The Fifth Circuit just made it even more dangerous to be pregnant in a red state

“a notoriously right-wing federal appeals court attempted to rewrite a federal law that, among other things, requires most US hospitals to provide abortions to patients who are experiencing a medical emergency if a doctor determines that an abortion will stabilize the patient.
The case is Texas v. Becerra, and all three of the United States Court of Appeals for the Fifth Circuit’s judges who joined this opinion were appointed by Republicans. Two, including Kurt Engelhardt, the opinion’s author, were appointed by former President Donald Trump.

The case involves the Emergency Medical Treatment and Labor Act (EMTALA), a federal statute requiring hospitals that accept Medicare funds to provide “such treatment as may be required to stabilize the medical condition” of “any individual” who arrives at the hospital’s ER with an “emergency medical condition.” (In limited circumstances, the hospital may transfer the patient to a different facility that will provide this stabilizing treatment.)

EMTALA contains no carve-out for abortion. It simply states that, whenever any patient arrives at a Medicare-funded hospital with a medical emergency, the hospital must offer that patient whatever treatment is necessary to “stabilize the medical condition” that caused the emergency. So, if a patient’s emergency condition can only be stabilized by an abortion, federal law requires nearly all hospitals to provide that treatment. (Hospitals can opt out of EMTALA by not taking Medicare funds but, because Medicare funds health care for elderly Americans, very few hospitals do opt out.)

This federal law, moreover, also states that it overrides (or “preempts,” to use the appropriate legal term) state and local laws “to the extent that the [state law] directly conflicts with a requirement of this section.” So, in states with sweeping abortion bans that prohibit some or all medically necessary abortions, the state law must give way to EMTALA’s requirement that all patients must be offered whatever treatment is necessary to stabilize their condition.”

“when an emergency room patient presents with a life-threatening illness or condition — or, in the words of the EMTALA statute, that patient has a condition that places their health “in serious jeopardy,” that threatens “serious impairment to bodily functions,” or “serious dysfunction of any bodily organ or part” — then Medicare-funded hospitals must provide whatever treatment is necessary.

The Texas case, in other words, asks whether a state government can force a woman to die, or suffer lasting injury to her uterus or other reproductive organs, because the state’s lawmakers are so opposed to abortion that they will not permit it, even when such an abortion is required by federal law.

And yet, despite the fact that the EMTALA statute is unambiguous, and despite the fact that this case only involves patients whose life or health is threatened by a pregnancy, three Fifth Circuit judges told those patients that they have no right to potentially lifesaving medical care.”

https://www.vox.com/scotus/2024/1/3/24023889/abortion-supreme-court-emtala-fifth-circuit-texas-becerra

Was the Capitol Riot an ‘Insurrection,’ and Did Trump ‘Engage in’ It?

“Trump’s misconduct included his refusal to accept Biden’s victory, his persistent peddling of his stolen-election fantasy, his pressure on state and federal officials to embrace that fantasy, the incendiary speech he delivered to his supporters before the riot, and his failure to intervene after a couple thousand of those supporters invaded the Capitol, interrupting the congressional ratification of the election results. All of that was more than enough to conclude that Trump had egregiously violated his oath to “faithfully execute” his office and to “preserve, protect and defend the Constitution.” It was more than enough to justify his conviction for high crimes and misdemeanors in the Senate, which would have prevented him from running for president again.”

“”At oral argument,” the opinion notes, “President Trump’s counsel, while not providing a specific definition, argued that an insurrection is more than a riot but less than a rebellion. We agree that an insurrection falls along a spectrum of related conduct.” But the court does not offer “a specific definition” either: “It suffices for us to conclude that any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”
That description suggests a level of intent and coordination that seems at odds with the chaotic reality of the Capitol riot. Some rioters were members of groups, such as the Oath Keepers and the Proud Boys, that thought the use of force was justified to keep Trump in office. But even in those cases, federal prosecutors had a hard time proving a specific conspiracy to “hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power” by interrupting the electoral vote tally on January 6. And the vast majority of rioters seem to have acted spontaneously, with no clear goal in mind other than expressing their outrage at an election outcome they believed was the product of massive fraud.

They believed that, of course, because that is what Trump told them. But to the extent that Trump bears moral and political responsibility for riling them up with his phony grievance (which he does), his culpability hinges on the assumption that the rioters acted impulsively and emotionally in the heat of the moment. That understanding is hard to reconcile with the Colorado Supreme Court’s premise that Trump’s hotheaded supporters acted in concert with the intent of forcibly preventing “a peaceful transfer of power.”

