Opinion | Why Is the Supreme Court Ignoring Its Own Rules?

“Amid mounting pressure for Supreme Court reform, Congress has before it one relatively straightforward option: enshrine Scalia’s “standing test” and legislate the basic requirements for who can sue over major issues of national importance.
Currently, the law concerning standing is governed by a series of Supreme Court cases that sort out which plaintiffs can bring cases in federal court in the first place. If it’s the wrong plaintiff, the case is thrown out. It also keeps federal judges out of the business of legislating under the pretense of legitimate litigation.

But so far, there is no general “standing” statute. The court has set its own standards for which cases it and lower courts can hear, pursuant to its reading of the Constitution. Congress should change that and set down its own marker. Although the current right-wing justices could decide to strike down standing legislation as impinging on their constitutional prerogatives, codification of standing law would send an important message that Congress is willing to impose reasonable checks and balances on the justices.

Standing comes from Article III of the Constitution, which gives federal judges the job description of deciding “cases.” The case law around standing amounts to the court’s working definition of the word “case”: At its core, it requires that plaintiffs have an injury that’s unique to them and not shared by the general population. Standing is central to the separation of powers because judges are supposed to only consider disputes between discrete parties that occurred in the past.

To grasp the distinction, imagine a case in which a city miscalculates the property tax liability owed by a homeowner for a single residence. She sues the government to get that particular financial injury redressed. Resolving that dispute is a job for the courts because it’s between two discrete parties and involves retroactive relief.

Legislatures, by contrast, make rules that are future-oriented and apply to the general population. If the homeowner wants the general property tax rate lowered, she must push legislators for action, not the courts. Standing holds judges within their constitutional lane by keeping sweeping policy disputes impacting the broader public out of courtrooms.

The Constitution does not define the word “case,” however, so the Supreme Court has had to fill in the blanks over the years by requiring, first and foremost, a concrete “injury” to make something a case. In cases between private parties, the injury is usually obvious — the defendant broke a contract or committed a tort that left the plaintiff worse off than they were before. In cases against the government, if the plaintiff is a corporation, it’s easy to show that a regulation or legislation causes harm to their business. But if a regular citizen wants the government to take action that affects the public — such as enforcing clean air standards or making mifepristone unavailable across the country — it’s harder to show an injury that’s particularized, or special, to the actual plaintiff bringing the suit.

For those cases, the court has long made clear that taxpayers cannot sue merely to vindicate their alleged “injury” in having their tax dollars misused by the government. That would allow angry taxpayers to turn the judiciary into the ultimate boss of the other two branches of government. Beyond that, what suffices as an injury can be hard to pin down, with the court adding a slew of adjectives to the test, requiring that an injury be imminent and not speculative or hypothetical, for example.

The governing standard, created by the Supreme Court over decades and refined at Scalia’s hand, requires three things: 1) that the plaintiff has an injury that is unique to them, 2) that the defendant caused it and 3) that if the court rules in their favor, that injury will be fixed. The aim is to find the equivalent of a “broken arm” — versus a generic policy gripe — that courts can remedy with an order.”

“The fact that the court can pick and choose which cases in which to recognize standing law, and which they prefer to overlook it, cries out for congressional intervention.”

https://www.politico.com/news/magazine/2024/06/25/supreme-court-reform-congress-00164740

The Comstock Act, the long-dead law Trump could use to ban abortion, explained

“On the one hand, Trump frequently claims credit for the Supreme Court’s decision eliminating the constitutional right to an abortion — and well he should, since the three Republicans he appointed to the Supreme Court all joined the Court’s 2022 decision permitting abortion bans. As Trump told Fox News last summer, “I did something that no one thought was possible. I got rid of Roe v. Wade.”
At the same time, Trump at least claims that he has no interest in signing new federal legislation banning abortion. When a reporter asked Trump if he would sign such a ban last month, Trump’s answer was an explicit “no.”

Behind the scenes, however, many of Trump’s closest allies tout a plan to ban abortion in all 50 states that doesn’t require any new federal legislation whatsoever.”

https://www.vox.com/abortion/351678/the-comstock-act-the-long-dead-law-trump-could-use-to-ban-abortion-explained

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/

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

Florida’s drive to scrutinize what kids read is costing tens of thousands of dollars

“Florida school districts are spending tens of thousands of dollars to comply with a new state law that’s increased scrutiny — and removal — of books in K-12 school libraries.
The new law requires all campuses to digitally chronicle each book shelved and available for students in classroom libraries. Yet many schools, tight on staff with thousands of books to inventory, are outsourcing the arduous work of making all books searchable on local websites to a third-party company. Those services are costing districts between $34,000 to $135,000 annually, according to contracts reviewed by POLITICO.”

When State Law Defines ‘Man’ And ‘Woman,’ Who Gets Left Out?

“intersex is actually an umbrella that covers four parts of human biology: chromosomes, those X’s and Y’s that carry genetic information; gonads, the organs that produce eggs or sperm; the mixture of hormones coursing through a person’s veins; and what their genitalia looks like. An intersex person might have differences in one of these areas, or all of them.”

“Not only is gender a spectrum, but actual physical, biological sex is a spectrum … And so it’s impossible to fit these bodies into a single box.”

“Wong says it’s hard to know for sure what the rate of intersex traits are because there are so many differences that could be counted and because some differences go unnoticed without genetic testing — which most Americans never do. But she and Fraser worry that these laws could mandate that kind of test, say for participation in sports.”