Come for the politics, stay for the snark.

And now I have baud making fun of me. this day can’t get worse.

Teach a man to fish, and he’ll sit in a boat all day drinking beer.

Republicans got rid of McCarthy. Democrats chose not to save him.

They were going to turn on one another at some point. It was inevitable.

Bad people in a position to do bad things will do bad things because they are bad people. End of story.

This isn’t Democrats spending madly. This is government catching up.

You can’t attract Republican voters. You can only out organize them.

Take hopelessness and turn it into resilience.

Today in our ongoing national embarrassment…

The republican speaker is a slippery little devil.

I swear, each month of 2025 will have its own history degree.

When they say they are pro-life, they do not mean yours.

We need to vote them all out and restore sane Democratic government.

The world has changed, and neither one recognizes it.

He seems like a smart guy, but JFC, what a dick!

There are more Russians standing up to Putin than Republicans.

Decision time: keep arguing about the last election, or try to win the next one?

If you cannot answer whether trump lost the 2020 election, you are unfit for office.

“Facilitate” is an active verb, not a weasel word.

Someone should tell Republicans that violence is the last refuge of the incompetent, or possibly the first.

The press swings at every pitch, we don’t have to.

Lick the third rail, it tastes like chocolate!

… gradually, and then suddenly.

Balloon Juice, where there is always someone who will say you’re doing it wrong.

You are here: Home / Politics / Activist Judges! / No, Virginia (North Carolina, Actually) State Legislatures Ain’t All That

No, Virginia (North Carolina, Actually) State Legislatures Ain’t All That

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Not altogether surprisingly, but still a pleasant alternative to my most grim forebodings, the Corrupt Supreme Court™ managed not to overturn centuries of  precedent, practice, and the ordinary functioning of federal democracy and convincingly ruled in favor of at least the possibility of free and fair elections.  That meant they ruled against the GOP authoritarian fantasy that state legislatures possess total, unreviewable control over national elections, including getting to decide who wins, no matter what those pesky voters might say.

No, Virginia (North Carolina, Actually) State Legislatures Ain't All That 1

 

Chief Justice John Roberts wrote for the court that “state courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause. But federal courts must not abandon their own duty to exercise judicial review.”

The decision does have ramifications well beyond the dispute in North Carolina that led to this ruling.:

Opponents of the idea [that state legislatures have untrammeled authority over federal elections], known as the independent legislature theory, had argued that the effects of a robust ruling for North Carolina Republicans could be much broader than just redistricting and exacerbate political polarization.

Potentially at stake were more than 170 state constitutional provisions, over 650 state laws delegating authority to make election policies to state and local officials, and thousands of regulations down to the location of polling places, according to the Brennan Center for Justice at the New York University School of Law.

The three dissenters in the 6-3 USSC decision included two you’d expect, Alito and Thomas.  I’d have guessed that Kavanaugh would have joined them, but he did not; the third treasonweasel* was Gorsuch.  The anti-constitutional troika wanted to avoid the precedent the majority has now created by using a more recent North Carolina Supreme Court decision reversing the one that had led to the case before the USSC as an excuse to moot the case.

IANAL, but the fact that the majority led by Roberts chose to rule as they did seems to me an important signal.  Yeah, the conservative majority is a loose cannon and bereft of basic judicial ethics–but there are some bridges too far.

Alas, the decision will not likely save democracy in NC itself.  The case the Supremes ruled on today originated after the then-Democrat majority NC Supreme Court disallowed a gerrymandered map.  When Republicans took control of the court in the last election, the new court reversed that decision.  As a result…

In North Carolina, a new round of redistricting is expected to go forward and produce a map with more Republican districts.

Fuckem.

This thread is as open as Clarence Thomas is for business laundered as “friendship.”

*By “treasonweasel” I do not mean that the “justices” in question are traitors to the United States in the form delineated in the criminal code. They have, however, betrayed their oaths: they are not merely failing to defend the Constitution, but are actively working to undermine it.  In my book that’s close enough to a colloquial definition of treason to merit the epithet, with apologies to weasels everywhere.

Image: Francisco de Goya, Tribunal de la Inquisición, between 1812 and 1819. (N.B.: while there is nothing funny at all about the Inquisition, imagining the GOPsters pressing this coup-under-the-color-of-law-enabling theory in dunce caps was too tempting to resist.)