Nor is it clear that Trump “engaged in” the “insurrection” that the court perceives. After reviewing dictionary definitions and the views of Henry Stanbery, the U.S. attorney general when the 14th Amendment was debated, the majority concludes that “‘engaged in’ requires ‘an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.'”

Trump’s pre-riot speech was reckless because it was foreseeable that at least some people in his audience would be moved to go beyond peaceful protest. Some 2,000 of the 50,000 or so supporters he addressed that day (around 4 percent) participated in the assault on the Capitol. But that does not necessarily mean Trump intended that result. In concluding that he did, the court interprets Trump’s demand that his supporters “fight like hell” to “save our democracy” literally rather than figuratively. It also notes that he repeatedly urged them to march toward the Capitol. As the court sees it, that means Trump “literally exhorted his supporters to fight at the Capitol.”

The justices eventually concede that Trump, who never explicitly called for violence, said his supporters would be “marching to the Capitol building to peacefully and patriotically make your voices heard.” But they discount that phrasing as cover for Trump’s actual intent. Given Trump’s emphasis on the necessity of “fight[ing] like hell” to avert the disaster that would result if Biden were allowed to take office, they say, the implicit message was that the use of force was justified. In support of that conclusion, the court cites Chapman University sociologist Peter Simi, who testified that “Trump’s speech took place in the context of a pattern of Trump’s knowing ‘encouragement and promotion of violence,'” which he accomplished by “develop[ing] and deploy[ing] a shared coded language with his violent supporters.”

That seems like a pretty speculative basis for concluding that Trump intentionally encouraged his supporters to attack the Capitol. Given what we know about Trump, it is perfectly plausible that, unlike any reasonably prudent person, he was heedless of the danger that his words posed in this context.”

“The Colorado Supreme Court’s belief that Trump intentionally caused a riot also figures in its rejection of his argument that his January 6 speech was protected by the First Amendment. The relevant standard here comes from the U.S. Supreme Court’s 1969 decision in Brandenburg v. Ohio, which involved a Klansman who was convicted of promoting terrorism and criminal syndicalism. Under Brandenburg, even advocacy of illegal conduct is constitutionally protected unless it is both “directed” at inciting “imminent lawless action” and “likely” to do so.

The Colorado Supreme Court quotes the 6th Circuit’s elucidation of that test in the 2015 case Bible Believers v. Wayne County: “The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.”

It is hard to deny that Trump’s speech satisfies the third prong, which is why it provoked so much well-deserved criticism and rightly figured in his impeachment. But what about the other two prongs?

Applying the first prong, the court cites “the general atmosphere of political violence that President Trump created before January 6” as well as the “coded language” of his speech that day. As evidence of the “specific intent” required by the second prong, it notes that “federal agencies that President Trump oversaw identified threats of violence ahead of January 6.” It also cites what it takes to be the implicit message of Trump’s speech and his reluctance to intervene after the riot started.

“President Trump intended that his speech would result in the use of violence or lawless action on January 6 to prevent the peaceful transfer of power,” the court says. “Despite his knowledge of the anger that he had instigated, his calls to arms, his awareness of the threats of violence that had been made leading up to January 6, and the obvious fact that many in the crowd were angry and armed, President Trump told his riled-up supporters to walk down to the Capitol and fight. He then stood back and let the fighting happen, despite having the ability and authority to stop it (with his words or by calling in the military), thereby confirming that this violence was what he intended.””

https://reason.com/2023/12/21/was-the-capitol-riot-an-insurrection-and-did-trump-engage-in-it/

The Supreme Court arguments for (and against) removing Trump from the ballot, explained

“The case turns on a previously obscure provision of the 14th Amendment, which provides that anyone who previously held a high office requiring them to swear an oath supporting the Constitution is forbidden from holding a similar office if they “have engaged in insurrection or rebellion” against that Constitution.
The Colorado Supreme Court concluded that Trump engaged in an “insurrection” because he spent months falsely claiming that the 2020 election was “rigged.” He encouraged his supporters to “fight,” suggesting that Democrats would “fight to the death” if the shoe were on the other foot. And Trump named then-Vice President Mike Pence as someone who should be targeted by the pro-Trump mob that invaded the Capitol.

