SCOTUS Watch

[malchior]

Or the roughly 200 years before usage of the filibuster spiraled out of control in 2009/2010.

[Kraken]

it's pretty difficult to argue that an AR-15 is an "unusual" weapon these days - heck, sometimes it seems as if you can barely walk down the street without tripping over one.

...in Texas, sure. They're quite illegal here.

[Zarathud]

The solution is to win a Senate supermajority then reform the SCOTUS to expand its numbers so cases can be heard, eliminating the shadow docket. From there, add judges to make it so parties can’t engage in such extreme judicial selection.

[malchior]

<Double-ish post>

[malchior]

It's unfortunately seemingly improbable in any near-term scenario. We haven't seen a durable supermajority in nearly 50 years. And it certainly doesn't look possible in 2024. We're in for a long grind where low trust meets judicial tyranny. If we make it through this period without succumbing to the authoritarians, and hold out for maybe 10 years, then we might see enough boomers die off. That'll allow younger -- way more liberal -- voters to increase enough to potentially turn the tide. But that's a long time when things are barely holding together.

[Little Raven]

...in Texas, sure. They're quite illegal here.

Eh, you love to sell them.

[Kraken]

...in Texas, sure. They're quite illegal here.

Eh, you love to sell them.

Not so much anymore.

[waitingtoconnect]

The Comstock act is not enforced but it’s still on the books.

Those evil fornicating blue staters just need to wait…
https://www.law.cornell.edu/uscode/text/18/1461

If you can get Scotus to say mail, transport, personal carriage and the internet are covered you can born abortion, contraception and porn nationwide in one go!

[GreenGoo]

I think it's cute you believe once the GOP is able to fully get back into power they're ever going to let it go again.

I think it's cute that you believe the GOP is competent enough to hold power forever. They can't even agree on a budget strategy. It took them 15 votes to settle on a Speaker. This is not a party that is prepared to go the distance.

Dude. Roe vs Wade has been overturned. Which the majority of the country didn't want.

I'm not sure where your incredulousness comes from, but it's misplaced.

I honestly can't see how anyone can be paying attention in 2023 and think the GOP are incapable of achieving their (nefarious, imo) goals.

[El Guapo]

I think it's cute you believe once the GOP is able to fully get back into power they're ever going to let it go again.

I think it's cute that you believe the GOP is competent enough to hold power forever. They can't even agree on a budget strategy. It took them 15 votes to settle on a Speaker. This is not a party that is prepared to go the distance.

Dude. Roe vs Wade has been overturned. Which the majority of the country didn't want.

I'm not sure where your incredulousness comes from, but it's misplaced.

I honestly can't see how anyone can be paying attention in 2023 and think the GOP are incapable of achieving their (nefarious, imo) goals.

Yup. I mean obviously if we're being literal then "forever" is impossible, but could we become Hungary within a decade? I don't see how that can be dismissed, especially given that so much of the MAGA movement is very explicitly modeling their strategy on Orban's.

And if we do then it's not crazy to think that the GOP's hold on power could last decades.

[malchior]

I think it's cute you believe once the GOP is able to fully get back into power they're ever going to let it go again.

I think it's cute that you believe the GOP is competent enough to hold power forever. They can't even agree on a budget strategy. It took them 15 votes to settle on a Speaker. This is not a party that is prepared to go the distance.

Dude. Roe vs Wade has been overturned. Which the majority of the country didn't want.

I'm not sure where your incredulousness comes from, but it's misplaced.

I honestly can't see how anyone can be paying attention in 2023 and think the GOP are incapable of achieving their (nefarious, imo) goals.

Yup. I mean obviously if we're being literal then "forever" is impossible, but could we become Hungary within a decade? I don't see how that can be dismissed, especially given that so much of the MAGA movement is very explicitly modeling their strategy on Orban's.

And if we do then it's not crazy to think that the GOP's hold on power could last decades.

What I don't get is how do people not see that the GOP has already had an "effective hold" on power for decades. Since 2000 and especially since 2010 the government has been a vetocracy with either the Senate or Judiciary largely controlled via obstruction or judicial action to control US policy generally in favor of Conservative and hard-right policies. It is partly why so many people are unhappy with our government. It doesn't even come close to delivering outcomes that people want. Maybe the GOP didn't always have the Presidency or majorities in Congress but they have wielded power far in excess of their vote this entire century. It is crazy that people don't recognize this still. IMO folks in the United States are extremely myopic and buy too much into the day-to-day noise while ignoring the long-term trends and outcomes.

