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.”

https://www.vox.com/scotus/24134882/supreme-court-donald-trump-immunity-calendar-delay

The Supreme Court effectively abolishes the right to mass protest in three US states

“The Supreme Court announced..that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.
Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South.

For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016.

The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock.

Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.””

https://www.vox.com/scotus/24080080/supreme-court-mckesson-doe-first-amendment-protest-black-lives-matter

A Supreme Court Justice Sounds a Warning

“If the court continues to deploy their methods of interpretation, Breyer told me, “We will have a Constitution that no one wants.” It’s a remarkable statement from a former Supreme Court justice.
The conflict between the left and right on the court is virtually impossible to bridge. Conservative justices broadly favor a theory of constitutional interpretation known as “originalism,” which purports to interpret the Constitution in accordance with the public meaning of the text when enacted, and a theory of statutory interpretation known as “textualism,” which prioritizes the text over considerations like congressional purpose and practical consequences when interpreting laws passed by Congress. Liberal justices like Breyer had long embraced theories that were flexible in nature — that allowed judges to account for a variety of inputs when answering hard legal questions.

For Breyer, the problem with conservatives’ approach goes beyond the desirability of specific outcomes in areas like abortion, affirmative action or executive power — areas in which the conservative majority has already significantly changed constitutional law. Breyer argues that the conservatives’ theories are inherently fraught, regressive and anti-democratic, and that they are just as prone to mischief and misuse as the more flexible and expansive theories that conservative judges reject.”

https://www.politico.com/news/magazine/2024/03/26/stephen-breyer-supreme-court-interview-00148948

The Supreme Court appeared lost in a massive case about free speech online

“Texas and Florida’s Republican legislatures both passed similar, but not identical, laws that would effectively seize control of content moderation at the “big three” social media platforms: Facebook, YouTube, and Twitter (the platform that Elon Musk insists on calling “X”).
These laws’ advocates are quite proud of the fact that they were enacted to prevent moderation of conservative speech online, even if the big three platforms deem some of that content (such as insurrectionist or anti-vax content) offensive or harmful. Florida Gov. Ron DeSantis (R) said his state’s law exists to fight supposedly “biased silencing” of “our freedom of speech as conservatives … by the ‘big tech’ oligarchs in Silicon Valley.” Texas Gov. Greg Abbott (R) said his state’s law targets a “dangerous movement by social media companies to silence conservative viewpoints and ideas.”

At least five justices — Chief Justice John Roberts, plus Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett — all seemed to agree that the First Amendment does not permit this kind of government takeover of social media moderation. There is a long line of Supreme Court cases, stretching back at least as far as Miami Herald v. Tornillo (1974), holding that the government may not force newspapers and the like to publish content they do not wish to publish. And these five justices appeared to believe that cases like Tornillo should also apply to social media companies.”

“the Supreme Court appears likely to reinstate the Texas and Florida laws. This is not because the Court thinks they are constitutional, and not because the Court thinks that they are constitutional with respect to the three companies that Texas and Florida actually wanted to regulate. But the ham-handedly drafted laws at issue in the NetChoice cases sweep so broadly that they may have some ancillary effects that are permitted by the First Amendment.

That’s probably the right outcome under existing law, but good Lord, it’s an unsatisfying one. This litigation has been ongoing for a very long time, and the Texas law already reached the Supreme Court once in 2022, when a majority of the Court voted to temporarily block it. A decision reinstating the laws because they are not vulnerable to a facial challenge would start that process all over again. And it would create at least some risk that, should the personnel of the Court change while this case is being relitigated, that these clearly unconstitutional laws could actually be upheld.”

https://www.vox.com/scotus/2024/2/26/24083652/supreme-court-netchoice-paxton-moody-texas-florida-first-amendment-social-media-facebook-youtube

The Supreme Court may let Texas get away with a totally unconstitutional deportation law

“For well more than a century, the federal government has enjoyed near exclusive authority over immigration policy, while states have largely been restricted to assisting in carrying out federal policies. The Supreme Court has reinforced this rule many times over many decisions, such as Truax v. Raich (1915), which said that “the authority to control immigration — to admit or exclude aliens — is vested solely in the Federal Government.”
Texas, however, now wants the Supreme Court to abandon this longstanding constitutional rule, and it thinks that the political tumblers have finally aligned in a way that would lead the Court to do just that.

