New Supreme Court Cases

"US Supreme Court opens new term: A court of right-wing 'partisan hacks' prepares to do its masters’ bidding", Patrick Martin,

https://www.wsws.org/en/articles/2021/10/05/supr-o05.html

and 

"Major upcoming Supreme Court cases: Power grab alert!", Germaine, Oct 5, 2021

https://dispol.blogspot.com/2021/10/major-upcoming-supreme-court-cases.html

~~ posted for dmorista ~~

US Supreme Court opens new term: A court of right-wing “partisan hacks” prepares to do its masters’ bidding

Patrick Martin

5 October 2021The U.S. Supreme Court opened its new term Monday, in which it will take up the first direct challenge to its 1973 Roe v. Wade decision on abortion rights in nearly 30 years. While the hearing in December’s challenge brought by the state of Mississippi is not expected to produce a ruling before next June, the issue is already convulsing American politics.

The court’s five-member hard-right majority has already telegraphed its likely decision, with its extraordinary refusal in August to block a new Texas state law allowing vigilante-style private lawsuits against abortion clinics. The practical effect of this decision, issued with no hearing or legal arguments and only a two-page ruling, has been to shut down access to abortion in the second-largest US state.

The Supreme Court is seen on the first day of the new term, in Washington, Monday, Oct. 4, 2021. (AP Photo/J. Scott Applewhite)

The backlash against this decision has provoked a series of unusual public statements by justices, both ultra-right and moderate-liberal, defending the court against well-founded complaints that its new majority is carrying out a political agenda determined by the right wing of the Republican Party. Three of the five members of the ultra-right faction, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, were appointed by Donald Trump.

Justice Barrett gave a speech in Kentucky last month in which she declared that “my goal today is to convince you that this court is not comprised of a bunch of partisan hacks.” This produced a further backlash, as she delivered them at the University of Louisville’s McConnell Center, after an introduction by the center’s namesake, Republican Senator Mitch McConnell, who pushed through her nomination only weeks after the death of liberal Justice Ruth Bader Ginsburg.

It is remarkable that no one in the corporate media has made the obvious comment on Justice Barrett’s transparent and defensive remark, citing Shakespeare: “Methinks the lady doth protest too much.”

If you have to declare that you are not a partisan hack, it would perhaps be better not to do it standing side by side with Senator McConnell. As Senate Majority Leader, McConnell first blocked the nominee of a Democratic president on the grounds that no president should have a Supreme Court choice confirmed in his final year in office, then rammed through the nominee of a Republican president, Trump, only a week before the presidential election.

On October 1, Justice Samuel Alito denounced criticism of the court “as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.” The language is a self-exposure: Like Barrett, Alito is trying to rebut the obvious meaning of the court’s actions, by telling the public, “Believe my assurances, don’t believe what you can see right in front of you.”

He was referring to the court’s actions in the “shadow docket,” decisions and rulings issued during its summer break, between the end of June and the first Monday in October, most notably the ruling on the Texas law, which flagrantly defies Roe v. Wade, and sets up the vigilante private lawsuit mechanism to enforce the abortion ban in order to evade court scrutiny.

The court ruling provoked harsh dissents from the moderate liberals on the court, with Justice Elena Kagan writing that the “shadow docket” procedure “every day becomes more unreasoned, inconsistent, and impossible to defend.”

Other “shadow docket” rulings by the high court included overturning a federal moratorium on evictions, imposed by the Centers for Disease Control and Prevention (CDC) as a public health measure, and directing the Biden administration to reinstate Trump’s “remain in Mexico” policy for migrants seeking to file asylum claims.

The Senate Judiciary Committee held a hearing on the “shadow docket,” which sparked Alito’s reply in a speech at the University of Notre Dame, in which he denounced criticism as part of “unprecedented efforts to intimidate the court and to damage it as an independent institution.” Alito’s response dovetailed with the statements made by Republican senators at the hearing—itself refuting Barrett’s claim that the justices are not “partisan hacks.”

Supreme Court justices are, of course, intensely political figures, as the right-wing majority demonstrated as far back as the notorious decision in Bush v. Gore, which settled the 2000 presidential election, won by Gore, by installing the Republican George W. Bush in the White House. The only difference is that the justices, as custodians of the longer-term interests of big business, will occasionally clash with the immediate demands of the presidents who appointed them, as the court did in giving a unanimous rebuff last November to the lawsuit by Trump’s supporters that the 2020 election should be overturned.

Alito claims that the Court is simply deciding the issues as they come before it, but this is a lie. With the exception of the rare instance when one state sues another (an example was argued Monday, a dispute over ground water claimed by both Mississippi and Tennessee), the Supreme Court has no original jurisdiction over cases. Its interventions are always discretionary, and the Court’s choosing to act or, in the case of the Texas abortion law, not to act defines it perhaps even more than the actual decisions.

