{"id":13981,"date":"2024-06-19T14:57:31","date_gmt":"2024-06-19T14:57:31","guid":{"rendered":"https:\/\/lonecandle.com\/?p=13981"},"modified":"2024-06-19T14:57:32","modified_gmt":"2024-06-19T14:57:32","slug":"the-republican-partys-man-inside-the-supreme-court","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=13981","title":{"rendered":"The Republican Party’s man inside the Supreme Court"},"content":{"rendered":"\n

“The morning before the Times published its flag scoop, for example, Alito published a dissenting opinion<\/a> 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<\/a>, mocked Alito\u2019s opinion for \u201cwinding its way through English, Colonial, and early American history\u201d without ever connecting that history to anything that\u2019s actually in the Constitution.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Alito has long been the justice most skeptical of free speech arguments \u2014 he was the sole dissenter<\/a> in two Obama-era decisions establishing that even extraordinarily offensive speech is protected by the First Amendment \u2014 but this skepticism evaporates the minute a Republican claims that they are being censored. Among other things, Alito voted to let Texas\u2019s Republican legislature seize control over content moderation<\/a> at sites like Twitter and YouTube, then tried to prohibit the Biden administration from asking those same sites to voluntarily remove content<\/a> from anti-vaxxers and election deniers.<\/p>\n\n\n\n

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<\/a> 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: \u201cTo add insult to injury, the Court tars Louisiana and Oregon with the charge of racism.\u201d <\/p>\n\n\n\n

Yet while Alito denies that racism might have motivated Louisiana\u2019s Jim Crow lawmakers in the late 19th century, he brims with empathy for white plaintiffs<\/a> 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\u2019s fear that he \u201cwould incur the wrath of \u2026 influential leaders of New Haven\u2019s African-American community<\/a>\u201d if the city didn\u2019t promote more non-white firefighters.<\/p>\n\n\n\n

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<\/a>. But he\u2019s tripped over himself to protect one criminal defendant in particular<\/a>: Donald Trump. An empirical analysis of the Court\u2019s \u201cstanding\u201d decisions \u2014 cases asking whether the federal courts have jurisdiction over a particular dispute \u2014 found that Alito rules in favor of conservative litigants 100 percent of the time<\/a>, and against liberal litigants in every single case.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Today\u2019s headlines are peppered with names like Aileen Cannon, the judge overseeing Trump\u2019s stolen documents trial who has also behaved like a member of Trump\u2019s defense team<\/a>, or Matthew Kacsmaryk, the former Christian right litigator who\u2019s been willing to rubber stamp virtually any request for a court order filed by a Republican<\/a>. 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<\/a> who treat laws and precedents that undermine the GOP\u2019s policy goals as mere inconveniences to be struck down or ignored.<\/p>\n\n\n\n

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

Alito \u2014 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 \u2014 is the perfect fit, in other words, for what the Republican Party has become in the age of Trump.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Political scientist Lee Epstein examined how often each current justice votes for a defendant\u2019s position in criminal cases. Her data, which was first reported by NBC News, shows a fairly clear partisan divide<\/a>. All three of the Court\u2019s 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\u2019s Republicans, meanwhile, vote with criminal defendants less than half the time.<\/p>\n\n\n\n

But there is also a great deal of variation among the Republicans. Justice Neil Gorsuch, the most libertarian of the Court\u2019s 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.<\/p>\n\n\n\n

Yet Alito\u2019s 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<\/em><\/a>, 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.<\/p>\n\n\n\n

If an incumbent president who \u201closes a very close, hotly contested election\u201d knows that they could face prosecution, Alito claimed, \u201cwill that not lead us into a cycle that destabilizes the functioning of our country as a democracy?\u201d Alito\u2019s supposed concern was that a losing candidate will not \u201cleave office peacefully\u201d if they could be prosecuted by the incoming administration.<\/p>\n\n\n\n

The problem with this argument, of course, is that Trump<\/em> 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.<\/p>\n\n\n\n

