SCOTAL Itch

[ChuckF]

We turn now to the merits of the Platforms’ First Amendment claim. As always, we start with the original public meaning of the Constitution’s text.

buh?

Rather than mount any challenge under the original public meaning of the First Amendment, the Platforms instead focus their attention on Supreme Court doctrine.

BUH??

[Stephen Maturin]

That boy is lobbying hard for a place at the front of the SCOTUS nomination line next time we have a GQP presidink.

[mickthinks]

Fifth Circuit [reject] "the idea that corporations have a freewheeling First Amendment right to censor what people say."

As a person I surely have the right not to pass on messages I don't support and can't condone. So then, is the Fifth Circuit trying to overturn Citizens United v FEC?

[Kamilah Hauptmann]

This is the greatest headline.

[Stephen Maturin]

This could also go in the shitty lolyers thread, but it illustrates in rather ghastly terms what we can expect from SCOTUS for the foreseeable future.

Back in 2004, Andre Thomas killed his ex-wife and their child, along with a child of the ex-wife's from a different relationship, in horrific fashion. Details are available here.

Thomas had a history of severe mental illness dating back to age 9, and was full-blown schizophrenic at the time of the killings. Texas officials charged him with capital murder, and while he was in jail awaiting trial he removed both eyeballs with his bare hands, eating one of them, cuz of that "if thine eye offend thee" verse from the Bible.

Everyone agreed that Thomas was in the midst of a psychotic break when he killed those people, but the prosecutors successfully argued that he was still responsible because the psychosis was voluntarily induced by consumption of cough syrup. Thomas is black, you see, and you know those crazy coloreds and their purple drank!

Thomas's ex-wife was white. An all-white jury found him guilty and recommended a death sentence. Three of the jurors expressed vehement opposition to interracial marriage and procreation in their jury questionnaires. Thomas's two court-appointed lolyers, one suffering from pancreatic cancer and the other with zero prior experience in capital murder cases, failed to question two of the jurors at all, did not challenge any of the jurors for cause, and did not use peremptory strikes on them. All three jurors were seated.

Yesterday, the Supreme Court declined to hear Thomas's appeal. The dissenting opinion of Justice Sotomayor, joined by Justices Kagan and Jackson, does an exemplary job explaining not only how defense counsels' buffoonish incompetence qualifies as ineffective assistance under the Sixth Amendment but also how the incompetence is so obvious and egregious as to warrant a summary reversal of the court of appeals' ruling denying relief.

Wingnuts have interesting priorities. Vaccines and masks? Egregious misuse of government power. Government actually, literally killing its own citizens? No prob.

[Stephen Maturin]

The Supreme Court's jurisprudence regarding affirmative action has always been something of a clusterfuck. In Bakke, for instance, Justice Louis Powell wrote an opinion to which no one else signed on that ended up being the law of the case. Today the Court heard oral argument on the continuing viability of affirmative action. I'd say use of race as a factor in admission to state universities has about a 0.000% chance of surviving the current lineup.

[Stephen Maturin]

John Eastman's idiot lawyers used Dropbox to deliver documents to the House Select Committee investigating 1/6. Predictably, an active link made it into publicly accessible court filing, and some eagle-eyed reporter spotted it.

Posting here cuz of what the docs show about about Clarence "Who put this pubic hair on my Coke?" Thomas being viewed as a likely savior of Fat Donny from Queens.

[Kamilah Hauptmann]

Given the Trump family’s history of intra NYC redlining, a black judge riding to the rescue would at last give a solid example of a race traitor.

[beyelzu]

A federal judge Calls Clarence Thomas’s bluff on gun Rights and originalism.

Federal judges are not historians, but they are increasingly obligated to play them on the bench. In his Bruen decision last June, Justice Clarence Thomas ordered courts to assess the constitutionality of modern-day gun restrictions by searching for “historical analogues” from 1791, when the Second Amendment was ratified. Ever since, judges have struggled mightily with this task—in part because most have no training in real historical analysis, but also because the record is often spotty and contradictory. In light of Bruen’s maximalist language, they have erred on the side of gun owners, finding a constitutional right to buy a gun while under indictment for a violent crime, to carry a gun into airports, and to scratch out the serial number on a firearm, rendering it untraceable.