Reader Interactions

141Comments

  1. 1.

    The Moar You Know

    Gorsuch, Alito and Thomas voted “hell yes” to no more democracy.  Of course.

    Justice Beer Bong said they ought to look into it further.

    They all need to go.

  3. 3.

    Deputinize Eurasia from the Kuriles to St Petersburg

    I’ve been predicting that Kavanaugh is in line to go the full Souter within the next few years. Roberts is terrified of being labeled the Roger Taney of the 21st Century by presiding over dumb rulings and sparking a second civil war, so he’s voting with liberal on things he doesn’t agree with.

    And Barrett has all the heft of a three-week used dishrag.

  4. 4.

    The Moar You Know

    @Tom Levenson: By all I mean all nine.  I want an entirely new slate that are all subject to retirement limits and some extremely strict ethics policing with conseqeunces that can entail quick removal.  It is painfully obviously that our judicial system is broken, especially at the highest level.

    Don’t misunderstand me:  I don’t think “our” people have done anything wrong.  But I think the possibility needs to be eliminated.

  5. 5.

    Matt McIrvin

    If I recall correctly, even the pro-“independent state legislature” theory side in this case hastened to stress that they were not advocating Eastman’s maximalist position that state legislatures could just overturn presidential elections; their critics just raised it as a danger. Which is interesting, from an optics/which-way-the-wind-is-blowing perspective.

  6. 6.

    Ken

    @The Moar You Know: I would say it’s more broken at the higher levels than the lower. I’ve seen statements from people in lower-level courts (mostly clerks, a few judges) saying that they have to observe very strict rules, and relating how they refused gifts of food or wine that went over the limits.

  7. 7.

    Matt McIrvin

    …Gorsuch’s specific off-the-conservative-path thing is Native American rights. He often votes well on those cases.

  8. 8.

    Deputinize Eurasia from the Kuriles to St Petersburg

    @The Moar You Know:

    I want an age limit at 70 and a 25 member court, panels of 9 to be chosen by lots in each case.  Stick the retirees in an emeritus role for temporary needs and vacancies in the districts and circuits.

    Knock the prestige level down by a factor of 10.

  9. 9.

    Redshift

    @Deputinize Eurasia from the Kuriles to St Petersburg:

    Roberts is terrified of being labeled the Roger Taney of the 21st Century by presiding over dumb rulings and sparking a second civil war, so he’s voting with liberal on things he doesn’t agree with.

    I bet he also doesn’t love all this undermining democracy and culture-war stuff getting in the way of his business-can-do-no-wrong and anti-labor rulings.

  10. 10.

    Jake Gibson

    Has John “Shelby County vs Holder” Roberts had a crisis of conscience?

    Or is does he think that Noth Carolina and Alabama made it too obvious?

  11. 11.

    Matt McIrvin

    It is interesting that the very worst of the Court’s right wingers are still Alito and Thomas, who were appointed by the younger and elder Bushes, not by Trump.

  12. 12.

    oldster

    I was expecting a footnote and citation for “treasonweasel”, given the asterisk.

    Where my footnote? Where my citation?

  13. 13.

    New Deal democrat

    While along with everyone else, I am heaving a huge sigh of relief, hold the partying a bit …

    I wondered what trap doors Roberts might have put in the ruling, and apparently there is a very big one: state courts “may not transgress the normal bounds of judicial review” in interpreting their state’s election laws. And he pointedly did not say that the NC Supreme Court was within those bounds, only that the explicit question was not raised.

    So we still have the possibility that state court rulings overturn it gerrymanders may not survive SCOTUS review in the future.

  15. 15.

    Redshift

    The ISL theory seems like the essence of “textualism” — “If I can find some text anywhere that says what I want, I can ignore everything else that’s been written or said and rule that way.” I’d be fascinated to hear a “textualist” explain why that isn’t the case.

    (Of course, the same theory allows you to rule in the exact opposite way by citing some different text, which ought to make it clear to anyone that the whole legal “school of thought” is bullshit.)

  16. 16.

    Eolirin

    One thing that may limit the damage of the NC Court going red is that the SCOTUS has been ruling against the elimination of minority districts lately. So they may not be able to go as extreme as we may have feared.

    In light of the recent insanity in the house though, it’s honestly in the best interests of people like Roberts for the Democrats to have a permanent majority in the House and the Republicans to have one in the Senate. GOP control of the House is now dangerous to the economy broadly and harmful electorally.