[Little Raven]

Yup. I mean obviously if we're being literal then "forever" is impossible, but could we become Hungary within a decade?

I don't think the current US political arrangement is conducive to us becoming Hungary. I think it would break first. Hungary is a little less that 10 million people, and amazingly homogenous by American standards. That model won't scale.

And don't get me wrong, the GOP can most definitely break things. They're doing a marvelous job of that. And there are all kinds of dangers there. But I'm not very concerned about the GOP amassing lasting power in our current system.

[El Guapo]

Yup. I mean obviously if we're being literal then "forever" is impossible, but could we become Hungary within a decade?

I don't think the current US political arrangement is conducive to us becoming Hungary. I think it would break first. Hungary is a little less that 10 million people, and amazingly homogenous by American standards. That model won't scale.

Why is that? I don't really follow the logic as to why you think the Hungary model won't scale to America.

Also, if anything the GOP has certain advantages from our system - as malchior is getting at the structure of the Senate and the electoral college in particular (and gerrymandering especially at the state level) has already allowed the GOP to exercise disproportionate power given their vote percentages.

[malchior]

One other thought is it is far in excess of typical Conservative party advantages that persist in most democratic systems. Preventing action is often a win on its own for them.

However, the GOP has set up a favorable tax environment for their patrons, they have built an entire circuit and Supreme Court that acts to deliver them tyrannical reactionary power. They have achieved one of their major cultural goals in Dobbs and Heller.

And they've started to break down norms at local and state levels across the United States. The idea they are bulidng durable power is clear and demonstrably a fact. It is unserious to suggest otherwise.

[waitingtoconnect]

Yup. I mean obviously if we're being literal then "forever" is impossible, but could we become Hungary within a decade?

I don't think the current US political arrangement is conducive to us becoming Hungary. I think it would break first. Hungary is a little less that 10 million people, and amazingly homogenous by American standards. That model won't scale.

Why is that? I don't really follow the logic as to why you think the Hungary model won't scale to America.

Also, if anything the GOP has certain advantages from our system - as malchior is getting at the structure of the Senate and the electoral college in particular (and gerrymandering especially at the state level) has already allowed the GOP to exercise disproportionate power given their vote percentages.

The Indian model is more likely. India has distinct regional identities and is now effectively a one part state under the BJP who used republican and Orban style tactics to take over. In the media space they have been particularly successful, using the judiciary and tax office to intimidate, investigate and even jail media owners who critique the government.

[Little Raven]

Also, if anything the GOP has certain advantages from our system - as malchior is getting at the structure of the Senate and the electoral college in particular (and gerrymandering especially at the state level) has already allowed the GOP to exercise disproportionate power given their vote percentages.

Sure, but there's a huge difference between "punching above their electoral weight" and "the US becomes a one-party state."

I think there's a tendency for some democrats to imagine that Republicans are some tiny minority that only hold power through gerrymandering and dirty tricks, but they aren't THAT small.

Overall, 34% of registered voters identify as independents, 33% as Democrats and 29% as Republicans.

In 2022, there were more votes cast for Republicans than Democrats. Given how many Republicans there are in this country, we should absolutely expect them to win - a LOT. Any party THAT big is going hold the levers of power at least some of the time.

[LordMortis]

Forget how they identify. How are they voting. How many times have the Ds lost the popular vote and become president? How many times have the Rs. You can easily extend that to every level of government culminating in the SCrOTUmS we have today.

[Zarathud]

Democrats need to develop and implement a counter strategy on the courts. It’s taken the Republicans 50 years to get here after they figured out a strategy after the liberal victories in the 50s-70s. They overstepped with Bork’s nomination which set them back over a decade.

We need the next Sotomayor and Burger to step forward, so the rebellion can be reborn.

[Blackhawk]

An actual one-party system? No. A functional one-party system, wherein there are multiple parties, but all but one are blocked from any form of governance? Yeah.