In each case, both sides presented a few scraps of historical evidence to support their positions. Judges based their decisions on those scraps without further research, following Thomas’ suggestion that they rely on “the historical record compiled by the parties.” Last Thursday, Judge Carlton Reeves of the Southern District of Mississippi charted a different course: He proposed appointing a historian to help him “identify and sift through authoritative sources on founding-era firearms restrictions” to decide the constitutionality of a federal law barring felons from possessing firearms. His proposal is the first positive development in Second Amendment law since the Bruen revolution. At worst, it will demonstrate the absurdity and impossibility of Thomas’ command. At best, it will restore sanity to an area of jurisprudence that is going completely off the rails.

Also the article has links to multiple papers dunking on Heller using only originalism.

I’m beginning to think it might be bunk.

[specious_reasons]

If Justice Roberts really wants to maintain the image of legitimacy of the court, he might want to reign in his boy.

Politico reported that Justice Brett Kavanaugh attended a private holiday party on Friday night at the home of Matt Schlapp, who is chairman of the Conservative Political Action Coalition (CPAC), and that attendees included Stephen Miller, whose group America First Legal Foundation has interests in cases now pending before the court.

[Stephen Maturin]

Here's one that might not make it to SCOTUS. This here shitburger was a true prince among men:

Between December 2020 and January 2021, [Shitburger] was involved in five shootings in and around Arlington, Texas. On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, [Shitburger] was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, [Shitburger] shot at a constable’s vehicle. On January 7, [Shitburger] fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant. (Footnote omitted.)

Shitburger got tagged with a bunch of state law crimes, but was also tried and convicted of violating 18 U.S.C. § 922(g)(8), which criminalizes possession of a firearm by anyone subject to a court order prohibiting actual, attempted or threatened use of physical force against an intimate partner, where the order includes a finding that the dirtbag poses a credible threat to the intimate partner's physical safety. At the time of Shitburger's above-referenced hijinx, he was subject to a protective order entered in favor of his ex-girlfriend and their child, and order that everyone agreed fell within the parameters of the federal statute.

But no, sez a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit. Per the majority opinion penned by St. Clarence of Pubis last term, the above-cited federal statute violates the Second Amendment and is unconstitutional on its face because that statute's firearm possession ban "is an 'outlier[] that our ancestors would never have accepted.'" Cuz the Framers were all about having easy access to the means for shooting uppity bitches, I guess.

Along the way, the court told us that we can safely disregard all those references in Heller and Bruen to "law-abiding, responsible" gun owners. SCOTUS didn't actually mean that shit.

The journey toward "While theoretically possible, reality provides exactly zero examples of a constitutional firearm regulation" continues apace.

The only reason SCOTUS might not take this case is that the Court of Appeals reached the "right" result. However, the wingers on the high court might conclude that the opinion below in insufficiently broad and take the case just to drive a larger stake into the hearts of firearm regulation. Traditional rules regarding restraint mean little to the current clown show.

[BrotherMan]

That is some kind of fucking madness.

[beyelzu]

Apparently one of the concurrences in Konigsberg cites precedent that holds the opposite of what they claim it says.

This is about Justice Ho’s concurrence.

Konigsberg is about swearing that you aren’t a communist to get admitted to the bar (maybe that’s what we need to deal with all these woke Biglaw lawyers!). But the funny part of this citation is that the specific footnote Ho points to… reaches the opposite conclusion. While the case is about the First Amendment, Justice Harlan ends this footnote with the sentence, “In this connection, also compare the equally unqualified command of the Second Amendment: ‘the right of the people to keep and bear arms shall not be infringed.'” This ignores the whole “well regulated” part, which is dictionary definition of a qualification, but set that aside.

Judge Ho appears to have seen “unqualified command of the Second Amendment” and called it a day. EXCEPT that’s the antithesis of the whole footnote.

The sentence attached to the footnote is: “At the outset, we reject the view that freedom of speech and association, as protected by the First and Fourteenth Amendments, are ‘absolutes,’ not only in the undoubted sense that, where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.”

And

Justice Harlan contends here that just because the First Amendment reads as “unqualified,” it doesn’t mean that the law treats it as such. He then throws in the Second Amendment specifically for the purpose of underscoring this point. It’s included to convey: “See, this is written to be unqualified too and literally no one is stupid enough to think the Constitution intends to create an unfettered individual right to guns.”

