Problems with the Supreme Court

[Chip]

Her ethics issues are minor compared to those of Thomas, Gorsuch, Kavanaugh, and Roberts.

If all the justices who've fudged on ethics resigned, then Biden could appoint a new bunch and get rid of the Republican hacks and ratbags.

[dneal]

Her ethics issues are minor compared to those of Thomas, Gorsuch, Kavanaugh, and Roberts.

If all the justices who've fudged on ethics resigned, then Biden could appoint a new bunch and get rid of the Republican hacks and ratbags.

Not recusing herself over a case involving the publisher who paid her millions of dollars hardly seems minor.

[Chip]

US supreme court pursuing rightwing agenda via ‘shadow docket’, book says

Steve Vladeck says conservative majority is bypassing public scrutiny with unsigned orders on religion, abortion and more

Ed Pilkington
15 May 2023

Conservative justices on the US supreme court consciously broke with decades-old congressional rules and norms to shift laws governing religious freedom sharply to the right through a series of shadowy unsigned and unexplained emergency orders, a new book reveals.

Five of the six conservatives who now command the majority on the US’s most powerful court have rammed through some of their most contentious and extreme partisan decisions using the so-called “shadow docket” – unsigned orders issued frequently late at night, in literal and metaphorical darkness. The orders do not reveal who voted for them or why, often providing one-line explanations of the legal thinking behind them.

The switch from openly argued cases, aired in public, to the unaccountability of the shadow docket was made purposefully during the pandemic in cases dealing with religious liberty, concludes Stephen Vladeck, an authority on the federal courts at the University of Texas law school. He warns that the trend is merging with the current ethics scandals surrounding the conservative justice Clarence Thomas to damage the legitimacy of the court and threaten a full-blown constitutional crisis.

Vladeck exposes the largely unnoticed shift towards furtive justice in his new book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. He shows how rightwing justices have abused the court’s emergency powers to run roughshod over the longstanding norm that shadow docket orders should be used sparingly and with extreme caution.

Rightwing justices are now deploying such orders dozens of times each term. Over three terms alone, from 2019 to 2022, the court granted emergency relief in more than 60 cases: effectively overturning the considered decisions of lower courts through rushed, unexplained rulings. Among those orders were decisions that have had profound and nationwide impact over some of the most hotly disputed areas of public life, from abortion to immigration, voting rights, the death penalty and religious practices. Many appear to align more closely with Republican political priorities than with legal principles. One such order alone, the decision on the shadow docket to block the Biden administration’s January 2022 requirement that large employers mandate Covid vaccinations for their workforce, affected more than 83 million Americans – about a quarter of the US population.

“The rise of the shadow docket reflects a power grab by a court that has, for better or worse, been insulated from any kind of legislative response,” Vladeck writes.

The author chronicles how the most disturbing use of the shadow docket came with the rewriting of constitutional protections for religious liberty. The dramatic shift followed the death of the liberal justice Ruth Bader Ginsburg and her replacement in 2020 with a devout Catholic rightwinger, Amy Coney Barrett. The switch gave the conservative majority sufficient votes to overcome all resistance to ramping up use of the shadow docket, including from the chief justice, John Roberts, who though conservative has expressed mounting unease about the practice.

The change in tactics could be seen almost immediately. Within weeks of taking her seat, Barrett joined four other rightwingers – Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – to drive through a major change in the constitutional understanding of religious liberty, blocking New York state Covid restrictions on the numbers of worshippers allowed to gather in churches.

The order was unsigned and gave virtually no explanation for a decision that profoundly changed the law of the land, rolling back government regulations where they touched upon religious practices. It was issued at four minutes before midnight on the day before Thanksgiving – a moment that would guarantee minimal media attention.

The ruling was all the more extraordinary as by then New York had scaled back its Covid restrictions and churches no longer had to limit congregation sizes. So the court’s change in the law was moot.

The same five rightwing justices went on to impose their will on religious liberty laws with similar late-night one-sentence rulings knocking back state Covid restrictions in California, New Jersey and Colorado. In total, the majority issued emergency injunctions against state Covid rules on religious grounds six times in four months.

The sudden spate of shadow docket orders that followed Barrett’s arrival on the court was not accidental, Vladeck says. The justices could have taken up several pending cases in full court that would have addressed the issue of religious freedoms in open hearings on the merits, yet they chose to go the obscure shadow docket route. “Here we have the court not just using emergency applications to change substantive legal principles, but doing so even as they are considering requests to make the same changes through merits decisions,” Vladeck told the Guardian.