[Default]

As Beau says, the Republican party's base is aging out of voting. Each younger generation is getting more liberal, year by year.
Example;
When I was a teenager back in 1975-76, a young couple came to my dad for counseling. She was pregnant and white, he was a standup guy, and black. The woman's parents were... hostile. They ended up putting the baby up for adoption - my mom and dad cared for the newborn until the adoption took place.
Nobody blinks an eye about interracial couples having babies anymore, and they haven't for a couple of decades.

[GreenGoo]

As Beau says, the Republican party's base is aging out of voting. Each younger generation is getting more liberal, year by year.
Example;
When I was a teenager back in 1975-76, a young couple came to my dad for counseling. She was pregnant and white, he was a standup guy, and black. The woman's parents were... hostile. They ended up putting the baby up for adoption - my mom and dad cared for the newborn until the adoption took place.
Nobody blinks an eye about interracial couples having babies anymore, and they haven't for a couple of decades.

I don't remember which state, but interracial couples are a topic being discussed. Again.

And conservatives are already in the minority in America. That's why everything that is happening is a huge scandal, rather than governance by the people.

The point being raised again and again, is that the GOP are not playing fair, or legal, and don't care.

[Carpet_pissr]

This was from a newsletter I get(got) from (gulp) CNN (only for the pretty excellent occasional perspective and actual journalism, like the following. Worth the time to read IMO. Kinda sorta bottom line: The Supreme Court evolved to grab power from Congress. And Congress gave it away


The Supreme Court holds more power than it used to and, thanks to its "shadow docket," can make consequential decisions that affect every American without so much as a written decision.

That's my takeaway from a fascinating and educational new book by Stephen Vladeck, a law professor at the University of Texas who is also a CNN contributor. I talked to Vladeck about "The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic," which publishes on May 16. Excerpts of our conversation, conducted by phone, are below.

Spoiler:

What is the shadow docket?

WOLF: Can you explain to people what you mean by "shadow docket"?

VLADECK: The term is not mine. It was coined by University of Chicago law professor Will Baude in 2015. Will meant it really as this umbrella term. Not as a pejorative, but just as a description of the fact that the vast majority of rulings that the Supreme Court hands down that we don't pay attention to. They're not the fancy decisions on the merits docket. They're not the cases where the court hears oral arguments and writes these lengthy rulings with concurrences and dissents. The typical shadow docket ruling is an unsigned, unexplained order. And most of them are banal. But not all of them.

Will's insight, which I have rather shamelessly appropriated, is that there's a lot of really important stuff that happens through unsigned, unexplained orders. Just because they're unsigned and unexplained doesn't mean that we ought not to care about them, talk about them, study them and try to divine broader patterns from them.

The shadow docket helped Republicans in the midterm election

WOLF: You write about how the court, without explaining itself, either invalidated or influenced congressional maps in the last election in three states: Georgia, Alabama and Louisiana. Right now, Republicans have a four-seat majority in the House. Do you feel like those decisions determined the outcome of who was going to control the House?

VLADECK: I think it's close. We're talking about two decisions from the court in cases from Alabama and Louisiana, and then those decisions were directly followed in Georgia.

There's no question that, but for the court's interventions, at least three House seats in the current Congress would likely have been controlled by Democrats as opposed to Republicans. What I think is really hard to say is what other effects might have followed. The New York Times has suggested that those decisions affected control of as many as seven to 10 House seats. That, I think, is a little more circumstantial. There's no question that the decisions in the Alabama and Louisiana cases helped to give the Republicans the majority they currently have in the House. Whether they actually directly affected control, I think is a close call.

Does the problematic behavior continue?

WOLF: Justice Samuel Alito is unapologetic about use of the shadow docket. Chief Justice John Roberts and other conservatives dislike it. How have things changed in recent months? Has it been used more or less since you stopped writing this book?

VLADECK: With regard to what I think is the problematic behavior on the shadow docket, I think we have seen less of that in the current term. And actually, I think we can see patterns of that go all the way down to October 2021, when Justice (Amy Coney) Barrett wrote this very, very cryptic concurrence in a case about the Covid vaccine mandate for Maine health care workers.