But there is precious little case law laying out what this provision of the Constitution means, or defining key terms like “insurrection” or what it means to “engage in” such an attack on the United States. Since the period immediately following the Civil War, there has not been much litigation involving disloyal public officials who joined an insurrection against the very system of government they swore to defend. So courts asked to interpret the 14th Amendment’s Insurrection Clause — including the Supreme Court — must do so without the ordinary guideposts judges look to when reading the Constitution.”

“In addition to their legal arguments, Colorado Republicans also make a political argument for keeping Trump on the ballot — removing him would deny voters “the ability to choose their Chief Executive through the electoral process.” This purely political argument has garnered sympathy from many observers, including outlets such as the New York Times.

This final argument, if taken seriously by a majority of the justices, could render the 14th Amendment’s Insurrection Clause a dead letter — because it would prevent it from operating in the one circumstance when such a constitutional provision is needed.”

“allowing insurrectionists with significant public support to stand for office would defeat the whole point of the Constitution’s Insurrection Clause.
Unpopular insurrectionists will never get elected to office in the first place because they are unpopular.”

“The Colorado GOP does raise one fairly strong legal argument that supports deferring the question of whether Trump should be removed from the 2024 ballot until, at least, after he is convicted of a crime or otherwise determined to have engaged in insurrection by a federal trial court.

In Ownbey v. Morgan (1921), a case that admittedly had nothing to do with the Insurrection Clause, the Supreme Court said that “it cannot rightly be said that the Fourteenth Amendment furnishes a universal and self-executing remedy.” This means that private litigants ordinarily cannot sue to enforce this amendment, absent some state or federal statute authorizing such lawsuits.”

“the Colorado Supreme Court determined that a state statute permitting voters to challenge candidates’ eligibility to run for office does permit suits seeking to enforce the Insurrection Clause, and states often have the power to pass laws permitting their own courts to enforce the Constitution.”

“as the Colorado GOP warns the justices, the Colorado Supreme Court’s decision also means that “individual litigants, state courts, and secretaries of state in all 50 states plus the District of Columbia have authority” to determine which candidates must be removed from the ballot for violating the 14th Amendment. And, while there is no reason to believe that Colorado’s judges acted in bad faith when they removed Trump, it’s not hard to imagine what could happen in states with less responsible judges if the Colorado decision is allowed to stand.

Imagine, for example, that the Florida Supreme Court — which is made up entirely of Republican appointees, most of whom were appointed by far-right Gov. Ron DeSantis — were to invent some completely fabricated reason to accuse President Joe Biden of engaging in an insurrection, and then imagine that they invoked this pretextual reason to remove Biden from the 2024 ballot.”

“Trump wasn’t exactly denied a trial altogether before he was removed from Colorado’s ballot. But, as Justice Carlos Samour wrote in a dissenting opinion, the process Colorado’s courts used to determine that Trump engaged in an insurrection was unusually truncated. It lacked “basic discovery, the ability to subpoena documents and compel witnesses, [and] workable timeframes to adequately investigate and develop defenses.” And, as Justice Maria Berkenkotter wrote in her dissent, the Colorado courts relied on a process that “up until now has been limited to challenges involving relatively straightforward issues, like whether a candidate meets a residency requirement for a school board election.”

In any event, the Colorado GOP takes its argument that the 14th Amendment is not self-executing too far, suggesting that Trump cannot be disqualified unless he is convicted in a federal court specifically of violating a criminal statute that uses the magic word “insurrection.” But they raise valid points against allowing each state to have the final word on who can run for president, and against allowing Trump to be removed based on the limited process he received in the Colorado system.”

https://www.vox.com/scotus/2024/1/3/24022580/supreme-court-donald-trump-ballot-insurrection-fourteenth-amendment-colorado-anderson

Want To Challenge Your Speed Camera Ticket? That’ll Be $100.

“Motorists caught speeding in Peninsula, Ohio, have options: They can pay with Visa, Mastercard, Discover, or PayPal. But if they want to dispute a ticket, the flexibility ends.
Before vehicle owners can appear in municipal court to defend themselves, they must pay a $100 “filing fee.” No exceptions. No discounts. No deferrals. It’s the cost of admission—roughly the same as a one-day ticket to Disneyland.