  19. 19.

    schrodingers_cat

    OT news from Indian Twitter from our new “friends” in India.

    A member of the India’s upper house from the BJP (Modi’s party) called President Obama, Uncle Tom. I have taken a screenshot because I think he will delete the tweet.

    Here it is

  20. 20.

    oldster

    @Tom Levenson:

    Thanks!

    And thanks for apologizing to weasels, who are general loyal, faithful, and upstanding members of the mustelid family.

    Of course the assonance with “treason” makes the compound irresistibly euphonious, so I’m sure that the weasels will not hold it against you.

  21. 21.

    rikyrah

    You will never..

    and I do mean never ever…

     

    will convince me that if the 2022 Elections had gone the other way..

    that this case wouldn’t have been decided 6-3 the other way.

     

    IT WAS THE BLUEPRINT FOR THE GOP TO STEAL THE 2024 ELECTION. 

  24. 24.

    oldster

    Even when Roberts does the right thing, I do not trust him to do it for the right reason.

    So in this case, I think part of what motivated him to smack down the “Independent Legislature” theory is that it constitutes a direct assault on Judicial Supremacy. It would have allowed legislatures to have the final say, instead of giving courts the final say. And in Roberts’ little power-hungry mind, no principle is more important than the principle that the courts have the final say (and the SCOTUS has the final say of all the courts, natch).

  25. 25.

    Rusty

    The most controversial decisions have all been jammed into the Thursday (and maybe the Friday) right  before a major holiday and the summer.  This itself is a political move by the reactionary majority.  Their hope must be that no one will notice as the upper-class editors and pundits race off to barbeques on waterfront cottages.  What gets me is for all their calls for deference and demands for respect as they attempt to remake the country, they are craven and fearful about what they are actually doing.  Decisions released when they hope no one notices.  Whining comments at oral arguments or in speeches that they themselves aren’t homophobic or racist, all while rendering opinions that support the racist, homophobic and more.  The sleazy property deals, luxury travel, jobs for spouses and all they try to hide from public view only add to their craven nature.  Pathetic.

  26. 26.

    Mike in NC

    If it weren’t for Governor Cooper, NC would be in a race to the bottom alongside Texas and Florida to have the worst possible Republican state legislature.

  27. 27.

    Omnes Omnibus

    @Rusty: The biggest decisions almost always come at the very end of the term which is always right before the July 4th holiday.

  29. 29.

    bbleh

    @New Deal democrat: NAL, but my read on that was that it’s at least half as a sop to get the necessary votes.  And on the bright side, it can be read as “yeah, and ain’t no such thing as an Independent State Court Theory either.”

    @rikyrah: oh don’t be silly!  It was only one of many ways they’ve been trying to put in place to steal the 2024 election!  Monkeywrenching state election administration, for example.

    @Omnes Omnibus: boy howdy!

  30. 30.

    Rusty

    @oldster: Yes, what is entirely clear in the last few years has been the court gathering more and more power to itself.  The reactionary six see themselves as the grand counsel getting to comment and decide on any action by the rest of government.  Forget co-equal branches of government, everything is subject to their wisdom (my favorite moment was during oral argument on Biden’s student loan forgiveness.  One of the conservatives opined that the Secretary of Education had no expertise to decide on student loans.  The government brought up that the entire student loan program is in the Department of Education, in other words who else would have the expertise.  That point was then ignored, as the justices went on with the assumption that of course that themselves had the expertise to decide on student loans, and everything else done by government.  It was an incredible window into their hubris).

  31. 31.

    Hoodie

    @New Deal democrat: That’s not a particularly surprising escape clause, so much so that it probably would not have to be expressly stated.   The devil is in the application, which he studiously avoids because it’s currently not needed in light of changes to the NC state supreme court.

  32. 32.

    Rusty

    @Omnes Omnibus: Brown v. Board of Education was decided May 17, 1954.  Roe v. Wade, January 22, 1973.  I could go on.  It’s this court in particular that has jammed important decisions into the last days of the session.  It’s even more egregious given they are deciding record low numbers of cases.

  33. 33.

    cmorenc

    @Matt McIrvin: When Bush jr was choosing a replacement for retiring Justice Sandra O’Connor, he chose the corruptible, arrogant Alito over Michael Luttig, a very conservative federal appellate judge but one of honest integrity and humility (for a federal judge).  That choice perversely fits Bush jr.

