SCOTUS Watch

[Holman]

https://twitter.com/chrislhayes/status/ ... 3530608641

I fucking hate this timeline.

[malchior]

#MAGFWMA

[gbasden]

#MAGFWMA

Isn't that what was always implied?

[pr0ner]

SCOTUS reinstates Trump's travel ban; will still hear arguments in the case this fall.

[Captain Caveman]

SCOTUS reinstates Trump's travel ban; will still hear arguments in the case this fall.

It appears the ban is still blocked for those who of relationships to people in the U.S., which applies to a lot of cases (but obviously not all, including most refugees).

https://twitter.com/gsiskind/status/879349868376010753

Oh, and apparently Gorsuch wanted to reinstate the ban in full. He also took far right positions on other cases out this morning.

The enormous gap between him and Garland is going to be felt for decades.

[Rip]

If Trump has done nothing else, he really came through with the SCOTUS pick.

By the time he leaves office Roberts may be the most liberal member of the court.

[Zarathud]

Activist judge!

[Rip]

SCOTUS reinstates Trump's travel ban; will still hear arguments in the case this fall.

It appears the ban is still blocked for those who of relationships to people in the U.S., which applies to a lot of cases (but obviously not all, including most refugees).

https://twitter.com/gsiskind/status/879349868376010753

Oh, and apparently Gorsuch wanted to reinstate the ban in full. He also took far right positions on other cases out this morning.

The enormous gap between him and Garland is going to be felt for decades.

And Boom goes the dynamite.

http://www.cnn.com/2017/09/12/politics/ ... index.html

The Supreme Court granted Tuesday a Trump administration request to continue to bar most refugees under its travel ban.

Without comment, the court blocked a federal appeals court ruling from last week that would have exempted refugees who have a contractual commitment from resettlement organizations from the travel ban while the justices consider its legality. The ruling could impact roughly 24,000 people.
The travel ban bars certain people from Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the US.

[GreenGoo]

Thank god, things were really going to hell there for awhile.

I feel safer already and I don't even live there.

So this is what justice looks like. It's a lot more xenophobic than I imagined.

[hepcat]

Trump's Amerikkka

[Isgrimnur]

Union mandatory fees

The U.S. Supreme Court will take up an Illinois case originally brought by Gov. Bruce Rauner that challenges the practice of government employee unions collecting fees from nonmembers, a question the court deadlocked over last year.

In one of his first acts in office, the Republican governor attempted to halt the passing along of the union fees in order to invite a legal challenge of the practice. The Supreme Court on Thursday agreed to consider the lawsuit that resulted.

A similar case out of California was already in the legal pipeline when Rauner acted in 2015. By the time it was decided, the Supreme Court was short one member following the death of conservative Justice Antonin Scalia. The court issued a 4-4 split decision that left the existing system intact.
...
The "fair share" fees at issue in the case are a source of funding for unions. The unions negotiate new contracts and handle grievances on behalf of all workers within a bargaining unit, not just those who are members of the union. The fees help pay for those efforts.

Illinois is one of about two dozen states that requires its workers to pay fair share fees to public employee unions if they are not union members. The thinking is that workers who are not part of a union still benefit from its services, even if they don't support the union's political agenda. Unions are not allowed to spend fair share fees on political activities such as campaign contributions.

Rauner has contended that the fair share system violates free speech and that workers should not have to support unions they don't want to belong to. He also has questioned the restrictions on using fair share money for political purposes, saying it's impossible to separate political activities because public-sector unions negotiate directly with the government.
...
The American Federation of State, County and Municipal Employees — the largest public employee union in Illinois and the one at the center of the lawsuit — called the case "yet another example of corporate interests using their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor."

[Rip]

So no, Scalia wasn’t actually saying he believed that blacks should be content to just go to lesser schools, he was asking about others who had argued as much.

True.

But even if he had, it isn’t crazy or racist to believe that advancing minority students from schools where they’d do great to schools where they’d struggle could have unintended negative effects.

