With the death of the Supreme Court Justice, Ruth Bader Ginsburg, on September 18, our nation, which had been so badly shaken in recent months, was shaken to the core. Her death has already rocked the 2020 elections – and it will have far-reaching implications for the composition and possibly structure of the Supreme Court, changing the legal terrain for a generation of American life.
While I’d like to get on my DeLorean and report on the lasting effects of her death from 2050, for example, we have more immediate concerns: the Supreme Court will start hearing cases again on October 5th.
The court’s 2020-21 tenure was challenging even before Ginsburg’s death. The minutes are piled with follow-up cases, with the court being asked to hear key arguments about the Affordable Care Act, police brutality, and whether governments can ban contracts with religious organizations that discriminate against gay and lesbian couples. A case is also being weighed against Facebook, which will determine whether the Justice Department must finally release the full report from Special Adviser Robert Mueller.
And the court can be asked to intervene in the presidential election. The power of the Supreme Court to determine the fate of a controversial election – and essentially determine the president – lurks beneath the waves, blue or otherwise, like a deep-sea monster ready to rip the ship of state in half.
All of this was bad news when there were four Liberals on the field. Regardless of how the reserve fight goes in Ginsburg, the liberal judges are likely to be outdone. If Republicans manage to ram Donald Trump’s nominee Amy Coney Barrett in the next few weeks, the court will rule some or all of these cases with six Republican presidential-appointed judges and only three Democratic-appointed judges. But even if the Democrats hold off an appointment and only leave eight judges in place, it will be difficult for liberal arguments to prevail. This is because even in the event of a tie, the lower court decision will stand, which means that all of the work the GOP has done to stack the lower courts comes into play. As of now, Neil Gorsuch – the man raised to the country’s highest court after the Senate Republicans blocked Merrick Garland’s affirmation – is the court’s swing justice.
If the law were objective, the death of a Supreme Court would not have a massive impact on the outcome of the presidential election or the availability of health care in America. If the law were apolitical, changing judges would be like changing meteorologists: there would be a debate about where a hurricane could land, but everyone would agree on the existence of a storm.
But if there ever was legal objectivity, it was wiped out 20 years ago Bush versus Gore. At this point the Supreme Court proved by 5-4 votes that it was a purely political branch. And then the Democrats should have pledged to fight the Republicans for control of the court by whatever means possible. If the Supreme Court can turn the election back to the Republican candidate, it is because the Democrats did not address the court’s balance after the last presidential election.
Hopefully it won’t take the left another 20 years to learn this lesson. As we look at the critical cases in court during this term in office, we must realize that these battles have already been lost in many ways. The issues facing this court have been presented in a way that accepts Republican theories and priorities. We are discussing religious freedoms for Christians who want to be bigoted, not for Muslims who want to worship freely. We’re discussing Facebook’s ability to perform the internet equivalent of robocalls, not individual privacy rights on the platform. We discuss whether police violate constitutional rights by shooting unarmed people in the back who then escape, rather than whether police are arrested and charged with attempted murder.
If we are to change the outcome of some of these cases, we must combat Trump’s attempt to replace Ginsburg. If we want to change the next generation of legal debates, we need to restructure the Supreme Court.
Democracy against voter suppression
P.The single most important case the Supreme Court will rule on during its fall semesters is one that doesn’t even exist: the one it may have to rule in the event of a controversial election. I don’t know if the court will be asked to elect the president as it did in 2000 with its decision Bush versus Goreor whether it is asked to cast the decisive vote in a tight Senate race that determines the balance of power in the Chamber. Or maybe the court will simply be asked to put a stamp on it and put some legal scholars around the coup that Trump is trying to create.
What I do know is that lawsuits are coming. It is hard to imagine that 2020 will be a presidential election scenario without a series of litigation. There will be lawsuits alleging that election officials failed to count or counted the ballot papers incorrectly. There will be lawsuits for election fraud. There will be lawsuits alleging that some constituencies opened their elections too late or closed too early. Too much is at stake and Trump has too effectively undermined confidence in the American electoral process. I hope there are only complaints, otherwise there will be blood.
