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


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The US supreme court is deciding more and more cases in a secretive ‘shadow docket’


Last week, it was Remain in Mexico. On Tuesday, the supreme court issued an order requiring the Biden administration to reinstate the Trump-era policy that required asylum seekers from Central America to stay across the border in Mexico while their claims are adjudicated. It was an uncommonly aggressive intervention into foreign policy, an area where previous courts have preferred a light touch, and it posed massive logistical, diplomatic and humanitarian crises at the border that will need to be rapidly resolved if the Biden administration is to comply with the order.


Two days later, it was the eviction moratorium. On Thursday, the court blocked an extension of the federal emergency ban on evictions, gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the 8m American households that are behind on rent – who now, without federal eviction protection, may face homelessness.


Both of these orders last week were issued in the dead of night. Their opinions were truncated, light on the details of their legal reasoning, and unsigned. Vote counts were not issued showing how each justice decided. And despite the enormous legal and human impact that the decisions inflicted, they were the product of rushed, abbreviated proceedings. The court did not receive full briefs on these matters, heard no oral arguments and overrode the normal sequence of appellate proceedings to issue their orders.


Welcome to the “shadow docket”, the so-called emergency proceedings that now constitute the majority of the supreme court’s business. Minimally argued, rarely justified and decided without transparency, shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters. To have an issue addressed on the shadow docket, a litigant has to apply for “emergency relief” – usually to stop a decision against them from a lower court from going into effect while appeals proceed. Traditionally, applicants would need to demonstrate that they would suffer “irreparable harm” if their petition wasn’t granted immediately. So one historical use of the shadow docket has been in federal death penalty cases, where the court has used the emergency proceeding to affirm or deny requests for stays of execution.


But in recent years the court has largely dispensed with any meaningful application of the irreparable harm standard, and instead has entertained emergency relief petitions from more and more litigants, issuing shadow docket rulings on increasingly significant and controversial legal questions without the rigor or transparency that such issues demand.


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  • 4 weeks later...

This should come as no surprise to anyone:


McConnell Refuses to Commit to Confirming a Biden Supreme Court Nominee if GOP Takes Back the Senate


Senate Republican Minority Leader Mitch McConnell is refusing to say he will not “mount a blockade” against a possible Supreme Court nominee put forth by President Joe Biden, should the opportunity arise, if Republicans take back the Senate after the 2022 elections.


McConnell, as Majority Leader, infamously refused to even allow then-President Barack Obama’s Supreme Court nominee to have any confirmation hearings, keeping the seat open if a Republican won the White House in 2016, which Donald Trump did.


In an interview with Politico’s Burgess Everett, the Kentucky Republican who has been in the U.S. Senate since 1984 was asked if he would again “mount a blockade.”


“Cross those bridges when I get there, we are focusing on ‘22,” McConnell said, Everett reports. “I don’t rule anything in or out about how to handle nominations if I’m in the majority position.”


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Supreme Court agrees to hear Ted Cruz's challenge to campaign finance reimbursement rules


The Supreme Court agreed to hear a case concerning Sen. Ted Cruz's 2018 campaign and consider regulations that limit money that committees can raise after the election to reimburse loans made before the election.


A lower court ruled in favor of Cruz, holding that a loan-repayment restriction under federal campaign finance law violates the First Amendment.

Federal law allows candidates to make loans to their campaign committees without limit. The Bipartisan Campaign Reform Act of 2002, however, imposes a $250,000 limit on a campaign committee's ability to repay those loans with money contributed by donors after the election.


In his 2018 campaign for the US Senate, the Texas Republican loaned his campaign $260,000 -- $10,000 over the limit. As things stand, the committee is unable to pay him the remaining $10,000 on the loan.

"Existing FEC rules benefit incumbent politicians and the super wealthy by making it harder for challengers to run for office," a spokesman for Cruz said in a statement to CNN Thursday. "We're confident the Supreme Court will again rule in favor of the First Amendment and free speech."

Lawyers for Cruz told the Supreme Court in briefs that the law "by substantially increasing the risk that any candidate loan will never be fully repaid -- forces a candidate to think twice before making those loans in the first place."

In his lawsuit, Cruz argued that the law imposed "arbitrary restrictions on core political speech."


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7 hours ago, youngestson said:

All those keg stands...too easy. Make him have to pass random soberity tests before getting his pay check.

If you really want to make it impossible for Kavanaugh… make him pass a standard morality check to get his paycheck. 

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The Supreme Court Changed Oral Arguments Because Male Justices Kept Interrupting


Justice Sonia Sotomayor said on Wednesday that the Supreme Court changed its oral argument structure after studies showed that female justices were being disproportionately interrupted by male justices and advocates, according to CNN.


During remarks at New York University School of Law, Sotomayor said the studies had an “enormous impact” on Chief Justice John Roberts’s decision to become “much more sensitive” about the matter. Instead of the previous format where the justices could speak whenever they wanted, they now take turns asking questions in order of seniority. One interesting result of the new system, as noted by CNN, is that the notoriously silent Clarence Thomas has been regularly piping up this term.