Vladeck links the rise of the shadow docket to the increasing isolation of the supreme court and its disconnection from public opinion. The growing use of the shadow docket also mirrors the polarisation and toxification of American politics. Vladeck warns that the growing trend towards jurisprudence produced in darkness is endangering the legitimacy of the nation’s most powerful court. Public confidence in the court is already at a historic low, compounded by the recent revelations that Thomas accepted lavish gifts from the Republican billionaire Harlan Crow.

“The shadow docket is a symptom of a larger disease,” Vladeck said. “The disease is how unchecked and unaccountable the court is today, compared to any of its predecessors.”

https://www.theguardian.com/books/20...e_iOSApp_Other

[dneal]

Wow, sounds spooky. “The Shadow Docket”. Secret and unsigned orders issued in the literal late night, by that evil cabal of right wing justices.

“Imposing their religious will” is sometimes referred to as upholding the 1st amendment. That the state doesn’t get to shut churches down is apparently an unorthodox notion, Vladeck seems to believe.

QAnon levels of nonsense, but when the kook-aide is blue the narrative is apparently delicious to some.

[Chip]

The deeper problem is that the Republicans don't see it as corruption, but rather as the right and privilege of the rich and corporations to warp the government according to their needs.

Why the Supreme Court is Blind to Its Own Corruption

Opinion
Randall D. Eliason
May 18, 2023

Mr. Eliason is the former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia.

The scandal surrounding Justice Clarence Thomas has further eroded the already record-low public confidence in the Supreme Court. If Chief Justice John Roberts wonders how such a thing could have happened, he might start looking for answers within the cloistered walls of his own courtroom.

Over more than two decades, the Supreme Court has gutted laws aimed at fighting corruption and at limiting the ability of the powerful to enrich public officials in a position to advance their interests. As a result, today wealthy individuals and corporations may buy political access and influence with little fear of legal consequences, either for them or for the beneficiaries of their largess.

No wonder Justice Thomas apparently thought his behavior was no big deal. He has been under fire for secretly accepting, from the Republican megadonor Harlan Crow, luxury vacations worth hundreds of thousands of dollars, a real estate deal (involving the home where his mother was living) and the payment of private school tuition for a grandnephew the justice was raising. Meanwhile, over the years, conservative groups with which Mr. Crow was affiliated filed amicus briefs in several matters before the Supreme Court.

That sounds like the very definition of corruption. But over the years, many justices — and not just conservatives — have championed a different definition.

The landmark case is the court’s 2010 decision in Citizens United v. Federal Election Commission. A five-justice majority — including Justice Thomas — struck down decades-old restrictions on independent campaign expenditures by corporations, holding that they violated the companies’ free speech rights. It rejected the argument that such laws were necessary to prevent the damage to democracy that results from unbridled corporate spending and the undue influence it can create.

The government’s legitimate interest in fighting corruption, the court held, is limited to direct quid pro quo deals, in which a public official makes a specific commitment to act in exchange for something of value. The appearance of potentially improper influence or access is not enough. In dissent, Justice John Paul Stevens accused the majority of adopting a “crabbed view of corruption” that the court itself had rejected in an earlier case. He argued that Congress has a legitimate interest in limiting the effects of corporate money on politics: “Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”

Citizens United opened the floodgates to unlimited corporate spending on behalf of political candidates and to the influence that spending necessarily provides. But the decision didn’t come out of nowhere: The court has often been unanimous in its zeal for curtailing criminal corruption laws.

In the 1999 case of United States v. Sun-Diamond Growers of California, the court unanimously held, in effect, that it is not a violation of the federal gratuities statute for an individual or corporation to have a public official on private retainer. The court rejected a theory known as a “status gratuity,” where a donor showers a public official with gifts over time based on the official’s position (that is in contrast with a more common gratuity, given as a thank you for a particular act by the official). The quite reasonable rationale behind that theory was that when matters of interest to the donor arose, the past gifts (and hope for future ones) might lead the official to favor his or her benefactor.

That actually sounds a lot like the Crow-Thomas relationship. But the court held that such an arrangement is not unlawful. The gratuities law, the court ruled, requires that a particular gift be linked to a particular official act. Without such a direct link, a series of gifts to a public official over time does not violate the statute, even if the goal is to curry favor with an official who could act to benefit the gift giver.

In the wake of Sun-Diamond, federal prosecutors increasingly turned to a more expansive legal theory known as honest services fraud. But in Skilling v. United States, the court ruled that theory is limited to cases of bribes and kickbacks — once again, direct quid pro quo deals. Three justices, including Justice Thomas, wanted to go even further and declare the statute that prohibits honest services fraud unconstitutional.