The new term is the first full-year term in which the right-wing cabal of Thomas-Alito-Gorsuch-Kavanaugh-Barrett is in total control. Chief Justice John Roberts, a conservative who once held the swing vote, now makes only a four-vote minority when he sides with the three moderate liberals, who seem likely to be impotent dissenters in the major cases of 2021-2022.

Significantly, the Biden administration will argue the more right-wing position in a number of cases dealing with the death penalty and maintaining the secrets of the national security apparatus.

The major cases coming before the high court begin Wednesday and include:

• October 6, United States v. Abu Zubaydah. This concerns whether the government can bar a prisoner tortured at Guantanamo Bay by CIA contractors from obtaining information about the two contractors who led his interrogation. The Biden administration is asserting the “state secrets” privilege in this case.

• October 13, United States v. Tsarnaev. The Biden administration is seeking review of an appeals court ruling throwing out the death sentence for Dzhokhar Tsarnaev, the surviving Boston Marathon bomber. The leader of the 2013 attack, Tsarnaev’s older brother Tamerlan, was killed in a shootout with police a few days after the bombing. The Department of Justice is seeking reinstatement of the death sentence.

• November 1, Ramirez v. Collier. A death row inmate in Texas is appealing against the state’s procedures for conducting the execution, seeking the right to have his pastor lay hands on him and pray aloud in the death chamber. The arguments are directed at the court majority’s inclination to favor such assertions of “religious rights.” The case does not seek to overturn the death sentence.

• November 3, New York State Rifle & Pistol Assn., Inc. v. Bruen. The first major case on local gun regulation accepted by the high court since its 2008 decision overturning all previous precedent and declaring that the Second Amendment establishes an individual’s right to possess firearms. A New York state law requires that anyone seeking a permit for carrying a concealed weapon must demonstrate a need for self-defense—in other words, the burden of proof is on the permit seeker not the state.

• November 8, FBI v. Fazaga. A group of Muslim men in California sued the FBI, claiming it instituted surveillance of them solely because of their religion. The Biden administration is again asserting the “state secrets” privilege as an argument for quashing the lawsuit before the substantive issues are litigated.

• December 1, Dobbs v. Jackson Women’s Health Organization. A direct challenge to Roe v. Wade based on a Mississippi law that prohibits abortions after 15 weeks of pregnancy. The standard under Roe is that states may not prohibit abortion until the fetus is viable, about 23 weeks. The Mississippi law allows only narrow exceptions, including “a severe fetal abnormality” or health emergencies for the mother. The Supreme Court agreed to hear the case only after Justice Barrett’s confirmation. A decision on Dobbs would not of itself outlaw abortion, but return the issue to the states, where only 15 have legalized abortion. Twelve states have laws that would automatically outlaw abortion if Roe is overturned, while another 14 have anti-abortion laws on the books, enacted before Roe, whose status is uncertain.

• December 8, Carson vs. Makin. This case deals with a state government policy prohibiting payment of tuition for religious schools in rural areas of Maine where there is no public school. Many parts of the largely rural state are so sparsely populated that there is no public school. The state policy provides for payment to private schools in those circumstances but not schools providing religious instruction. Three Maine parents claim that their rights under the First Amendment are being denied.
• ===============================

Major upcoming Supreme Court cases: Power grab alert!

Context

Two bits of stuff help put this fun discussion in context.

First bit: We all remember this from the scintillating Senate hearings in 2017 during Brett Kavanaugh’s delightful confirmation hearings.

Ben Sasse (R-NE) said this:  “. . . . . the people don’t have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”

For the most part, Sasse is a far right radical fascist extremist, but in this instance he nailed it dead on. Congress does not like to legislate because it might upset some voters and imperil re-election. Sasse was frustrated because the refusal of congress to actually legislate competently and coherently shifts a huge amount of power from congress to federal agencies. Sasse, hates, hates, hates federal agencies, mainly because he hates government just as much. In large part, federal agencies are the federal government. His logic is impeccable. Except for the Department of Defense, federal law enforcement and federal courts to protect sacred property rights, Sasse wants to see most or all of them obliterated. One can certainly feel his pain and frustration.

Second bit: We all also remember how hostile fascist Donnie and his mendacious cadre of crooks and thugs were to the federal government. People like Betsy DeVos and Louie DeJoy were put in charge to destroy their agencies, Education Department and Post Office, respectively. The animosity was blatant.

It is a huge mistake to believe that the FRP (fascist Republican Party) is not radical and extremist in its animosity to the federal government and its intent to gut it. FRP hate of government is aimed at nearly everything, including Social Security, Medicare, Medicaid, food stamps, environmental regulations, workplace regulations, and on and on and on. The goal is to shift power to the business sector and the states and to shift wealth to elite White Christians and authoritarian White faux Christians, e.g., fascist Donnie, at the top of society.