One of the studies that Sotomayor referred to was written by law researchers Tonja Jacobi and Dylan Schweers in 2017. They examined three different periods, since 1990, for instances of interruptions between female and male justices on the high court. During the timeframes they studied, Justices Anthony Kennedy, Antonin Scalia, and William Rehnquist were the worst offenders, accounting for 44 percent of all interruptions. Meanwhile, Justices Ruth Bader Ginsburg, Sotomayor, and Sandra Day O’Conner were the ones getting interrupted in more than a third of the cases.


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Progressives fume as Biden Supreme Court commission seems to reject court-packing


nitial progressive reaction to draft discussion materials released by the White House's presidential commission on the Supreme Court Thursday was not positive, as Democratic activists and commentators derided the commission for its apparent reluctance to endorse court-packing. 


"This report is an abomination," Slate writer Mark Joseph Stern tweeted. "It assumes that today's Supreme Court is basically apolitical while fretting that reforms with any real teeth would politicize it, and potentially break democracy. Republicans must be thrilled with this outcome. It's a gift to the GOP." 


"We have said since the Commission’s beginning that for the Commission to provide a meaningful contribution to restoring the legitimacy of our judiciary, it needs to advance a specific list of Supreme Court reforms that can be acted upon in the near term," American Constitution Society President Russ Feingold said in a statement. "The discussion materials released today unfortunately fail to match the urgency of the situation and do not lay out a solution to the legitimacy crisis before us." 


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Stocks owned by Supreme Court justices tilt the scales of justice


We have an ethical crisis across all three branches of government.


In recent years, the United States has experienced an unprecedented number of financial conflicts of interest in its executive and legislative branches. Thanks to recent reporting by The Wall Street Journal, we now know how bad financial conflicts of interest are in the federal judiciary.   According to the newspaper’s report, 131 federal judges broke the law by participating in 685 cases in which they had a financial interest, chiefly because of their holdings in individual stocks. This is a violation of the disqualification statute for United States judges prohibiting them from deciding cases in which they have a financial interest.


We have an ethical crisis across all three branches of government because those holding high office have been unwilling to divest from assets that conflict with their official duties.


I was among those in 2016 who raised alarm over the refusal of candidate Donald Trump, then President-elect Trump, to divest from the Trump Organization’s vast holdings in hotels, condominiums, resorts and golf courses the world over. Former Ambassador Norman Eisen, Harvard Law professor Laurence Tribe and I prepared a detailed analysis of the inevitable collision between Trump’s financial interests and the Emoluments Clause of the Constitution, which prohibits a federal official from receiving any profit or benefit from a foreign government.


Trump refused to divest, and we sued him on his first full day in office on behalf of Citizens for Responsibility and Ethics in Washington (CREW) and other plaintiffs. Our standing to sue was later upheld by the 2nd Circuit Court Of Appeals, but the litigation lasted so long that Trump held onto these financial interests and the foreign government emoluments that came with them for all four years of his presidency, and our suit became moot upon his leaving office.




Matters get worse on the Supreme Court. At least three justices — Chief Justice John Roberts and Associate Justices Stephen Breyer and Samuel Alito — own individual stocks, and all three have recused themselves from cases because of their stock holdings. The problem is, unlike on the lower federal courts, there are no replacement justices to take their place. A case could be decided by eight justices or seven justices because of recusals. This is problematic for the Supreme Court, which often grants review in certain cases not just to resolve a particular dispute but to clearly state what the law is going forward. A Supreme Court decision that does not have the support of at least five justices has little value as a precedent because the ruling could be reversed in a future case in which none of the justices recuse themselves.


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Qualified immunity: Supreme Court sides with police, overturns denial of immunity in two cases


The Supreme Court sided Monday with police in two cases in which plaintiffs claimed officers used excessive force, overturning separate lower court rulings that had allowed the officers to be sued for civil rights violations.


In two unsigned opinions, the court stressed police are entitled to be shielded from liability unless it is "clear to a reasonable officer" that their actions are unlawful. In both cases the court ruled that the officers were entitled to qualified immunity, the legal doctrine that protects police from liability for civil rights violations in many circumstances.


In one case, the Supreme Court overturned a lower court ruling that found an officer in California who placed his knee on a prone suspect could be sued. In another, it overturned a lower court ruling that two police officers in Oklahoma could be sued because their actions before a fatal shooting escalated the potential for violence.


At a time when the nation is still grappling with fatal police interactions and bipartisan talks in Congress over increasing accountability have fizzled, the Supreme Court has mostly balked at lawsuits questioning the legal immunity extended officers.


Critics say qualified immunity lets police off the hook in virtually every case in which their actions are not specifically prohibited. Police organizations have long countered that officers need immunity in cases when they must defend themselves and split-second decisions can lead to unforeseen tragedy.


There were no dissents from any justice in either case.


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