  34. 34.

    Omnes Omnibus

    @Rusty: I didn’t say all important decisions.  I am just saying this is not an uncommon practice.  I think you are reading too much into it.

  35. 35.

    Bobby Thomson

    Somewhat OT: interesting split in Mallory v. Norfolk Southern, with Sotomayor and Jackson joining with Gorsuch, Thomas, and Alito.

  36. 36.

    ETtheLibrarian

    Republicans love of this type of thing is always predicated on the fact that they think they (and their vision/version) will be always be in ascendancy. I know they want things like this so they can be ascendancy for the foreseeable future, but that doesn’t guarantee that the very things they fight for now won’t be used against them in the future as events on the ground – and actual laws – change. The law of unintended consequences is fickle and Karma is a bi**h.

  37. 37.

    Rugosa

    @Redshift:   Yep.  Let the little people think their votes count and everything is run according to the rule and keep the 0.01% safely in charge.

  40. 40.

    artem1s

    @The Moar You Know: ​
     

    I don’t think “our” people have done anything wrong. But I think the possibility needs to be eliminated.

    shouldn’t matter, if they can’t adhere to the rules then they aren’t ‘our’ people.

  41. 41.

    Urza

    @New Deal democrat: The ruling overturning gerrymandering already didn’t survive.  That was done by a Democratic SC.  They got more conservatives on last election and overturned it immediately.  Not sure why that didn’t invalidate this case.

  43. 43.

    randy khan

    Thomas seems to be all in on the independent state legislature theory, based on part II of his dissent.

    Not that I think that’s a surprise.  It’s actually more interesting that Alito didn’t join that part, although it might be that he thought Thomas was being too subtle.

  44. 44.

    Deputinize Eurasia from the Kuriles to St Petersburg

    @cmorenc:

    To be fair to Bush, Jr. (I feel dirty saying that), Alito wouldn’t have had a record of corruption to be found at that point – as a garden variety Third Circuit Court of Appeals judge, he was operating under the stringent ethical rules for levels below SCOTUS at the time.

  46. 46.

    Omnes Omnibus

    @Urza: That was a big part of the dissent.  Roberts and the rest of the majority wanted to reach the merits and reject ISLT even though they did not need to in order to resolve this case.

  49. 49.

    JPL

    @Omnes Omnibus: BTW   Do you have any guesses on the remaining opinions?

    I assume they will continue to claw back gay rights, and treat gays like second class citizens.

    I hope that they decide businesses have to make religious accommodations.   The reason that I hope is that those assholes will be surprised to discover their favorite brunch places are no longer open on Sundays becuase their servers found religion.

  50. 50.

    Burnspbesq

    @New Deal democrat:

    state courts “may not transgress the normal bounds of judicial review”

    That’s always been part of the analysis under the adequate and independent state ground doctrine. It’s not news, and I don’t view it as in any way ominous.

  51. 51.

    CaseyL

    Breathing a big sigh of relief at this ruling.

    I was not of the opinion that Roberts cared about a “legacy” or the Court’s “legitimacy,” because he was put there to be a wrecking ball on behalf of the Right, just one that does so politely.  So maybe the ISLT isn’t polite enough? I guess Roberts doesn’t want to be too obviously renowned as the Justice who destroyed representational government in the US.

  52. 52.

    Omnes Omnibus

    @JPL: I really don’t.  I was moderately hopeful on this one because only three justices had really shown any enthusiasm for ISLT and the theory is insane.  As far as the rest go, I am as in the dark as everyone else.  I just am not going to assume everything will be bad.

  57. 57.

    Burnspbesq

    @Burnspbesq:

    ETA: all that really means is that state courts aren’t free to invent bat-guano-crazy interpretations of state constitutions in order to prevent federal courts from reaching and deciding questions of federal constitutional or statutory law.

  58. 58.

    randy khan

    @Omnes Omnibus:

    I haven’t read the whole thing – I kind of skimmed – but I have a sense that a lot of the majority is written as an explanation of why Thomas is wrong from an originalist perspective.  (Which he is!  Nobody at the time the Constitution was written thought of state legislatures as independent entities that operated without constraint.)

  59. 59.

    Anyway

    @schrodingers_cat:

    A member of the India’s upper house from the BJP (Modi’s party) called President Obama, Uncle Tom. I have taken a screenshot because I think he will delete the tweet.