It makes perfect sense to me as originalists reach their end position and then engage in post hoc rationalization.

[Stephen Maturin]

Judge Ho is a trumpanzee piece of shit, and if a law student committed such a gross misuse of authority in a writing assignment his Legal Research and Writing instructor would give him the R. Lee Ermy treatment in full view of the entire class. But Ho is honest in the very limited and sociopathic "This is how it should be because this is how I want it" sense. The second part of the Second Amendment (the militia shit in the first part is bereft of effect, as SCOTUS has already decided) is absolute and any regulation that purports to restrict or limit firearm possession is automatically unconstitutional.

And how the hell is Edith Fucking Jones only 73 years old? Feels like she's been on that wingnut court at least that long. Credit where credit's due, I guess. Republicans have long know that relative youth and ideological purity is all that counts when it comes to Article III judge nominations.

[Stephen Maturin]

The so-called Independent State Legislature doctrine is back in the news. The doctrine has two components, under which advocates contend the U.S. Constitution vests exclusive control in state legislatures, unbound by falderal like gubernatorial approval/veto or state court judicial review, over: (1) how a state draws its U.S. House of Representatives district boundaries; and (2) how the state allocates its electoral votes for POTUS.

The electoral vote component of the doctrine came up in Bush v. Gore back in 2000. A concurring opinion penned by Wild Bill Rehnquist and signed onto by Pubes Thomas and Tony the Phony Scalia embraced the doctrine wholeheartedly. Yesterday's CNN article describes how Justices Sandra Day O'Connor and Anthony Kennedy teamed up to give Bush a win in the case without turning the Independent State Legislature doctrine into the supreme law of the land. It's not known why O'Connor walked away from the ISL doctrine after endorsing it early in the case, but Derek Muller at Election Law Blog offers these possible explanations. Amusing, for large enough values of the term, was the tut-tut-tutting of Scalia and Kennedy over the dissenters' stated concerns about the Court shooting its own legitimacy in the dick.

The info from the CNN article comes from recently-opened files of the late Justice John Paul Stevens. After all this time, it still speaks volumes that a lifelong law 'n' order conservative like Stevens came to be viewed as the Court's preeminent wild-eyed leftie moonbat.

The House of Reps redistricting component of the doctrine is before SCOTUS in Moore v. Harper. In that case, a 4-3 majority of the North Carolina Supreme Court ruled in February 2022 that a redistricting scheme approved by the wingnut majority controlling the North Carolina state legislature violated provisions of the state constitution. As the majority put it:

Today, we answer this question: does our state constitution recognize that the people of this state have the power to choose those who govern us, by giving each of us an equally powerful voice through our vote? Or does our constitution give to members of the General Assembly, as they argue here, unlimited power to draw electoral maps that keep themselves and our members of Congress in office as long as they want, regardless of the will of the people, by making some votes more powerful than others? We hold that our constitution’s Declaration of Rights guarantees the equal power of each person’s voice in our government through voting in elections that matter.

SCOTUS agreed to hear the case, which has long been fully briefed. The Court held oral argument in December 2022 and a ruling was expected before SCOTUS closed up shop next month. Amy Howe of SCOTUSblog opined that a majority of the Court seemed to be having trouble with the broadest possible view of the ISL doctrine, but who knows?

And then, on February 3, 2023, the North Carolina Supreme Court granted the state legislature's petition to rehear the case. Why? What the actual fuck happened? Simple! The November 2022 election turned the narrow 4-3 majority that decided the case back in February 2022 into a 5-2 wingnut majority. Last Friday, the new N.C. Supreme Court voted (5-2, unsurprisingly) to reverse itself. Partisan gerrymandering is A-OK under the state constitution, and even if it weren't, us simple country judges aren't equipped to deal with it:

Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text. Those limitations do not address partisan gerrymandering. It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch. Furthermore, were this Court to create such a limitation, there is no judicially discoverable or manageable standard for adjudicating such claims. The constitution does not require or permit a standard known only to four justices. Finally, creating partisan redistricting standards is rife with policy decisions. Policy decisions belong to the legislative branch, not the judiciary.

