “there are approximately 11.3 million undocumented aliens in the country,” but Congress has only appropriated enough resources to “remove fewer than 400,000 such aliens each year.” That means that leaders of immigration agencies like ICE necessarily must set priorities, and make choices about which deportable immigrants will be targeted and which ones will effectively be tolerated within US borders.

Indeed, as Kavanaugh writes in his Texas opinion, this ability to set priorities and to decide when not to enforce the law has been a regular feature of federal immigration law across many administrations. “For the last 27 years since” the immigration statutes at issue in Texas “were enacted in their current form,” Kavanaugh writes, “all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.””

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.”

“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 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.”

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.”

A new Supreme Court decision leaves a Trump judge in charge of the Mexican border

“Although the Biden administration left this Title 42 policy in place for many months, it eventually announced that the program must be terminated in May of 2022. But before the policy could sunset, a group of Republican state officials ran to a Trump-appointed judge — who swiftly ordered the Biden administration to leave Title 42 in place. The Trump judge’s decision (his name is Robert Summerhays) is obviously wrong. And yet it’s been in effect for most of a year now, effectively transferring the executive branch’s power to set border policy to a single judge.”

“As a practical matter, by removing this case from its calendar, but leaving its order blocking Judge Sullivan’s decision in place, the Supreme Court has likely ensured that Summerhays will dictate border policy until at least May 11, when the Covid-19 public health emergency ends — although, to be clear, the Court could end Summerhays’s reign as America’s de facto border czar at any point by lifting its stay of Sullivan’s decision.
That means that, absent further action by the Supreme Court, a Trump judge will have dictated federal border policy for nearly an entire year, despite the fact that Summerhays’ decision is poorly reasoned and rests on a rather glaring legal error.”

“The thrust of Summerhays’s Louisiana decision is that the CDC was required to undergo a lengthy process known as “notice and comment” — a process that allows the public to weigh in on policy changes but typically takes months or even years to complete — before it could terminate the Title 42 program. But the whole point of the public health statute permitting the CDC to close the border to certain foreign nationals is to allow the government to swiftly issue emergency orders to mitigate a potential public health crisis.

If the CDC had to spend months jumping through procedural hoops before it could invoke its powers under this statute, then the statute may as well not exist. Suppose that a new disease emerged in, say, Finland next month, and the CDC determined that it should close the border to Finish nationals to delay this disease’s arrival in the United States. It would be pointless to issue such an order months from now. The whole point of such an emergency public health order is that it needs to take effect right away, before the disease enters the United States.

And the Supreme Court has said explicitly that, when the government decides to terminate a policy, it need only use the same process it was required to use in order to create that policy. As the Court said in Perez v. Mortgage Bankers Association (2015), “agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.”

The Trump administration did not use notice and comment to create the Title 42 policy. (It did use the process for a later immigration regulation governing the scope of CDC’s power to close the border to foreign nationals, but not for Title 42 itself.) The CDC has since issued several other orders, also without notice and comment, that modified or extended the duration of the Title 42 program.

So Summerhays had no basis whatsoever to extend the Title 42 program on his own authority. The program should have terminated last May, when the Biden administration exercised its lawful authority to end it.”

“If the Supreme Court’s decision to effectively extend the Title 42 program for even more months after it lawfully should have ended were an isolated incident, then it would be easier to accept that this decision was motivated by something other than politics. It is much harder to do so, however, because the Arizona case is part of a much broader pattern in which the Court appears to be manipulating its procedures and its scheduling in ways that extend the life of Republican policies, while swiftly quashing Democratic plans.”

Sentencing Commission Proposes Restricting Judges’ Use of Acquitted Conduct

“The U.S. Sentencing Commission released proposed amendments to federal sentencing guidelines last week that would, among other things, limit judges’ ability to enhance defendants’ sentences based on conduct they were acquitted of by a jury.
It may sound bizarre and antithetical to what everyone is taught about the U.S. justice system, but defendants can be punished for crimes even when a jury finds them not guilty of the charges. At the sentencing phase of a trial, federal judges can enhance defendants’ sentences for conduct they were acquitted of if the judge decides it’s more likely than not—a lower standard of evidence than “beyond a reasonable doubt”—that the defendant committed those offenses. What this does in practice is raise defendants’ scores under the federal sentencing guidelines, leading to significantly longer prison sentences.”

“The Sentencing Commission’s proposal would amend the federal sentencing guidelines to limit judges from considering acquitted conduct at sentencing unless the conduct was either admitted by the defendant during a guilty plea or found beyond a reasonable doubt. The sentencing guidelines are not binding, but federal judges are required to at least consider them and explain their reasoning if they deviate from them.”

“For the past several years, bipartisan bills have been introduced in Congress to ban the use of acquitted conduct at sentencing in federal trials, but none have passed.”

“A petition is also currently pending before the Supreme Court in another case involving acquitted conduct”