US Supreme Court Discussions

[N.E. Brigand]

Yesterday The Atlantic published a profile of and interview with Justice Clarence Thomas's friend and benefactor, Harlan Crow. Here's a sample:

Surely, I suggested, he could have structured the deal in a way that would not have involved writing a personal check to a Supreme Court justice. Create a foundation for public education, put impartial trustees on its board, and let it buy the house. Crow said he had done many deals in his life, and every one could, in retrospect, have been done a little better. This one wasn’t even a bad one, let alone corrupt. “It was a fair-market transaction, and I had a purpose,” Crow said. “I don’t see the foot fault.” But the idea that he had secretly corrupted his friend left him aghast. (I asked him whether he had any other financial relationships with Thomas or anyone related to Thomas, and he declined to answer, saying he doesn’t keep track of the hospitality extended to friends.)

And then last night, Crow's attorneys sent a letter to the Senate Judiciary Committee telling them that the Committee does not have "the authority to investigate Mr. Crow's personal friendship with Justice Clarence Thomas" because Congress doesn't have the power to "impose ethics rules and standards on the Supreme Court."

(Edit: Mark Joseph Stern has posted the whole letter here.)

[N.E. Brigand]

Congress has the power defund the Supreme Court entirely, so obviously Congress can impose attach strings, like ethics rules on Court members, to the funding it provides.

[Voronwë the Faithful]

Supreme Court cuts EPA's Clean Water Act protection for wetlands

[N.E. Brigand]

And here's a direct link to the opinion. All the justices agreed about the merits of this specific case, but only five of them chose to use the case to limit the Clean Water Act more broadly. While I don't think Brett Kavanaugh belongs on the Supreme Court because of his poor demeanor when confronted with fairly convincing evidence of past sexual assaults, his opinions do at times at least approach reasonability. From his opinion, with which the three liberal justices concurred:

The difference between “adjacent” and “adjoining” in this context is not merely semantic or academic. The Court’s rewriting of “adjacent” to mean “adjoining” will matter a great deal in the real world. In particular, the Court’s new and overly narrow test may leave long-regulated and longaccepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority, with negative consequences for waters of the United States. For example, the Mississippi River features an extensive levee system to prevent flooding. Under the Court’s “continuous surface connection” test, the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project. See Brief for Respondents 30. Likewise, federal protection of the Chesapeake Bay might be less effective if fill can be dumped into wetlands that are adjacent to (but not adjoining) the bay and its covered tributaries. See id., at 35. Those are just two of many examples of how the Court’s overly narrow view of the Clean Water Act will have concrete impact.

(Elena Kagan wrote yet another opinion that Sonia Sotomayor and Ketanji Brown Jackson joined, but Kavanaugh did not.)

[Voronwë the Faithful]

Roberts, Kavanaugh, Barrett and occasionally Gorsuch can sometimes each be reasonable, but it usually is only one at a time, because they are reasonable about different issues. So we still have a lot of negative 5-4 decisions like this one.

[N.E. Brigand]

In a new piece by Richard Hasen and Dahlia Lithwick at Slate titled "There’s Unsettling New Evidence About William Rehnquist’s Views on Segregation," the authors report on a recently discovered 1993 memo that the then Chief Justice sent to his colleague Justice Sandra Day O'Connor. In the memo, Rehnquist asks O'Connor for changes in her draft opinion in Shaw v. Reno, a decision which limited consideration of race in drawing federal and state voting districts. This was a 5-4 case favoring the conservative view. (O'Connor was joined by Rehnquist, Antonin Scalia, Anthony Kennedy, and Clarence Thomas. On the dissenting side were Byron White, Harry Blackmun, John Paul Stevens, and David Souter. Here's a stunning fact: of the nine justices then on the court, only one -- White -- had been appointed by a Democratic president.)

Specifically, Rehnquist argues against Connor having written that (1) "the Civil War was fought in part to secure the elective franchise to black Americans" and that (2) the Fourteenth Amendment embodies “the goal of a fully integrated society." On the contrary, writes Rehnquist, (1) the Civil War could be said to have been "fought to end slavery," but not to "secure the elective franchise for blacks, and (2) while the Fourteenth Amendment "prohibits discrimination; it does not require integration," not even "as a 'goal.'"