Many drivers skip the expense and plead guilty, which works well for Peninsula. In just the first five months after launching a handheld photo radar program in April 2023, this village south of Cleveland generated 8,900 citations and $560,000 in revenue. That’s an average of about 1,800 citations and $110,000 in revenue per month.”

https://reason.com/2023/12/05/want-to-challenge-your-speed-camera-ticket-thatll-be-100/

Hunter Biden’s Multiplying Charges Exemplify a Profound Threat to Trial by Jury

“contrary to the impression left by movies and TV shows, criminal cases almost never go to trial. In the United States, nearly 98 percent of criminal convictions result from guilty pleas”

https://reason.com/2023/12/13/the-multiplying-charges-against-hunter-biden-exemplify-a-profound-threat-to-trial-by-jury/

The Supreme Court seeks a middle path between following the law and blowing up the government

“Few figures in American history, however, have less credibility to speak about the importance of the right to a jury trial, as Gorsuch’s very first major Supreme Court opinion was a direct attack on that right. In Epic Systems v. Lewis (2018), Gorsuch wrote for the Court’s Republican majority that employers have a right to force their employees to sign away their right to sue them in any court at all — including courts that protect the right to a jury trial — and to shunt those cases into private arbitration.
Indeed, the Court’s GOP-appointed majority has long been vocal advocates of forced arbitration, dismissing arguments that these privatized forums violate the Seventh Amendment, and often mangling the text of federal statutes to maximize employers’ power to avoid jury trials.

So why is the Court’s right flank suddenly so concerned that unscrupulous hedge fund managers might not get to present their case to a jury? The most likely answer is that the six Republican appointees have sought to centralize power within the Article III courts, often at the expense of federal agencies supervised by the president. The Supreme Court’s recent “major questions doctrine” cases, for example, have given the justices a virtually unlimited veto power over any policy enacted by a federal agency that a majority of the Court does not like.

Chief Justice John Roberts, in particular, was quite explicit during the Jarkesy argument about his belief that federal agencies are too powerful, and that much of this power should be transferred to him and his fellow Article III judges. The Atlas Roofing decision, he noted, is 50 years old, and he argued that the role of federal agencies has become “enormously more significant” in that time.

Roberts also characterized administrative law judges — who, again, are in-house at various federal agencies, but also enjoy robust job protections to insulate them from political pressure — as the executive branch’s “own employees.” His implication appeared to be that Jarkesy’s Seventh Amendment argument is as good of a reason as any to shift power away from these administrative law judges, and towards the Article III branch that Roberts leads.

That said, Roberts and some of his fellow Republican appointees also appeared to cast about for a way to rule in Jarkesy’s favor, without completely upending the government’s ability to resolve cases in administrative forums.

The federal government employs nearly 2,000 administrative law judges, in addition to about 650 non-Article III judges who hear immigration cases. Meanwhile, there are fewer than 900 Article III judges authorized by law. So, if the United States suddenly loses its ability to bring cases in administrative forums, the entire federal system will lose the overwhelming majority of its capacity to adjudicate cases — forcing litigants to wait years before an Article III judge has the time to take up their case.”

“Meanwhile, both Gorsuch and Justice Brett Kavanaugh suggested drawing a line between cases where the government seeks to impose a “penalty” on a defendant, and cases about whether a particular individual is entitled to a federal benefit. That would require most SEC enforcement actions to be heard by an Article III court that can conduct a jury trial, but would also allow the Social Security Administration’s more than 1,600 administrative law judges to continue to determine who is entitled to federal benefits.

In any event, the bottom line is that Jarkesy appears likely to prevail. And the Court’s GOP-appointed majority appears likely to send his case to an Article III court where Jarkesy can receive a jury trial. The Seventh Amendment, it appears, protects hedge fund managers, but not workers.

But, while that result is unlikely to satisfy anyone who does not share Neil Gorsuch’s political views, it would also be a relatively minor attack on the federal government’s ability to enforce the law — and a much less severe attack on US state capacity than the Fifth Circuit’s decision.”

https://www.vox.com/scotus/2023/11/29/23980966/supreme-court-sec-jarkesy-administrative-law-judges

Texas Supreme Court rules against woman who sought abortion hours after she says she’ll travel out of state

“”If Kate can’t get an abortion in Texas, who can? Kate’s case is proof that exceptions don’t work, and it’s dangerous to be pregnant in any state with an abortion ban,” Duane said.”

https://www.yahoo.com/news/texas-woman-sought-court-order-233120702.html

The Supreme Court’s new ethics code is a joke

“The code, in other words, codifies the same rules that Justice Clarence Thomas followed when he spent nine days vacationing on Republican billionaire Harlan Crow’s superyacht — a trip which “could have exceeded $500,000” in value, according to ProPublica. The code also locks in place the same rules Thomas followed during his frequent summer trips to Crow’s private resort in the Adirondacks. The code “represents a codification of principles” that Thomas followed when he bought a $267,230 RV that was underwritten by Anthony Welters, another of the many wealthy individuals who have lavished gifts on Thomas since he joined the Court.”