    Great whataboutism about Pakistan and China…

    I checked the BBC report you linked to earlier – Obama is such a measured speaker and as is the case for him, chooses his words carefully. I don’t get it.

    Btw are there are any Muslim BJP members or is that a dumb question?

  61. 61.

    BellyCat

    @Ken: I would say it’s more broken at the higher levels than the lower.

    Optimistic, but untrue. Come to Central Pennsylvania, specifically Centre County Court of Common Pleas (and proximate environs), and you will quickly discover your belief to be based on facts not in evidence.

    My sense is that your belief is more true the larger the population — meaning: chiefly in cities.

  62. 62.

    cmorenc

    @Urza: NC Supreme Court elections happening off-cycle from federal presidential election years are in part a perverse residue of Democrats efforts 20-30 years ago attempting to limit the erosive effects of the state’s trend in turning out more red-leaning voters in Presidential election years.

  63. 63.

    Splitting Image

    @oldster:

    Even when Roberts does the right thing, I do not trust him to do it for the right reason.

    So in this case, I think part of what motivated him to smack down the “Independent Legislature” theory is that it constitutes a direct assault on Judicial Supremacy. It would have allowed legislatures to have the final say, instead of giving courts the final say. And in Roberts’ little power-hungry mind, no principle is more important than the principle that the courts have the final say (and the SCOTUS has the final say of all the courts, natch).

    Just to add to this, as much as the reactionaries promote the idea of “states’ rights”, there is a limit to how far any of them will go to support it in practice. I’m sure they all agree that state legislatures are subject to judicial review by the state courts, but asserting the rights of a state legislature over those of the federal government will ultimately increase the powers of state courts over those of the federal judiciary, including the Supremes.

    That’ll be a “nope” for Roberts. As you say, these guys want the final word.

  68. 68.

    Roger Moore

    @Ivan X:

    You gotta give it to the guy, in his genial way, he really fucked up a lotta shit real good.

    That’s exactly why traditional Republicans prefer the Bushes to Trump.  They knew how to put a genial face on all the crazy shit the Republican hacks were doing out of sight.  Trump gives away the game.

  69. 69.

    Burnspbesq

    Interestingly, there is no mention at all of Moore v. Harper on the front page at LGM. Guess it takes several hours to properly smoke and barbecue a murder of crows.

  70. 70.

    Roger Moore

    @rikyrah: ​
     

    Jesse Watters’s elevation to the prime-time spot comes despite a history of statements that critics have called racist or xenophobic.

    I don’t think they know what “despite” means.

  72. 72.

    CaseyL

    @Omnes Omnibus:

    “Did not destroy representational government in the US” is kind of minimalist as judicial legacies go.

    I don’t completely dismiss the possibility, though.

  73. 73.

    hueyplong

    @rikyrah: “Jesse Watters’s elevation to the prime-time spot comes despite because of a history of statements that critics have called racist or xenophobic.”

    Glad to help.

  74. 74.

    Jeffro

    @JoyceH: yeah, the heck with that kind of ‘both sides’ nonsense from her (and I read the brief article to make sure she didn’t have some sort of additional context or qualifier to those statements)

    “we” aren’t electing “idiots”

    “Republicans” are electing “MAGA performance artists” (at best) and “insurrectionists” (at worst)

    So just because the GOP’s going down the tubes, Liz, you don’t get to ramp up the both-sides nonsense

    ETA I see Baud said it better and shorter while I was typing

  75. 75.

    James E Powell

    @Omnes Omnibus:

    As the cliche goes, a win is a win. Do you think this is one of those zombie arguments that will keep returning or is it a product of 2020?

    I see it as part of the need for national regulation of election laws and elimination of the electoral college, but I don’t expect that to happen in my lifetime.

  76. 76.

    New Deal democrat

    @Burnspbesq: I am going to beg to differ.

    A fuller selection of the quote: “state courts may not transgress the normal bounds of judicial review such that they arrogate to themselves the power vested in the state legislatures to regulate federal elections.”

    This doesn’t sound like a caution about “adequate and independent state grounds” to me.

    And I’m not the only one with this concern.

    Rick Plides:
    “ The Court has provided some clarity about the independent state legislature issue: state constitutions continue to bind state legis. But it has also left a vague standard hanging over the 2024 elections.