It was delphic in what it said, but signaled a bit of a break between Barrett and (Brett) Kavanaugh, who joined that opinion, and Justices (Clarence) Thomas, Alito and (Neil) Gorsuch in how often they were going to be willing to vote to intervene on the shadow docket and what kinds of cases they were willing to intervene in.
Last week, the stay in the Oklahoma death penalty case, Richard Glossip, there were no dissents from that intervention. Even the mifepristone ruling in April, there are only two public dissents. One of the really interesting stories here is the court really does seem to have moderated at least some of its behavior. Part of that, I think, is because to at least some degree, the median justices have become convinced that some of the court's prior behavior is problematic.

How the extraordinary became ordinary

WOLF: Do you have thoughts on motivations behind the rise of the shadow docket, which you pegged to the seating of Justice Barrett and this new conservative supermajority? Do you think that there was some concerted effort by the more conservative justices to exploit this?

VLADECK: I think the short answer is no. But I know that there are going to be folks who disagree. The book tries to unpack some of this chronologically, because I think the story makes a lot of sense when told in sequence. Starting in 2017, the court was confronted with an unprecedented flurry of emergency applications from the Trump administration. It reacted to those applications iteratively, one at a time, without actually stepping back and looking at the whole waterfront, so the court actually kept digging itself in deeper and deeper. Had the justices actually taken a step back and asked whether this was a practice they wanted to condone, they might not have said yes. And I think with each new intervention, with each successive case, what had previously been extraordinary became ordinary. Without there necessarily having been any deliberateness or malice, the conservative majority just routinized the types of interventions that had until 2017 been completely unroutine. It's only when we get to the Covid cases in 2020 and 2021 that now it starts to look like some of this is willful, because it's only in those cases where we see the court deciding legal questions on the shadow docket through emergency applications that were in front of the justices already on the merits docket.

There was nothing stopping the court from using merits cases to reach these questions about religious liberty, and the court did it through the shadow docket anyway. I really think it started as just an unstructured off-the-cuff reaction to unusually aggressive behavior by the Trump administration and then just sort of morphed into something else as time went on.

A patchwork of rights in the US

WOLF: You point to the Obergefell decision (legalizing same-sex marriage nationwide) to argue that the court had already spoken on same-sex marriage through years of inaction. There was a patchwork of marriage laws the court had tolerated for a number of years. Reading that made me think we're returning to that with abortion rights. And certainly with guns. The patchwork nature of rights in this country is growing not shrinking, despite the gay marriage decision.

VLADECK: I think it's grown in some respects and is shrinking and others. The more that the Supreme Court constitutionalizes things, the less of a patchwork we have. If you look at the Second Amendment context, I think it's actually less of a patchwork, because more and more variances in how localities regulate guns are being struck down by the courts for violating the federal Constitution. Versus contests where the court is stepping away from constitutional enforcement, like abortion. It's more contextual than sort of categorical.

The Supreme Court evolved to grab power from Congress. And Congress gave it away

WOLF: I've done a lot of writing about the filibuster, which is this custom that has evolved to be a major part of the US government and slowed or stalled legislation in Congress. Your descriptions of how the court has evolved reminded me of that. You argue the justices have essentially grabbed power from Congress over the last 100 years or so to gain more control over their docket.

VLADECK: When we look at the court today, we see a court that controls virtually all of its docket, a court that decides not just which cases it's going to hear, but which issues it's going to decide within the cases it chooses to hear. For most of us, we've never known anything different. And so we just assume that that's how the court is supposed to operate. The reality is totally different. Until 1891, and really in practice until 1925, virtually all of the court's docket was mandatory -- the court had to decide any case over which it had jurisdiction.

That made it a lot harder for the justices to have an agenda. It made it a lot harder for the justices to target particular disputes and look around for cases. The rise of certiorari, of docket discretion, is actually a thoroughly untold but undeniable part of the story of why today's Supreme Court is so powerful, despite the founders' views that this would be the least dangerous branch.


The court today actually has a ton of power. Some of that story is about a power grab.

But a fair amount of the story is about acquiescence and abdication by Congress, which gave the court the certiorari power in the first instance; which never reined it in, even as the court has seemed to used it to claim more and more power; and which in 1988 took all the brakes off of certiorari and said, yep, just about all the court's docket is going to be discretionary -- and which has done absolutely nothing since then to exercise any modicum of control over the court's docket. That's why the story that the book tries to tell is not just a story about the court. It is a story about the separation of powers and how the shadow docket is in some respects just a symptom of the broader disease of separation of powers dysfunction that we're seeing right now.