“The new code also seeks to “dispel” any impression that the justices “regard themselves as unrestricted by any ethics rules,” which may have been created when Justice Samuel Alito accepted a $100,000 private jet flight to Alaska from Republican billionaire Paul Singer, where Alito stayed in a fishing lodge that ordinarily charges more than $1,000 a day to guests, and where Alito was reportedly served wine that costs more than $1,000 a bottle.
The new code, which, again, by its own explicit terms largely seeks to put in writing the same rules that these justices followed when they accepted luxurious gifts from major Republican Party donors, is also almost entirely unenforceable. If a litigant, or one of the more than 300 million Americans governed by the Supreme Court, believes that one of the justices is violating the newly written-down rules, there is no mechanism to enforce those rules against a justice.”

“The new code imposes no meaningful obligations on the justices. It explicitly disclaims any desire to do so. It accuses the Court’s critics of “misunderstanding” the justices’ past behavior, when it really isn’t hard to understand the ethical implications of taking a $500,000 gift from a major political donor.”

https://www.vox.com/scotus/2023/11/14/23960027/supreme-court-new-ethics-code-clarence-thomas-unenforceable

The Supreme Court dismantled Roe. States are restoring it one by one.

“When the right to abortion is on the ballot, it wins. It wins in red states that voted for President Donald Trump. It wins in counties President Joe Biden lost by more than 20 points. It wins when popular Republican officials campaign for it and when they ignore it. And it wins even when the outcome has no immediate effect on abortion access.

Support for abortion cuts across party lines, performing significantly better at the ballot box than Biden and other Democrats. In fact, abortion outruns Biden most in the most Republican areas”

https://www.politico.com/news/2023/11/09/abortion-rights-elections-red-states-00126225

The Supreme Court confronts its own failure in an appalling case about guns

“The core question in Rahimi, in other words, is whether the Court will back away from its decision in Bruen, which has led to all kinds of disastrous results, including the Fifth Circuit’s decision holding that abusive husbands have a right to keep a weapon they could use to murder their wives.”

“Bruen held that, in order to justify nearly any law regulating firearms, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” This means that lawyers defending even the most widely accepted gun laws, such as the federal ban on gun possession by domestic abusers, must show that “analogous regulations” also existed and were accepted when the Constitution was framed — particularly if the law addresses “a general societal problem that has persisted since the 18th century.” If they cannot, the challenged gun law must be struck down.
This places an extraordinarily high burden on any lawyer defending a gun law. When the historical record is ambiguous or indeterminate, the government loses, and a gun law is effectively repealed by the courts. And lawyers defending gun laws face an especially heavy burden when they defend laws that seek to address a problem, like domestic abuse, that has existed for centuries.

Almost immediately, the Bruen decision sparked mass confusion in the federal courts. Judges have reached contradictory results in a multitude of post-Bruen challenges to gun laws. Courts applying Bruen have struck laws prohibiting guns in places of worship, requiring guns to have serial numbers that allow them to be tracked by law enforcement, and prohibiting underage ownership of guns — all claiming that these laws are inconsistent with “historical tradition.””

“On the day Bruen was decided, Justice Stephen Breyer warned in a dissenting opinion that, by requiring judges to dive into often-vague and indeterminate historical records, Bruen “imposes a task on the lower courts that judges cannot easily accomplish.” “Courts are, after all, staffed by lawyers, not historians,” Breyer continued. And “legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems.””

“One fundamental problem with Bruen, as Judge Miller’s critique of the decision emphasizes, is that the six Republican-appointed justices who joined it appear to have no understanding of why changes in American society over the past 250 years make it difficult or impossible to draw meaningful analogies between modern gun laws and those that existed when the Constitution was written.”

https://www.vox.com/scotus/2023/10/24/23914235/supreme-court-domestic-violence-abusers-gun-policy-us-rahimi