Justices Clarence Thomas and Samuel A. Alito Jr., rejecting calls for their disqualification, participated in the case, siding with a member of the mob that stormed the Capitol on Jan. 6, 2021.
Experts in legal ethics have said that the activities of the justices’ wives raised serious questions about their impartiality.
Virginia Thomas, known as Ginny, helped shape the effort to overturn the 2020 election. “Biden and the Left is attempting the greatest Heist of our History,” Ms. Thomas wrote in a text message to Mark Meadows, President Donald J. Trump’s chief of staff, during the fraught weeks between the 2020 presidential election and the Jan. 6 attack.
Justice Thomas has not given a public explanation for remaining on the case, and he has taken part in other cases arising from the election and the 2021 attack. But he recused himself in October from a case concerning John Eastman, a conservative lawyer who had advised Mr. Trump. Justice Thomas, for whom Mr. Eastman had served as a law clerk, gave no reasons for his decision to disqualify himself from that case.
Justice Alito has been more forthcoming. He explained why he would not recuse from the case in a letter to Democratic lawmakers in May after The New York Times reported that flags that have been used to support the “Stop the Steal” movement had been displayed at his homes in Virginia and New Jersey.
The justice said his wife, Martha-Ann, was responsible. “My wife is fond of flying flags,” he wrote. “I am not. She was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years.”…
Category Archives: Supreme Court
“The Government Needs to Act Fast to Protect the Election”
Gowri Ramachandran and Lawrence Norden post-Murthy in The Atlantic:
With Murthy now dismissed and limited time before November 5, the federal government can and should immediately resume its regular briefings with social-media companies about foreign interference in our elections. Although there are encouraging signs that the federal government is slowly resuming these efforts, they appear limited compared with what was done in prior elections. The government should also, as it has in the past, help connect state and local election officials with appropriate contacts at social-media companies. That way local officials and social-media companies can keep each other apprised of any changes in disinformation they are seeing regarding how, when, and where to vote. And the federal government should drastically increase efforts to inform the American public about foreign adversaries’ operations intended to decrease confidence in elections. The government must also make clear that threatening election officials—and their families and children—will not be tolerated.
My New One at Slate: “That Big Jan. 6 Supreme Court Decision Is Not the Win for Trump People Think It Is”
I have written this piece for Slate. It begins:
In Fischer v. United States, a divided Supreme Court, in an opinion by Chief Justice John Roberts, handed Donald Trump a political victory by saying the government overreached in prosecuting some of the Jan. 6 rioters. But it created a potentially big legal problem for him by confirming that the submission of “false evidence” in an official proceeding—as Trump allegedly help orchestrate with the fake electors scheme after he lost the 2020 election—indeed violates federal law. Should Donald Trump ever go to trial on 2020 election interference, and that’s a big if depending on what the Supreme Court does Monday in the pending Trump immunity case, he could well face some serious jail time….
So this is a political victory for the Trumpists, who can now claim judicial overreach as a number of Jan. 6 insurrectionists get part of their charges thrown out. Of course, no one is going to be getting into the weeds of statutory interpretation when they debate this in public. The point is that supporters of the rioters can say the Biden Department of Justice overreached in aggressively applying the statute. As I write this, the banner headline on the New York Times website says, “Supreme Court Says Prosecutors in Jan. 6 Case Overstepped.” That surely hands a victory to Trump and his supporters.
But Roberts did one thing that he did not have to do that surely would hurt Trump if he ever goes on trial for election interference. Trump too was charged with interfering with an official proceeding. He did not physically invade the Capitol or destroy property. He instead is alleged to have engaged in election subversion, including causing the submission of fake electors in an effort to swing the election that he lost from Biden to him.
Could that conduct count as a violation of the statute? The majority opinion states that “it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence.” That’s exactly what Trump is alleged to have engaged in a conspiracy to do. If Trump acted corruptly and if the fake slates of electors count as “false evidence,” well then he and others could be in a lot of criminal trouble.
Roberts’ opinion was joined by other conservative justices, including Samuel Alito, Neil Gorsuch, and Clarence Thomas. Getting them on the record on this is no small thing. And surely the Barrett dissenters would agree too that the statute covers the creation of false evidence….
Supreme Court Hands January 6 Rioters a Win in Fischer Case, But It Likely Won’t Help Trump Beat Similar Charges Against Him (Should He Ever Go To Trial on Election Interference)
The key holding in Fischer v. United States is to read the obstruction statute so that “the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other
things used in the proceeding, or attempted to do so.” Rioters were not interfering with evidence, so even though they were trying to stop the counting of electoral college votes, they could not be charged with obstruction under this particular statute.
