Just how much is Trump’s judiciary sabotaging the Biden presidency?

“No one has ever elected Matthew Kacsmaryk to anything.

Kacsmaryk, whom former President Donald Trump appointed to the federal bench in 2019, was previously a lawyer for a Christian right law firm. He once claimed being transgender is a “mental disorder” and that gay people are “disordered.” He’s also one of the most powerful immigration officials in the country, having successfully wrested control of much of America’s border policy away from the man Americans elected president in 2020.

With the Supreme Court’s blessing, Kacsmaryk ordered President Joe Biden’s administration to reinstate Trump’s “Remain in Mexico” policy, which requires many asylum seekers who arrive at the United States’ southern border to stay in Mexico while they await a hearing.

Even if you ignore the moral implications of reinstating such a policy, there are good reasons to doubt that the policy is a good use of America’s limited border security resources. And Kacsmaryk’s decision is also unlawful for numerous reasons.

One of the most important reasons is that it upends the balance of power between the president and unelected judges. Reinstating the Remain in Mexico program requires the Mexican government’s cooperation — which means that Kacsmaryk ordered the United States to change its diplomatic stance toward Mexico. And that’s despite decades of warnings from the Supreme Court that judges should be “particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.”

Kacsmaryk’s decision, and the Supreme Court’s decision to stand with Kacsmaryk against President Joe Biden, is one of the most dramatic examples of the Republican-controlled federal judiciary’s many conflicts with America’s Democratic president. But it’s hardly an isolated incident.

In just four years as president, Trump remade the federal judiciary — all with a big assist from a Senate Republican leader willing to break any norm in order to ensure GOP control of the courts. Trump appointed a third of the Supreme Court and nearly a third of all active appeals court judges. He also peppered federal trial courts with conservative activists like Kacsmaryk, who are eager to overturn some of the most fundamental assumptions of US law.

Nearly one year into Biden’s time in office, the result hasn’t exactly been a bloodbath for his policies — in contrast to the seemingly never-ending array of lawsuits seeking to repeal Obamacare, no federal judge has yet tried to repeal Biden’s major legislative accomplishments such as the American Rescue Plan or the Infrastructure Investment and Jobs Act. But in two areas in particular, immigration and public health, the courts have been unusually aggressive.”

“if the Supreme Court wanted lower-court judges to stop ignoring precedents that permit President Biden to govern, it could intervene to stop them from doing so. Instead, it has rewarded many of the most aggressive conservative innovators within the judiciary.”

Don’t be fooled: The Supreme Court’s Texas abortion decision is a big defeat for Roe v. Wade

“On first glance, it would be easy to see the Supreme Court’s decision Friday in Whole Woman’s Health v. Jackson as a win for abortion rights. It would also be wrong.

More than two months after the Supreme Court allowed SB 8, a Texas law that effectively bans abortions after the sixth week of pregnancy, to take effect, the Court followed it up with a 5-4 decision that is an even larger defeat to proponents of abortion rights, and a victory to anti-abortion lawmakers in Texas.

The specific question in Jackson is whether abortion providers are allowed to bring a federal lawsuit seeking to block SB 8. Although Justice Neil Gorsuch’s majority opinion technically answers this question in the affirmative, it permits suits only against state health officials who play a very minimal role in enforcing the law. It does not allow suits to proceed against the Texas state officials who play the biggest role in enforcing SB 8: state court judges and clerks.

The upshot of this decision is that, while the abortion provider plaintiffs in Jackson may be able to get a federal court order declaring that SB 8 is unconstitutional, the only real relief they are likely to win is an order preventing a few state health officials from carrying out the minor role they play in enforcing the law. The most important provisions of the law — the ones that effectively prevent anyone from performing an abortion after the sixth week of pregnancy by threatening them with financial ruin if they do so — will most likely remain in effect.

Though procedural sophistry, Gorsuch and the other justices who joined his opinion engineered the outcome Texas wanted. And the implications of this case could stretch far beyond abortion cases.

SB 8 was written for the very purpose of evading judicial review, and Jackson largely blesses that tactic. As Justice Sonia Sotomayor writes in dissent, Gorsuch’s opinion “leaves all manner of constitutional rights more vulnerable than ever before.” If states can use an SB 8-style law to nullify the constitutional right to an abortion, they could very well use it to nullify any other constitutional right.”

“Normally, private plaintiffs can’t sue a state directly in federal court — but they can sue the state official tasked with enforcing an unconstitutional law. SB 8 seeks to exploit this structure by forbidding any “officer or employee of a state or local governmental entity” in Texas from enforcing the state’s anti-abortion law. Instead, the law may only be enforced through private lawsuits.

Such lawsuits may be filed by “any person” who is not an employee of the state against anyone who either performs an abortion or who “aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in these lawsuits receive a bounty of at least $10,000, which must be paid by the defendant — and there is no upper limit on this bounty.