Similarly, in Fischer v. United States<\/em>, a case asking whether January 6 insurrectionists can be charged<\/a> 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<\/a> who starts screaming in the middle of a Supreme Court argument and is later charged with obstructing the proceeding.<\/p>\n\n\n\n

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<\/em>, for example, Alito was one of the only justices who appeared open to a lower court\u2019s ruling that people subject to domestic violence restraining orders<\/a> have a Second Amendment right to own a gun. Indeed, many of Alito\u2019s questions echoed so-called men\u2019s rights advocates<\/a>, who complain that judges unthinkingly issue these restraining orders without investigating the facts of a particular case.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“In order to bring a federal lawsuit, a plaintiff must show that they were injured in some way<\/a> by the defendant they wish to sue \u2014 a requirement known as \u201cstanding.\u201d Unikowsky looked at 10 years\u2019 worth of Supreme Court standing cases, first classifying each case as one where a \u201cconservative\u201d litigant brought a lawsuit, or as one where a \u201cprogressive\u201d litigant filed suit. He then looked at how every current justice voted.<\/p>\n\n\n\n

Nearly every justice sometimes voted against their political views \u2014 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.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Some of Alito\u2019s standing opinions are genuinely embarrassing. The worst is his dissent in California v. Texas<\/em><\/a> (2021), one of the four cases where Thomas voted to deny standing to a conservative litigant.<\/p>\n\n\n\n

Texas<\/em> was the third of three Supreme Court cases attempting to destroy the Affordable Care Act, President Obama\u2019s signature legislative accomplishment. But even many high-profile Republicans found this lawsuit humiliating. The Wall Street Journal\u2019s editorial board labeled this case the \u201cTexas Obamacare Blunder<\/a>.\u201d Conservative policy wonk Yuval Levin wrote in the National Review that Texas<\/em> \u201cdoesn\u2019t even merit being called silly. It\u2019s ridiculous.<\/a>\u201d<\/p>\n\n\n\n

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<\/em> plaintiffs claimed that this zero-dollar tax was unconstitutional<\/a>, and that the proper remedy was that the Affordable Care Act must be repealed in its entirety.<\/p>\n\n\n\n

No one is allowed to bring a federal lawsuit unless they can show that they\u2019ve been injured in some way. A zero-dollar tax obviously injures no one, because it doesn\u2019t require anyone to pay anything. And so seven justices concluded that the Texas<\/em> lawsuit must be tossed out.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

This is simply not how standing works \u2014 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<\/a>, wrote of Alito\u2019s opinion, \u201cstanding simply cannot work the way that Justice Alito wants it to\u201d because, if it did, \u201cit would become child\u2019s play to challenge every provision of every major federal law so long as some constitutional infirmity could be located somewhere within the statute\u2019s text.\u201d<\/p>\n\n\n\n

Alito\u2019s Texas<\/em> 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 blas\u00e9 attitude toward standing<\/a> when left-leaning litigants appear in his Court. But, when handed a lawsuit that could sabotage Obama\u2019s 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.”<\/p>\n\n\n\n

https:\/\/www.vox.com\/scotus\/350339\/samuel-alito-republican-party-scotus<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“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\u2019s opinion for \u201cwinding its way through English, Colonial, and early American history\u201d without ever connecting that history to anything that\u2019s actually in the Constitution.”<\/p>\n

…<\/p>\n

“Alito has long been the justice most skeptical of free speech arguments \u2014 he was the sole dissenter in two Obama-era decisions establishing that even extraordinarily offensive speech is protected by the First Amendment \u2014 but this skepticism evaporates the minute a Republican claims that they are being censored. Among other things, Alito voted to let Texas\u2019s 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.
\nAlito 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: \u201cTo add insult to injury, the Court tars Louisiana and Oregon with the charge of racism.\u201d <\/p>\n

Yet while Alito denies that racism might have motivated Louisiana\u2019s 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\u2019s fear that he \u201cwould incur the wrath of \u2026 influential leaders of New Haven\u2019s African-American community\u201d if the city didn\u2019t promote more non-white firefighters.<\/p>\n