    @adamliptak @scotusreporter @JessBravin The Court recognized some, vague constraint on state courts going “too far” (my words) when they interpret state elections laws or the state constn. But we don’t even have a ruling on whether the NC court violated this standard. The issue is going to be litigated in 2024..

    Rick Pildes
    twitter.com

    Melissa Murray:

    “ https://twitter.com/ProfMMurray/status/1673707236542251009?cxt=HHwWgoDQwaX3mbouAAA

    Agree with my @nyulaw colleague @RickPildes that this is not a complete repudiation of ISLT/fanfic. Court is really vague about what state courts can do in interpreting state constitutional provisions. We’ll see more litigation in the future. t.co/u47gp9JQXG

    Melissa Murray (@ProfMMurray on Spoutible 🐳 )
    twitter.com

  77. 77.

    New Deal democrat

    I just left a comment with two links, and it went into moderation. Could someone please get it out?

     

    Thank you.

  79. 79.

    Jeffro

    Speaking of the blessed Court, here’s some good insight from Jamelle Bouie of the NYT

    Here’s how you play the long game to own the Supreme Court:

     

    Imagine for a moment that you are a conservative political activist with an abiding interest in constitutional law. You consider yourself an “originalist” or a “textualist” and oppose much of the constitutional jurisprudence of the 20th century, from the affirmation of deep federal intervention in the economy during the New Deal to the expansion of rights of bodily autonomy and personal freedom in the 1960s and ’70s. You want to rewind — to turn the constitutional clock to where it was before the age of liberalism.

    You have set your sights on the Supreme Court and the federal judiciary writ large. You have made it your mission to bring the court back to first principles or at least your first principles.

    You did the hard work of political transformation and institutional change. You cultivated allies, created networks of like-minded individuals, recruited aspiring judges and politicians to the cause, and most important, you won elections. After more than a decade of struggle, despite the occasional setback, you had all the pieces in place: a conservative majority on the Supreme Court and a chance to undo Roe v. Wade.

    And then it all fell through. Your conservative justices weren’t as reliable as you thought. They weren’t a single bloc. And three of them voted, against your hopes and expectations, to protect the constitutional right to an abortion. Yes, they might have opened the door to new limits, but what mattered most in 1992 — after 12 years of conservative rule — was that Roe still stood.

    But this was just a battle — you could still win the war. So you regroup. You work and wait in anticipation of the time when you can replace your sometime friends on the court with more reliable conservatives. You won’t rely on a sense of mission or commitment to ensure loyalty among the judges and justices; no, you’ll resist the drift toward judicial independence by strengthening the ties between the men (and occasionally the women) and the movement. You’ll hold lavish events in their honor, give them awards, fund schools in their names, help their spouses find work and pair them off with a donor or two so that they can have a taste of the high life.

    This isn’t quid pro quo — no one is trading favors or taking cash for judicial decisions — it’s like-minded people enjoying one another’s company and friendship.

    It is showering the most important allies you have with prestige and, crucially, the esteem of their peers. It’s creating a web of personal and emotional bonds in addition to political and intellectual ones.

    Our hypothetical activist here is a mishmash of figures — Leonard Leo is too young to have been involved in the first phase of the conservative legal movement, leading up to the partial defeat of Planned Parenthood v. Casey. But Leo, who is responsible for at least a third of the membership of the current Supreme Court, is our pioneer. He is the one who figured out the solution to the problem of the independent justice.

  80. 80.

    Martin

    This seems to be the new dynamic. 3 liberals, 3 balls-to-the-walls conservatives (Thomas, Alito, Gorsuch), and 3 persuadable, depending on subject. The commentary I’ve heard and read (and will hear again this Friday at out local Supreme Term in Review) theorizes that Roberts, Kavanaugh, and Barrett are a little spooked at the constitutional suicide pact that that the other 3 have signed onto. They were up for some fraying of the social order in this country, but not a full-on destruction of it, and they being ‘responsible’ political animals have recognized that Dobbs backfired for the GOP and will now compromise their own instincts and interests to sometimes side with the liberals if it means keeping the GOP politically viable as an entity in this country and possibly to reduce the chance someone solves the lifetime appointment issue with an AR-15.

  81. 81.

    Doc Sardonic

    Can I get a read from our lawyers on Kagan’s majority opinion in Counterman vs. Colorado. Not a lawyer but it seems she just gutted Colorado’s stalking law by upholding the plaintiff’s 1st Amendment right to make a lot of threats, but gets his conviction overturned for basically saying ‘nah not really threatening her, I have mental issues’.