The court proceeded to limit its “crabbed view of corruption” even further. In the 2016 case McDonnell v. United States, the court held that selling government access is not unlawful. Gov. Bob McDonnell of Virginia and his wife, Maureen, accepted about $175,000 in secret gifts from the businessman Jonnie Williams, who wanted Virginia’s public universities to perform research studies on his company’s dietary supplement to assist with its F.D.A. approval. In exchange, Mr. McDonnell asked subordinates to meet with Mr. Williams about such studies and hosted a luncheon at the governor’s mansion to connect him with university health researchers.

A jury convicted the McDonnells on several counts of corruption. The U.S. Court of Appeals for the Fourth Circuit — hardly known as a bastion of liberalism — unanimously affirmed the convictions. But the Supreme Court unanimously reversed, holding that the things Mr. McDonnell did for Mr. Williams did not qualify as “official acts” under federal bribery law. Selling official access may be tawdry, the court held, but it is not a crime.

Those who think Justice Thomas may be guilty of corruption may not realize just how difficult the court itself has made it to prove such a case. Now only the most ham-handed officials, clumsy enough to engage in a direct quid pro quo, risk prosecution.

Viewed in light of this history, the Thomas scandal becomes less surprising. Its own rulings would indicate that the Supreme Court doesn’t believe what he did is corrupt. A powerful conservative with interests before the court who regularly provides a justice with vacations worth more than his annual salary is, as the court said in Citizens United, merely the “appearance” of potential corruption. In the court’s view, the public has no reason to be concerned.

But the public clearly is, and should be, concerned over the ability of the rich and powerful to purchase access and influence unavailable to most citizens. Unfortunately, Citizens United is here to stay without a constitutional amendment or an overruling by the court, neither of which is very likely.

But it’s still possible for the rest of the country to move past the court’s naïve and inadequate view of corruption. Congress could amend criminal corruption laws to expand their scope and overturn the results in Sun-Diamond, Skilling and McDonnell. It could increase funding for enforcement of the Ethics in Government Act and increase the penalties for filing a false financial disclosure form (or failing to file one at all). Beefed up disclosure regulations could make it more difficult for officials to hide financial interests and could make it clear there are no disclosure exceptions for enormous gifts of “personal hospitality,” contrary to what Justice Thomas claims he believed. And Congress could pass legislation like the proposed Disclose Act, to require transparency regarding who is behind political donations and spending.

Congress so far has shown little interest in passing such reforms. But that’s where the remedy lies. It’s time for Congress to act.

In his Citizens United dissent, Justice Stevens observed, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” That’s exactly how it now appears to the public — and that applies to Supreme Court justices as well as to politicians.

https://www.nytimes.com/2023/05/18/o...e=articleShare

[dneal]

Can any of the not-originalist/textualist justices articulate a clear and concise judicial philosophy?

If no, why? That philosophy would be a framework of first principles combined with a rational approach.

Seems to be easy to articulate if you have one, and Scalia wrote widely on it.

[Chip]

Scalia, based on a dubious rationale, also helped hand the presidency to the losing candidate, GW Bush.

So much for a "clear and concise judicial philosophy."

[TSherbs]

The deeper problem is that the Republicans don't see it as corruption, but rather as the right and privilege of the rich and corporations to warp the government according to their needs.

Why the Supreme Court is Blind to Its Own Corruption

Opinion
Randall D. Eliason
May 18, 2023

Mr. Eliason is the former chief of the fraud and public corruption section at the U.S. Attorney’s Office for the District of Columbia.

The scandal surrounding Justice Clarence Thomas has further eroded the already record-low public confidence in the Supreme Court. If Chief Justice John Roberts wonders how such a thing could have happened, he might start looking for answers within the cloistered walls of his own courtroom.

Over more than two decades, the Supreme Court has gutted laws aimed at fighting corruption and at limiting the ability of the powerful to enrich public officials in a position to advance their interests. As a result, today wealthy individuals and corporations may buy political access and influence with little fear of legal consequences, either for them or for the beneficiaries of their largess.

No wonder Justice Thomas apparently thought his behavior was no big deal. He has been under fire for secretly accepting, from the Republican megadonor Harlan Crow, luxury vacations worth hundreds of thousands of dollars, a real estate deal (involving the home where his mother was living) and the payment of private school tuition for a grandnephew the justice was raising. Meanwhile, over the years, conservative groups with which Mr. Crow was affiliated filed amicus briefs in several matters before the Supreme Court.

That sounds like the very definition of corruption. But over the years, many justices — and not just conservatives — have championed a different definition.

