Category Archives: Supreme Court

“Supreme Court Voices Skepticism Over Social-Media Censorship Claims Against Government”

WSJ:

The Supreme Court seemed likely Monday to reject a bid by GOP-led states to restrict the federal government from urging social-media companies to remove allegedly misleading posts or disinformation on their platforms, unless there is a threat of official retribution.

The Republican attorneys general of Missouri and Louisiana, along with several individuals who complained that online platforms such as 

Facebook suppressed their views against vaccines and lockdowns during the Covid-19 pandemic at the government’s demand, filed the First Amendment suit in 2022. Lower courts have largely sided with the plaintiffs, finding that Biden administration officials’ content requests amounted to government coercion, but the high court during oral arguments on Monday voiced more sympathy with the administration’s defense.

The social-media companies themselves aren’t involved in the case, and liberal justices questioned whether any plaintiffs suffered harms that gave them a right to sue. And justices across the spectrum expressed skepticism that the government’s interactions with the platforms, even if heated, amounted to official restraint. 

For one, said Chief Justice John Roberts, “the government is not monolithic.” Different individuals, agencies and branches of government can have different views, he said, and the media has contacts with a variety of official sources. “That has to dilute the concept of coercion,” he said.

Justice Brett Kavanaugh offered a national-security analogy to the government’s campaign against disinformation—something that conservative critics contend has targeted their opinions. 

 “It’s probably not uncommon for government officials to protest an upcoming story on surveillance or detention policy and say, ‘If you run that, it’s going to harm the war effort and put Americans at risk,’ ” said Kavanaugh, who served in the George W. Bush White House when surveillance and detention policies were front-page news. 

Deputy Solicitor General Brian Fletcher, representing the Biden administration, quickly agreed. “That’s an example of a valuable sort of interchange as long as it stays on the persuasion side of the line,” he said. Threatening a tech company with retribution for failure to comply, like an antitrust investigation, would be a different story, he said.

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“Supreme Court rejects appeal by former New Mexico county commissioner banned for Jan. 6 insurrection”

AP:

The Supreme Court on Monday rejected an appeal from a former New Mexico county commissioner who was kicked out of office over his participation in the Jan. 6, 2021, insurrection at the U.S. Capitol.

Former Otero County commissioner Couy Griffin, a cowboy pastor who rode to national political fame by embracing then-President Donald Trump with a series of horseback caravans, is the only elected official thus far to be banned from office in connection with the Capitol attack, which disrupted Congress as it was trying to certify Joe Biden’s 2020 electoral victory over Trump.

At a 2022 trial in state district court, Griffin received the first disqualification from office in over a century under a provision of the 14th Amendment written to prevent former Confederates from serving in government after the Civil War.

Though the Supreme Court ruled this month that states don’t have the ability to bar Trump or other candidates for federal offices from the ballot, the justices said different rules apply to state and local candidates.

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Must-read NYT Deep Dive that Helps Explain SCOTUS Argument Monday in Murthy v. Missouri: “How Trump’s Allies Are Winning the War Over Disinformation”

It’s a complex story because concern about government jawboning is real but the mendacious attack on those who fought disinformation in the 2020 election is having major reverberations for 2024. Jim Rutenberg and Steven Lee Myers lay it all out:

In the wake of the riot on Capitol Hill on Jan. 6, 2021, a groundswell built in Washington to rein in the onslaught of lies that had fueled the assault on the peaceful transfer of power.

Social media companies suspended Donald J. Trump, then the president, and many of his allies from the platforms they had used to spread misinformation about his defeat and whip up the attempt to overturn it. The Biden administration, Democrats in Congress and even some Republicans sought to do more to hold the companies accountable. Academic researchers wrestled with how to strengthen efforts to monitor false posts.

Mr. Trump and his allies embarked instead on a counteroffensive, a coordinated effort to block what they viewed as a dangerous effort to censor conservatives.

They have unquestionably prevailed.

Waged in the courts, in Congress and in the seething precincts of the internet, that effort has eviscerated attempts to shield elections from disinformation in the social media era. It tapped into — and then, critics say, twisted — the fierce debate over free speech and the government’s role in policing content.