The idea behind SB 8 is that no one can challenge the law in federal court because there is no state official who can enforce it. And thus there is no proper defendant.”

“A federal court, in other words, isn’t allowed to block the most important parts of SB 8 — the part allowing “any person” to seek a bounty from an abortion provider, and the part allowing state court judges to order providers to pay such a bounty. The Texas legislature, moreover, could potentially shut down federal lawsuits challenging SB 8 altogether, simply by repealing the provision of state law that permits health officials to bring enforcement proceedings against people who violate it.

So the bottom line is that Texas won. The state devised a scheme to evade judicial review, and five justices just blessed that scheme.”

The stakes in the Supreme Court’s vaccine cases are even bigger than they seem

“Governments make choices that shape millions of lives. Workers and businesses are taxed to provide health care to the elderly and to the least fortunate. Men and women are incarcerated or even killed for crimes defined by the state. Wars are fought. Refugees are given a place of safety or turned away at the border.

If you believe in democracy, such power is justified only because it flows from the will of the people. “Governments,” the United States declared in its formational document, “are instituted among Men, deriving their just powers from the consent of the governed.” The premise of any democratic republic is that there are some decisions that must be made collectively, and that these decisions are legitimate because they are made by elected officials.

On Friday, the Supreme Court will hear two sets of cases that test the justices’ commitment to the idea that the right to govern flows from the will of the people, and both involve challenges to President Joe Biden’s efforts to encourage vaccination against Covid-19.

The first bloc of cases, which is likely to be consolidated under the case name Biden v. Missouri, challenges a federal rule requiring nearly all health care workers to become vaccinated. The second bloc, which is likely to be consolidated under the name NFIB v. Department of Labor, challenges a rule requiring workers at companies with 100 or more employees to either get vaccinated or be regularly tested for Covid-19.

Even on their faces, the stakes in Missouri and NFIB are enormous. These cases ask what steps the United States can realistically take to quell the spread of a disease that has already killed more than 820,000 Americans. But the full stakes in these cases are even higher.

Someone has to decide how the United States will respond to a global pandemic, and the Biden administration’s argument essentially boils down to a case for democracy. An elected Congress authorized the executive branch to take certain steps to encourage vaccination, and Joe Biden was elected to lead that branch. So that means that President Biden and his duly appointed subordinates get to make difficult decisions, even if some Americans don’t like those decisions.

The parties challenging Biden’s policies, meanwhile, effectively argue that the Supreme Court should decide America’s vaccination policy. They couch their arguments in arcane legal doctrines, with weighty-sounding names like the “Major Questions Doctrine” or “nondelegation,” But these doctrines are vague — so vague that they are easily manipulated by justices who disagree with the Biden administration’s policies and wish to conceal their desire to halt those policies behind a patina of legal reasoning.

I don’t want to minimize the significance of the policies at issue in Missouri and NFIB. In creating these policies, the Biden administration determined that its fundamental duty to preserve human life overrides many individuals’ interest in refusing medical treatment. This is a weighty decision, placing the collective health of the nation before the individual liberties of many of its citizens.

But the Biden administration estimates that its two vaccine regulations will save hundreds or even thousands of lives every month. And it decided that saving those lives is worth requiring some Americans to do something they don’t want to do. This decision is no more significant than many of the decisions governments make — to send troops to a distant conflict, to tax and to spend that money in service of a nation’s people, to save lives, or to take them. This is what governments do.

Again, someone needs to decide what America’s vaccination policy will be. It will either be made by the man chosen by the American people, or the Supreme Court will wrest that decision away from him and give it to themselves.”

South Dakota’s Governor Succeeds in Blocking Voter-Approved Marijuana Legalization

“South Dakota voters made history last November by simultaneously approving ballot initiatives aimed at legalizing recreational and medical use of marijuana. The success of the broader initiative, Amendment A, was especially striking because it prevailed by an eight-point margin in a state that is mostly Republican and largely conservative. But thanks to a legal challenge backed by Republican Gov. Kristi Noem, Amendment A was almost immediately tied up in litigation, and last Wednesday the South Dakota Supreme Court definitively overturned it, ruling that the measure violated the “single subject” rule for constitutional amendments.”

“State legislators proved more willing to set aside their personal views on marijuana in deference to the policy preferred by voters. “In my mind, [legalization is] inevitable because we’ve already seen the support from the public,” Senate Majority Leader Gary Cammack said after Klinger’s decision. “I didn’t vote for recreational marijuana, but my constituents did,” added Greg Jamison, another Republican senator. “Rarely do we get a chance to enact a law and not for sure know what our constituents think of that. Here we know.”