Even while Ginsburg was alive, the prospects for Republican-appointed judges handing Trump over were high. While some people hoped Chief Justice John Roberts would side with the electorate because of his party, these people did not see his files realistically. He has attacked voting rights throughout his career. In fact, he wrote the biggest setback to our generation’s voting rights: his 2013 decision in Shelby County v Holderthat gutted the voting rights law.
Now that Ginsburg is gone, Roberts’ role hardly matters anymore. Even in the best-case scenario, where only eight judges hear the case and he discovers a sudden respect for the right to vote, the decision will be a tie – meaning the lower court’s decision is valid. And that decision will come from a lower court, which is very likely to have Trump judges. For example, if an election complaint comes from Florida, the case will be handled by the state’s conservatively controlled Supreme Court (as Bush versus Gore tat) or the 11th appellate court, which Trump brought before a mostly conservative court. Other swing states for 2020 face similar problems. The Michigan Supreme Court is controlled by Republican candidates. The Pennsylvania Supreme Court is controlled by Democratic officials, but the Third Circuit Court of Appeals, which oversees federal law in the state, was conservatively controlled in 2019 by Trump and Senate Majority Leader Mitch McConnell.
And make no mistake: these and other conservatively controlled courts are not intended to play nice. In both the state and the federal system, they have already shown a willingness to suppress the vote in the face of the coronavirus pandemic. The efforts of proponents of voting rights to expand the right to vote and make it easier for people to vote have been curbed almost at every turn by conservative judges and judges.
Republicans have used brute political power to pile the courts with conservatives; Now these courts give Republicans the means to maintain minority rule over the will of the people.
California versus Texas
ÖThe Supreme Court will hold a hearing on November 10, a week after the election California versus Texas. If that happens, the land mine Roberts laid for the Affordable Care Act when he ratified the law in 2012 could blow it up for good. The initial conservative challenge was that the ACA’s individual mandate of requiring uninsured persons to pay a penalty for not obtaining health insurance was an unconstitutional use of federal power under the constitution’s trade clause. Roberts could have just told the challengers they were wrong and sent them on their way, but the Chief Justice, like most Republicans, doesn’t like the federal government using the trade clause to regulate large corporations.
Instead, Roberts is known to have converted the single mandate from a normal government ordinance approved by the trade clause to a tax approved under the broad tax powers of the federal government. He didn’t do it to save the ACA. He did it to uphold an important law that was passed by a majority in the Senate while maintaining his ideological objections to the power of the trade clause.
In the years since then, Trump and the Republicans of Congress have not overturned the ACA, but they have succeeded in getting rid of the individual mandate. The 2017 Tax Cuts and Jobs Act (which sounds like it was named by a 6-year-old who’s just got into Phonics) lowered the tax penalty to zero for the individual mandate. With that part of the law gone, the Conservatives are now returning to the Supreme Court, arguing that without the individual mandate that they killed themselves, the entire health law can no longer be viewed as a tax and is therefore unconstitutional.
This is as cynical as a bouncer who assaults a man waiting in line and then tells him that he can’t afford the cover fee. A normal Congress is not trying to make its own law unconstitutional, and a normal court would not accept such an evil excuse to repeal a law that Congress could not.
There are two questions in the court California versus Texas: whether the individual mandate is constitutional now, after the tax has been reduced to zero, and whether the mandate as a whole is unconstitutional if the mandate is unconstitutional. The legal term for whether a law survives portions of it if it is declared unconstitutional is “severability,” and the way the court determines this issue will likely determine the fate of the ACA.