In combination with some other things Rehnquist had written, his focus in this memo does add weight to previous arguments that on the subject of racial equality, Rehnquist was, at the very least, behind the times. But I think it's notable that buried in the Slate column is this sentence: "Whether or not Rehnquist’s point about the goal of the Civil War was right as an historical matter, it is reprehensible that he did not want the court to even suggest that integration of American society was a worthy objective embodied in one of the Reconstruction Amendments." His motivations may be suspect, but doesn't it matter if he was right or wrong on the facts? And shouldn't the Hasen and Lithwick tell us if he was right or wrong about the facts? (I'm pretty sure he was at least partly right about his first claim.)

[Dave_LF]

I am indeed surprised. But

.
This part does NOT surprise me, though:

[Voronwë the Faithful]

I was just coming to post about this. I too am surprised ... and not surprised.

ETA: I was particularly surprised to see that Chief Justice Roberts wrote the majority decision, given his long-term hostility to voting rights, going to back to his work in the Reagan administration.

[Voronwë the Faithful]

It is worth revisiting what I posted about the oral argument in this case. It really does appear that Justice Jackson's forceful and impassioned argument might have turned the tide.

[N.E. Brigand]

I was just coming to post about this. I too am surprised ... and not surprised.

ETA: I was particularly surprised to see that Chief Justice Roberts wrote the majority decision, given his long-term hostility to voting rights, going to back to his work in the Reagan administration.

As you may have noticed, Mike Sacks spots Roberts almost criticizing himself (not by name) when his opinion recounts Reagan-era history.

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Edited to add a link to Melissa Murray's explanation of why today's decision is "weak sauce," given that while it blocks one recent attack on the Voting Rights Act, it lets stand all of the previous damage the Court has done to that law over the past ten years.

[Voronwë the Faithful]

She's right, of course, and I see that she referenced the same shadow docket tweet that I posted in the 2022 thread. Bit it still is a pleasant surprise. I was expecting much worse.

Meanwhile in a contrast to the recent Thomas newa.

[N.E. Brigand]

Meanwhile in a contrast to the recent Thomas news.

And the most recent Clarence Thomas (and Samuel Alito) news is that Thomas and Alito received filing extensions on their annual financial disclosure reports.

[N.E. Brigand]

Justice Samuel Alito is big mad and penned an op-ed in the Wall Street Journal after he learned that Pro-Publica was writing a story about him. It reads a bit like Donald Trump Jr. tweeting out the details of his infamous 2016 Trump Tower meeting (with representatives of the Russian government) just before the New York Times published a story about that bombshell. And to be fair: in the end, Don Jr. faced no penalties for his actions surrounding that meeting, because Special Counsel Robert Mueller determined that he wasn't smart enough to realize that he had done wrong.

What's the new article about? You can get a taste from Chris Hayes's response to Alito's op-ed: "I love the notion that the seat on the private jet would have been empty so it doesn’t count. That’s how you know you’re dealing with a straight-shooter with good judgment ... this is famously why airlines don’t charge you if they happen to have empty seats. ... These poor justices just keep tripping and falling onto private jets!"

Jennifer Rubin aptly notes that Alito's op-ed today makes it seems all the likelier that he was behind at least some leaks surrounding last year's anti-abortion Dobbs decision.

People. People who need people. Are the luckiest people. In the world.

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Edited to add Lawrence Hurley's observation that Alito writes on the Wall Street Journal's editorial pages today that he didn't know the connection between his benefactor, hedge fund manager Paul Singer, and a case upon which he rendered judgement and should have recused himself -- but Singer's connection to that 2014 case was mentioned in multiple media outlets, including the editorial pages of the Wall Street Journal!

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Edited again to note something I had completely forgotten: it was Singer who, via his finanical support of the Washington Free Beacon -- originally paid FusionGPS in 2015 -- in support of Ted Cruz's presidential campaign, I think -- to investigate Donald Trump. Those costs were later paid by the Clinton campaign and led to the engagement of Christopher Steele.

[N.E. Brigand]

A historian writes in Slate that Supreme Court justices aren't historians and need to work harder at getting history right if they're going to cite it in their opinions:

"Clarence Thomas Went After My Work. His Criticisms Reveal a Disturbing Fact About Originalism."

Originalism rests on the premise that, properly interpreted, history can sometimes offer objective and correct answers to legal questions. And, although I am at best agnostic on originalism as a constitutional theory, my article, and my work more generally, attempted to take that premise seriously. I have spent years immersed in the relevant sources, and written extensively on the historical question at issue; I have professional historical training; and I spoke directly to the kinds of legal questions that lawyers often complain that historians don’t care about.

