Posts tagged with "Chief Justice John Roberts"

How SCOTUS quietly undercut Roe v. Wade

September 6, 2021

In an extraordinary use of the so-called shadow docket, the U.S. Supreme Court has refused to block a law effectively banning abortion, The New York Times reports.

According to the American Bar Association, the “shadow docket” is a mechanism that defies the court’s “normal procedural regularity.” Instead, it is a method by which the court can hand down decisions quickly—without hearing oral arguments, receiving amici curiae filings, or having to write out lengthy philosophical tracts explaining the jurisprudence underpinning their decision.

At 1 a.m. Eastern time on Wednesday, September 1,without a single word, the Supreme Court let the State of Texas effectively ban abortion—for the first time in nearly 50 years, the Times notes.

But it was not the first time the court had used the shadow docket so aggressively. It was not even the first time in the past week: Indeed, on Thursday, August 27, the court blocked an extension of the federal emergency ban on evictions—gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the eight million American households that are behind on rent – and which may now, without federal eviction protection, face homelessness.

As the night of September 1 became day, and became night again, abortion providers across Texas turned away patients seeking what was, according to the court’s own precedent, a constitutional right, still the justices said nothing. When they broke their silence 23 hours later, refusing to block a law that unambiguously violates Roe v. Wade, the five-justice majority took only 400 words to describe its reasoning.

Because the shadow docket involves so little deliberation and transparency, the court historically hasn’t used it to enable major policy changes or to reverse precedents, and the rulings themselves haven’t been treated as precedents. But that restraint is a norm, not a requirement, and the court has increasingly been breaking it: using the shadow docket more often, on more consequential matters, and with more precedential weight. Last year, it issued several orders on the shadow docket concerning coronavirus restrictions and went on to cite some of them in rulings on the regular docket.

“That’s really not typical, nor is it supposed to be typical,” said Melissa Murray, a professor of law at New York University and an expert on reproductive rights.

I think it’s a reasonable question, whatever one thinks of the answers the court is reaching in these cases, whether we actually think it’s healthy for so many major questions affecting so many people to be resolved in this highly compressed, circumscribed, truncated review process,” said Stephen I. Vladeck, a professor at the University of Texas School of Law and an expert on federal courts.

The court’s increasingly assertive use of the shadow docket has angered some of its members, like Justice Elena Kagan, who wrote in her dissent from the order on Texas’ law, “The majority’s decision is emblematic of too much of this court’s shadow-docket decision making—which every day becomes more unreasoned, inconsistent and impossible to defend.”

Chief Justice John G. Roberts Jr., the only conservative who dissented, criticized the process less forcefully, writing that the structure of the new abortion law was “not only unusual, but unprecedented,” and that while Texas’ legal arguments “may be correct,” the questions involved were too weighty to resolve in such a rushed way.

 Texas’ law, called S.B. 8, prohibits abortion once cardiac activity is detectable in the embryo — around six weeks’ gestation, before many people know they are pregnant. (Pregnancies are dated from the last menstrual period, so “six weeks” generally means four or less after fertilization, and two or less after a missed period.) Planned Parenthood v. Casey, the 1992 case that affirmed Roe, protects a right to abortion until the fetus can survive outside the uterus, around 23 weeks’ gestation.

What distinguishes the Texas law from bans that courts have blocked everywhere else is that, instead of making abortion a crime prosecutable by the government, it lets any citizen sue anyone whom he or she accuses of “aiding or abetting” an abortion after the cutoff point—phrasing that includes not only abortion providers but also anyone who, for instance, pays for a procedure or drives a patient to a clinic. Successful plaintiffs will get $10,000 and reimbursement of their legal fees. Defendants who prevail will not be reimbursed.

“It is quite striking and quite galling that the Supreme Court would allow a state to essentially destroy Roe under cover of night with no decision,” Leah Litman, a professor of law at the University of Michigan, said Wednesday afternoon, before the court had spoken. “I think it’s pretty cowardly, I think it’s an affront to the rule of law, and it is quite troubling about what it suggests about the enforcement of our constitutional rights going forward.”

