The conservative wing isn’t always aligned, and that leads to some surprising outcomes.

The conservative wing isn’t always aligned, and that leads to some surprising outcomes.

The Republican Party’s man inside the Supreme Court

“The morning before the Times published its flag scoop, for example, Alito published a dissenting opinion claiming that the Consumer Financial Protection Bureau, the brainchild of Democratic Sen. Elizabeth Warren, was unconstitutional. The opinion was so poorly reasoned that Justice Clarence Thomas, ordinarily an ally of far-right causes, mocked Alito’s opinion for “winding its way through English, Colonial, and early American history” without ever connecting that history to anything that’s actually in the Constitution.”

“Alito has long been the justice most skeptical of free speech arguments — he was the sole dissenter in two Obama-era decisions establishing that even extraordinarily offensive speech is protected by the First Amendment — but this skepticism evaporates the minute a Republican claims that they are being censored. Among other things, Alito voted to let Texas’s Republican legislature seize control over content moderation at sites like Twitter and YouTube, then tried to prohibit the Biden administration from asking those same sites to voluntarily remove content from anti-vaxxers and election deniers.
Alito frequently mocks his colleagues, even fellow Republicans, when they attribute government policies to anti-Black racism. After Justice Neil Gorsuch wrote in a 2020 opinion that the states of Louisiana and Oregon allowed non-unanimous juries to convict felony defendants more than a century ago to dilute the influence of Black jurors, Alito was livid, ranting in dissent: “To add insult to injury, the Court tars Louisiana and Oregon with the charge of racism.”

Yet while Alito denies that racism might have motivated Louisiana’s Jim Crow lawmakers in the late 19th century, he brims with empathy for white plaintiffs who claim to be victims of racism. When a white firefighter alleged that he was denied a promotion because of his race, Alito was quick to tie this decision to the local mayor’s fear that he “would incur the wrath of … influential leaders of New Haven’s African-American community” if the city didn’t promote more non-white firefighters.

Empirical data shows that Alito is the most pro-prosecution justice on the Supreme Court, voting in favor of criminal defendants only 20 percent of the time. But he’s tripped over himself to protect one criminal defendant in particular: Donald Trump. An empirical analysis of the Court’s “standing” decisions — cases asking whether the federal courts have jurisdiction over a particular dispute — found that Alito rules in favor of conservative litigants 100 percent of the time, and against liberal litigants in every single case.”

“Today’s headlines are peppered with names like Aileen Cannon, the judge overseeing Trump’s stolen documents trial who has also behaved like a member of Trump’s defense team, or Matthew Kacsmaryk, the former Christian right litigator who’s been willing to rubber stamp virtually any request for a court order filed by a Republican. The United States Court of Appeals for the Fifth Circuit, the powerful federal court that oversees appeals out of Louisiana, Mississippi, and Texas, is now a bastion of Alito-like partisans who treat laws and precedents that undermine the GOP’s policy goals as mere inconveniences to be struck down or ignored.

These are the sorts of judicial appointees who would likely appeal to a second-term Trump, as the instigator of the January 6 insurrection looks to fill the bench with judges who will not interfere with his ambitions in the same way that many judges did in his first term.

Alito — a judge with no theory of the Constitution, and no insight into how judges should read ambiguous laws, beyond his driving belief that his team should always win — is the perfect fit, in other words, for what the Republican Party has become in the age of Trump.”

“Political scientist Lee Epstein examined how often each current justice votes for a defendant’s position in criminal cases. Her data, which was first reported by NBC News, shows a fairly clear partisan divide. All three of the Court’s Democrats voted with criminal defendants in over half of the cases they heard, with former public defender Ketanji Brown Jackson favoring defendants in nearly 4 out of 5 cases. All six of the Court’s Republicans, meanwhile, vote with criminal defendants less than half the time.

But there is also a great deal of variation among the Republicans. Justice Neil Gorsuch, the most libertarian of the Court’s Republican appointees, voted with criminal defendants in 45 percent of cases. Alito, who once served as the top federal prosecutor in the state of New Jersey, is the most pro-prosecution justice, voting with criminal defendants only 20 percent of the time.

Yet Alito’s distrust for criminal defense lawyers seemed to evaporate the minute the leader of his political party became a criminal defendant. At oral arguments in Trump v. United States, the case asking whether Trump is immune from prosecution for his attempt to steal the 2020 election, Alito offered a dizzying argument for why his Court should give presidents broad immunity from criminal consequences.