Texas seeks to upend the longstanding balance of power between the federal government and the states through a law, known as SB 4, which allows Texas state courts to issue deportation orders that will be carried out by Texas state officials. The law is now before the Supreme Court in two “shadow docket” cases, known as United States v. Texas and Las Americas Immigrant Advocacy v. McCraw.”

“The reason why the federal government has historically had exclusive authority over nearly all questions of immigration policy is to prevent a single state’s mistreatment of a foreign national from damaging US relations with another nation. Indeed, Hines v. Davidowitz (1941) warned that “international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs” committed against foreign nationals.

Which isn’t to say that the United States must always treat foreign citizens with caution or deference — just that a decision that could endanger the entire nation’s relationship with a foreign state should be made by a government that represents the entire nation.”

“the current Supreme Court has only a weak attachment to following precedent, especially when a precedent is widely disliked by modern-day Republicans. So there is at least some risk that the Court’s GOP-appointed majority will allow SB 4 to go into effect.”

https://www.vox.com/scotus/2024/3/12/24097438/supreme-court-texas-deportation-sb4-unconstitutional-border-migrants

Opinion | Why Is Trump Getting Special Treatment From the Supreme Court?

“In recent years, the Roberts Court has shown greater and greater impatience with criminal defendants’ efforts to forestall punishment — even if the outcome would be cruel, needlessly painful or simply unjustified. The effect of this new hostility to delay is most sharply felt in the death penalty context. But a general hostility to foot-dragging in criminal cases is a through line in the court’s docket.
Justice Neil Gorsuch set the tone for this approach in 2019, when he complained that legal challenges to the death penalty were often used to stall or even derail execution. Courts, said Gorsuch, should “police carefully against attempts” to use constitutional challenges as tools to interpose unjustified delay.” In particular, he warned, “last-minute stays should be the extreme exception, not the norm.”

The court has since followed Gorsuch’s lead with an unsavory relish. Before 2020 and the death of Justice Ruth Bader Ginsburg, it was common for the Supreme Court to grant stays to hear legal questions that arose at the last stage of a capital case. Since then, it has only granted two such stays. In the same period, it has also vacated nine stays on death sentences imposed by lower courts.

The result has been predictable: Many of the convictions the court has let stand are plausibly described as “riddled with errors.” And in January, the court declined to hear a challenge to Alabama’s novel use of nitrogen gas to execute Kenneth Smith. Witnesses described Smith’s resulting death as horrific — extended and torturous — and not at all painless as the state promised.

The same is true of federal prosecutions. In the last half of 2020, the court stepped aside as the federal government sprinted to execute 13 people — as many as had been killed in the previous six decades. Justice Sonia Sotomayor noted that the court “repeatedly sidestepped its usual deliberative processes” to enable an “expedited spree of executions.” In its haste to see punishment done, the court waved away its usual rules.

Outside the capital punishment cases, the Supreme Court has added more and more constraints upon prisoners’ ability to challenge constitutional errors. Gorsuch and Justice Clarence Thomas in particular have urged that the longstanding right to challenge state court convictions in federal court be effectively gutted. The effect of their proposal would be to streamline even further the criminal justice process — shutting down almost all efforts to raise objections before they had even started.

All this makes the Supreme Court’s decision to hear Trump’s appeal for absolute immunity from all criminal charges even more unusual, and troubling.