None of this means that I’m necessarily right. What it does mean is that I have done the work. Even for originalist inquiries—like, say, the meaning of “commerce”—history is not the same as law; there is not some carefully cabined, narrow set of relevant sources. Mastering historical materials requires years of labor. And so it is not exactly comforting to see that, over the past few months, Justice Thomas seemingly dispatched his law clerks to do some full-text searches and then cut and pasted the results. (Perhaps most galling were Thomas’ multiple citations to sources that I am 99 percent certain were surfaced through my research.) The resulting dissent mostly just doubled down on the conclusions Thomas had reached 10 years ago ... while almost willfully pretending that the very substantial contrary evidence referenced by Gorsuch simply did not exist. If we’re going to be originalists, you’d hope that decisions dramatically altering current law would rest on a sturdier footing.

In this case, Thomas's incorrect ideas about Native American history were relegated to a dissenting opinion last week.

There are a number of other interesting ideas in that piece.

[Voronwë the Faithful]

Here is the ProPublica story that has Alito so riled up.

[N.E. Brigand]

Now we need to know which sugar daddies Leonard Leo has been introducing to Justices Gorsuch, Kavanaugh, and Barrett. Clearly he has a pattern of finding some rich Republican to become friends with conservative justices in order to keep them from drifting to the left over the course of their term, as they previously were wont to do.

[Voronwë the Faithful]

I notice you don't list Roberts. Do you think he is immune?

Kavanaugh and Barrett (and to some extent, Gorsuch), have drifted slightly to the left on some issues, at least compared to Thomas and Alito.

[N.E. Brigand]

Good point about Roberts! What a weird oversight on my part. My sense is that Roberts was already solidly on the right and hasn't drifted right or left, although the Court overall has moved to the right during his time. Maybe it was Leo who kept him there? Maybe he actually has some personal integrity and refused any such outreach and his positions just haven't changed? Certainly could be worth further investigation.

It's so early in the career of the three Trump-appointed justices that maybe Leo hasn't had time to work his voodoo yet. It was several years after Thomas's appointment before he made the acquaintance of Harlan Crow. But it was only two years after Alito reached the Court that he was hobnobbing with Singer. Gorsuch and Barrett were picked from a list that Leo had pre-approved, so maybe he considers them locked in. Kavanaugh was not on that list. He probably was picked to convince Kennedy to retire. I wonder why he wasn't on Leo's list in the first place.

[N.E. Brigand]

During Samuel Alito's 2006 Senate confirmation process, he wrote in response to written questions from senators that "my personal practice is to recuse myself when any possible question might arise" about his connections to interested parties in a case.

CNN has reported that the Religious Liberty Initiative, which has submitted briefs to the Court on several matters where Alito has ruled, including this one which we discussed last year (and in which the conservatives on the Court appear to have lied about the facts of the case)* paid for him to visit Rome in 2022.

Justice Alito says that the branch of the RLI who paid for his trip to Rome is not the branch of the RLI who filed the amicus brief. I think he is required to report the trip, but both he and Justice Clarence Thomas got extensions to file their 2022 financial disclosures, so we won't see that for a couple more months. And there's no requirement that he recuse himself from cases. But by his own stated "personal practice," he should have bowed out from those cases in which RLI was filing briefs.

CNN's report notes another Court connection to RLI: after her appointment, Justice Amy Coney Barrett sold her Indiana home to a professor who was moving there to work for the RLI. I suspect another end run around the rules, but on its face, that seems possibly innocuous.

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*Alito filed a concurring opinion in that case which read in full:

The expression at issue in this case is unlike that in any of our prior cases involving the free-speech rights of public employees. Petitioner’s expression occurred while at work but during a time when a brief lull in his duties apparently gave him a few free moments to engage in private activities. When he engaged in this expression, he acted in a purely private capacity. The Court does not decide what standard applies to such expression under the Free Speech Clause but holds only that retaliation for this expression cannot be justified based on any of the standards discussed. On that understanding, I join the opinion in full.

But in fact, and as included in Justice Sototmayor's dissent along with several other visual aids, this is a photo of the petitioner, football coach Joseph Kennedy, at a point in which Alito claims he was merely "engage[d] in private activities":



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Edited to add: Matthew Yglesias points out that when the Supreme Court unanimously made it harder to convict public officials of bribery when the quid pro quo wasn't explicit, part of their argument was that it should be up to the voters to punish such officials by voting them out of office -- but you can't vote out a Supreme Court justice!

[Frelga]

Just gonna leave this here.

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