If an incumbent president who “loses a very close, hotly contested election” knows that they could face prosecution, Alito claimed, “will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?” Alito’s supposed concern was that a losing candidate will not “leave office peacefully” if they could be prosecuted by the incoming administration.

The problem with this argument, of course, is that Trump is a case about a president who refused to leave office peacefully. Trump even incited an insurrection at the US Capitol after he lost his reelection bid.

Similarly, in Fischer v. United States, a case asking whether January 6 insurrectionists can be charged under a statute making it a crime to obstruct an official proceeding, Alito peppered Solicitor General Elizabeth Prelogar with concerns that, if the January 6 defendants can be convicted under this law, that could someday lead to overly aggressive prosecutions of political protesters. At one point, Alito even took the side of a hypothetical heckler who starts screaming in the middle of a Supreme Court argument and is later charged with obstructing the proceeding.

Alito can also set aside his pro-prosecution instincts in cases involving right-wing causes such as gun rights. At oral arguments in United States v. Rahimi, for example, Alito was one of the only justices who appeared open to a lower court’s ruling that people subject to domestic violence restraining orders have a Second Amendment right to own a gun. Indeed, many of Alito’s questions echoed so-called men’s rights advocates, who complain that judges unthinkingly issue these restraining orders without investigating the facts of a particular case.”

“In order to bring a federal lawsuit, a plaintiff must show that they were injured in some way by the defendant they wish to sue — a requirement known as “standing.” Unikowsky looked at 10 years’ worth of Supreme Court standing cases, first classifying each case as one where a “conservative” litigant brought a lawsuit, or as one where a “progressive” litigant filed suit. He then looked at how every current justice voted.

Nearly every justice sometimes voted against their political views — Thomas, for example, voted four times that a conservative litigant lacked standing and twice voted in favor of a progressive litigant. Alito, however, was the exception. In all six cases brought by a conservative, Alito voted for the suit to move forward. Meanwhile, in all 10 cases brought by a progressive, Alito voted to deny standing.”

“Some of Alito’s standing opinions are genuinely embarrassing. The worst is his dissent in California v. Texas (2021), one of the four cases where Thomas voted to deny standing to a conservative litigant.

Texas was the third of three Supreme Court cases attempting to destroy the Affordable Care Act, President Obama’s signature legislative accomplishment. But even many high-profile Republicans found this lawsuit humiliating. The Wall Street Journal’s editorial board labeled this case the “Texas Obamacare Blunder.” Conservative policy wonk Yuval Levin wrote in the National Review that Texas “doesn’t even merit being called silly. It’s ridiculous.”

As originally drafted, Obamacare required most Americans to pay higher taxes if they did not obtain health insurance. In 2017, however, Congress eliminated this tax by zeroing it out. The Texas plaintiffs claimed that this zero-dollar tax was unconstitutional, and that the proper remedy was that the Affordable Care Act must be repealed in its entirety.

No one is allowed to bring a federal lawsuit unless they can show that they’ve been injured in some way. A zero-dollar tax obviously injures no one, because it doesn’t require anyone to pay anything. And so seven justices concluded that the Texas lawsuit must be tossed out.

Alito dissented. While it is difficult to summarize his convoluted reasoning concisely, he essentially argued that, even if the zero-dollar tax did not injure these plaintiffs, they were injured by various other provisions of Obamacare and thus had standing.

This is simply not how standing works — a litigant cannot manufacture standing to challenge one provision of federal law by claiming they are injured by another, completely different provision of federal law. As Jonathan Adler, one of the architects of a different Supreme Court suit attacking Obamacare, wrote of Alito’s opinion, “standing simply cannot work the way that Justice Alito wants it to” because, if it did, “it would become child’s play to challenge every provision of every major federal law so long as some constitutional infirmity could be located somewhere within the statute’s text.”

Alito’s Texas opinion, in other words, would allow virtually anyone to challenge any major federal law, eviscerating the requirement that someone must actually be injured by a law before they can file a federal lawsuit against it. Needless to say, Alito does not take such a blasé attitude toward standing when left-leaning litigants appear in his Court. But, when handed a lawsuit that could sabotage Obama’s legacy, Alito was willing to waive one of the most well-established checks on judicial power so that he could invalidate the keystone of that legacy.”

Trump Bungled the Trial

“a conviction was not inevitable. The legal issues were intricate and in some key respects novel, and some of them will credibly be at issue on appeal. The state’s evidence was voluminous but far from airtight, and there were weaknesses and gaps in the prosecution’s evidence as the case unfolded.