Buggs bunny voice: Meeaaah, what’s on the docket, doc?

Yesterday, a segment on the NPR program 1A discussed some of the cases the Supreme Court has accepted for review and decision in this term. Given the court’s current political makeup, radical right fundamentalist Christian and staunch extremist Republican ideologue, one can pretty much guess what’s on the docket.

Obliterate abortion rights. Check.

Obliterate gun regulations. Check.

Obliterate campaign contribution regulations. Check.

Obliterate same-sex marriage rights. Check.

Obliterate environmental regulations. Check.

Obliterate federal agency power. Check.

Jaw drop!

Wait! What?? Obliterate federal agency power? Yes, check, check . . . . . . can't you read?

OMG, what fresh fascist hell is this!?

The court will hear an obscure case, Becerra v. Empire Health Foundation, which centers on FRP demands to limit the power of federal agencies to interpret congress’ often incomprehensible statute language. In the past, federal agencies had the Supreme Court’s blessing to do this based on a major 1984 case, Chevron.

Wikipedia: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a landmark case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency’s interpretation of a statute which it administers. The decision articulated a doctrine now known as the “Chevron deference.” The doctrine consists of a two-part test applied by the court, when appropriate, that is highly deferential to government agencies: “whether the agency’s answer is based on a permissible construction [emphasis added] of the statute”, so long as Congress has not spoken directly to the precise issue at question.

Well, if congress writes a law that is ambiguous or incoherent, license to interpret it according to what can be seen as a “permissible construction” is shockingly broad. That is what Ben Sasse was complaining about in 2017. This is what the FRP refers to as the “deep state.” According to the FRP, the deep state is experts in federal agencies interpreting the incoherent slop that congress routinely produces in the form of statutes it passes. The court in Chevron decided that federal agencies with actual experts should turn incoherent congressional blither into at least semi-coherent regulations.

So, in the Becerra case, the FRP is asking the Supreme Court to reign in, or overturn Chevron, thereby neutering the power of federal agencies to recycle congressional garbage into something useful in the form of usually mostly understandable federal regulations.

Wait a minnit! What about power? Where will it go?

Usually power does not just go away. If the court does gut Chevron, the power that federal agencies used to have can go one of four basic places. It can revert back to congress, but since congress refuses to be competent and does not have the expertise even if it did try, power won’t go there. Besides, there are those pesky socialist-communist tyrant Democrats in congress who would interpret laws the wrong way if they ever got power. That’s no good.

Power could flow to the people, but as a whole, the American public seems to be a herd of uninformed, perpetually grumpy cats. That doesn’t seem to be a promising place for power to go. Besides, the FRP is authoritarian and wants power concentrated at the top, not distributed to the people. Power to the people is a non-starter.

What’s left? The private sector and the courts themselves.

 

The power could go to special interests who are affected by federal laws. They do have the experts needed to be coherent. Unfortunately, the business sector would make damn sure that federal law gets interpreted as they see fit, i.e., in social and environmental damage and profit-maximizing, and regulation and cost-minimizing ways. The business community would love that outcome and presumably so would the FRP.

According to the person A1 interviewed, Leah Litman a professor at U. Michigan law school, surmises that the FRP is angling for power to flow to the courts. The radical Republicans that dominate the Supreme Court would give legal interpretations the FRP and the business community would want. Even though the courts do not have the expertise to regulate, they would be free to decide case by case based on the briefs that the disputants submit. The courts would be free to decide in favor of Christian churches and the business community, which is what the FRP wants.

The segment that discusses the Becerra case is at 32:00-35:42 of the 47 minute 1A broadcast.

Questions: 

1. Should partisan political federal courts or experts in federal agencies interpret incoherent congressional language, or should congress actually try to do its job better? 

2. Is it credible to think that congress could ever obtain the expertise to regulate in complex areas, e.g., because congress is broken, or because the FRP hates government and has no intention of ever governing in the public interest?

3. Does this help bring into focus why the people that FRP elites coaxed fascist Donnie to put in power were there to attack and subvert the federal agencies they in charge of, not to make their agencies function better or work for the public interest? 

4. How good, bad or ambiguous a job has the MSM done on informing the American people of what the Supreme Court is up to? (here's one source, E&E News, that discusses some upcoming cases the Supreme Court has decided to hear[1])

Footnote: 

1. E&E News writes on how the radical right court thinks about environmental regulation: 

But the real blockbuster environmental battles could come through a series of pending petitions for the Supreme Court to get involved in legal fights over the scope of EPA regulations under the nation’s bedrock clean air and water laws.

“The fight about the environment at the Supreme Court significantly overlaps with the fight about executive power and agency power,” said Sean Marotta, a partner at the law firm Hogan Lovells. “What we see in the court’s environmental rulings is not so much strong feelings about the environment but fears of agency overreach.”

With the FRP, “agency overreach” is synonymous with the despised “deep state"