In response to such comments from members of her own party, Noem threatened to veto any legalization bill the legislature might decide to pass. Noem later suggested she might be open to decriminalizing low-level marijuana possession. Possessing two ounces or less is currently a misdemeanor punishable by up to a year in jail and a maximum $2,000 fine.”

Biden’s Plan B for the climate crisis, explained

“If Congress fails to enshrine key climate policies as federal laws, Biden’s Plan B includes executive orders and major regulations from the Environmental Protection Agency, the New York Times reported.
The problem is that executive actions aren’t an ideal substitute for federal laws, and may last only as long as Biden’s presidency. EPA regulation also “tends to lag [behind] the technological realities,” meaning it may only modestly nudge the economy in a new direction, Jesse Jenkins, an environmental engineering professor at Princeton University, told Vox. It’s also vulnerable to intervention by the Supreme Court.”

The Supreme Court finally decides the religious right asked for too much

“under Gorsuch’s approach, the state must exempt religious objectors because it has a single exemption — again, for people who could suffer serious health consequences if they receive the vaccine.

Had Gorsuch’s approach prevailed, it’s likely that religious objectors would be exempted from nearly any law. Speed limits, for example, typically exempt police, ambulances, and other emergency vehicles responding to an emergency. Even laws banning homicide typically contain exemptions for self-defense. (Although, in fairness, Gorsuch concedes that a religious exemption is inappropriate when the “challenged law serves a compelling interest and represents the least restrictive means for doing so.” So Gorsuch probably would not allow religiously motivated murder.)

In any event, Gorsuch’s view did not prevail — though it is far from clear that it will not receive five votes in a future case. Though Justice Barrett joined a majority of the Court in allowing Maine’s vaccine mandate to take effect, her opinion (which is joined by Justice Brett Kavanaugh) clarifies that she did so on exceedingly narrow grounds.

Essentially, Barrett argues that the Supreme Court has discretion to decide which cases it wants to hear. And her opinion suggests that she would exercise her discretion to not hear this particular case.”

“For now, at least, the bottom line is that Maine’s vaccine mandate is in effect. Public-facing health care workers will need to receive the Covid-19 vaccine unless they have a medical excuse.”

“it’s not a huge loss for the religious right. But the decision in Does suggests that there is, at least, some limit to the Court’s willingness to carve out legal exemptions for religious conservatives.”

The Supreme Court’s Conservative Revolution Is Already Happening

“in many ways, the Supreme Court’s conservative revolution is already here: The court hasn’t been this ideologically tilted in almost 100 years. Capturing the full breadth of this shift is difficult because the metrics we use to measure the court’s ideology are driven by hard-to-track factors like the types of cases the court takes up. For the first time in decades, too, a single justice isn’t holding the reins. The conservative justices can now assemble a majority more easily, giving them the power to push the court even further right.

That power may take some adjusting to — for both the public and the justices. The past term showed that there will still be plenty of room for disagreement on the precise path forward. One example was a high-profile religious liberty case where the most conservative justices took their fellow GOP appointees to task for issuing a ruling they saw as too timid. And the main priority of the liberal justices, now distinctly in the minority, appeared to be damage control. Moreover, some big decisions were taking place outside the public eye.”

“According to the Supreme Court Database, 60 percent of all decisions last term went in a conservative direction, as well as 59 percent of close decisions — which is to say, decisions in which the minority side had three or four votes. That makes the court’s previous term the most conservative term since 2008”

“Increasingly, too, the justices are making big decisions without fully explaining their reasoning, through cases that have emerged through the court’s “shadow docket,” where the justices are asked to rule quickly, without the extensive legal briefing or oral arguments that happen in normal Supreme Court cases. Sometimes, these orders are only one sentence long. And the justices don’t have to say how they voted or why.

Normally, this swiftness and secrecy isn’t especially newsworthy because the rulings that come out of the shadow docket just aren’t that significant. But that has changed in recent years. Some of the court’s biggest rulings in the past year — including its decision to strike down COVID-19 restrictions on religious gatherings and its decision to allow a highly restrictive abortion law to go into effect in Texas — came out of the shadow docket.

The shadow docket is very difficult to track, for obvious reasons — it’s hard to know what the justices are even doing.”

The nihilism of Neil Gorsuch

“Neil Gorsuch was ready to blow up the US housing market over a minor legal violation.

The case in front of the Supreme Court was Collins v. Yellen (2021), which had at its center the Federal Housing Finance Agency (FHFA), an obscure body that oversaw hundreds of billions of dollars’ worth of transactions intended to stabilize the housing market after the 2008 recession. The FHFA is led by a single director whom only the president can fire “for cause.” The plaintiffs in Collins v. Yellen argued the president must have unlimited power to fire the agency’s head, citing the Supreme Court’s 2020 ruling in Seila Law LLC v. Consumer Financial Protection Bureau (CFPB).