False in most cases (as my article and a real study illustrates as compared to the amicus brief).

http://www.nytimes.com/2013/03/17/opini ... .html?_r=0

MUCH of the squabble over mismatch centers on differing interpretations of the Bar Passage Study. The B.P.S. was commissioned by the Law School Admission Council in 1989 to determine whether blacks and Hispanics had disproportionately poor bar-passage rates. In 1991, more than 27,000 incoming law students — about 2,000 of them black — completed questionnaires for the B.P.S. and gave permission to track their performance in law school and later on the bar.

Among other things, the questionnaire asked students (a) whether they got into their first-choice law school, (b) if so, whether they enrolled at their first choice, and (c) if not, why not.

Data showed that 689 of the approximately 2,000 black applicants got into their first-choice law school. About three-quarters of those 689 matriculated at their first choice. The remaining quarter opted instead for their second-choice school, often for financial or geographic reasons. So, of the 689 black applicants who got into their first choice, 512 went, and the rest, 177, attended their second choice, presumably a less prestigious institution.

This data presented a plausible opportunity to gauge mismatch. The fact that 689 black students got into their first-choice law school meant that all 689 were similar in at least that one regard (though possibly dissimilar in many other ways). If mismatch theory held any water, then the 177 students who voluntarily opted for their second-choice school — and were therefore theoretically better “matched” — could be expected, on average, to have better outcomes on the bar exam than their peers who chose the more elite school. Mr. Sander’s analysis of the B.P.S. data found that 21 percent of the black students who went to their second-choice schools failed the bar on their first attempt, compared with 34 percent of those who went to their first choice.

It is sounding like the nails in the coffin to affirmative action are being driven. Been a long ride.

http://www.cnn.com/2017/08/03/opinions/ ... index.html

When we look at affirmative action policies at selective institutions, though, it isn't whites who will benefit the most if they are restricted. It is, potentially, Asians. In 2004, a Princeton University study of 124,000 applications to elite selective institutions, looked at SAT scores and found that "Asians experience the greatest disadvantage in admissions vis-à-vis other comparable racial/ethnic groups." The researchers claimed that being Asian is "comparable to a loss of 50 SAT points."

The big surprise in the study was that Asians had to score significantly higher than whites, as well as blacks and Hispanics. Despite having a higher average SAT score, Asians have lower odds of admission than do "comparable whites."

[Isgrimnur]

The Hill

In a hit to the Trump administration, the Supreme Court unanimously ruled Monday that cases litigating the Clean Water Act should be heard by federal district courts.

The administration had argued those cases should be heard in federal appeals courts.

The Supreme Court agreed to hear the case over an Obama-era regulation, known as the Waters of the United States rule, back in January 2017, after debate as to whether the U.S. Court of Appeals or federal district courts had the authority to hear the lawsuits from industry groups and states that say the rule went too far.
...
The case, National Association of Manufacturers v. Department of Defense, did not concern the merits of the 2015 Obama-era rule, under which the EPA and Army Corps of Engineers asserted jurisdiction over small waterways like ponds and streams.

The regulation aimed to clarify which wetlands and streams were to be given automatic protection under the law.

However, the lawsuits are nearly moot. In June 2017, the EPA took the first formal step to uphold President Trump's campaign promise to repeal and replace the 2015 regulation.

The proposal said federal officials would go back to enforcing a guidance document from 2008 when deciding whether a waterway is subject to federal oversight for pollution control purposes.

[GreenGoo]

God, he's a cartoon villain, but worse. He doesn't have enough empathy to own a hairless cat.

Who knew Snydely Whiplash had so many fans.

[Isgrimnur]

DACA

The Supreme Court said on Monday that it will stay out of the dispute concerning the Deferred Action for Childhood Arrivals program for now, meaning the Trump administration may not be able to end the program March 5 as planned.