Back in March, SCOTUS asked for additional briefing on whether it still had jurisdiction to decide the case after the state supreme court decided to grant a rehearing. Now that the reheard case is decided, I think the answer to the SCOTUS jurisdiction question is a big fat no, but that remains to be seen.

[beyelzu]

The private jet loans and lavish vacations are hilariously corrupt and the idea that it’s the same as staying at someone’s house is ludicrous.

I find this defense of of wealth GOP paying Thomas’s dependent’s private school tuition pretty hilarious.

"Tuition and other financial assistance is given directly to academic institutions, not to students or to their families," his office said. "These scholarships and other contributions have always been paid solely from personal funds, sometimes held at and paid through the family business. It’s disappointing that those with partisan political interests would try to turn helping at-risk youth with tuition assistance into something nefarious or political."

Harlan Crow may well help at risk kids, but how exactly is Ginny and Clarence’s de facto adopted kid at risk?

Access Denied

Ginny and Thomas’s attorney Paoletta defended Thomas and said grand nephews don’t count .

“Justice Thomas and his wife made immeasurable personal and financial sacrifices and poured every ounce of their lives and hearts into giving their great nephew a chance to succeed,” he said. “Harlan Crow’s tuition payments made directly to these schools on behalf of Justice Thomas’s great nephew did not constitute a reportable gift.”

This assertion interests me. I found dude’s tweet and it’s attached.

Apparently they define dependent child for the reporting law, but this seems ludicrous to me. It would preclude all trans people based on a plain reading of the text which is pretty absurd.

If the kid is the Thomas’s dependent and they would have otherwise paid the tuition which seems to be the case(Thomas said something like he is like their son), it seems to me it should be reported. It was definitely household income.

Harlan Crow clearly finds ways to funnel money to the Thomases from Ginny lobbying to buying Clarence’s mom’s house

[beyelzu]

Also there is this.

It's unclear from ProPublica's report how much Crow paid in total. Thomas did not include the tuition payments on financial disclosure forms filed with the Supreme Court, but did list in 2002 a $5,000 "education gift to Mark Martin" from another couple.

So apparently Thomas’s understanding of what to report changed.

From a 2007 interview

"We're raising him as a son," Thomas said, noting that Martin, who was 16 at the time of the interview, lived with them. "He's more of a challenge than I was. And this is a different era. And he does sports, and all sorts of things. But I think the thing that I'll be able to do is, I'll be able to always look my grandfather in the eye and say that I did for my great-nephew what my grandparents did for us — my brother and me."

https://www.cbsnews.com/amp/news/cla...gifts-tuition/

[Stephen Maturin]

Amy Coney Barrett Pissed She's Been Doing Whatever Conservative Donors Want For 30 Bucks

[Kamilah Hauptmann]

Supreme Court Rules Andy Warhol's Prince Art is Copyright Infringement | PetaPixel

[Stephen Maturin]

Back on May 8, 2023, members of the Senate Judiciary Committee wrote a letter to Clarence Thomas's billionaire sugar daddy requesting documents relating to "multiple instances in which you or entities you own or control have made payments, purchased real estate, or provided gifts, travel, or other items of value to Supreme Court Justice Clarence Thomas and members of his family." The request relates to "the Senate Judiciary Committee’s ongoing efforts to craft legislation strengthening the ethical rules and standards that apply to the Justices of the Supreme Court[.]"

On May 22, 2022, the tall building lawyers of Gibson Dunn & Crutcher LLP responded with a civilly worded, citation-heavy "Go fuck yourself" letter on behalf of Harlan Crow and his business entities. The letter is available here courtesy of Slate's Mark Stern.

[Kamilah Hauptmann]

In further proof that accountability is communism.

https://www.cbc.ca/news/politics/rus...igns-1.6873402

[Stephen Maturin]

Haaland v. Brackeen, 599 U.S. ___ (2023).

Well, damn. The Indian Child Welfare Act, passed back in 1978 as a response to a long and rather ghastly history of separating Native American children from their families, survived a constitutional challenge. The Court ruled (7-2) that: Congress had authority to enact the Act based on Art. I, section 8 of the Constitution, which inter alia grants Congress authority to "regulate Commerce . . . with the Indian Tribes; the Act did not run afoul of what's come to be called the "anticomandeering doctrine," under which the 10th Amendment (allegedly) precludes Congress from requiring state and local governments to provide services; and the plaintiffs in these cases lacked standing to bring equal protection claims based on alleged racial discrimination.