With the death of Ginsburg – may her memory be a blessing – the previous decision of the Fifth Circle could be critical. Earlier, US District Judge Reed O’Connor, a George W. Bush-appointed representative from Texas, ruled that the individual mandate was unconstitutional and that the mandate was the “cornerstone” of the ACA, making the rest of the law unconstitutional without that law. The fifth circuit confirmed O’Connor’s decision. If no new judiciary has been appointed to the Supreme Court by November 11 and the court then divides the case 4: 4, the Fifth Circle’s decision will stand.
However, O’Connor and the Fifth Circle were only asked to assess the constitutionality of each mandate. O’Connor’s stance on the rest of the ACA could arguably be understood as a mere proposal – although he would not be the first Republican to vote in favor of repealing the ACA without actually being able to do so.
However, it is very difficult to predict what will happen if a majority in the Supreme Court agrees that the individual mandate is unconstitutional but the court divides 4-4 on the divisibility issue. Roberts could send the case back to the Fifth Circuit to have it ruled on severability, although the lower court has already indicated how it feels on the matter. Or Roberts could hold back on ruling the entire case and schedule it to be re-directed after a ninth justice system is brought to trial. Or he could admit defeat on the side of his other conservative colleagues and decide that the ACA cannot be separated from the suddenly unconstitutional individual mandate, making the entire act unconstitutional.
To paraphrase the great, albeit fictional, clubber Lang, my only prediction is pain. The ACA is in critical condition and without Ginsburg there likely won’t be enough votes to save it, even amid a pandemic that has killed more than 200,000 Americans. After all, a Republican-appointed court will do what a Republican-controlled Senate couldn’t.
Fulton versus City of Philadelphia
ÖOn November 4th, the day after the election, the Supreme Court will hear arguments in a lawsuit against Philadelphia filed by Catholic Social Services and a number of foster parents. The city stopped using the Catholic agency as a referral service to find foster parents after city officials realized it refused to place children with same-sex couples. For their part, Catholic social services claim that the city’s refusal to avail of its bigoted care program is an unconstitutional violation of its religious rights.
It is one thing for religious conservatives to claim that the Constitution gives them a personal right to bigotry. In a free society, a personal right to be hateful is just something we must all accept. But it is an entirely different matter when conservatives argue that the constitution requires the state to support its bigotry. This is an argument that a secular society does not have to accept in the name of religious freedom.
In this case, it is important to understand that the city is not asking Catholic social services to support same-sex marriage. The agency is not asked to place foster children with Wiccans, Druids, or theater people. It doesn’t ask the agency to do anything. The Catholic Social Service is and remains free to bring the children entrusted to it to any house it deems qualified, depending on the religious teachings it has on that day.
What the city will not do is use the services of an agency that refuses to place children with LGBTQ families because of the dogmatic – and discriminatory – rigor of an organized religion. This is an obvious and sensible choice for secular government.
Unfortunately, religious conservatives are not satisfied with practicing their beliefs peacefully and without government interference. Their long-term culture war is to force the government to support discrimination and bigotry in the name of Jesus. They have turned the Free Exercise Clause of the First Amendment – which is supposed to be a shield to protect people from state prohibitions on their religious practices – into a sword with which the government is supposed to crack down on the LGBTQ community and secular norms.
This corruption of the free exercise clause has been increasingly upheld by the Supreme Court. in the Trinity Lutheran Church of Columbia, Inc. v Comer, ruled in 2017, successfully sued a religious school for free practice after failing to receive funding for playground renovation from a state program until all public schools were given a chance at the money. in the Masterpiece Cakeshop v Colorado Civil Rights Commission, ruled in 2018, a baker successfully argued that an anti-discrimination agency in Colorado is too hostile to the free exercise of its religious belief that gay people should be discriminated against.
The Supreme Court ruled both cases in 7-2 rulings. Judges Stephen Breyer and Elena Kagan joined the five religious conservatives for these decisions. Breyer and Kagan have a habit of bending over to try to limit these theocratic decisions by reducing them to a very specific set of facts, and it is felt that in these cases they would have been different, if they had the votes to win. But as it stands, religious law has a super-majority in the court that wants to support the notion that free movement is an instrument to undo the distinction between church and state.
