US Supreme Court Discussions

[Voronwë the Faithful]

Is there a mechanism for a judge to just pull the plug on a defendant mid-litigation or do we have to watch this sh*tshow to the end?

Federal Rules of Civil Procedure Rule 37 authorizes the court to impose terminating sanctions in civil case, but that is an extraordinary rare and extreme remedy, and usually would only be applied if lesser sanctions have not worked. As extraordinary as this case is, I don't think any of the judges what do that.

However, my understanding is that the New York judge has ordered that each individual attorney that they are seeking to replace submit a sworn statement stating why he or she needs to withdraw from the case, so unless they give up on trying to replace the attorneys, we should learn more about exactly what is going on with that.

Can someone explain what I'm not understanding about the significance of citizenship related to Congressional districts?

There has long been abundant evidence that the reason they want to add the citizenship question is discriminatory, to boost the voting power of non-Hispanic whites. That evidence was greatly increased when longtime GOP gerrymandering guru Tom Hofeller died and his daughter turned the hard drive of his computer over to Common Cause, one of the organizations fighting the census question, that specifically stated that adding the citizenship question would aid "Republicans and non-Hispanic whites."

What would be the potential reasons for only wanting to invalidate the law in the states that were contesting it?

I literally have no idea.

[Cerin]

There has long been abundant evidence that the reason they want to add the citizenship question is discriminatory, to boost the voting power of non-Hispanic whites.

How would a citizenship question boost the voting power of non-Hispanic whites? I understand the idea that a citizenship question would result in an under count of non-citizen Hispanics, but how does that boost the voting power of non-Hispanic whites?

[Voronwë the Faithful]

By resulting in an under count of people of color, both citizen and non-citizen (Congressional districting is based on the total count, regardless of whether people are citizens eligible to vote).


Back to your question about the potential reasons for only wanting to invalidate the ACA in the states that were contesting it, I should clarify that I meant that I have no idea what the legal reasons would be. The political reasons are obvious: the ACA is very popular among Democrats, and very unpopular among Republicans, so invalidating it would be popular in states dominated by the GOP and unpopular in states dominated by Democrats.

[Voronwë the Faithful]

The judge in the Maryland case also denied the motion to withdraw, after the Justice Department filed a further brief saying, essentially, we are allowed to withdraw because we say we are allowed to withdraw, without giving any additional reasons.

This is all on Bill Barr.

[Frelga]

This administration seems to follow the legal principle of Quia Ego Sic Disco

*Because I Say So. Terry Pratchett, Making Money

[Voronwë the Faithful]

A very interesting paragraph in the judge's order denying the motion:

Additionally, the Court also expects that the new DOJ team will be aware of and prepared to address potential conflicts between recent developments in this case and positions repeatedly taken before this Court by the withdrawing attorneys. For example, in defending against Plaintiffs’ Equal Protection claim, Defendants, through counsel, have repeatedly represented to this Court that Secretary Ross, and not President Trump, acted “as the sole decisionmaker” as it relates to the addition of a citizenship question to the Census, and that, as a result, any evidence of statements made by candidate, President-elect, or President Trump suggesting discriminatory animus towards immigrant communities was not relevant to the decision to add a citizenship question to the 2020 Census. See e.g., ECF No. 54-1 (18-1570) at 8 (arguing that Plaintiffs “have not alleged facts plausibly suggesting that the sole decisionmaker here—the Secretary—had a discriminatory purpose in reinstating a citizenship question.”); id. at 25 (“Given that Secretary Ross, as the sole decisionmaker, directed reinstatement of a citizenship question on the 2020 Census . . .); ECF No. 82-1 (18-1570) at 24–25 (“Here there is no evidence that, as the sole decisionmaker, Secretary Ross directed reinstatement of a citizenship question on the 2020 Census because of potential adverse effects on a protected class.”); id. at 26 (“These statements therefore shed no light on ‘the decisionmaker’s [i.e., the Secretary’s] purposes.’”); ECF No. 90-1 (18-1041) at 7 (“To the extent Plaintiffs are relying upon this exhibit to establish discriminatory intent by the decisionmaker, Plaintiffs have adduced no evidence that Secretary Ross was even aware of this purported campaign document.”); ECF No. 150 (18-1041) at 212 (“There is no
evidence, in the administrative record or otherwise, that the sole decisionmaker, the Secretary, was motivated by discriminatory animus.”); id. at 221 ¶ 527 (“Simply put, Plaintiffs failed to prove that general public statements made by the President or other persons about matters other than the decennial census or the possibility of including a citizenship question thereon – that the Secretary may or may not have even been aware of – somehow constitute a discriminatory animus motive on the part of the Secretary, the sole decisionmaker, and they have failed to satisfy the final Arlington Heights factor.”); ECF No. 153 (18-1041) at 168:1-3 (“[P]laintiffs have failed to adduce any evidence that anyone, other than the Secretary, was responsible for that decision”); id. at 169:15-19 (“[P]laintiffs have failed to show that the President was even aware of the Secretary’s decision, let alone involved in that decision. Plaintiffs have failed to identify a single statement from the President that concerns the census, let alone the citizenship question.”); id. at 170:3–5 (“It is plaintiffs’ burden to prove, and they failed to show that the President had any knowledge or involvement in this decision.”). The Court accepted these arguments made by the withdrawing attorneys in its earlier ruling, which is now under reconsideration, granting judgment in Defendants’ favor on the Equal Protection claim. ECF No. 154 at 42 (“Ultimately though, the Court cannot, by a preponderance of the evidence, connect the dots between the President[’s] views, the Secretary’s failure to disclose his real rationale, and the Secretary’s final decision.”).