If by outsourcing enforcement to citizens, a state can enact a law that would otherwise be blocked as unconstitutional, “there’s nothing that stops other states from enacting similar laws to undermine other constitutional rights,” Professor Litman said. “Religious liberty, Second Amendment protections, property rights, right to bodily autonomy — there’s just no limitation.”

Research contact: @nytimes

President Joe Biden’s plea for the soul of America: ‘End this uncivil war’

January 20, 2021

Speaking from the West Front of the U.S. Capitol after a violent insurrection there claimed five lives on January 6, President Joe Biden’s first words as president offered Americans strong and direct reassurance that the most fundamental component of the nation’s government would remain intact, The Daily Beast reports.

“This is democracy’s day,” he said, minutes after being sworn into office by Supreme Court Chief Justice John Roberts as the 46th president of the United States. “A day of history and hope, of renewal and resolve. Through a crucible for the ages America has been tested anew, and America has risen to the challenge.”

“The people,” he continued, “the will of the people, has been heard, and the will of the people has been heeded. We’ve learned again that democracy is precious. Democracy is fragile. And at this hour, my friends, democracy has prevailed.”

Biden, 78, addressed two threats that have worsened under President Donald Trump’s administration, the unchecked coronavirus pandemic and the growing presence of terrorism at home—which only two weeks ago arrived at the very platform from which Biden spoke. Standing resolutely, his jacket pinned with a small American flag on a chilly Wednesday afternoon, the president championed the “restless, bold, optimistic” collective pursuit of restoring what has been lost.

In an acknowledgement of the still bitterly divided national political climate—which is expected to continue long after Biden’s first few days in office—he called on citizens to help de-escalate the rampant partisanship, the Globe said.

“We must end this uncivil war that pits red against blue, rural versus urban, conservative versus liberal,” he said. “We can do this if we open our souls instead of hardening our hearts, if we show a little tolerance and humility, and if we’re willing to stand in the other person’s shoes as my mom would say, just for a moment, stand in their shoes.”

Throughout his 20-minute address, Biden strove to provide a positive outlook for the nation’s future, seeking to remind viewers that, despite strife, sadness, and anger, his administration will offer a unified approach. He pledged to pen a new chapter in the “American story.”

A significant part of that book includes an historic start. “Today we mark the swearing in of the first woman in American history elected to national office, Vice President Kamala Harris. Don’t tell me things can’t change,” Biden said, beaming with pride for his number 2, who was sworn in by Supreme Court Justice Sonia Sotomayor.

“My whole soul is in it,” Biden said. “Today, on this January day, my whole soul is in this, bringing America together, uniting our people, uniting our nation. And I ask every American to join me in this cause,” he continued, to applause, listing off the “foes” he plans to combat: “Anger, resentment and hatred, extremism, lawlessness, violence, disease, joblessness and hopelessness.”

“America is once again the leading force for good in the world,” he said.

Research contact: @BostonGlobe

Supreme Court tosses Nevada church’s challenge to COVID-19 orders

July 28, 2020

The Supreme Court voted 5-4 on Friday, July 24,  to reject a Nevada church’s plea to overturn state public-health orders limiting attendance at services—marking the second time Chief Justice John Roberts has joined the liberal justices to uphold emergency measures to contain the coronavirus pandemic.

Calvary Chapel Dayton Valley, located east of Reno in Lyon County, Nevada, argued that public-health orders issued by Governor Steve Sisolak (D) allowed casinos and other secular businesses greater leeway than houses of worship—which were capped at 50 people for indoor services, The New York Times reported.

Calvary Chapel sought to conduct services for up to 90 congregants, but pledged to implement various social-distancing rules and other measures to contain COVID-19’s spread.