Projects that were once bipartisan, including one started by the Trump administration, have been recast as deep-state conspiracies to rig elections. Facing legal and political blowback, the Biden administration has largely abandoned moves that might be construed as stifling political speech.

While little noticed by most Americans, the effort has helped cut a path for Mr. Trump’s attempt to recapture the presidency. Disinformation about elections is once again coursing through news feeds, aiding Mr. Trump as he fuels his comeback with falsehoods about the 2020 election.

“The censorship cartel must be dismantled and destroyed, and it must happen immediately,” he thundered at the start of his 2024 campaign.

The counteroffensive was led by former Trump aides and allies who had also pushed to overturn the 2020 election. They include Stephen Miller, the White House policy adviser; the attorneys general of Missouri and Louisiana, both Republicans; and lawmakers in Congress like Representative Jim Jordan, Republican of Ohio, who since last year has led a House subcommittee to investigate what it calls “the weaponization of government.”

Those involved draw financial support from conservative donors who have backed groups that promoted lies about voting in 2020. They have worked alongside an eclectic cast of characters, including Elon Musk, the billionaire who bought Twitter and vowed to make it a bastion of free speech, and Mike Benz, a former Trump administration official who previously produced content for a social media account that trafficked in posts about “white ethnic displacement.” (More recently, Mr. Benz originated the false assertion that Taylor Swift was a “psychological operation” asset for the Pentagon.)

Three years after Mr. Trump’s posts about rigged voting machines and stuffed ballot boxes went viral, he and his allies have achieved a stunning reversal of online fortune. Social media platforms now provide fewer checks against the intentional spread of lies about elections.

“The people that benefit from the spread of disinformation have effectively silenced many of the people that would try to call them out,” said Kate Starbird, a professor at the University of Washington whose research on disinformation made her a target of the effort.

It took aim at a patchwork of systems, started in Mr. Trump’s administration, that were intended to protect U.S. democracy from foreign interference. As those systems evolved to address domestic sources of misinformation, federal officials and private researchers began urging social media companies to do more to enforce their policies against harmful content.

That work has led to some of the most important First Amendment cases of the internet age, including one to be argued on Monday at the Supreme Court. That lawsuit, filed by the attorneys general of Missouri and Louisiana, accuses federal officials of colluding with or coercing the platforms to censor content critical of the government. The court’s decision, expected by June, could curtail the government’s latitude in monitoring content online.

The arguments strike at the heart of an unsettled question in modern American political life: In a world of unlimited online communications, in which anyone can reach huge numbers of people with unverified and false information, where is the line between protecting democracy and trampling on the right to free speech?…

See also  “Supreme Court Case Could Be Disastrous for Detecting Election Misinformation,” a piece published yesterday by Lawrence Norden and Gowri Ramachandran of the Brennan Center and listen to Gowri on the Amicus podcast.

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“Why the Supreme Court Should Clear the Way for a Pre-Election Trump Trial”

Kate Shaw in the NYT:

In other words, in the Jan. 6 case brought by the special counsel Jack Smith, as important as what the court decides is when it decides. Slow-walking the case would be tantamount to a ruling for Mr. Trump in one important respect: It would likely eliminate the chances of a pre-election trial and verdict in the most serious of the four criminal cases pending against him — one that is at the heart of and has deep consequences for the integrity of our democracy.

Mr. Trump’s argument — that he is absolutely immune from criminal prosecution for actions taken as president — does not present a difficult question. The court should decisively reject it, as both the trial court and a unanimous appeals court did in this case and as everything in our constitutional tradition demands.

But to date, signs that the court intends to proceed with urgency on this question have been less than encouraging. The court waited two full weeks to act on Mr. Trump’s request that it take up his immunity argument — and then, rather than accepting the special counsel’s proposed timeline, which contemplated a March oral argument date, the court scheduled it for April 25.

The court still has the ability to rule in time to clear the way for a trial. A schedule like the one the court followed in the Colorado case would allow for a decision by mid-May. Assuming a ruling against Mr. Trump, trial court proceedings could resume immediately, with a trial by late summer or early fall….