I expect Fulton versus City of Philadelphia to be the worst articulation of this view so far. I expect the Supreme Court to force Philadelphia to use a nursing service that is openly bigoted and calls it freedom of religion.
I’ll probably frame the only dissent from Justice Sonia Sotomayor somewhere in my office.
Ministry of Justice versus House Committee on Justice
R.Do you remember the Müller report? Do you remember how US Attorney General Bill Barr lied about what he said? And do you remember when the Democrats asked to see the underlying documents and statements in the investigation and Barr said no and the media called the report a failure?
Experts pronounced the Müller report dead a long time ago, but the Democrats on the House Justice Committee are still trying to get Barr’s Justice Department to publish the full story. They still want to see the grand jury documents and testimony that Barr cut out of the report, and in July 2019 they sued the Justice Department for doing so. The Democrats won in the US District Court, but the Justice Department appealed. They won again on the DC Circuit, but the Justice Department appealed. After all, this lawsuit is before the Supreme Court.
Or at least it will be. The trial on December 2nd is what time Election Day will come and go – which means that whatever happens, Barr has achieved his goal of making sure Americans don’t get the full story Interference by foreign powers in the US will hear the 2016 presidential election until after the 2020 elections.
That is not justice; This is the obstacle to justice. This is a corrupt attorney general who uses all available means to hide the truth from the American people – with the apparent complicity of the Supreme Court.
For me, Trump won this round politically. He got what he wanted: the media largely disapproved of the Mueller report, the president was not convicted of obstruction of justice for which he was charged, and he is unlikely to be held accountable for being a foreigner in the 2016 presidential election Requests interference. The only press that will produce this ruling are dozens of law-reviewing articles read by dozens of people who ponder deeply the limits of grand jury secrecy under Rule 6 of the Federal Code of Criminal Procedure.
The legal disposition of this case remains important, however, as it provides a precedent for presidents and attorneys-general as to what they can or cannot do to hide the results of an independent investigation into suspected presidential wrongdoing. Precisely because Trump has so successfully managed to evade responsibility for his efforts, he won’t be the last presidential candidate seeking foreign aid to win an election. A decision against Trump here will come too late to stop him, but it could make the next candidate think twice.
Even so, even victory for the sake of precedent will be cold comfort. I only believe in hell because I have to believe in a place where the people who supported and supported the Trump administration can be judged by someone who acts with more dedication than John Roberts.
Facebook v. Duguid
C.ases like Facebook v. Duguid is why social media giants are either spreading misinformation and lies that help conservative candidates win elections, or refusing to do anything to stop the spread. Conservative politicians lead to conservative judges, and conservative judges lead to ignorant technical decisions that tech brothers can exploit for profit and power.
I love this case because the facts are evidence of how one person can challenge a corporate giant in our country. It’s not the most momentous case on the Supreme Court file this year, but it’s an important reminder that ordinary citizens can and do challenge the tech giants. These companies don’t exist outside of the law and their practices can be regulated – by the courts or by Congress.
Noah Duguid did not have a Facebook account but continued to receive text messages from the company warning him that someone had tried to access his (nonexistent) account. This advertising harassment lasted 10 months. In 2015 he sued Facebook under the Telephone and Consumer Protection Act. This law prohibits companies from using an automated telephone dialing system, commonly known as an autodialer, to make robocalls.
The problem, of course, is that Facebook doesn’t technically use an autodialer to transform into people’s text messages. It uses something that accomplishes the same goal, but the technology is different from what is established in the law. I will not pretend to understand how it is different. I went to law school, not a billion dollar school.