Governor Sisolak said his order placed fewer restrictions on houses of worship than on movie theaters, museums and zoos. While casinos could admit up to 50% of their capacity, the governor argued that pervasive state regulation of the gambling industry, including on-premises enforcement officers, disqualified them for comparison to unregulated churches.

Lower courts declined to suspend the public-health orders during the church’s lawsuit, prompting the high court appeal, the Times said.

The Supreme Court denied the appeal without comment. Chief Justice Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan comprised the majority.

Four of the more conservative justices dissented, as they did in May when the same majority declined to block similar California orders capping attendance at religious services.

“The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or black-jack, to feed tokens into a slot machine, or to engage in any other game of chance,” Justice Samuel Alito wrote in the principal dissent, joined by Justices Clarence Thomas and Brett Kavanaugh.

Justice Alito said that at the outbreak of the pandemic, officials should have broad discretion over emergency measures, adding that several months into the health crisis, greater court oversight was called for.

He said it was “hard to swallow” the state’s claim that casino regulators would keep a firm grip on contagion within well-attended gambling palaces while public health required holding the church to a lower limit.

Justice Kavanaugh filed a separate opinion laying out his own views of the case.

Although the majority didn’t elaborate on Friday’s order, in May, Chief Justice Roberts filed an opinion explaining why he voted to uphold Democratic California Governor Gavin Newsom’s order capping attendance at indoor church services.

“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” the chief justice wrote then, adding that the Constitution principally assigns such judgments “to the politically accountable officials of the States.”

Research contact:  @nytimes

Living the dream: Supreme Court blocks Trump repeal of DACA immigration program

June 19, 2020

In a 5-4 ruling that affects more than 600,000 undocumented immigrants who were brought to the United States as children, the Supreme Court ruled on June 18 that the Trump Administration did not provide sufficient reasons for canceling the Deferred Action for Childhood Arrivals program (DACA); which was first announced by former President Barack Obama in June 2012.

In an opinion written by Chief Justice John Roberts, the SCOTUS rejected the White House’s decision to cancel the program, which has provided legal protections and work authorizations to undocumented immigrants, The Wall Street Journal reported.

“The dispute before the Court is not whether [the Department of Homeland Security] may rescind DACA. All parties agree that it may. The dispute is instead primarily about the procedure the agency followed in doing so,” Chief Justice Roberts wrote, joined in full or part by liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

He added that the decision didn’t address “whether DACA or its rescission are sound policies,” which wasn’t the court’s concern. But the government failed its duty under the Administrative Procedure Act to “provide a reasoned explanation for its action,” including “what if anything to do about the hardship to DACA recipients.”

Indeed, the Journal opines, “The ruling hands President Trump one of the biggest legal defeats of his presidency, and in the middle of an election year in which immigration is again a top political topic. The decision effectively provides relief to more than 600,000 DACA recipients, often referred to as Dreamers, who have been in limbo since Mr. Trump in 2017 decided to wind down the program.”

“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Justice Thomas wrote. Justice Brett Kavanaugh wrote a separate dissent, the Journal noted.

The court’s ruling doesn’t mean the White House can never cancel DACA, but it will have to come up with new supporting reasons if it tries again to end the program.

The president and his advisers maintained that DACA wasn’t lawful because Congress hadn’t authorized any such policy. The White House and Congress have been unable to reach agreement on how to tackle the issue, or immigration policy more broadly.

According to the Journal, the cancellation of the program was scheduled to begin in March 2018, but lower courts issued rulings that blocked the administration from ending DACA. Judges previously found that the administration offered little explanation or support for its decision, in violation of a federal administrative law that requires government agencies to explain their decision-making to the public and offer sound reasons for adopting a new policy.

Research contact: @WSJ

Senate passes Midnight Mitch’s impeachment rules at nearly 2 a.m.

