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SCOTUS: No longer content with stacking, they're now dealing from the bottom of the deck

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US Supreme Court Takes Up More Than a Dozen New Cases


The U.S. Supreme Court granted 14 cases Friday night, adding an additional 12 hours of argument to its calendar.


The court did not act on some of its pending election challenges, including one sent by President Donald Trump to the justices focused on law governing mail-in ballots. Justices did however beef up their calendar with a myriad of new cases.


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The Supreme Court's run out of excuses to avoid controversial issues


In the aftermath of a divisive election, a riot at the US Capitol and the unprecedented final days of the Trump administration, the Supreme Court kept many controversial issues in a holding pattern of sorts, sticking to Chief Justice John Roberts' objective of keeping his branch of government out of the political spotlight.


But now Trump is an ordinary citizen, the Biden administration is in place and the justices are expected as soon as Monday to begin to act on a mound of lingering issues they have been sitting upon, including abortion and the question of former President Donald Trump's tax returns.

Some of the disputes are closely linked to Trump, others are cases on the upcoming calendar that might become moot should the Biden administration reverse Trump policies.


Also, looming as a backdrop, is the possibility that Roberts might once again be tasked with presiding over Trump's second impeachment trial -- although legal experts differ on the chief justice's role as it pertains to a proceeding against an ex-president. Finally, there is a new whisper campaign in town, as progressives wonder if Justice Stephen Breyer at 82 years old, might be thinking about retirement as early as this term in order to give Biden the chance to fill the seat with a younger justice.


Friday morning, the justices held their regular private telephone conference to discuss an impressive array of substantial issues. Monday morning, they will release a list of cases they will take up or reject and also issue at least one opinion.


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Biden starts staffing a commission on Supreme Court reform


The Biden administration is moving forward with the creation of a bipartisan commission to study reforms to the Supreme Court and the federal judiciary.


The commission will be housed under the purview of the White House Counsel’s office and filled out with the behind-the-scenes help of the Biden campaign’s lawyer Bob Bauer. Its specific mandate is still being decided. But, in a signal that the commission is indeed moving ahead, some members have already been selected, according to multiple people familiar with the discussions.


Among those who will be on the commission are Cristina Rodríguez, a professor at Yale Law School and a former deputy assistant attorney general in the Obama Department of Justice, who has been tapped to co-chair the commission. Caroline Fredrickson, the former president of the American Constitution Society, and Jack Goldsmith, a Harvard Law School professor and a former assistant attorney general in the Bush Department of Justice, will also serve on the commission, those familiar with discussions said.


Fredrickson has hinted that she is intellectually supportive of ideas like court expansion. In 2019, she said in an interview with Eric Lesh, the executive director of the LGBT Bar Association and Foundation of Greater New York: “I often point out to people who aren't lawyers that the Supreme Court is not defined as ‘nine person body’ in the Constitution, and it has changed size many times.”


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Kagan Warns the Supreme Court’s New COVID Decision May Kill People


Late on Friday night, the Supreme Court blocked California’s public health ban on indoor religious services in a splintered 6–3 decision that augurs a major shift in the law of religious liberty. Justice Elena Kagan’s extraordinary dissent accused her conservative colleagues of endangering lives by overruling public health officials and potentially facilitating the spread of COVID-19. But the court’s new conservative majority ignored her warning—and, in the process, gave itself new powers to strike down alleged burdens on religious freedom. The Supreme Court effectively tossed out decades of case law in a late-night emergency order, unsettling precedent that states have relied upon to craft COVID restrictions. As Kagan sharply noted, Friday’s order “injects uncertainty into an area where uncertainty has human costs.”


South Bay United Pentecostal Church v. Newsom is the latest in a long line of COVID cases to reach the Supreme Court. The plaintiffs challenged three pandemic-related restrictions on religious worship: a total ban on indoor services in areas where cases are surging (which covers much of the state right now); a 25 percent cap on indoor services where they are permitted; and a ban on singing and chanting during those services.


In amuddled order, SCOTUS shot down the total ban on indoor services, but upheld the 25 percent cap and the singing ban. The majority’s decision—issued as a highly infectious “California variant” of the coronavirus sweeps across the state—allows residents to resume indoor worship, the cause of countless superspreader events since the start of the pandemic. While there is no single majority opinion, five justices supported the proposition that California’s regime violates free exercise because it treats secular businesses more favorably than religious establishments. Notably, no justice in the majority even pretended to apply the appropriate standard for this emergency request, which requires plaintiffs to prove that the legal rights at issue are “indisputably clear” and that an injunction is “in the public interest.” They simply issued a decision on the merits, another example of the court making law through its shadow docket.


Kagan, joined by Justices Sonia Sotomayor and Stephen Breyer, dissented from this order in a blunt opinion highlighting the possibility that her colleagues’ decision will kill people. “Justices of this Court are not scientists,” Kagan began. “Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic. … That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.” She pointed out that, contrary to the court’s belief, California has not actually treated churches less favorably than secular businesses and assemblies: Political meetings, lectures, and plays are also banned, she wrote—and these “secular gatherings,” like religious worship, “are constitutionally protected” by the First Amendment. The court simply created “a special exception for worship services.”


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