US Supreme Court Discussions

[N.E. Brigand]

Elie Mystal, who writes about SCOTUS for The Nation, argues that Solicitor General Prelogar's response to Justice Gorscuch's comment indicates that she understood him to be saying that the number of flu deaths is in the hundreds of thousands. While I enjoy Mystal's punchy argument against those defending the "hundreds, thousands" interpretation of Gorsuch's remarks ("According to you guys, Prelogar was basically like 'not that many people get crushed by vending machines' and Gorsuch was like 'actually I do think the thread of people being crushed by vending machines is pretty grave. But OSHA doesn't regulate them... so no SEAT BELTS IN CARS'"), I'm not sure he's right. ...

I also think Mystal makes a good point here, and the Court's conservatives are going to have tie themselves in knots to get around this:

"[T]he OSHA rule says 'vax, or get tested and masked, or work from home, or find a new job.' It is squarely within the government’s authority to set workplace safety regulations. OSHA can, and does, regulate the air quality in workplaces; it can certainly regulate how much coronavirus a person can spew on their coworkers."

Mystal had predicted a 6-3 decision against the Biden administration in the OSHA case and a 5-4 decision for the Biden administration in the health care workers case. He was right about the latter (because there are four dissenters responding to the unsigned majority opinion), but we don't know if he was right about the numbers in the former (because there were three dissenters responding to the unsigned majority opinion, and three other justices who wrote a separate concurrence), although obviously he, like many court observers, correctly guessed that based on the justices' questions, Biden would lose in the OSHA case.

And on the subject of predictions, I'll quote something Mystal wrote following the announcement of today's decision:

"I want everybody to remember that the Supreme Court has said the government doesn't have the authority to make people wear a mask when it later says it *does* have the authority to force women to give birth against their will."

Again I appreciate the rhetorical flair, but to be fair, what the Court very well may announce later this year is that the *states* have the authority to force women to undergo childbirth.

[N.E. Brigand]

Yesterday NPR had a report from longtime Supreme Court correspondent Nina Totenberg that made the following claims:

(1) This month, all the Justices who were in the courtroom for oral arguments were masked except Justice Gorsuch;
(2) Chief Justice Roberts had asked the judges to wear masks out of consideration for the health of Justice Sotomayor;
(3) Sototmayor opted to particpate remotely because she has diabetes; she was the only Justice to wear a mask this past fall;
(4) Sot9mayor's seat is right next to Gorsuch's; and
(5) Gorsuch also refuses to wear a mask during the Justices' weekly conferences; Sotomayor has been participating remotely in those as well.

Today Justices Gorsuch and Sotomayor issued this joint statement:

"Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends."

I would note that this statement refutes nothing in NPR's report.

Edit: However, a few hours after that non-denial denial was released, Chief Justice Roberts said, "I did not request Justice Gorsuch or any other Justice to wear a mask on the bench." So NPR may need to explain why their reporting reflects otherwise. And yet, this is the exact wording of yesterday's piece:

"And according to court sources, Sotomayor didn't feel safe in close proximity to people who were unmasked. So Chief Justice Roberts, understanding that, in some form or other suggested that the other justices mask up."

In other words, I overstated NPR's claim above, and Roberts's statement today doesn't necessarily contradict yesterday's reporting. And the fact is that seven of the eight Justices present at oral arguments this month were masked, while none had been before the holidays. It's possible that they all (but Gorsuch) decided to do on their own. It's also possible, as the report said, that Roberts "suggested" they do so.

Edit part 2: Nina Totenberg says that NPR stands by her reporting, although she doesn't explain further. While this whole thing seems like a fairly minor issue, a lot of people have pointed to this as proof of bias by NPR.

Edit part 3:: Totenberg has a new article at NPR in which she stresses that today's statements by Sotomayor, Gorsuch, and Roberts do not contradict her previous reporting that Roberts asked the other Justices "in some form" to wear masks.

I am interpreting all this to mean that Chief Justice Reports said or wrote something like, "It would probably be a good idea for everyone to wear a mask when we're all together in the same room." And just like President Donald Trump telling FBI Director James Comey that he "hoped" Comey could drop the investigation into former National Security Director Michael Flynn, it's reasonable to interpret a suggestion from the Chief Justice as a request.

(Someone else can post the big news on another matter that came out of the Supreme Court while I was typing this third edit.)

[N.E. Brigand]

I am interpreting all this to mean that Chief Justice Reports said or wrote something like, "It would probably be a good idea for everyone to wear a mask when we're all together in the same room." And just like President Donald Trump telling FBI Director James Comey that he "hoped" Comey could drop the investigation into former National Security Director Michael Flynn, it's reasonable to interpret a suggestion from the Chief Justice as a request.

NPR has published a clarification that supports my guess. NPR's public editor says that Totenberg should not have said that Roberts "asked" the others judges to wear a mask but should have used a word like "suggested" instead.