But under the Collins plaintiffs’ arguments, it also followed that if the FHFA head was fired, every action the agency had taken since its creation in 2008 should be declared void — a truly radical prospect. That argument won very little favor from the justices. In June, the Court handed down a relatively modest opinion that gave President Joe Biden (and all future presidents) the power to fire the FHFA director without reversing the agency’s past work.

But Gorsuch would have none of it.

In a partial dissent, Gorsuch complained that his colleagues were too spooked by the prospect of “unwinding or disgorging hundreds of millions of dollars that have already changed hands” (an underestimate of the amount of money at stake by several orders of magnitude). The proper approach, Gorsuch opined in Collins, was to declare the FHFA’s actions “void.”

If Gorsuch had gotten his way, 13 years of work and hundreds of billions of dollars’ worth of transactions would have been unraveled, possibly delivering a shock to the mortgage-lending industry similar to that of the 2008 crisis — or even sending the world economy into a tailspin.

And yet, for Gorsuch, the potential consequences were irrelevant to how the Court should rule.

It wasn’t the only case this term where Gorsuch brushed aside worries about widespread disruption that could have done tremendous harm to millions of people.”

“The lodestar of Gorsuch’s rhetoric about how judges should interpret the law is “textualism,” which he described in a 2020 book as the idea that judges’ sole task when interpreting legal texts is to determine “what an ordinary English speaker familiar with the law’s usages would have understood the statutory text to mean at the time of its enactment.””

“In reality, this method rarely lives up to such lofty promises. Many legal texts (including much of the Constitution) are ambiguous and can be fairly read in many ways. And what should a court do if it concludes that a century-old decision — one that millions of individuals and businesses may have relied on for decades — misread the text of a statute? Should 100 years of settled law be upended?

Setting aside textualism’s flaws, Gorsuch’s record on the Supreme Court exposes just how spotty his application of the methodology is. Though his own opinions frequently preach the gospel of textualism, he’s shown no compunction about joining other justices’ opinions that treat the text of a statute as merely optional.”

“Gorsuch is also perfectly willing to follow anti-textualist precedents that yield conservative results.”

“Gorsuch’s commitment to textualism can be little more than hot air. He is a selective textualist, who frequently evangelizes in favor of this method of interpretation but often abandons it in cases that reach a conservative result.”

“When Gorsuch has the chance to write a majority opinion, in other words, he typically shoots for the moon. His jurisprudence shows utter disregard for the norms of an institution he now belongs to, and for the work of generations to come up with a system of law that can manage a pluralistic society. It’s a revolutionary project, breathtaking in its audacity and nihilistic at its core.”

A Good Day for the Fourth Amendment

“In 2019, a California appeals court said a police officer may always enter a suspect’s home without a warrant if the officer is in “hot pursuit” and has probable cause to believe the suspect has committed a misdemeanor.

In June, the U.S. Supreme Court gave that decision the benchslap it deserved. “We are not eager—more the reverse—to print a new permission slip for entering the home without a warrant,” declared Justice Elena Kagan in Lange v. California.

The case originated when a California Highway Patrol officer observed Arthur Gregory Lange repeatedly honking his horn and playing his car stereo at a loud volume, both of which are traffic infractions at worst. The officer followed Lange’s car and switched on his overhead lights just a few seconds before Lange pulled into his own driveway. Lange, who said he never saw the officer’s lights in his rearview mirror, entered his driveway and pulled into his garage. The officer parked, exited his vehicle, stuck his foot under the garage door to prevent it from closing, followed Lange in, and had him perform field sobriety tests, which ultimately led to a DUI charge.

The state has “argued that the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorizing a warrantless home entry,” Kagan observed in her majority opinion, which was joined in full by Justices Stephen Breyer, Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. But that position ran afoul of both SCOTUS precedent and the Fourth Amendment’s common law roots.

“On many occasions, the officer will have good reason to enter—to prevent imminent harms of violence, destruction of evidence, or escape from the home,” Kagan wrote. “But when the officer has time to get a warrant, he must do so—even though the misdemeanant fled.”

The common law origins of the Fourth Amendment commanded the same result. “‘To enter a man’s house’ without a proper warrant, Lord Chief Justice Pratt proclaimed in 1763, is to attack ‘the liberty of the subject’ and ‘destroy the liberty of the kingdom,'” Kagan wrote, quoting from a venerable British common law judgment. “That was the idea behind the Fourth Amendment.”

Writing in a concurrence that reads more like a dissent, Chief Justice John Roberts, joined by Justice Samuel Alito, denounced the majority’s reasoning as “absurd and dangerous,” “hopelessly indeterminate,” and likely to impede necessary police work.

Fortunately, Roberts managed to attract just one other vote. The Fourth Amendment had a good day in court.”