How a judge should deal with such a situation is one of the big differences between liberal and conservative lawyers. Liberals tend to take an “I see what you did there” approach, interpreting rules based on what a thing does, not just what it’s called. Conservatives tend to go the other way, pulling out a dictionary to play mundane word games, missing out on the woods, and debating the difference between a Quercus rubra and a Crataegus monogyna (they are both, you know, trees).
Tech companies like Facebook generally prefer the conservative approach to interpretation. Why? Gun manufacturers do it for the same reason. Conservative judges are ready to get companies out of regulation by simply putting a new name and widget on the same item or product. This is forcing Congress to go back and pass entirely new laws to regulate that object or product. Even if Congress has the will to re-regulate (which it often doesn’t), the process gives big corporations (and their lobbyists) another bite of the apple to change or manipulate regulation to their liking.
In this case, the Supreme Court has to rule because the district courts are divided. The second and ninth circuits (covering New York and California, respectively) prohibit Facebook’s autodialer, while the third, seventh, and eleventh circuits allow it.
The Conservative majority in the Supreme Court almost always side with giant corporations over little guys like Duguid. However, Facebook is not guaranteed to win. Supreme Court justices are old, occasionally moody, and rarely tech-savvy. If their grandchildren get their ears on how annoying unwanted text messages can be, some of these conservative judges may be asking Facebook to get off their turf.
Torres versus Madrid
IIn July 2014, Roxanne Torres took her friend to an apartment complex in Albuquerque, New Mexico. Unknown police officers lurked on site to arrest a suspect who lived there. Officials decided that Torres was a person of interest and approached their vehicle. They carried police IDs, but were otherwise dressed in dark tactical gear. One of the officers went to her driver’s side window and ordered her to put up her hands. Then the officer toyed with the handle on her locked door. Torres believed it was stolen and tried to drive away. The officers interpreted this as an attempt to drive towards them and opened fire as soon as the car jerked forward and hit them twice in the back.
Torres escaped. The police later arrested her when she was being treated in the hospital for her gunshot wounds.
The officers were not accused of shooting an unarmed woman in the back. However, Torres filed an excessive use of force lawsuit, citing the fourth amendment’s protection from improper search and seizure.
The US District Court and 10th Court of Appeals ruled in favor of the police because they escaped. I am not making this up. The 10th Circle found that Torres had not been seized because she was not arrested on the spot.
Torres’ appeal against the 10th District ruling is due to be discussed in the Supreme Court on October 14th. This case is vital if you even care about cracking down on police brutality and violence against black and brown people. The fourth amendment is one of the few constitutional provisions that can address police misconduct. Adopting the rule of the 10th circuit would functionally change the definition of the fourth change: rather than protecting us from improper search and seizure, it would only protect us from successful acts of improper search and seizure. Constitutional protection from excessive violence shouldn’t depend on whether the police beat you until you stop moving. The 10th Circle decision is terrible for both legal and political reasons.
Fortunately, the fourth amendment’s problems are among the few that do not conform to normal liberal and conservative tenets. The Eighth, Ninth, and Eleventh Circle Appeals Tribunals have rejected arguments similar to those of the 10th Circle in this case. While on the Supreme Court of Justice, Antonin Scalia advocated a robust interpretation of the fourth amendment, and other so-called originalists like Gorsuch and Justice Clarence Thomas are at least amenable to strong protection of the fourth amendment. Breyer, on the other hand, has been a weak link when it comes to protecting the Fourth Amendment, which is supported by the left of the court.
This case was to be discussed in the final term in the Supreme Court prior to the murder of George Floyd and the subsequent Black Lives Matter uprising, but has been postponed due to Covid-19. The mass media might have missed it if it had been just another Supreme Court case sandwiched between a string of lawsuits and arguments related to Trump. I think people will notice by now. We have seen an uprising against police violence in our country. It is hard to imagine that the Supreme Court will respond to this riot by ruling that the fourth amendment will only apply if the police successfully kill or incapacitate you.