Start with the weakness of Trump’s argument. There is absolutely no constitutional text, no precedent and no authority in the original debates over the Constitution’s ratification to support the idea for a former president’s absolute immunity. The argument advanced by Trump’s counsel is patently absurd. The idea that senators could impeach a president who threatened them with deadly violence and so no criminal justice process is needed, is facetious. The District of Columbia Court of Appeals rightly ridiculed it — and issued a comprehensive, tightly reasoned and unanimous opinion that presented no good cause for further review.

Trump is within his right to appeal the decision, but there’s no good reason for the Supreme Court to take it up and review it as a matter of law — especially given how thorough the D.C. Circuit was.

In fact, the court’s erstwhile concern with “unjustified delay” in criminal cases would seem to cut hard against hearing the case. It is, after all, a matter of common knowledge that the former president’s legal strategy is to run out the clock and thus prevent a trial prior to the election. Here then is a case where justice delayed may well be justice derailed.

Indeed, the grounds for the court rejecting Trump’s request to take up the immunity question appear much stronger than in Kenneth Smith’s challenge to the use of nitrogen gas. If Smith had been successful, Alabama could have found another, permissible way to kill him. If Trump’s trial is delayed enough, it may never happen. If Trump is back in the White House, he can easily quash the Justice Department’s case.

The Supreme Court’s attention, moreover, is a precision good. In the court’s 2022-23 term, the court issued just 58 decisions. Given that this scarce commodity is so infrequently used to prevent the miscarriage of criminal justice, the question must be asked: Why now? And why for this defendant?

There is no good answer. It is hard to see any legally sound reason why the Supreme Court should have decided to step in to hear Trump’s implausible and constitutionally destructive claim for absolute criminal immunity — especially when it has refused to hear so many other criminal defendants’ far more meritorious claims.”

https://www.politico.com/news/magazine/2024/02/29/trump-special-treatment-supreme-court-00144138

The Supreme Court just handed Trump an astonishing victory

“The Supreme Court ruled on Wednesday that Trump’s DC criminal trial, the one concerning his attempt to steal the 2020 presidential election, must be delayed for at least another two months. The Court already effectively delayed his trial for an additional two and a half months in an order handed down last December.
This order is a colossal victory for Trump, and could potentially allow him to evade criminal responsibility for his attempts to overthrow the 2020 election altogether. Trump’s goal is to delay his trials until after Election Day. Should he prevail in that election, he can then order the Justice Department to drop all federal charges against him.

Trump was able to secure such an order from the justices by exploiting the fact that the federal judiciary ordinarily does not allow two different courts to have jurisdiction over the same case at the same time. So, when a party to a lawsuit or criminal proceeding appeals a trial court’s decision, the trial court often loses authority over that case until the appeal is resolved.

The ostensible reason for the Court’s order putting the trial on ice is that the Court needs that time to consider a weak appeal challenging a ruling by Judge Tanya Chutkan, the judge presiding over his DC criminal trial.

According to Trump, the Constitution forbids any prosecution of a former president for any “official acts” he engaged in while in office. The implications of this argument are astounding, and Trump’s lawyers haven’t exactly tried to hide them. During one court hearing, the former president’s lawyer told a judge that Trump could not be prosecuted even if he had ordered “SEAL Team 6 to assassinate a political rival,” unless Trump were also impeached and convicted by the Senate.”

“Yet Trump has now, with Wednesday’s ruling, leveraged this ridiculous legal argument to delay his DC trial for at least four and a half months, and the delay will likely extend much longer because the Court will need time to produce an opinion. The Court will hear oral arguments in late April.