For Bush v. Gore, the court, faced with federal law’s “safe harbor” deadline for elector certification looming, handed down a decision just one day after the oral argument. In that case, the court observed that the Constitution leaves “the selection of the President to the people” and to the “political sphere,” while noting that the Supreme Court has been sometimes forced to “resolve the federal and constitutional issues the judicial system has been forced to confront.”

In the Trump immunity case, the political clock is no less real because of the existence of additional trial court steps that remain between the court’s decision and the casting of ballots.

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“Supreme Court’s Delay Creates Uncertainty for South Carolina Election”

Jimmy Hoover for National Law Journal:

New candidates are throwing their hats in the ring in Republican Rep. Nancy Mace’s South Carolina congressional district despite a court ruling last year striking down the GOP drawn map as an unconstitutional “racial gerrymander.” 

Both GOP state lawmakers defending the state’s newly drawn First Congressional District and challengers from the South Carolina State Conference of the NAACP had hoped the U.S. Supreme Court—which heard arguments in October—would have completed its review of that decision by Jan. 1.

As it stands, key primary deadlines are fast approaching without word from the high court on whether new district lines drawn after the 2020 census are valid.

“I know that originally there was talk of trying to get it out early before the primaries, but the court doesn’t seem to be in much of a hurry with anything this term,” said Rick Hasen, an election law professor at UCLA Law.

At stake in the case is whether Republicans can hold on to a 1.36 point partisan advantage from the new map or whether the state General Assembly will have to go back to the drawing board to satisfy the demands of a federal district court panel that struck down the map as unconstitutional. The panel found the new map illegally moved Black voters into a nearby district to maintain a low Black voting age population.

The panel has said it would allow the Supreme Court to complete its review, expressed hope a remedial plan could be adopted before the coming elections and entertained pushing back any elections until an alternative map is put in place.

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“Trump ballot ruling raises new questions even as it answers others”

Patrick Marley for WaPo:

The Supreme Court quickly and unanimously resolved a case this week that had divided legal scholars for months, clearing a path for Donald Trump to remain on the ballot for president nationwide. But in doing so, the justices unleashed new questions that could confront Congress and the courts after the November election.

The decision reversed a finding by Colorado’s top court that votes for Trump should not be counted in that state because he had engaged in insurrection and, as a result, was barred by the Constitution from holding office. Monday’s decision — issued a day before Colorado and 14 other states held their Super Tuesday primary elections — found that states cannot prevent candidates for federal office from running based on claims that they are insurrectionists.

All nine justices agreed on that point. A majority went further and said when it comes to federal offices, only Congress has the authority to enforce Section 3 of the 14th Amendment, the part of the Constitution that bars insurrectionists from office. The court’s liberals, along with conservative Justice Amy Coney Barrett, said the majority should not have tackled an issue it didn’t need to address.

The three justices nominated by Democratic presidents excoriated the conservative majority and accused it of trying to protect the court and Trump from “future controversy.” The majority’s reading of Section 3 effectively shut the door to using the provision to prevent future insurrectionists from holding federal office, the liberals argued.

But some legal scholars offered an additional critique, saying the court settled far less than it should have. By trying to address some questions, the majority created new ones, raising the possibility of a confusing and acrimonious post-election season, they said.

“They’ve introduced new uncertainty,” said Richard Hasen, a UCLA law professor and director of the university’s Safeguarding Democracy Project.

For instance, the decision leaves open the question of whether Congress could refuse to count electoral votes for Trump if it determines he committed insurrection during the Jan. 6, 2021, attack on the U.S. Capitol, Hasen said. It’s also unclear whether the Supreme Court can intervene in the unlikely event that that happens.

University of Notre Dame law professor Derek Muller agreed the majority opinion left the question muddled. Congress is slated to count electoral votes on Jan. 6, 2025, four years to the day after the assault on the Capitol by Trump supporters.