The landmark case is the court’s 2010 decision in Citizens United v. Federal Election Commission. A five-justice majority — including Justice Thomas — struck down decades-old restrictions on independent campaign expenditures by corporations, holding that they violated the companies’ free speech rights. It rejected the argument that such laws were necessary to prevent the damage to democracy that results from unbridled corporate spending and the undue influence it can create.

The government’s legitimate interest in fighting corruption, the court held, is limited to direct quid pro quo deals, in which a public official makes a specific commitment to act in exchange for something of value. The appearance of potentially improper influence or access is not enough. In dissent, Justice John Paul Stevens accused the majority of adopting a “crabbed view of corruption” that the court itself had rejected in an earlier case. He argued that Congress has a legitimate interest in limiting the effects of corporate money on politics: “Corruption operates along a spectrum, and the majority’s apparent belief that quid pro quo arrangements can be neatly demarcated from other improper influences does not accord with the theory or reality of politics.”

Citizens United opened the floodgates to unlimited corporate spending on behalf of political candidates and to the influence that spending necessarily provides. But the decision didn’t come out of nowhere: The court has often been unanimous in its zeal for curtailing criminal corruption laws.

In the 1999 case of United States v. Sun-Diamond Growers of California, the court unanimously held, in effect, that it is not a violation of the federal gratuities statute for an individual or corporation to have a public official on private retainer. The court rejected a theory known as a “status gratuity,” where a donor showers a public official with gifts over time based on the official’s position (that is in contrast with a more common gratuity, given as a thank you for a particular act by the official). The quite reasonable rationale behind that theory was that when matters of interest to the donor arose, the past gifts (and hope for future ones) might lead the official to favor his or her benefactor.

That actually sounds a lot like the Crow-Thomas relationship. But the court held that such an arrangement is not unlawful. The gratuities law, the court ruled, requires that a particular gift be linked to a particular official act. Without such a direct link, a series of gifts to a public official over time does not violate the statute, even if the goal is to curry favor with an official who could act to benefit the gift giver.

In the wake of Sun-Diamond, federal prosecutors increasingly turned to a more expansive legal theory known as honest services fraud. But in Skilling v. United States, the court ruled that theory is limited to cases of bribes and kickbacks — once again, direct quid pro quo deals. Three justices, including Justice Thomas, wanted to go even further and declare the statute that prohibits honest services fraud unconstitutional.

The court proceeded to limit its “crabbed view of corruption” even further. In the 2016 case McDonnell v. United States, the court held that selling government access is not unlawful. Gov. Bob McDonnell of Virginia and his wife, Maureen, accepted about $175,000 in secret gifts from the businessman Jonnie Williams, who wanted Virginia’s public universities to perform research studies on his company’s dietary supplement to assist with its F.D.A. approval. In exchange, Mr. McDonnell asked subordinates to meet with Mr. Williams about such studies and hosted a luncheon at the governor’s mansion to connect him with university health researchers.

A jury convicted the McDonnells on several counts of corruption. The U.S. Court of Appeals for the Fourth Circuit — hardly known as a bastion of liberalism — unanimously affirmed the convictions. But the Supreme Court unanimously reversed, holding that the things Mr. McDonnell did for Mr. Williams did not qualify as “official acts” under federal bribery law. Selling official access may be tawdry, the court held, but it is not a crime.

Those who think Justice Thomas may be guilty of corruption may not realize just how difficult the court itself has made it to prove such a case. Now only the most ham-handed officials, clumsy enough to engage in a direct quid pro quo, risk prosecution.

Viewed in light of this history, the Thomas scandal becomes less surprising. Its own rulings would indicate that the Supreme Court doesn’t believe what he did is corrupt. A powerful conservative with interests before the court who regularly provides a justice with vacations worth more than his annual salary is, as the court said in Citizens United, merely the “appearance” of potential corruption. In the court’s view, the public has no reason to be concerned.

But the public clearly is, and should be, concerned over the ability of the rich and powerful to purchase access and influence unavailable to most citizens. Unfortunately, Citizens United is here to stay without a constitutional amendment or an overruling by the court, neither of which is very likely.

But it’s still possible for the rest of the country to move past the court’s naïve and inadequate view of corruption. Congress could amend criminal corruption laws to expand their scope and overturn the results in Sun-Diamond, Skilling and McDonnell. It could increase funding for enforcement of the Ethics in Government Act and increase the penalties for filing a false financial disclosure form (or failing to file one at all). Beefed up disclosure regulations could make it more difficult for officials to hide financial interests and could make it clear there are no disclosure exceptions for enormous gifts of “personal hospitality,” contrary to what Justice Thomas claims he believed. And Congress could pass legislation like the proposed Disclose Act, to require transparency regarding who is behind political donations and spending.