Simply put, Wednesday’s order is a disaster for anyone hoping that Trump may face trial before the November election. And, because the nominal reason for this order is to give the justices more time to decide if the president is completely above the law, this decision raises serious doubts about whether this Court can be trusted to oversee Trump-related cases in a nonpartisan manner.”

https://www.vox.com/scotus/2024/2/28/24086046/supreme-court-donald-trump-sabotage-delay-dc-trial-judge-chutkan

The Supreme Court just crushed any hope that Trump could be removed from the ballot

“The Court’s latest decision, Trump v. Anderson, took on the question of whether a provision of the 14th Amendment, which prevents former high-ranking officials who “have engaged in insurrection or rebellion against” the United States from serving in a high office again, disqualifies Trump from office. Their answer is as big a victory as Trump could have hoped for.
The five-justice majority opinion does not simply hold that Trump may seek the presidency again, despite his role in inciting the January 6 insurrection at the US Capitol. It effectively neutralizes this provision of the 14th Amendment altogether — at least as applied to the 2024 election.

All nine justices agreed that the state of Colorado, whose highest court determined that Trump was disqualified, was not allowed to make this determination. As the Court’s three Democratic appointees write in a cosigned opinion dissenting from the majority’s reasoning, states have limited authority to decide questions that “‘implicate a uniquely important national interest’ extending beyond a State’s ‘own borders.’” So the decision whether or not to disqualify Trump should have come from a federal court, or some other federal forum, not from state courts.

Fair enough, but the majority opinion (which is unsigned, and joined by all of the Court’s Republican appointees except for Justice Amy Coney Barrett) goes much further than that. It holds that the Constitution “empowers Congress” — and only Congress — to determine which individuals are disqualified from public office because they previously engaged in an insurrection.

Then it points to a single statute, a criminal law that calls for imprisonment and disqualification from office for anyone who “engages in any rebellion or insurrection against the authority of the United States or the laws thereof” as the sole existing vehicle to enforce the 14th Amendment’s anti-insurrection provision. Trump has not yet been charged with violating this law, although he has been charged with violating other federal criminal laws because of his alleged attempt to overthrow the 2020 election.

This means that any attempt to disqualify Trump is almost certainly dead. Even if special counsel Jack Smith can amend his indictment to bring charges under the insurrection statute, the Court’s decision to slow-walk Trump’s trial means that the election will most likely be over before that trial takes place.

The courts, it is now crystal clear, are not going to do much of anything to prevent an insurrectionist former president from occupying the White House once again. And the Supreme Court appears to be actively running interference on Trump’s behalf.”

https://www.vox.com/scotus/2024/3/4/24090163/supreme-court-donald-trump-anderson-ballot-disqualification-fourteenth-amendment

Frozen Embryos Are Now Children Under Alabama Law

“Frozen embryos are “children” under Alabama law, the state’s Supreme Court says. Its decision could have major implications for the future of fertility treatments in the state.
Frozen embryos are “unborn children” and “unborn children are ‘children,'” Justice Jay Mitchell wrote in the court’s main opinion. Only two of nine justices dissented from the holding that an 1872 wrongful death statute applies to the destruction of frozen embryos.

The ruling seems to represent a turn toward judicial activism among members of Alabama’s Supreme Court, which for a long time held that the law’s text could not justify reading it to include “unborn children”—let alone frozen embryos.”

“In IVF, the process of preparing the body for ovulation and harvesting eggs can be extremely taxing on women’s bodies, as well as time-consuming and expensive. After this, not all of the eggs collected may be successfully fertilized. And when viable embryos are created, it may take multiple tries at transferring one into a woman’s body before implantation is successful. For all of these reasons, it makes sense for doctors to collect myriad eggs at one time, fertilize these eggs, and then freeze the viable embryos for later transfer, rather than harvesting eggs and creating a single new embryo for each transfer. (This also helps people who may want to create embryos when they are younger to use when they are somewhat older, or who may face illness that will impede their future fertility.) And to maximize the chances of success, doctors sometimes transfer two or more embryos at once.

Treating embryos as having the full legal rights of children could imperil all of these practices.”

https://reason.com/2024/02/21/frozen-embryos-are-now-children-under-alabama-law/