In fact, this was probably a winnable case — not in the form of an acquittal perhaps, but in the form of a hung jury that could have resulted by persuading one or more jurors that a case built around Michael Cohen — the former Trump lawyer/fixer turned convicted felon turned media personality — was simply not strong or reliable enough to warrant this watershed moment in American history. Trump also probably could have gotten off with convictions on misdemeanor counts of falsifying his company’s business records instead of felonies, but he never asked the judge to instruct the jurors on that point, perhaps fearing that the request might make him look weak — the worst offense of them all in his mind.
In life and in the law, hindsight is 20/20. In close political campaigns, analysts are often tempted to treat the eventual winner as the candidate that made the right decisions at the crucial points, and to treat the loser as having fumbled along. The same dynamic applies to legal proceedings too, so some caution is warranted. At some point, we may hear from some of the jurors themselves about what guided their decision, which would be a welcome addition to the historical record.

In the meantime, we are left to our own devices and to a tentative but unavoidable conclusion — that Trump and his lawyers bungled this trial.”

The Supreme Court decides not to trigger a second Great Depression

“The Supreme Court delivered a firm and unambiguous rebuke to some of America’s most reckless judges on Thursday, ruling those judges were wrong to declare an entire federal agency unconstitutional in a decision that threatened to trigger a second Great Depression.
In a sensible world, no judge would have taken the plaintiffs arguments in CFPB v. Community Financial Services Association seriously. Briefly, they claimed that the Constitution limits Congress’s ability to enact “perpetual funding,” meaning that the legislation funding a particular federal program does not sunset after a certain period of time.

The implications of this entirely made-up theory of the Constitution are breathtaking. As Justice Elena Kagan points out in a concurring opinion in the CFPB case, “spending that does not require periodic appropriations (whether annual or longer) accounted for nearly two-thirds of the federal budget” — and that includes popular programs like Social Security, Medicare, and Medicaid.

Nevertheless, a panel of three Trump judges on the United States Court of Appeals for the Fifth Circuit — a court dominated by reactionaries who often hand down decisions that offend even the current, very conservative Supreme Court — bought the CFPB plaintiffs’ novel theory and used it to declare the entire Consumer Financial Protection Bureau unconstitutional.

In fairness, the Fifth Circuit’s decision would not have invalidated Social Security or Medicare, but that’s because the Fifth Circuit made up some novel limits to contain its unprecedented interpretation of the Constitution. And the Fifth Circuit’s attack on the CFPB still would have had catastrophic consequences for the global economy had it actually been affirmed by the justices.

That’s because the CFPB doesn’t just regulate the banking industry. It also instructs banks on how they can comply with federal lending laws without risking legal sanction — establishing “safe harbor” practices that allow banks to avoid liability so long as they comply with them.

As a brief filed by the banking industry explains, without these safe harbors, the industry would not know how to lawfully issue loans — and if banks don’t know how to issue loans, the mortgage market could dry up overnight. Moreover, because home building, home sales, and other industries that depend on the mortgage market make up about 17 percent of the US economy, a decision invalidating the CFPB could trigger economic devastation unheard of since the Great Depression.

Thankfully, that won’t happen. Seven justices joined a majority opinion in CFPB which rejects the Fifth Circuit’s attack on the United States economy, and restates the longstanding rule governing congressional appropriations. Congress may enact any law funding a federal institution or program, so long as that law “authorizes expenditures from a specified source of public money for designated purposes.””

How the Supreme Court weaponizes its own calendar

“Even this Supreme Court, with its 6-3 Republican-appointed supermajority, is unlikely to buy Trump’s argument that former presidents enjoy broad immunity from criminal prosecution. Trump’s lawyers have not even attempted to hide the implications of this argument. When the case was heard by a lower federal court, a judge asked Trump’s lawyer if the former president was immune from prosecution even if he’d ordered “SEAL Team 6 to assassinate a political rival.”
Trump’s lawyer responded that Trump was immune, unless he were first impeached and convicted by the Senate.”

“Trump’s goal is to delay his trial for as long as possible — ideally, from his perspective, until after this November’s election.

And in this respect, the Supreme Court has already given him what he wants. So long as this case is sitting before the justices, that trial cannot happen. And the justices have repeatedly refused special prosecutor Jack Smith’s requests to decide this immunity question on an expedited schedule that would ensure that Trump’s criminal trial can still happen before November.

This decision to put Trump’s appeal on the slow track is part of a much larger pattern in this Supreme Court:

The justices do not always need to rule in favor of a conservative party on the merits in order to achieve a conservative result. They can do so simply by manipulating their own calendar.”