Congress so far has shown little interest in passing such reforms. But that’s where the remedy lies. It’s time for Congress to act.

In his Citizens United dissent, Justice Stevens observed, “A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” That’s exactly how it now appears to the public — and that applies to Supreme Court justices as well as to politicians.

https://www.nytimes.com/2023/05/18/o...e=articleShare

This is how Cornell Univ Law defines "official act" in federal bribery law:

(3) the term “official act” means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit.

This, apparently, is what the court has unanimously said must be a direct quid-pro-quo and NOT a general cozying up to "public officials" and trying to influence them generally toward future cases. I do note, however, that the law prohibits trying to influence even future cases that "may be brought" before them "in such official's place of trust or profit." So, really, not one justice sees the wider scope of this?

Right now, I guess not. But at other times, yes.

Here's what I will say more generally: there are times, for the nation, that the US Supreme court can (there is nothing in the Constitution against it--I just re-read Article III) and *should* act for the "more perfect union" and for the "establishment of justice" and to "promote the general Welfare". This may mean actually knowing better and doing better than Congress, which is designed to be slow and contrary and subject to political power dynamics and the potentially corrupt dynamics of money and influence and needed to procure the support of the majority of the electorate. In other words, sometimes the SC can and should do better than the minimum standards of the gaps in legal permissiveness. Sometimes, the SC should help us do better. It is not actually Constitutional simply to say that the SC can never move beyond its original meanings and understandings unless Congress makes a specific law (or amendment) updating that original meaning. To say that Congress (law) is primary over all (always) is simply to abdicate the dictates of human conscience and to have to turn one's eye from obvious failures in the compromising and messy process of making law and trying to win re-elections in a money-slickened environment.

[dneal]

Scalia, based on a dubious rationale, also helped hand the presidency to the losing candidate, GW Bush.

So much for a "clear and concise judicial philosophy."

Not only does it dodge the actual question, that doesn't even make any sense. Scalia's argument is laid out in the originalism thread. You have displayed no cogent criticism of it so far, preferring ad hominem, guilt by association or implication, and other logical fallacies. I'll just add this to the list.

[Chip]

Scalia obfuscated his right-wing activist posture and near-criminal bias with all sorts of rubbish collectively known as originalism.

It was crap then, and it's crap now.

(Where do you hide your list?)

[dneal]

Still no cogent criticism, and still not the question.

Is there a clear and concise judicial philosophy articulated by Kagan, Sotomayor, or Jackson?

You see everything through a partisan lens. I’m not a partisan. I don’t think Roberts, Alito or Kavanaugh have one either.

[Chip]

Better partisan than ignorant, biased, mendacious, and boring as hell.

[dneal]

Better partisan than ignorant, biased, mendacious, and boring as hell.

You tell ‘em Archie.

[724Seney]

"Partisan, ignorant, biased, mendacious, and boring as hell."

A perfect description of the drivel you see fit to post here.

[dneal]

"Partisan, ignorant, biased, mendacious, and boring as hell."

A perfect description of the drivel you see fit to post here.

I don't think he sees the connection between "partisan" and "biased".

He thinks it's better to be partisan than biased.

So not only drivel, mendacious and boring as hell; it's hypocritical and logically absurd.

More nonsense emoting. More 2 minutes of hate at a tele screen.

Archie Bunker caught the woke mind virus, and post #72 is what the symptoms look like.

[Chip]

Don't confuse pity and scorn with hate.

[TSherbs]

Say it ain't so, Sam:

https://wapo.st/3CEJtKL
(Gifted WaPo opinion column on Alito's luxury trip to Alaska)

more cozying up with mega-donors with litigation in front of the court...

[Chip]

What a slimy weasel: he claimed he only occupied a seat on the luxury jet that would otherwise have been vacant.

If you got caught in bed with your neighbor's wife, would you claim that you were occupying a space (ahem) that would otherwise have gone vacant?

[TSherbs]

What a slimy weasel: he claimed he only occupied a seat on the luxury jet that would otherwise have been vacant.

That is a hilariously ridiculous claim. Do hotels only start charging for rooms once the building is full?

[Chip]

He claims they were served "modest fare" at the destination lodge. Guess he forgot about the aged Wagyu steaks and vintage wines.

Too much wine tends to make one forget.

Oh– Leonard Leo, Federalist Society capo, the guy smoking cigars with Clarence Thomas and Harlan Crow in the Hitler sculpture garden, was on the trip.