But Trump allegedly did try to obstruct the proceeding with evidence: the fake electors scheme. So those charges could potentially go forward. (We are still waiting on the immunity ruling which impacts those charges, and Trump likely has run out the clock on the trial before the election.)
Make no mistake: this is a huge political victory for Trump and the January 6 supporters, who will now claim government overreach. And it’s horrendous that, unlike what Justice Jackson did in her concurrence n condemning the attempt to interfere with the peaceful transition of power, there’s not a word from Chief Justice Roberts on how despicable the conduct was. (He does, however, acknowledge that it was Trump supporters (not antifa!) that stormed the Capitol.)
But it doesn’t stop these charges from going forward against Trump.
What Replaces Chevron Deference in Administrative Law Statutory Interpretation Cases? Greater Judicial Power
Here, from the end of the Chief Justice’s opinion in Loper-Bright, is a brief paragraph on what replaces Chevron deference to administrative agency interpretation of ambiguous statutes:
Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform that inquiry. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.
Supreme Court Publishing Snafu Leads to Early Publication of Draft in Idaho Abortion Case Ending the Stay and Dismissing Case as Improvidently Granted; Some Thoughts on Justice Barrett’s Draft Concurrence
Unlike the Dobbs leak, this seems inadvertent. Bloomberg scoop:
The US Supreme Court is poised to allow abortions in medical emergencies in Idaho, according to a copy of the opinion that was briefly posted on the court’s website.
The decision would reinstate a lower court order that had ensured hospitals in the state could perform emergency abortions to protect the health of the mother. The briefly posted version indicated the majority will dismiss appeals by Idaho and Republican leaders in the state without resolving the core issues in the case.
Read the Full Text of Supreme Court Document on Idaho Abortion
Bloomberg Law obtained a copy of the opinion that appeared briefly on the court’s website as the justices were issuing two other opinions Wednesday morning. The copy of the opinion isn’t necessarily the final ruling, given that it hasn’t been released….
Assuming that this opinion is near to the final form, it is clear that there are three camps on the Court. The three liberal Justices believe that the Idaho law that would prevent abortions even in cases of serious health risks to the mother violates federal law. The three dissenters, Alito, joined in part by Thomas and Gorsuch, believe that Idaho’s law limiting abortions in these emergency settings is not preempted by federal law.
It’s the three Justices in the middle who are the most interesting. Barrett, joined by Kavanaugh and the Chief Justice say that how the case developed, and particularly how the U.S. government presents how to understand the relationship between federal law and Idaho law, means there’s less of a conflict and no need for the Court to step in right now. Essentially, the U.S. reads the law as requiring emergency rooms to offer abortions to women with health risks under a limited set of circumstances, and never for mental health reasons, and so the stakes are different and the case can proceed under the usual rules.
Justice Alito’s dissent, in a part of the draft not joined by Gorsuch or Thomas, really attacks the Barrett opinion and the justices in the middle. He says it is baffling that these three would see the U.S. concessions as somehow getting rid of the disagreement on the merits:
I think there are two potential explanations for what Justice Barrett is doing here. The first is legal. Without saying it, I think Barrett, Kavanaugh, and the Chief believe it is likely that, as narrowed, the U.S.’s interpretation of the law is correct and Idaho under limited circumstances must permit emergency room abortions.
The other explanation is nakedly political: it’s an election year. This case would thrust the Supreme Court’s abortion rulings into the spotlight. This puts the merits off for a year or two, when the Supreme Court could revisit, and side ultimately with Idaho and ban these abortions.
Hard to say what’s going on here, and who knows if these opinions will change….
Supreme Court on 6-3 Vote Splitting Conservative and Liberal Justices Makes It Easy to Give Gifts to State and Local Officials to Thank Them for Their Official Acts; Conservative Majority Relies on Legislative History in Part
I’ve been following Snyder v. United States closely, not only because I am interested in bribery and illegal gratuities law but also because I based my Legislation course final exam on the case.
To me, it presents a fascinating and close question, and I’m not sure how I would have voted had I been asked what to do. Both the text and legislative history arguments can point in either direction. It is notable, however, that the conservative majority that usually rejects legislative history as unreliable relies on legislative history here to describe the purpose of an amendment to the statute. Majority opn. at 4-5 (“In 1986, Congress amended §666 and thereby avoided the law’s “possible application to acceptable commercial and business practices.” H. R. Rep. No 99–797, p. 30 (1986); see 100 Stat. 3612–3613.”). See also dissent at The House Report the majority quotes as explicating §666 confirms that §666 was meant to track §215—not §201(b), as the majority claims. See H. R. Rep. No. 99–797, at 30, n. 9.”).