In other words, if the president issues an executive order or takes some other action, all bets are off.

[RoseMorninStar]

Above the law? A law unto themselves? Because I say so? Answerable to no one? Am I understanding that correctly?

[Voronwë the Faithful]

Trump expected to announce executive action on census

So all of the evidence of discriminatory intent that the judge said he had to ignore because of the representations that the decision was solely in Secretary Ross's hands and that the president had absolutely nothing to do with the decision will be back on the table.

[Cerin]

It was initially suggested that the lawyers themselves wanted to withdraw, as opposed to the administration wanting to swap them out. Is there any further clarification on that?

[Voronwë the Faithful]

It's not quite correct to say "It was initially suggested that the lawyers themselves wanted to withdraw." It would be more correct to say "people have speculated that the attorneys refused to make arguments that the administration wanted them to make, and that is why they are being replaced." But it is just that: speculation. There has been no explanations given, other than that the attorney general is allowed to decide who gets assigned to what case (which is true so far as it goes, but does not take into account the fact that in a long-running litigation it is the court that gets to decide whether an attorney representing any party other than an individual is allowed to withdraw). The New York judge has required that if they want to renew the motion to withdraw, the attorneys themselves will need to provide sworn statements stating the reasons for the withdrawal. The Maryland judge has just stated that if they want to renew the motion to withdraw they will need to provide more details about how they will avoid causing disruptions to the process. I suspect that what will happen is that the justice department will no renew the motions to withdraw, and will just leave the old attorneys on the case in addition to the new attorneys, and just have the new attorneys make the arguments that the old attorneys did not want to make.

[Cerin]

I thought it was strictly a replacement scenario and didn't realize they were allowed to add new attorneys to the team. Thanks for clarifying that. That makes it seem like less of an issue for the administration, but more of an issue for the original team, if it is they who are wanting not to be associated with the case any longer.

[Voronwë the Faithful]

The latest word is that Mr. Trump is going to drop the effort to add the citizenship question to the census and instead issue an executive order directing the Commerce Department to obtain the citizenship information by "other means."

In other words, he is capitulating.

Sent from my LG G6 using Tapatalk

[elengil]

In other words, he is capitulating.

Maybe he just got tired of all his winning...

[River]

He'll probably cast returning to the status quo (the IRS can provide this sort of information to the DoC and the Census Bureau sends out annual questionnaires to a selection of households and a citizenship question is on it) as a bold and brilliant new move. Those who aren't informed on the topic will buy into it because they don't know better. Those who are informed on the topic won't buy into it but he probably doesn't care so long as he gets enough applause.

[Voronwë the Faithful]

Justice Ruth Bader Ginsburg treated for pancreatic cancer


Hopefully the representations in the press release that, "The tumor was treated definitively and there is no evidence of disease elsewhere in the body" and that "No further treatment is needed at this time" are accurate. Both for her sake and for the country's sake. I'm sorry, but the prospect of Mr. Trump having an opportunity to replace Justice Ginsburg fills me with horror.

[RoseMorninStar]

Trump and McConnell.

[Voronwë the Faithful]

Revisiting the census case, a new report suggests that like with his surprising deciding vote upholding the constitutionality of the ACA, Chief Justice Roberts changed his position on the census case over the course of the high court's deliberations.

https://www.cnn.com/2019/09/12/politics ... index.html

[Voronwë the Faithful]

The court hears oral arguments today in three cases regarding whether Title VII's ban on gender discrimination can be extended to sexual orientation and gender identity. While most lower courts have held that it can be, I am skeptical of what the high court will do (of course it doesn't matter so much here in California and other states that specifically ban discrimination on the basis of sexual orientation and gender identity, but it does in the rest of the country).

[Cerin]

Something just hit me like a thunderbolt. SCOTUS decisions on the most hot button political issues -- LGBTQ rights, DACA, abortion, gun rights, church-state and (potentially) impeachment-related challenges -- will be delivered before the nominating conventions next year. What might the effects of these decisions be, depending on how they go, on the nominations and the election?! The various possibilities boggle the mind.

It would be an irony indeed if decisions going the conservative way fired up left-leaning and independent voters and resulted in Democrats taking the Presidency and both Houses of Congress, or vice versa. What would be worse -- decisions going the right way resulting in elections going the wrong way, or decisions going the wrong way resulting in elections going the right way?

I suddenly feel as if all bets are off (not that any bets were on with so long to go before next summer).

[Voronwë the Faithful]

Yup!

(Sorry for the short one word response, but you pretty much said it all. And I don't really have an answer to your question, if it is in fact a real question and not a rhetorical one.)