January 23, 2020

The Senate voted along party lines to pass Majority Leader Mitch McConnell’s game plan for President Donald Trump’s impeachment trial in the early hours of Wednesday morning—following nearly 13 hours of contentious debate between House prosecutors and attorneys for the White House.

According to a report by NBC News, the Republican majority had voted down several amendments proposed by Minority Leader Chuck Schumer that would have required the Senate to subpoena documents and call witnesses.

The vote came just before 2 a.m. Wednesday—after Representative Jerry Nadler (D-New York), one of the House impeachment managers, suggested that senators were voting for a “cover-up;” which drew sharp responses from the president’s legal counsel.

Indeed, the mood in the chamber and the language became so vile that Chief Justice John Roberts admonished House managers and Trump’s counsel “in equal terms to remember that they are addressing the world’s greatest deliberative body.”

Robert said, “I do think those addressing the Senate should remember where they are.”

Under the terms of the organizing resolution, NBC News said, the House case managers will have 24 hours over three days—up from the 24 hours over two days that McConnell originally had proposed—to make their arguments to remove the president from office on charges of abuse of power and obstructing Congress. Attorneys for the White House likewise will have 24 hours over three days to state their case for acquittal.

Senators will then have 16 hours to submit questions to both sides before they decide whether to call witnesses or subpoena documents.

The plan proposed by the Majority Leader—nicknamed “Midnight Mitch” for his preference for trying the president in a slot later than TV’s prime time—had been opposed by Democrats, who wanted a guarantee that they would be able to call witnesses and demand documents that the administration withheld during the House impeachment inquiry. 202006:28

The vote wasn’t a total loss for Democrats, however. Not only did McConnell change the two-day rule for arguments; but he also rescinded another that could have barred evidence gathered by the House.

Democrats complained that the two-day limit would have meant that they would be making arguments until 1 a.m. or later, depriving much of the public of the chance to watch the proceedings.

The other provision could have barred entering all of the evidence House Democrats gathered against Trump into the Senate record. The evidence now will be admitted automatically unless there’s an objection, rather than depend on a proactive vote to

The House case managers were expected to begin their opening arguments Wednesday afternoon, NBC News said.

Research contact: @NBCNews

Worthy of contempt: House retaliates against Barr and Ross for refusing to deliver census documents

July 19, 2019

The House may not be getting much satisfaction from the Executive Branch these days, but its Democratic Caucus finally has exacted retribution.

On July 17, members of the House voted 230-193 to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in criminal contempt of Congress for their refusal to turn over key documents related to the Trump administration’s intention to add a citizenship question to the 2020 U.S. Census, The New York Times reported.

Democrats investigating the issue believe that the documents and testimony that Barr and Ross have shielded from public view would confirm what they have long suspected—that the question was being added to the Census for politically motivated reasons; and not to better enforce the Voting Rights Act, as the Trump administration claims.

The Supreme Court hinted at that theory in late June in a ruling about the citizenship question, when Chief Justice John Roberts, writing for the majority, said the explanation offered by the Trump administration for adding the question “appears to have been contrived.”

And in an unusual twist, President Trump himself all but confirmed those suspicions this month when he said of the citizenship question, “You need it for Congress, for districting.”

Democrats said Wednesday that their investigation would continue regardless, in an effort to vindicate Congress’s oversight authority and potentially head off future attempts to discourage participation by noncitizens in the census.

“It is bigger than the census. It is about protecting the integrity of the Congress of the United States of America,” Representative Elijah E. Cummings of Maryland, the Oversight and Reform Committee chairman, said as he whipped up support on the House floor. “We need to understand how and why the Trump administration tried to add a question based on pretext so that we can consider reforms to ensure that this never happens again.”

Wednesday’s contempt vote formally authorized the oversight panel to take AG Barr and Secretary Ross to federal court to seek judicial enforcement of subpoenas for the material in question. A lawsuit is expected in the coming weeks, and the administration has maintained it is on firm legal footing in its position.

Research contact: @nytimes