How to fix the court? Do something

WOLF: You come back to that 1988 law repeatedly in the book. I wonder what you think Congress should do now to change the court. There are proposals to change the number of justices, to change the terms of justices. What would be your prescription?

VLADECK: My prescription is sort of even sillier, which is I would just start by doing something. To me, the problem is that Congress has gotten completely out of the business of exercising any leverage over the courts, so much so that when Chief Justice Roberts was invited to testify before the Senate Judiciary Committee, he responds and says that would raise the separation of powers concern.

No it wouldn't! Justices testify all the time. Or at least they did historically, and no one ever thought that was unconstitutional. There are specific things Congress can do, but the real thing Congress needs to do is just more than nothing. Exercise more control over the court's docket. Use the budget, if necessary, as a cudgel.
If nationwide injunctions are a problem that's responsible for why the court is behaving in this way, make it easier for parties to appeal nationwide injunctions directly to the court without having to go through the emergency application process.

There are so many things Congress could do. The problem is that we're stuck in this post-1988 mindset that it is not Congress' job. When we look at the court today, we look at the ethics issues, the docket issues, the legitimacy debates -- a lot of what's going on here is a court that's just not remotely checked and not worrying about being checked. And this is why I'm a bit more circumspect about adding seats to the court or term limits. I don't think changing the composition of the court changes the basic problem, which is the power dynamic, the Madisonian idea in Federalist 51, that ambition must be made to counteract ambition.

That doesn't change just because you have different bodies in those seats. The way that changes is Congress reasserts its clear constitutional prerogatives over the court. And that's part of the story the book tries to tell.


Justices need to guard their legitimacy

WOLF: You also talked quite a bit about this idea that the court gets most of its power from the legitimacy it has in the public. What should it do to restore its legitimacy?

VLADECK: "Restore" is a little strong. I have not given up on the court. But I think there's a lot that the justices can do to at least give a sense that they actually care about public perception, and that they should care about public perception. First, I think it would be nice if the justices would stop attacking critics as seeking to delegitimize the court. If you think the criticisms are unfair, then respond on the substance as opposed to attacking the people who are criticizing. When it comes to the shadow docket specifically, I think the justices can commit internally to norms about writings providing some rationale whenever the court's going to grant emergency relief and actually upset the status quo. I think the court can commit to taking pains to make sure in each case that it's explaining how the relevant criteria for emergency relief are met, that it's explaining why it disagrees with lower courts, who in many cases are writing lengthy opinions that are getting quashed in a sentence.

More generally, the justices could emulate better behavior when it comes to emergency applications and what the court's role is in responding to them.

[Alefroth]

https://www.washingtonpost.com/politics ... -illinois/

The Supreme Court on Wednesday left in place for now Illinois’ new ban on the purchase and sale of AR-15-style rifles and large ammunition magazines, in the court’s first consideration of gun-control legislation since its conservative majority made it more difficult for governments to justify such restrictions.

[LawBeefaroni]

They're holding out for a better vacation offer. The Maryland case is still on the table.

[malchior]

This is what the legitimacy of SCOTUS breaking down looks like. Not supporting or defending it but I know that eventually this is the risk we face as the Supreme Court acts as an unaccountable super legislature.

[El Guapo]

Any details on what he would cite as the specific reason why? Institutionally there is a significant difference between saying "yes this ruling applies here but we're going to ignore it because we dislike it" and "we're going to ignore the ruling because it doesn't apply here because [paper thin excuse]".

[malchior]

Any details on what he would cite as the specific reason why? Institutionally there is a significant difference between saying "yes this ruling applies here but we're going to ignore it because we dislike it" and "we're going to ignore the ruling because it doesn't apply here because [paper thin excuse]".

It's doesn't sound like he is offering a thin excuse. He is taking a substantive position that women's lives would be at stake. He's right on that. He said 'everything was on the table' in light of that risk.

I also suspect this is partly politics as he thinks that this issue is going to be a winner for them in 2024. That is probably right. He seems to think that NC/SC/FL might be in play as women get motivated by this issue. To be seen but it's not a crazy stance.