“This is an area of high uncertainty for me,” he said. “I think there’s no question the mood from the court is to discourage Congress from refusing to count electoral votes on January 6th. But it’s far from clear to me that that is foreclosed from Congress’s power.”…

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“Justice Clarence Thomas was the deciding vote in a case he never should have heard”

Kimberly Atkins Stohr Boston Globe column:

Even before the Supreme Court practically nullified the 14th Amendment’s clause banning insurrectionists and their supporters from seeking federal office, another decision all but ensured that outcome. And it was made by a single justice: Clarence Thomas….

And he should have played no part in the case’s consideration.

That’s because on that Jan. 6, in the crowd of onlookers who descended on the nation’s capital and gathered at the Ellipse at Trump’s invitation — “will be wild!” he promised — was Virginia “Ginni” Thomas, the justice’s wife.

We would later learn that Ginni Thomas had also lobbied dozens of state lawmakers to choose fraudulent presidential electors and texted Trump’s chief of staff to urge him to “release the Kraken” and embrace the conspiracy theories of attorney Sidney Powell, who now stands criminally convicted for her efforts in the scheme.

These facts led to numerous calls for Thomas to recuse himself from the Colorado ballot case.

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Is the internal dispute in Trump v. Anderson a tempest in a teapot?

The more I try to parse out the dispute between the majority’s Part II-A of its opinion (and other language) and the opinion concurring in the judgment in Trump v. Anderson, the less confident I am that I understand what the 5-4 dispute is about or how we got here. The consensus view of the Court is pretty straightforward (even if critiqued by some over the last couple of days). Justice Barrett identifies a “different path” in Part II-A, which she does not join. She critiques the “temperature” from an opinion concurring in the judgment by Justices Sotomayor, Kagan, and Jackson, who cite, inter alia, Dobbs v. Jackson Women’s Health Organization and Bush v. Gore in a critique of this part of the opinion.

What are the stakes for such a strong disagreement? And, maybe more saliently, is there even a disagreement to be found across the opinions?

Everyone on the Court agrees that states have no power to ascertain whether a federal candidates is disqualified under Section 3 of the Fourteenth Amendment. The dispute instead arises over three separate but related questions: (1) whether Congress (as opposed to other actors in the federal government) has the exclusive power to do so; (2) whether Congress when enforcing Section 3 must do so pursuant to legislation; and (3) regardless, whether any congressional legislation must be appropriately “tailored” under Section 5 of the Fourteenth Amendment. These arguments are conflated and elided over throughout the short opinion, so it’s worth trying to determine the stakes.

Continue reading Is the internal dispute in Trump v. Anderson a tempest in a teapot?
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My New One at Slate: “The Supreme Court Just Delivered a Rare Self-Own for John Roberts”

I have written this piece for Slate. It begins:

The Supreme Court’s unsigned majority opinion in Trump v. Anderson, ending Colorado’s attempt to disqualify Donald Trump from appearing on the ballot as an insurrectionist, is a remarkable self-own. It simultaneously turned what could have been a short, sweet (if weakly reasoned) unanimous holding about states not having the individual power to disqualify presidential candidates from their ballots into a bitter 5–4 dispute over the scope of Congress’ power to disqualify candidates. And if the majority felt that it needed to take the heat from the court’s liberals and from Justice Amy Coney Barrett because it wanted to provide clarity that Congress cannot try to disqualify Trump if he appears to be reelected when Congress counts Electoral College votes on Jan. 6, 2025, it made a mess. Leading scholars and lawyers reading the opinion already disagree over what Congress can do and how, keeping the door open to potential chaos. It’s a rare miss by a usually strategic and savvy Chief Justice John Roberts….


The Supreme Court’s unsigned majority opinion in Trump v. Anderson, ending Colorado’s attempt to disqualify Donald Trump from appearing on the ballot as an insurrectionist, is a remarkable self-own. It simultaneously turned what could have been a short, sweet (if weakly reasoned) unanimous holding about states not having the individual power to disqualify presidential candidates from their ballots into a bitter 5–4 dispute over the scope of Congress’ power to disqualify candidates. And if the majority felt that it needed to take the heat from the court’s liberals and from Justice Amy Coney Barrett because it wanted to provide clarity that Congress cannot try to disqualify Trump if he appears to be reelected when Congress counts Electoral College votes on Jan. 6, 2025, it made a mess. Leading scholars and lawyers reading the opinion already disagree over what Congress can do and how, keeping the door open to potential chaos. It’s a rare miss by a usually strategic and savvy Chief Justice John Roberts.