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\u2019s tripped over himself to protect one criminal defendant in particular: Donald Trump. An empirical analysis of the Court\u2019s \u201cstanding\u201d decisions \u2014 cases asking whether the federal courts have jurisdiction over a particular dispute \u2014 found that Alito rules in favor of conservative litigants 100 percent of the time, and against liberal litigants in every single case.”<\/p>\n

…<\/p>\n

“Today\u2019s headlines are peppered with names like Aileen Cannon, the judge overseeing Trump\u2019s stolen documents trial who has also behaved like a member of Trump\u2019s defense team, or Matthew Kacsmaryk, the former Christian right litigator who\u2019s 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\u2019s policy goals as mere inconveniences to be struck down or ignored.<\/p>\n

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.<\/p>\n

Alito \u2014 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 \u2014 is the perfect fit, in other words, for what the Republican Party has become in the age of Trump.”<\/p>\n

…<\/p>\n

“Political scientist Lee Epstein examined how often each current justice votes for a defendant\u2019s position in criminal cases. Her data, which was first reported by NBC News, shows a fairly clear partisan divide. All three of the Court\u2019s 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\u2019s Republicans, meanwhile, vote with criminal defendants less than half the time.<\/p>\n

But there is also a great deal of variation among the Republicans. Justice Neil Gorsuch, the most libertarian of the Court\u2019s 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.<\/p>\n

Yet Alito\u2019s 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.<\/p>\n

If an incumbent president who \u201closes a very close, hotly contested election\u201d knows that they could face prosecution, Alito claimed, \u201cwill that not lead us into a cycle that destabilizes the functioning of our country as a democracy?\u201d Alito\u2019s supposed concern was that a losing candidate will not \u201cleave office peacefully\u201d if they could be prosecuted by the incoming administration.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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\u2019s ruling that people subject to domestic violence restraining orders have a Second Amendment right to own a gun. Indeed, many of Alito\u2019s questions echoed so-called men\u2019s rights advocates, who complain that judges unthinkingly issue these restraining orders without investigating the facts of a particular case.”<\/p>\n

…<\/p>\n

“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 \u2014 a requirement known as \u201cstanding.\u201d Unikowsky looked at 10 years\u2019 worth of Supreme Court standing cases, first classifying each case as one where a \u201cconservative\u201d litigant brought a lawsuit, or as one where a \u201cprogressive\u201d litigant filed suit. He then looked at how every current justice voted.<\/p>\n

Nearly every justice sometimes voted against their political views \u2014 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.”<\/p>\n

…<\/p>\n

“Some of Alito\u2019s 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.<\/p>\n

Texas was the third of three Supreme Court cases attempting to destroy the Affordable Care Act, President Obama\u2019s signature legislative accomplishment. But even many high-profile Republicans found this lawsuit humiliating. The Wall Street Journal\u2019s editorial board labeled this case the \u201cTexas Obamacare Blunder.\u201d Conservative policy wonk Yuval Levin wrote in the National Review that Texas \u201cdoesn\u2019t even merit being called silly. It\u2019s ridiculous.\u201d<\/p>\n

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.<\/p>\n

No one is allowed to bring a federal lawsuit unless they can show that they\u2019ve been injured in some way. A zero-dollar tax obviously injures no one, because it doesn\u2019t require anyone to pay anything. And so seven justices concluded that the Texas lawsuit must be tossed out.<\/p>\n

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.<\/p>\n

This is simply not how standing works \u2014 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\u2019s opinion, \u201cstanding simply cannot work the way that Justice Alito wants it to\u201d because, if it did, \u201cit would become child\u2019s play to challenge every provision of every major federal law so long as some constitutional infirmity could be located somewhere within the statute\u2019s text.\u201d<\/p>\n

Alito\u2019s 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 blas\u00e9 attitude toward standing when left-leaning litigants appear in his Court. But, when handed a lawsuit that could sabotage Obama\u2019s 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.”<\/p>\n

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