Category Archives: Supreme Court

The Supreme Court Can No Longer Sidestep Considering January 6 and the Attempts to Subvert the 2020 Election

The Supreme Court was miraculously able to sidestep any grappling with attempts to subvert the 2020 presidential election in Trump v. Anderson, the case over whether Donald Trump was barred from serving as President again for encouraging an insurrection. The Court did not need to reach the issue of whether Trump’s actions qualified because they decided on technical grounds that states did not have the power of disqualification through removal from the ballot.

But the Court cannot sidestep the issues any longer, as they are coming to the Court’s April sitting. In the Fisher case, being heard on April 16, the Court will confront the question whether January 6 rioters could be charged with obstructing an official proceeding under a provision of the Sarbanes-Oxley act. The case turns on a technical issue of statutory interpretation—the meaning of the word “otherwise” in the statute—but in resolving the question it will be necessary to look at Fisher’s conduct as he invaded the Capitol, and how the Court discusses and characterizes the actions will be key.

Then, in the Trump immunity case being heard on April 25, the issues of Trump’s attempts to subvert the 2020 election will be front and center. Trump has been charged with a number of crimes related to his attempt to turn himself from an election loser into an election winner, and he’s arguing that he as a former president has absolute immunity from criminal prosecution for any official acts as President, even those that would be illegal for every other person in the country. One of the arguments that special counsel Jack Smith is making in response is that especially crimes related to trying to overturn the results of an election and interfere with the peaceful transition of power cannot be subject to immunity—with immunity, the Supreme Court simply gives a sitting president the power to use violence, intimidation, trickery, and any other crime to turn himself from an election loser into an election winner. That would be the end of democracy.

The Court has managed to stay out of this mess for the last 3+ years. Its free ride is over.

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“Supreme Court to weigh if Jan. 6 rioters can be charged with obstruction”

Ann Marimow for WaPo:

Defense lawyers say prosecutors overreachedby charging rioters with a crime that is limited to conduct that destroys or tampers with evidence sought by investigators. The government’s broad application of the statute, the lawyerswarned in court filings, would allow prosecutors to target protesters or lobbyists who disrupt congressional committees….

The Justice Department said there are no examples of prosecutors using the statute passed two decades ago to target such behavior, which is protected by the First Amendment. Government lawyers argue that the violent disruption of the peaceful transfer of power after a presidential election, including attacks on police officers, is no minor interference.

But the challengers’argument may be persuasive to some Supreme Court justices,several of whom have voted in past years to narrow the use of other laws they say were applied too broadly.One example is the high court’s unanimous 2016 decision to overturn the corruption conviction of former Virginia governor Robert F. McDonnell,in which the court expressed concern about prosecutors’ “boundless interpretation” of the federal bribery statute….\

Much of the discussion on Tuesday is expected to center on how to properly interpret the text of a statute Congress amended in 2002 as part of the Sarbanes-Oxley Act, which followed the Enron scandal. As the justices mull how narrowly or broadly prosecutors can apply the statute, the meaning of the word “otherwise” will play a central role.

The law includes a penalty of up to 20 years in prison for anyone who “corruptly — (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”…

All but one of the 15 judges overseeing Jan. 6-related cases in theD.C. federal courthousehave sided with the government on this question, ruling that the rioters who sought to keep Congress from certifying Biden’s victory were “otherwise” obstructing that proceeding. The outlier was U.S. District Judge Carl J. Nichols, a Trump nominee, who said the word “otherwise” refers only to other efforts to tamper with or destroy records or documents.

divided U.S. Court of Appeals for the D.C. Circuit reversed that ruling, which Judge Florence Pan — a Biden nominee — said was too narrow and at odds with the text of the statute. “We cannot assume, and think it unlikely, that Congress used expansive language to address such narrow concerns,” she wrote, joined in part by Judge Justin Walkerwho was nominated by Trump….

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Danforth, Luttig Amicus Brief in SCOTUS Trump Immunity Case Warns of Dangers to Democracy If President Has Immunity to Steal the Next Election

From the Introduction:

Presidential immunity, under any label, should never be so broad as to embolden an outgoing President’s violations of federal criminal statutes as part of efforts that would prevent what Article II mandates—the vesting of the authority and functions of the Presidency in the next, lawfully-elected President. This basis to affirm rests on a compelling legal principle: Any presidential immunity has to flow from protecting Article II and the Presidency it designs.
But there can be no Article II rationale for extending criminal immunity to a former President’s alleged federal crimes undertaken in efforts that would violate Article II’s provisions that limit a presidential term to four years and vest the executive power in the duly-elected successor.