Still I expected this. We're turning into a country that is facing tyranny of the unelected. I expect that to lead to a fight. Whether it's abortion or guns or whatever issue accumulates to a triggering event, there is a battle coming. Whether it is violent or not is to be determined but I just have been hearing too many elected officials hinting at this to dismiss it as just bluster.

[geezer]

Any details on what he would cite as the specific reason why? Institutionally there is a significant difference between saying "yes this ruling applies here but we're going to ignore it because we dislike it" and "we're going to ignore the ruling because it doesn't apply here because [paper thin excuse]".

It's doesn't sound like he is offering a thin excuse. He is taking a substantive position that women's lives would be at stake. He's right on that. He said 'everything was on the table' in light of that risk.

I also suspect this is partly politics as he thinks that this issue is going to be a winner for them in 2024. That is probably right. He seems to think that NC/SC/FL might be in play as women get motivated by this issue. To be seen but it's not a crazy stance.

Still I expected this. We're turning into a country that is facing tyranny of the unelected. I expect that to lead to a fight. Whether it's abortion or guns or whatever issue accumulates to a triggering event, there is a battle coming. Whether it is violent or not is to be determined but I just have been hearing too many elected officials hinting at this to dismiss it as just bluster.

I agree with you. And I want to be way gone from Texas when it happens.

[malchior]

The wisdom of one of our post-modern tyrants. Guess he is an avid reader of those books about COVID fascism and forgot about slavery/Jim Crow/etc. in the process.

The Hill

The high court on Thursday dismissed as moot a case seeking to preserve Title 42 after the pandemic emergency expired last week. The public health authority had allowed for the swift expulsion of migrants without allowing them to seek asylum.

Gorsuch, in an attached statement to the court’s unsigned order, more broadly railed against the use of emergency powers since COVID-19 shut down normal life, referencing among other things, lockdown orders, a federal ban on evictions and vaccine mandates.

“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale,” Gorsuch wrote.

[Kurth]

Big SCOTUS decision last week in the IP realm: In Warhol v. Goldsmith, the Court went 7-2 in favor of the copyright holder, Lynn Goldsmith, a photographer who originally shot a photo of Prince which Warhol used and transformed into a new work, which was then licensed to a number of magazines for publication. The only issue before the Court was whether Warhol's new work and subsequent licensing should be considered a fair use of the original Goldsmith photo sufficient to defeat her claim of copyright infringement.

Even more narrow, the appeal focused only on the first factor of the fair use test: The nature and purpose of the use. Warhol tried to argue that the Court should take into account the artist's subject intent when considering how transformative nature of the use of the original copyrighted material. Warhol has also tried to downplay the commercial nature of his use (a big theme in many of these fights today), and the Supreme Court kicked that argument to the curb as well.

Overall, this seems like a positive and well-reasoned decision. Also, despite the fact this was holding is limited to fair use and copyright law, I think it signals SCOTUS may not be all that impressed with the arguments VIP Products is putting forward about how "works of artistic expression" should get a big fat carve out from trademark law in the VIP Products v. Jack Daniels case we've talked about earlier in this thread. That one should hit soon, too.

[LordMortis]

Executive officials across the country issued emergency decrees on a breathtaking scale

He's not wrong. The scale had to do with 2000 breaths permanently taken a day with nothing able to mitigate the damage but emergency decrees wherein 2000 became peak breathtaking.

[malchior]

Harlan Crow asserts he can't be subpoenaed because of separation of powers concerns. These people.

Original story at Bloomberg

[Pyperkub]

So, if a Supreme Court Justice was suspected of murder, it shouldn't be investigated?

Hmm.

Also, they are investigating YOU as well, Mr Crow, even if you feel you are above the law because you have at least one Supreme Court Justice in your pocket.

[Unagi]

Harlan Crow asserts he can't be subpoenaed because of separation of powers concerns. These people.

Checks and Balances

[Smoove_B]

North Carolina case on drawing district maps:

The Supreme Court is considering a case brought by North Carolina Republicans that seeks to allow state legislatures to effectively have carte blanche over drawing congressional district maps.

If it were to grant the application some believe that the decision could backfire on Republicans, who currently only maintain a slim majority in the House of Representatives, as it would allow California's Democrat-heavy state legislature to redraw district boundaries in their favor.

The outcome of the case could have far-reaching effects: the Democrats lost control of the U.S. House of Representatives by four seats in 2022, while at least three Republican seats in California have slim GOP majorities.