The move will also lessen pressure on Congress to act on a permanent solution for DACA and its roughly 700,000 participants -- undocumented immigrants who came to the US as children.

Lawmakers had often cited the March 5 deadline as their own deadline for action. But the Senate failed to advance any bill during a debate earlier this month, and no bipartisan measure has emerged since.

Originally, the Trump administration had terminated DACA but allowed a six-month grace period for anyone with status expiring in that window to renew. After that date, March 5, any DACA recipient whose status expired would no longer be able to receive protections.

Monday's action by the court, submitted without comment from the justices, is not a ruling on the merits of the DACA program or the Trump administration's effort to end it.

[El Guapo]

It's not surprising - asking to bypass the 9th circuit is a weird and kind of crazy request in this case. So that doesn't really tell us much of anything about who is likely to ultimately win the case. It's a relief, however, because if the SCOTUS had granted the administration's request, that would have been a super troubling indication as to where SCOTUS is vis-à-vis DACA and the Trump administration generally.

[malchior]

They are too busy getting ready to smash labor law in ways that even Conservatives are warning against. I'm not a huge fan of labor unions but I recognize their utility in cases -- especially in regards to maintaining a buffer between the Constitution and Federal workers. Constitutional lawyers have filed many briefs saying there will be long-term consequences if they rule the United States is "right to work". As an aside, the Koch brothers certainly seem to be really getting their money's worth lately. Another potential huge win for the plutocrats.

[Isgrimnur]

NPR

The U.S. Supreme Court ruled Tuesday that immigrants, even those with permanent legal status and asylum seekers, do not have the right to periodic bond hearings.
...
The case, Jennings v. Rodriguez, has implications for legal permanent residents the government wants to deport, because they committed crimes and asylum seekers who are awaiting a court date after turning themselves in at the border. Immigrant advocates contend that many of these immigrants have a right to be free on bail until their case is heard.

But the court wrote in its 5-3 opinion Tuesday, "Immigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country."

The majority opinion was penned by Justice Alito and joined by the court's conservatives. (Justice Kagan did not participate. She recused herself, stemming from work she had done as President Obama's solicitor general.)

The decision reversed a Ninth Circuit ruling and the court remanded it for the Ninth to reconsider the case. So this is not the last word and could come back to the high court.

Justice Breyer read from his dissent, a rare move for the court that indicates just how passionately he disagrees with the majority opinion.

"We need only recall the words of the Declaration of Independence," Breyer said, "in particular its insistence that all men and women have 'certain unalienable Rights,' and that among them is the right to 'Liberty.'"

He continued, calling the ruling "legal fiction."

"Whatever the fiction, would the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?" Breyer argued. "If not, then, whatever the fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?"

Breyer added, "No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection."
...
The Trump administration continued the case.

The administration also argued that detained immigrants should not be recognized as a class that could bring legal action. Lawyers for the Justice Department said detainees should rely on individual habeus corpus petitions to challenge their detentions.

The ACLU countered that few detainees have access to legal counsel and that a backlog of such habeus corpus petitions almost guarantees delays in winning release.

[Defiant]

A Republican U.S. senator says that Justice Anthony Kennedy, the swing vote who has decided many pivotal cases on the Supreme Court, will retire this summer.

link

[Isgrimnur]

The war on whistleblowers:

If financial advisors spot wrongdoing at their firms and want to report it, they should be prepared to go straight — and maybe only — to the SEC, say lawyers who advise whistleblowers.

Attorneys reached this conclusion after the U.S. Supreme Court last month raised higher barriers around who could claim protection under the whistleblower anti-retaliation provisions of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act.
...
Surprisingly, lawyers on both sides of these cases — those who represent whistleblowers and those who defend employers — express disappointment with the high court’s ruling.

In its ruling on the case, Digital Realty Trust, Inc. v. Somers, the justices clarified that courts could offer no protections against employers’ retaliation against whistleblowers who report wrongdoing only to company officials — and not to the SEC, the federal government-level watchdog of the financial-service industry.
...
In some instances, the SEC will agree to keep a whistleblower’s identity confidential for a set period of time during the investigation, Peretz says. But whistleblowers’ identities rarely stay secret.