How did THIS get by the textualists on the Court (including J. Kavanaugh, who wrote the decision)?
On the merits, this case is likely to increase state and local graft on the margins. Those who engage in outright bribery and take federal funds can still be prosecuted for bribery under section 666. But those who take illegal gratuities and avoid the magic words of a quid pro quo are more likely to be off the hook. Putting this case together with other recent ones, like McDonnell, it’s becoming harder and harder for federal prosecutors to pursue graft at the state and local level.
Supreme Court on 6-3 Vote Rejects Social Media Government “Jawboning” Claim on Standing Grounds, But Strongly Suggests Claims of Jawboning were False
You can find the majority opinion in Murthy v. Missouri of Justice Barrett, along with the dissent of Justice Alito (joined by Justices Gorsuch and Thomas) at this link.
The claim was that government agencies pressured or coerced social media platforms including Facebook and Twitter to remove content (related to the election, Covid, etc.). This what the term “jawboning” refers to.
The Court did not opine on what would have to be proven in a jawboning case involving social media companies, because it held that none of the plaintiffs had standing: they did not show enough of a connection between the government‘s actions and plaintiffs’ injuries. As the majority opinion states: “the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content moderation policies before the Government defendants got involved.”
Given that the majority said it would not reach the merits of the jawboning question, it’s inclusion of footnote 4, casting aspersions on the ridiculous factfinding of the district court, was notable as a slam. This is arguably the most important part of the opinion:
The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous. The District Court found that the defendants and the platforms had an “efficient report-and-censor relationship.” Missouri v. Biden, 680 F. Supp. 3d 630, 715 (WD La. 2023). But much of its evidence is inapposite. For instance, the court says that Twitter set up a “streamlined process for censorship requests” after the White House “bombarded” it with such requests. Ibid., n. 662 (internal quotation marks omitted). The record it cites says nothing about “censorship requests.” See App. 639–642. Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues. Ibid. This has nothing to do with COVID–19 misinformation. The court also found that “[a] drastic increase in censorship . . . directly coincided with Defendants’ public calls for censorship and private demands for censorship.” 680 F. Supp. 3d, at 715. As to the “calls for censorship,” the court’s
proof included statements from Members of Congress, who are not parties to this suit. Ibid., and n. 658. Some of the evidence of the “increase in censorship” reveals that Facebook worked with the CDC to update its list of removable false claims, but these examples do not suggest that the agency “demand[ed]” that it do so. Ibid. Finally, the court, echoing the plaintiffs’ proposed statement of facts, erroneously stated that Facebook agreed to censor content that did not violate its policies. Id., at 714, n. 655. Instead, on several occasions, Facebook explained that certain content did not qualify for removal under its policies but did qualify for
other forms of moderation.
Justice Alito, in contrast, found enough evidence of jawboning to find standing (and then a likely violation of the law by the government). He relied in part on a report from Jim Jordan’s “weaponization of government” committee in the House, something that itself is quite unreliable.
“Supreme Court won’t take up Georgia dispute over ‘at-large’ elections and minority vote dilution”
The Supreme Court won’t take up a case challenging Georgia’s system for electing its public utility board in a defeat for Black voters who argued the so-called “at-large” electoral system diluted their votes.
The justices’ refusal to get involved will potentially make it much harder for challenges to such at-large systems of voting – that challengers call a “relic of Jim Crow” – to move forward in three states in the South.
The five members of Georgia’s Public Service Commission are each elected in staggered, statewide votes – a system that a federal judge said violated the Voting Rights Act. That ruling was then reversed by the 11th US Circuit Court of Appeals, prompting the Black voters’ appeal to the Supreme Court.
In declining to take up the case Monday, the Supreme Court did not say anything on the merits of the arguments. However, the move leaves standing an 11th Circuit precedent that could affect other Voting Rights Act lawsuits brought in Florida, Georgia and Alabama, the three states the circuit covers.
With the First Presidential Debate Thursday Night, I Don’t Expect Trump Immunity Decision Until Friday at the Earliest
The Supreme Court has over a dozen cases left to decide. The next date for announcing opinions is Wednesday. The Court has not yet announced whether there will be opinions on Thursday or Friday of this week (I suspect on both days). It is also quite possible, given that almost all the remaining opinions are major ones, for some opinions to be released early next week, taking us into July (that happens occasionally at the Court).
The Court really slow walked the Trump immunity, case, all but making the completion of a trial before the election in D.C. on 2020 election subversion charges impossible. Given the delay, I don’t think any of the Justices think that it will make a difference if the opinion (if ready) comes out this Wednesday compared to next Monday in terms of timing for a trial.