...

The theory points to the election clause of Article 1 of the constitution, which says the "times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations."

However, there is disagreement about how much power the clause delegates to state authorities, and which ones it is specifying.

While advocates of the theory argue the word "legislature" refers directly to state legislatures, the common understanding to date is that this refers to a state's public institutions generally—including the governor and Supreme Court, which can block new election maps if they find the maps don't comply with the state's constitution.

Legal experts at the Brennan Center for Justice described it as a "dubious interpretation" of the constitution, and noted that if the Supreme Court were to effectively adopt the view in its ruling, "it would radically change our elections."

[waitingtoconnect]

Maybe someone can demand the state legislators appoint the senators again?

[malchior]

In today's news, the tyrants of SCOTUS have decreed that the Clean Water Act doesn't mean we can have clean water. As Kagan said, SCOTUS has decided that they are now the arbiters of United States environmental policy. What's nuts is that this was a case about building a house on one lot and SCOTUS took the opportunity to radically re-write environment policy. The new rule is that unless the bodies of water are touching above ground they can be regulated. If the water pollution joins the water underground then it's all coolio. You know because those 9 are experts/scientists. SCOTUS delenda est.

NY Times

The decision followed a ruling last year that limited the E.P.A.’s power to address climate change under the Clean Air Act.

“There,” Justice Kagan wrote in a second concurring opinion, “the majority’s non-textualism barred the E.P.A. from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the E.P.A. from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the court’s appointment of itself as the national decision maker on environmental policy.”

[Pyperkub]

Harlan Crow asserts he can't be subpoenaed because of separation of powers concerns. These people.

Checks and Balances

The Ken Paxton case illustrates exactly how dangerous this is if Crow needs it:

A Texas House committee on Wednesday heard explosive new testimony from lawyers investigating Texas Attorney General Ken Paxton, including that he appeared to provide a friend with confidential FBI documents and committed other potentially impeachable crimes in an effort to help him retaliate against adversaries and federal officials.

Many of the details have been outlined in a whistleblower suit that accuses Paxton of firing four top aides as retaliation after they reported the alleged misconduct to federal authorities....

...“Would it be fair to say the OAG’s office was effectively hijacked for an investigation by Nate Paul through the attorney general?” asked Houston state Rep. Ann Johnson, D-Houston.

“That would be my opinion,” said investigator Erin Epley, a former Harris County prosecutor.

The investigators listed a number of laws that Paxton may have violated, including abuse of official capacity and misuse of official information, both of which are felony offenses. ...

...Paul, who is in the middle of multiple bankruptcies proceedings and financial litigation, had wanted the attorney general’s office to uncover details about the federal investigation into him and his businesses, the investigators said. Paul donated $25,000 to Paxton’s re-election campaign in 2018....

...an attorney of Paul’s had recommended that Paxton’s office hire a young and inexperienced lawyer named Brandon Cammack as outside counsel to help Paxton investigate the federal officials looking into Paul. ...

...Paxton hired Cammack as a “special prosecutor” against the advice of his staff, according to the investigators. They suggested that Cammack was able to use the unredacted FBI report from Paxton to pinpoint the targets of 39 subpoenas, which went to Paul’s business interests and law enforcement officials.

Backing up another claim from the whistleblower suit, the investigators said Paxton pressured his office to issue a legal finding during the pandemic that foreclosure sales had to stop because of public health restrictions – a ruling that went against the advice of his staff.

Such opinions can take up to six months to publish, but Paxton pushed for it to be finalized in two days.

[Smoove_B]

The new rule is that unless the bodies of water are touching above ground they can be regulated. If the water pollution joins the water underground then it's all coolio. You know because those 9 are experts/scientists. SCOTUS delenda est.

I'm speechless.To completely not understand the connection between wetlands and the water we all need to exist is insane. Insane.

[LawBeefaroni]

The new rule is that unless the bodies of water are touching above ground they can be regulated. If the water pollution joins the water underground then it's all coolio. You know because those 9 are experts/scientists. SCOTUS delenda est.

I'm speechless.To completely not understand the connection between wetlands and the water we all need to exist is insane. Insane.

They understand the connection but lawsplanations and reality don't have to match up. Write it down and close the case.