There are a couple of reasons for that. Often the alleged wrongdoing they report would only be known to a few individuals. And as soon as the SEC begins investigating, the firms typically get to work ferreting out the whistleblower’s identity, Peretz says.
...
For William Black, who co-founded Bank Whistleblowers United, the Supreme Court ruling “has done something very harmful for this business.”

Black, a professor of economics and law at the University of Missouri in Kansas City and a former bank regulator who helped expose the Keating Five in the Savings and Loan Scandal 30 years ago, says the ruling de-claws Dodd-Frank. Among other things, that law was meant to encourage employees to blow whistles internally first — and that’s how the SEC has been reading it ever since.

But with its ruling — which Black considers “antithetical to the entire industry” — the high court adhered to its “plain meanings” ideology about reading statutory language, even though their conclusion, in Black’s view at least, “is absurd.”

So what is Black’s advice for a potential whistleblower? Go to the SEC, but “assume your employer’s retaliation is pretty much a certainty,” he says.
...
That’s why Black, whose Whistleblowers United organization advocates for financial-service employees who want to tell on their employers, says he never advises “anyone to blow the whistle unless it’s possible in your individual economic circumstances to do so.”

With the specter of retaliation looming so large, and the stakes so high, Black says it makes sense for whistleblowers to go not just first to the SEC, but “exclusively” — skipping the reveal to employers altogether.

[malchior]

I skimmed the ruling - it doesn't seem that wacky to me. The law defined whistle blowers in a very limited way. If we had a functioning legislative body with good intentions this could be fixed easily. My hot take: it definitely does make ethics hotlines much more of a joke then they already were...which was a tough bar to raise.

[GreenGoo]

NOT asking for identification undermines the protection against foreign influence in our elections. Pure and simple.

lol.

[Freyland]

'fraid that gets a giant +1 from me. Also gets +1 for Tangential Crisis Lumping. Well done, MSD.

[noxiousdog]

I think he posted that 5 years ago.

[GreenGoo]

I think he posted that 5 years ago.

It's from the first page. I didn't check the date, but it's obviously a historic post.

If only everyone had ID, the current situation could have been avoided.

[Alefroth]

And I have yet to see any documentation to see mass loads of illegals being used to rig votes. So right back at ya, there, msd.

Is that from Idiot Abroad?

[Isgrimnur]

Possibly. It’s definitely Karl.

[msduncan]

Whoa. I got a notification about being quoted. That was definitely a zombie post.

[malchior]

According to this story - the Supreme Court is becoming openly partisan and polarized along with the nation.

There is a lot of analysis here but frame this with everything else going on and it is an indicator that another branch of government is becoming dysfunctional. Their productive output is down and signs point to sharp division on the bench. It also remains to be seen if they will stand up to Trump as some of the Circuit courts have done.

[GreenGoo]

Whoa. I got a notification about being quoted. That was definitely a zombie post.

Just letting you know we're thinking about you.

Again.

[Chaz]

According to this story - the Supreme Court is becoming openly partisan and polarized along with the nation.

There is a lot of analysis here but frame this with everything else going on and it is an indicator that another branch of government is becoming dysfunctional. Their productive output is down and signs point to sharp division on the bench. It also remains to be seen if they will stand up to Trump as some of the Circuit courts have done.

Think it's bad now? If the next opening happens during this admin, it's going to get even worse. God help us if it's Ginsberg. Hell, just this morning Trump tweeted that Republicans "must ALWAYS hold the Supreme Court!"

[Moliere]

Supreme Court Justice Sonia Sotomayor's Vanderbilt talk touched on Clarence Thomas, Bob Dylan

Speaking during a wide-ranging question-and-answer session at the law school, Sotomayor touched on a number of topics, from her debut as a judge — which made her knees knock with nerves — to her strong bond with fellow Justice Clarence Thomas, who often disagrees with her on the bench.