But it would be huge to the debate if the day before or the day of the debate the Supreme Court announced some principles of Trump immunity. Whatever the Court does (and I expect they will recognize at least some immunity from some official acts in some circumstances), it could be spun as a Trump win or loss.
Chief Justice Roberts likely would not want the Court injected so much into the Presidential debate. That suggests nothing before Friday at the earliest.
It is Now Possible That the Supreme Court Will Rule on Trump’s Immunity Claim for Charges of Subverting the 2020 Election the Day Before, the Day of or the Day After the First Presidential Debate on June 27
Who can sue in federal court to enforce the date of holding presidential elections (and perhaps by extension some provisions of the Electoral Count Reform Act)?
The Republican National Committee sued Nevada last month in federal court in Nevada in RNC v. Burgess. The complaint alleges, among other things, that Nevada accepts mail ballots received up to three days after Election Day, even without a postmark, and these ballots are presumed to have been postmarked on or before Election Day. The RNC is challenging that this law violates, among other things, 3 U.S.C. § 1, “The electors of President and Vice President shall be appointed, in each State, on election day,” which is “the Tuesday next after the first Monday in November.” (It is also raising related challenges for congressional elections.)
There is a question of the merits of this argument, but I am not going to write about that.
Instead, this is a very long Fed Courts-y post, so please bear with me. But the core question at issue in some recent and interesting briefing is, who, if anyone, can enforce this provision in the federal courts? And, perhaps more broadly, under what circumstances could someone enforce this and other provisions of the Electoral Count Reform Act?
Continue reading Who can sue in federal court to enforce the date of holding presidential elections (and perhaps by extension some provisions of the Electoral Count Reform Act)?I’ll Be Moderating: “Under the Gavel: The U.S. Supreme Court’s Most Recent Term in Review” July 10 at the UCLA Hammer Museum
Really looking forward to moderating this all-star panel at the UCLA Hammer Museum, co-sponsored by the Safeguarding Democracy Project (video of the event will be posted shortly after the event):
With rulings on major issues expected by the start of summer 2024, the United States Supreme Court is once again at the center of key legal and policy debates. An all-star panel of legal scholars analyzes the meaning and implications of the latest Supreme Court cases, including United States v. Rahimi on gun rights, FDA v. Alliance for Hippocratic Medicine and Moyle v. United States on reproductive rights, the Netchoice cases on regulating social media companies under the First Amendment, Trump v. United States on presidential immunity for criminal acts, and Loper Bright Enterprises v. Raimondo on the power of the administrative state. The panelists will also consider the implications of these rulings for the presidential election season.
Panelists include: Cary Franklin, the McDonald/Wright Chair of Law Faculty Director of the Center on Reproductive Health, Law, and Policy and Faculty Director of the Williams Institute at the University of California, Los Angeles; Justin Levitt, the White House’s first Senior Policy Advisor for Democracy and Voting Rights (2021-22) and Professor of Law at Loyola Marymount University; Eugene Volokh, the Gary T. Schwartz Distinguished Professor of Law at the University of California, Los Angeles and Senior Fellow at Stanford University’s Hoover Institution; and Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Marymount University. Moderated by Rick Hasen, Professor of Law and Political Science and Director, Safeguarding Democracy Project at the University of California, Los Angeles.
“Something’s Rotten About the Justices Taking So Long on Trump’s Immunity Case”
Leah Litman NYT oped:
This court has lost the benefit of the doubt for myriad reasons, including its willingness to act quickly in cases that benefit Republican interests. In addition to the disqualification case, two and a half years ago, the court scheduled a challenge to the Biden administration’s test-or-vaccinate policy two weeks after the justices decided to hear it, and then issued a decision invalidating the policy less than one week later.
In a case in South Carolina decided by the court 6-3 in May, it was not speed but sloth that aided Republicans. The court allowed the state to continue using a 2021 congressional map that a lower court had found was an unconstitutional racial gerrymander. Both parties in the case had asked the court to rule by Jan. 1; when no decision was issued by mid-March, a district court panel ordered the contested map to be used in this fall’s election.
In the immunity case, the question before the court is this: “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
In addressing that question, the court could follow a path well charted in other cases and rule narrowly. The justices need not resolve anything and everything related to presidential immunity. It would be enough to conclude that whatever the precise bounds of presidential immunity, it doesn’t extend to orchestrating a monthslong effort to overturn the valid results of a presidential election.
Even if presidents enjoy some immunity for official acts, plotting to remain in office while continuing to question the results of an election they clearly lost isn’t one of them.