[N.E. Brigand]

In the New Yorker, Jane Mayer asks: Is Ginni Thomas a Threat to the Supreme Court?

Thomas, the wife of Justice Clarence Thomas, is a political activist who involvement in various far right causes has at least tested the bounds concerning situations in which a Supreme Court justice like her husband should recuse himself (various legal experts have differing views on the subject). This blurring of lines dates back at least to the early part of the Trump administration, when she "was an undisclosed paid consultant at the conservative pressure group the Center for Security Policy, when its founder, Frank Gaffney, submitted an amicus brief to the Court supporting Trump’s Muslim travel ban" (she was paid $200,000 by the group -- something which Justice Thomas apparently should have but didn't note on his annual financial disclosure form -- and she gave an award to the group's founder at a Dec. 2017 event at Trump International Hotel, with Justice Thomas in attendance), and continued through the post-election controversies, when she was very active on a private Listserv ("Thomas Clerk World") mostly populated by Justice Thomas's former clerks. There she joined John Eastman, the former Thomas clerk who, as Donald Trump's lawyer, was simultaneously drafting a plan meant to overturn the election results, in pushing the "Big Lie" so hard that eventually she had to apologize. (However, contrary to a rumor that was circulating early last year, while she has served on the board of Turning Points USA, she's not believed to be involved in that group having sent buses of protesters to D.C. on January 6.) And just last month, "she and sixty-two other prominent conservatives signed an open letter to Kevin McCarthy, the House Minority Leader, demanding that the House Republican Conference excommunicate Representatives Liz Cheney and Adam Kinzinger for their 'egregious' willingness to serve on the [House Select] committee [on January 6]."

Something else I take away from the (really long) article is how much interaction there is in general between more or less legitimate Republicans and those on the fringe. Ginni Thomas apparently has been a participant or speaker at various conservative events over the years whose other participants and speakers include people from Steve Bannon to Ali Alexander to Stewart Rhodes, the Oath Keepers leader who was indicted for seditious conspiracy two weeks ago. As far as I can tell from the article, there's nothing to indicate that she directly interacted with any of them (although Bannon and Alexander were both members of Groundswell, "a secretive, invitation-only network that, among other things, coördinated with hard-right congressional aides, journalists, and pressure groups to launch attacks against Obama and against less conservative Republicans" -- and Ginni Thomas in 2019 described herself as the chair of that group and reportedly still "chairs weekly meetings" of the group), but they were delivering their messages to the same audiences.

[N.E. Brigand]

An interesting bit of data noted by Steve Vladeck, a University of Texas law professor, which would appear to suggest that the Supreme Court has taken a dramatic turn toward activism in the past three years:

Here's a chart on how much more often SCOTUS is granting certiorari "before judgment":
3 grants from June 1988–August 2004;
0 grants from August 2004–February 2019; and
*14* grants from February 2019–present.

Granting certiorari before judgment means the Supreme Court agrees to hear a case directly upon appeal from a district court rather than waiting until the case has been decided by an appeals court. In other words, it expedites the process.

Vladeck indicates that he used 1988 as a starting date because that's when Congress last made a significant change to the rules regarding jurisdiction.

[N.E. Brigand]

I wonder what led to him changing his mind.

[Voronwë the Faithful]

I assume that the "him" that you are referring to is Justice Breyer, who is reportedly retiring?

In any event, I think Breyer ultimately realized that there was simply too great a chance of the Republicans taking control of the Senate this year and making it impossible for Biden to be the one to replace him if he didn't retire now and then something happened to him.

[N.E. Brigand]

Sen. Lindsey Graham was one of just three Republicans (along with Susan Collins and Lisa Murkowski) who voted last year to confirm Ketanji Brown Jackson (a former Breyer clerk seen as a leading candidate to be Biden's nominee to the Supreme Court) to the D.C. Circuit appeals court. (One area of success in Joe Biden's first year is that he had more federal judges confirmed than any president since JFK in 1961.) Graham today issued some good wishes to Justice Breyer and noted that with 50 Democrats in the Senate, Biden will presumably be able to get his choice onto the Court, because "elections have consequences."

An implication of those three words is that if Republicans controlled the Senate, the position would remain vacant until 2025.

Until 2016, the possibility of a President not being able to fill a Supreme Court vacancy even when the opposing party controlled the Senate would have been inconceivable. Maybe the President wouldn't get his or her first choice. But it's just abominable how Republicans chose to abuse their power. And if a Republican ever has an opening while Democrats hold the Senate, Democrats will be obliged to respond in kind until the imbalance of 2016 is made up.

[Voronwë the Faithful]

I will be very surprised if Ketanji Brown Jackson is not the pick.

And yes, I agree that it is reprehensible what Republicans, led by Mitch McConnell, have done since Justice Scalia died.

[N.E. Brigand]

Fox is reporting that Justice Breyer didn't mean for the news to come out today and is upset about that it did. If so, I wonder who leaked it. President Biden earlier today noted that Breyer hadn't made any announcement and that he would have nothing to say until Breyer did.