She encouraged students not to limit themselves. Instead, she said, they should widen their nets and take bits of workable guidance wherever they could find it — whether it was Bob Dylan, Billy Joel or a blockbuster movie.

"You learn that you can find your courage in unlikely places," she said. "Be open to watching what other people are doing. Adapt from them" whatever suits, and leave out what doesn't.

Sotomayor repeatedly returned to the theme of empathy during her remarks.

"A lot of people start with derision as their first response" to a disagreement, she said.

But she suggested it's better to forge relationships built on common ground even if you disagree with someone. She singled out Thomas as the justice "with whom I probably disagree the most.

"Yet I can stand here and say that I just love the man — as a person."

A good reminder for us all.

[Moliere]

Trump Picks Judges - Round 12

There are few constants in the Trump White House. Judicial nominations may be it. The Trump Administration has put forward judicial nominees at a steady rate, ensuring that the confirmation queue remains filled as the Senate votes to confirm. Even more notably, with a few high profile exceptions, the Trump Administration's judicial nominees have been quite strong -- surprisingly so.

Today the Trump Administration announced its twelfth slate of judicial nominations, and it is a strong list, including three nominees to federal appellate courts.

Topping today's list of nominees is Justice Britt Grant of the Georgia Supreme Court who will be nominated to the U.S. Court of Appeals for the Eleventh Circuit. Justice Grant is a Bush Administration and former state Solicitor General, who was also identified last November as a potential Supreme Court nominee.

The White House named two nominees for the U.S. Court of Appeals for the Third Circuit, Pittsburgh-based attorney David Porter and former Christie Administration attorney Paul Matey. Porter and Matey are nominated for Pennsylvania and New Jersey seats, respectively. I know David Porter, and expect he will make an excellent judge.

[El Guapo]

Hey, today marks the first decision where Gorsuch sided with the SCOTUS liberal wing in a 5-4 case. I only skimmed the summary, but the gist of it appears to be a holding that a statutory clause providing for deportation based on the commission of a "crime of violence" is unconstitutionally vague.

[Moliere]

Supreme Court Punts on Data Privacy Case, Thanks to the Terrible CLOUD Act

Thanks to a broad new law granting the feds access to American data stored in foreign countries, the Supreme Court just punted a case that was supposed to address the question.

In United States v. Microsoft, federal drug-trafficking investigators were trying to force Microsoft to comply with a warrant demanding access to a customer's emails and other private data. But the data they wanted were stored on a server in Ireland. Microsoft fought the warrant, arguing that the government's demands couldn't reach that far under the Stored Communications Act.

The Supreme Court agreed to take on the case last fall and heard arguments in February. But in March, legislation buried deep in the federal omnibus spending bill granted the feds access to data and communications from Americans being held on servers in foreign countries. So today the Supreme Court ruled that the case was moot and kicked it back down to the lower courts for dismissal.

[pr0ner]

Gorsuch was on a roll today with regards to patent cases - writing the majority opinion in SAS that the USPTO must consider and rule on all claims challenged in an IPR, and writing a scathing dissent (joined by Roberts) about how IPRs should be considered unconstitutional in Oil States.

[stessier]

I'm very glad he was in the minority of Oil States.

[pr0ner]

Why's that?

[Pyperkub]

Gorsuch was on a roll today with regards to patent cases - writing the majority opinion in SAS that the USPTO must consider and rule on all claims challenged in an IPR, and writing a scathing dissent (joined by Roberts) about how IPRs should be considered unconstitutional in Oil States.

Linky?

[stessier]

Why's that?

Because I think the IPR is an important bandaid to many of the current patent issues and didn't want to see it go away. It's also nice to see the reasoning was along the lines of the government can attach strings to the things it grants and that patents aren't inherently personal property.

Edit: typo