Gorsuch continues to build upon an already impressive resume on the issue of tribal sovereignty, writing a concurring opinion (joined in party by Sotomayor and Jackson), delving deeply into the ghastly history referenced above.

Thomas and Alito dissented, decrying the feds' intrusion most foul upon the god-given rights of states to determine that native young 'uns are better off with white folk.

And, of course, the equal protection/race discrimination argument, substantively ridiculous though it is, will be hanging around for resolution in some future case.

[Kamilah Hauptmann]

ProPublica emailed some questions for a story to Sam Alito and instead of answering the questions or just ignoring the email, he ran to his little gremlin friends at the WSJ Opinion section and wrote a blog post about it https://t.co/Jti0xZz9Tk pic.twitter.com/TmodINRuTA

— Jay Willis (@jaywillis) June 20, 2023

Love Matlock’s take on the Alito thing.

[Stephen Maturin]

That may be the worst attempt at getting out ahead of an adverse story in the history of that particular endeavor. That Wall Street Journal piece is epic.

- Shitboy wants us to believe all this was some sort of happy accident. He just happened to be headed to this lux lodge at the same time as the billionaire, and when Singer found out he offered shitboy a ride out of the kindness of his big, beautiful heart.

- Flying commercial would have "imposed a substantial cost and inconvenience" on the deputy U.S. Marshals assigned to shitboy's protection detail. In other words, I try to save U.S. taxpayers some money, and THIS is the thanks I get.

- Shitboy knows $1,000-per-bottle wine. He can't remember if any wine was actually served at the lux lodge while he was there, BUT IF THERE WAS, it certainly wasn't the grand-a-bottle variety!

- The billionaire's hedge fund came before SCOTUS at least 10 times after the lux lodge vaykay. Shitboy sez he wasn't obliged to recuse himself in any of those cases, but if he was, it's his staff's fault for not pointing that out to him.

- Until recently, sez shitboy, all us justices interpreted the word "hospitality" to mean "that accommodations and transportation for social events were not reportable gifts." Oh, OK. Why didn't you say so in the first place?




"Any justice . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). But, of course, since the Constitution imposes no requirements whatsoever on SCOTUS justices beyond being nominated by the president and confirmed by the Senate, violations of statutes and/or canons of judicial ethics are bereft of substantive effect.

[Stephen Maturin]

United States v. Texas

Two serial vexatious litigants, the states of Texas and Louisiana, lack standing to assert a claim that the federal government's current Guidelines for the Enforcement of Civil Federal Immigration Law violate the provisions of two federal immigration statutes. The vote was 8-1. The majority opinion (Boof, plus Roberts, Sotomayor, Kagan and Jackson) ruled there was no cognizable injury. Gorsuch, Barrett and Pubs got to the same conclusion by saying that any cognizable injury simply isn't redressable in federal court. Alito, who obviously needs another billionaire-funded vaykay, dissented.

Arizona v. Navajo Nation

The Court held (5-4) that an 1868 peace treaty between the U.S. and the Navajo nation reserved water rights necessary to set up the Navajo reservation, but did not require the U.S. to take any "affirmative steps" to supply the reservation with water.

Writing for himself and the three other dissenters, Gorsuch didn't need to don the mantle of fierce proponent of tribal rights to make the majority look silly in this one:

Today, the Court rejects a request the Navajo Nation never made. This case is not about compelling the federal government to take “affirmative steps to secure water for the Navajos.” Ante, at 2. Respectfully, the relief the Tribe seeks is far more modest. Everyone agrees the Navajo received enforceable water rights by treaty. Everyone agrees the United States holds some of those water rights in trust on the Tribe’s behalf. And everyone agrees the extent of those rights has never been assessed. Adding those pieces together, the Navajo have a simple ask: They want the United States to identify the water rights it holds for them. And if the United States has misappropriated the Navajo’s water rights, the Tribe asks it to formulate a plan to stop doing so prospectively. Because there is nothing remarkable about any of this, I would affirm the Ninth Circuit’s judgment and allow the Navajo’s case to proceed