The legal question at issue is as arcane as it is central to democracy. After the Civil War, Congress passed three amendments to the Constitution, among them the 14th Amendment. That amendment most notably protects individuals when states deprive people of their rights to due process or equal protection. But it also includes a provision, in Section 3, aimed at those who were part of the Confederacy during the war, disqualifying from future office those who had formerly pledged to uphold the Constitution but who later engaged in insurrection.

Relying on this part of the 14th Amendment, some Trump opponents have gone state by state, arguing that Trump cannot appear on the ballot because he’s disqualified for his conduct in trying to overturn the results of the 2020 election. They lost in most places, but they won in Colorado and got Trump kicked off the ballot in that state. The U.S. Supreme Court stepped in, and in a short opinion issued on Monday (a per curiam, with no one justice listed as author), it held that states cannot enforce Section 3 when it comes to federal offices. Among other things, the court held that this would create “chaos” through a “patchwork” of state approaches to whom and how to disqualify. (Never mind that states already have a patchwork of rules, for example dealing with how third-party candidates can get on the ballot.)

Despite the unanimity on this point, the court included a five-paragraph Part II.A of the opinion, a section that generated tremendous controversy and to which Barrett and the three liberal justices objected. In those paragraphs—backed by Roberts, as well as Justices Samuel Alito, Brett Kavanaugh, Neil Gorsuch, and Clarence Thomas—the court explained that Section 3 empowers Congress, and apparently not other actors, to “prescribe” how disqualification is to work, at least as to federal officers. When Congress wishes to disqualify, it must aim at “particular individuals.” When Congress makes these determinations, “proceedings, evidence, decisions, and enforcement of decisions, more or less formal, are indispensable,” the majority wrote, quoting an 1869 opinion for a Supreme Court justice sitting as a circuit justice (and not an opinion of the Supreme Court).

Although the majority called Congress’ power “critical” when it comes to Section 3, without explaining what that means, it made the Supreme Court the final arbiter of whether someone can be disqualified. Congressional determinations of disqualification are “subject of course to judicial review to pass ‘appropriate legislation’ to ‘enforce’ the Fourteenth Amendment.” And later, in a part of the opinion joined by Barrett but objected to by the liberals, the court reiterated that any legislation passed by Congress to enforce Section 3 must be “tailored.” Legislation must reflect “congruence and proportionality” between means and ends, code words the court has used elsewhere to strike down congressional legislation.

The majority did not explain how far its holding goes. Is congressional legislation always required to enforce Section 3? There’s not a mention of the elephant in the room, which is what happens on Jan. 6, 2025, when Congress counts electoral votes. Can Democrats opt to not count votes for Trump on the grounds that he’s an insurrectionist? Would that require a prior statute? Or is the power to disqualify when counting Electoral College votes something within Congress’ powers under the 12th Amendment, separate from the rules on statutes? If it’s under the 12th Amendment, is it not subject to judicial review? Could Congress by statute otherwise disqualify Trump after the election?

The court did not answer these questions, and experts and members of Congress are already divided on them. It’s not even clear whether statutes already on the books are currently enforceable—including 18 U.S.C. §2383, which criminalizes insurrections and includes as a penalty prohibition from federal office—with different analysts reaching different conclusions. In terms of clues on the timing question, the five-justice majority did include this less-than-definitive section near the end:

An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times. The disruption would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the Nation has voted. Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration.

Would Congress disqualifying Trump under its 12th Amendment powers to count Electoral College votes be “Section 3 enforcement … attempted after the Nation has voted”? Is that forbidden?…

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Supreme Court Decision in Trump Colorado Disenfranchisement Case Almost Certainly Being Released Monday at 10 am ET (So It’s Technically Out Before Super Tuesday and Colorado Voting) and It Will Not Let Colorado Disqualify Trump

As recently as this weekend, the Supreme Court had not announced that it was going to issue opinions this week. Opinion releases usually happen when the Justices physically take the bench in Court, and the next opportunity for that which was listed on the Supreme Court website was March 15.