[Voronwë the Faithful]

I will be very surprised if Ketanji Brown Jackson is not the pick.

The other name that I am hearing most often is California Supreme Court Justice Leondra Kruger. She is younger than Jackson and has been in her role longer (it may be recalled that there was speculation that Biden picked Merrick Garland as Attorney General in part in order to be able to then nominate Jackson to Garland's seat at the prestigious D.C. Circuit of the Court of Appeals, so she has only been on that job for less than a year. Kruger also was deputy solicitor general under Obama when Biden was VP.

[N.E. Brigand]

Justice Breyer has made his resignation official. His letter to President Biden, dated today, says his resignation will be effective "when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed." Breyer also made some remarks about his career in an appearance today with Biden at the White House.

[Voronwë the Faithful]

I will be very surprised if Ketanji Brown Jackson is not the pick.

I may have been premature about this.

Biden considering Judge J. Michelle Childs and may be casting wider net for Supreme Court vacancy

That fact that they have cancelled Judge Child's confirmation hearing for her nomination to the Court of Appeals certainly suggests that she is being seriously considered. I think that politics will play an oversized role in this, which is at least in part unfortunate. On the other hand, having someone outside of the usual Ivy League "elitist" circles would not be a bad thing.

[RoseMorninStar]

Biden considering Judge J. Michelle Childs and may be casting wider net for Supreme Court vacancy
(...) I think that politics will play an oversized role in this, which is at least in part unfortunate. (...)

When a senator (Ron Johnson) says they have a 'hard time believing' they will approve ANY nominee Biden will put forth, yeah, I'd say politics is playing an oversized role and sadly this has tainted the Supreme court.

[Voronwë the Faithful]

That is certainly true, but that's not really what I am referring to. For a quite a while most Senators in both parties have not been willing to support any nominee from "the other side". It might be even more so now, but that has basically been true since Robert Bork.

What I am talking about is that Biden is likely looking as much at how much the nomination of the candidate will help the Democrat's (and his own) dire political situation as he is other factors. So long as the person that he nominates is qualified and brings the qualities that he he otherwise is looking for.

I will say that I fully in agreement with him that it is long past time for there to be an African-American woman on the court, and I have no problem at all with him explicitly limiting his search in that way.

[N.E. Brigand]

Senator Susan Collins, Republican of Maine, today said that it was "clumsy at best" for Ronald Reagan to promise during the 1980 presidential campaign that he would nominate a woman to the Supreme Court and then to follow through on that promise by naming Sandra Day O'Connor as his first nominee.

No, wait, I'm being told that's incorrect. Her comment actually refers to Joe Biden promising during the 2020 presidential campaign that he would nominate an African American woman to the Supreme Court and then confirming as president that he would follow through with that promise.

- - - - - - - - - -
Edited to add:
And Donald Trump in 2016 promised that any Supreme Court choices he made would be limited to a short list published by the Federalist Society -- a list to which Brett Kavanaugh was added nearly a year into Trump's presidency, apparently with the aim of enticing Anthony Kennedy, for whom Kavanaugh had clerked, to retire. And Trump in 2020 promised to nominate a woman to replace Ruth Bader Ginsburg.

Edited further to add:
The first 95 Supreme Court justices were all chosen from a pool that excluded African Americans and anyone else not white.

The first 101 Supreme Court justices were all chosen from a pool that excluded women.

Thus for most its history, the Supreme Court (like many other institutions) effectively practiced affirmative action for white men.

Edited still further to add:
Belatedly I see my last point overlaps with Rose's post.

[RoseMorninStar]

But no one thinks anything at all that for AGES the presumptive nominee would be a white male.

This will ever ring though my mind:

“When I’m sometimes asked when will there be enough [women on the Supreme Court] and I say, ‘When there are nine,’ people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.”
― Ruth Bader Ginsburg

Surely there are enough qualified people to make our Supreme court more representative of the nation be they white, black, Asian, HIspanic, native American, male, female, etc..

[N.E. Brigand]

I did not realize until seeing this chart that Sonia Sotomayor is the only currently serving Supreme Court justice who had any experience as a trial judge, nor that John Roberts had served as a judge for less than three years prior to his nomination:

[Voronwë the Faithful]

I will be very surprised if Ketanji Brown Jackson is not the pick.

I am not surprised.
Biden to nominate Judge Ketanji Brown Jackson as first Black woman on Supreme Court

[N.E. Brigand]

In light of that chart I posted above: Steve Vladeck noted today that Judge Ketanji Brown Jackson has more judicial experience than current Justices Amy Coney Barrett, Elena Kagan, Clarence Thomas, and Chief Justice John Roberts combined had when they were nominated.

Which is not to say that those four justices necessarily were unqualified, only that some rumblings from conservatives about Judge Jackson not being qualified is nonsense.