One dispositive basis that fully sustains the judgment of the D.C. Circuit is that a President does not have immunity to engage in unofficial or official acts that constitute federal statutory crimes that would overturn presidential election results. J.A. 33, 40-44. A core allegation of the Indictment is that Mr. Trump knew that it was false to say there had been “outcome-determinative voting fraud in the [2020] election,” but nonetheless engaged in criminal lies and
conspiracies “to overturn the legitimate results of the 2020 presidential election.”2 Under these allegations, former President Trump’s violations of federal criminal statutes, if successful, would have usurped the authority and functions of the Presidency for the current term to which President Biden was legitimately elected. That constitutes an alleged effort that, if successful, would have violated Article II, Section 1, Clause 1, also called the Executive Vesting Clause, and the Twentieth Amendment.

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“In Electoral Disputes, State Justices Are Less Reliable GOP Allies than the U.S. Supreme Court—That’s the ‘Problem’ the Independent State Legislature Claim Hopes to Solve”

Rebecca L. BrownLee Epstein, and Michael J. Nelson have this new article in the Annals of the American Academy of Political and Social Science. Here is the abstract:

Scholars have identified serious drawbacks to the independent state legislature (ISL) claim, which precludes state-court review of election laws, thus preventing state guarantees like “free and fair elections” from being enforced. Considering its flaws, we ask why ISL would be pursued so fervently and why the Supreme Court, in Moore v. Harper, adopted a version of it. Examining data that compare election-law outcomes in federal and state supreme courts, we found that state supreme court justices, even if Republican, are not reliable supporters of the GOP electoral agenda. The Roberts court, by contrast, has voted in the GOP-supported direction in most election-law cases it has decided. This, we argue, is why ISL is promoted so vigorously: it takes electoral disputes—such as who can vote, what the rules for counting are, and such—out of the hands of state courts and places them squarely into the hands of the Supreme Court, a reliable partisan ally.

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“Transforming Constitutional Doctrine Through Mandatory Appeals from Three-Judge District Courts: The Warren and Burger Courts and Their Contemporary Lessons”

Michael Solimine, who knows more about the use of 3-judge courts in election cases than anyone I know, has posted this draft on SSRN (forthcoming U Pitt. L. Rev.). Here is the abstract:

Judicial interpretations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment underwent significant change, both expanding and retrenching in various ways, in Supreme Court doctrine during the Warren and Burger Courts. An underappreciated influence on the change is the method by which those cases reached the Court’s docket. A significant number of the cases reached the Court’s docket not by discretionary grants of writs of certiorari, as occurred in most other cases, but by mandatory appeals directly from three-judge district courts. This article makes several contributions regarding the important changes in these doctrines during the Warren Court (1954-1969) and the early Burger Court (1969-1976), before Congress in 1976 limited the scope of three-judge courts and the concomitant mandatory appeals. It documents the number of such cases during the time periods in question; addresses the quantitative and qualitative changes in Equal Protection and Due Process (and other) doctrines influenced, at least in part, by the availability of mandatory appeals; and normatively addresses the propriety of this influence in light of the renewed interest in reestablishing at least some mandatory appeals in current proposals to “reform” the Supreme Court.

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“The ‘Bounds’ of Moore: Pluralism and State Judicial Review”

Leah Litman and Kate Shaw have written this essay for the Yale Law Journal Forum. Here is the abstract:

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates a kind of federal-court review of state officers’ interpretation of state election laws that is not rooted in history or tradition, given the pluralist interpretive traditions that existed in the states both before and after the drafting and ratification of the original Constitution. It is also fatally inconsistent with basic principles of both federalism and democracy.

Can’t wait to read this!

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“It Depends Who’s Doing the Jawboning”

I’ve got a new post up at Lawfare about a crucial piece missing from the discussion around Murthy v. Missouri, the SCOTUS case about jawboning the social media platforms. Plenty of the Justices had welcome real-world executive experience that came through in last Monday’s argument — but they didn’t recognize that their experiences were also different in ways that should matter. The governing philosophy and structure of different Administrations are distinct, and that context is really important in assessing the potential for coercion.