But the Court just changed its website to indicate that one or more opinions is going to be posted on the Supreme Court website at 10 am ET Monday morning. And the Justices won’t be taking the bench to do it.

There’s no plausible reason for this unusual break in protocol except for the potential to release the Trump Colorado disqualification case before voters vote on Super Tuesday. In fact, voters in Super Tuesday states have mostly had early voting opportunities to be voting for weeks. Tuesday is just the last day of voting. But I think the Court would like its opinion out before Colorado’s primary election day.

I certainly expect the Court is going to say that Colorado cannot disenfranchise Trump—and this would be especially true for them to issue an opinion a day before all this voting. If Trump were to be disenfranchised, the Court would not announce such a ruling the day before Super Tuesday, after many people in the jurisdiction had voted and with many more yet to vote.

The big question is not going to be if they reverse the Colorado Supreme Court but how they do so. Some ways will add some certainty and avoid chaos in the upcoming election; some may add to the chaos and I hope the Court avoids that.

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“Republicans Hatched a Secret Assault on the Voting Rights Act in Washington State”

ProPublica:

Republican Paul Graves’ work was about to come undone. In the wee hours of Nov. 15, 2021, he and his fellow Republican on Washington state’s independent redistricting commission had finally prevailed on their Democratic counterparts to agree to the maps voters would use in the upcoming election.

But then Latino voters sued the state, claiming the new legislative maps didn’t give them voting power commensurate with their population. Now, Graves worried, a federal judge was about to force the state to give Democratic-leaning Latinos more voting power.

With the balance of power in Washington up for grabs, he launched a covert attack. He consulted powerful state Republicans. He reached out to national Republicans, including the most influential conservative redistricting lawyer in the country, to discuss funding a lawsuit and get strategic advice. He conferred with a Seattle law firm. And he found a Latino congressional hopeful to act as the face of the lawsuit.

A countersuit was filed — against Graves’ own work. This suit made the opposite argument from the Latino group’s. Yes, the map that Graves and his fellow commissioners had created discriminated. But it had disadvantaged white people and other voters.

Sure enough, as Graves had foreseen, in August of last year the judge sided with the Latino plaintiffs. He determined the Yakima Valley map violated the Voting Rights Act, the landmark 1965 civil rights law that has been the bedrock of voting discrimination cases for over half a century. Section 2 of the VRA prohibits the creation of election districts that deprive voters of color of their full rights. The judge said the maps needed to be redrawn.

Having handed Latinos a win, the judge tossed the lawsuit that Graves had helped generate as moot. Undeterred, the legal team of Benancio Garcia, the Latino congressional hopeful, appealed all the way to the U.S. Supreme Court, asking it to block the new maps until it had weighed the merits of his claim. The court declined to take the case earlier this month, and it is unclear whether lawyers will now appeal to the 9th U.S. Circuit Court of Appeals.

Graves told ProPublica he wanted legal action that would slow down the court because he believed the plaintiffs were about to push through “a naked partisan gerrymander.”

“My singular goal, once a lawsuit was filed, was to defend the maps,” he said in a statement. His work is described in sworn depositions and court documents, including emails and other communications introduced as exhibits.

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“Why Is Trump Getting Special Treatment From the Supreme Court?”

Aziz Huq in Politico:

To understand how truly remarkable it is that the Supreme Court has agreed to consider former President Donald Trump’s demand for absolute immunity from criminal prosecution, it is necessary to have some sense of how the court treats other criminal defendants.

In that light, the court’s extraordinary and improper solicitude for Trump, the person who selected three sitting justices, is all too readily apparent. And the upshot is Trump may now succeed in delaying his federal trial for trying to overturn the 2020 election until after voters go to the polls in November.

In recent years, the Roberts Court has shown greater and greater impatience with criminal defendants’ efforts to forestall punishment — even if the outcome would be cruel, needlessly painful or simply unjustified. The effect of this new hostility to delay is most sharply felt in the death penalty context. But a general hostility to foot-dragging in criminal cases is a through line in the court’s docket.

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