Or, if you prefer:

Happy Administrations are all alike; unhappy Administrations are each unhappy with social media platforms in their own way.

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“South Carolina latest state to use congressional map deemed illegal”

Patrick Marley for WaPo:

In a scenario that has played out in three states in recent years, a federal court ruled Thursday that time had run out to draw a new congressional district in South Carolina and that the state would have to proceed this fall with an existing election map the court had previously deemed illegal.

The ruling echoes redistricting cases in other Southern states where courts found that congressional maps violated the voting rights of Black voters and other people of color but allowed them to be used anyway, at least temporarily. In recent years, that happened in Alabama, Georgia and Louisiana.

In the latest instance, a panel of three judges decided to let South Carolina use a new map drawn by the Republican-led legislature because the Supreme Court had not yet decided an appeal that will ultimately determine how the district should be drawn. Voting rights advocates decried the ruling, saying it is unjust to hold even one election in districts that are unconstitutional.

“Once an election happens, you kind of can’t get back that election,” said Leah Aden, senior counsel for the NAACP Legal Defense Fund, which brought the South Carolina lawsuit.

The ruling came a day after a different federal court upheld a congressional map in Florida that favors Republicans and erases a seat held by a Black Democrat.Those decisions, along with others in recent months, mean the congressional maps for 2024 are largely set. Republicans narrowly control the House, and voters this fall will decide whether to let them keep it.

Also Thursday, a federal appeals court issued a ruling that all but ensures North Carolina will use state legislative maps this fall that Democrats and voting rights advocates say dilute Black representation in the statehouse.

Michael Li, senior counsel for the Brennan Center’s Democracy Program, said appeals take so long that states sometimes get a chance to use illegal maps for one or two election cycles before they are forced to draw new ones.

“It’s becoming more common,” he said. “Courts used to go out of their way to have voters not vote on a map that had been deemed illegal. Now, unless you get everything resolved, you have to vote on a map that is illegal. The courts can undermine voters’ rights through the process.”…

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Amid SCOTUS’s Continued Silence, Federal District Court in South Carolina Racial Gerrymandering Case Will Allow Congressional Election to Go Forward Under District It Held Illegal

Here is the order:

The present circumstances make it plainly impractical for the Court to adopt a remedial plan for Congressional District No. 1 in advance of the military and overseas absentee ballot deadline of April 27, 2024 mandated under federal law and the party primaries scheduled for June 11, 2024. Having found that Congressional District No. 1 constitutes an unconstitutional racial gerrymander, the Court fully recognizes that “it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under an invalid plan.” Reynolds v. Simms, 377 U.S. 533, 585 (1964). But with the primary election procedures rapidly approaching, the appeal before the Supreme Court still pending, and no remedial plan in place, the ideal must bend to the practical.

I believe this moots the pending motion at the Supreme Court to order the lower court do to the same thing.

This case was argued at SCOTUS on the merits in October. That we don’t have a ruling yet likely means there’s likely to be some dissents coming from whatever the Court is going to do on the merits.

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“South Carolina Republicans ask justices to let district ruled a racial gerrymander go forward”

Amy Howe for SCOTUSBlog:

Telling the justices that if they do not intervene they will create “confusion and uncertainty over this year’s elections,” a group of Republican lawmakers from South Carolina came to the Supreme Court this week, asking the justices to block a ruling by a federal court holding that one congressional district in the map adopted by the state’s Republican-controlled legislature was an unconstitutional racial gerrymander. With the primary elections looming, the legislators contend, the state’s 2024 congressional elections should be allowed to go forward as scheduled using the map adopted by the legislature. 

The dispute centers on the map adopted by the South Carolina legislature in 2021 for the state’s seven seats in the U.S. House of Representatives. The map moved nearly two-thirds of the Black voters in Charleston County out of District 1, which is currently represented by Republican Nancy Mace, into District 6, which is represented by Democrat Jim Clyburn. The new map also moved Republican areas in three nearby counties from District 6 into District 1.

The petition is here.

It seems to turn Purcell on its head, arguing that the Court should intervene to change the status quo when the district court refused to do so.

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


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”


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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