  82. 82.

    Sasaha

    Based on who dissented, I’m safely assuming that Gorsuch is also guzzling down on billionaire benefactor teat to a scandalous degree.

  84. 84.

    randy khan

    @rikyrah:

    Jesse Watters’s elevation to the prime-time spot comes despite because of a history of statements that critics have called racist or xenophobic.

     

    Clearly there was a typo there

    EDIT:  And clearly I was late to the party on this one.

  85. 85.

    Martin

    @James E Powell: I think at 6-3 it’s a dead topic. I mean, maybe it would have worked if they hadn’t shown their hand that it opened the door to just sending over whatever rando electors they wanted after an election, and had only kept it to drawing maps.

  86. 86.

    TriassicSands

    @The Moar You Know:  I don’t think “our” people have done anything wrong.

    I don’t think it’s a question of the three having done anything wrong, so much as it is that the suffer from a very common malady — being members of the “privileged elite.” As such, they feel entitled, which could help explain why none of them have spoken out in support of explicit ethical rules. They’re willing to report, but they also want to keep getting the loot, deserved or not, shady looking or not.

  87. 87.

    Martin

    @Omnes Omnibus: That’s fair. But it’s not 6-3, at least not in terms of the kinds of cases being put forward. Roll back 10 years and it would be 6-3 because a lot of these cases wouldn’t even be attempted.

    It does speak to just how completely arbitrary the entire exercise is. This is a terrible way to set policy.

  89. 89.

    Omnes Omnibus

    @Doc Sardonic: The Court ruled that the appellate court had applied the wrong standard in interpreting the law.  They sent it back to be reviewed again with the appellate court deciding if a reasonable person would have  interpreted the behavior as a threat.

  90. 90.

    JoyceH

    @Jeffro: True, but my instant take-away from hearing that audiotape was “geez, what idiots!” And it still stuns me that Trump is considered a viable candidate when he has a mental age under ten. “These are bad, sick people.”  How can anyone listen to that and not be horrified?

  91. 91.

    hueyplong

    @randy khan: They’re merely replacing Carlson, not changing the direction associated with the 8 pm time slot.

    In other words, come for the fish sticks, stay for the white robes.

  92. 92.

    Scout211

    @Doc Sardonic: IANAL. But SCOTUSblog has a good explainer.
    Here’s a couple of excerpts.

    The Supreme Court on Tuesday threw out the conviction of Billy Raymond Counterman, a Colorado man who was sentenced to four-and-a-half years in prison for stalking based on his Facebook messages. By a vote of 7-2, the justices ruled that the state courts had applied the wrong test to determine whether Counterman’s statements were “true threats,” which are not protected by the First Amendment. Instead of focusing on whether a reasonable person would regard the man’s statements as a threat of violence, the Supreme Court ruled, courts should look at whether prosecutors had shown that Counterman had made the threats recklessly – that is, whether he was aware that the recipient, local Colorado musician Coles Whalen, could regard his speech as a threat, but made them anyway.

    Justice Elena Kagan wrote for the court, with an opinion that was joined by Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson. Justice Sonia Sotomayor wrote an opinion, joined by Justice Neil Gorsuch, in which she agreed with the result that the court reached but not all of its reasoning. Justice Clarence Thomas filed a dissenting opinion and joined a dissenting opinion by Justice Amy Coney Barrett.

    . . .

    Prosecutors in Colorado charged Counterman with stalking. At trial, he argued that his messages to Whalen were not “true threats” because he didn’t actually intend to harm Whalen; instead, he contended, they were speech protected by the First Amendment. The trial court rejected that argument and he was convicted and sentenced to four-and-a-half years in prison; a Colorado appeals court upheld his conviction in 2021.

    Counterman came to the Supreme Court last summer, asking the justices to weigh in. In a 14-page opinion on Tuesday, the justices sent his case back to the state courts, holding that the state courts should have applied a different test to determine whether Counterman’s statements were “true threats.”

     

    ETA: or OO’s better summary at #87

  93. 93.

    schrodingers_cat

    @Anyway:I checked the BBC report you linked to earlier – Obama is such a measured speaker and as is the case for him, chooses his words carefully. I don’t get it.

    This is how they behave, they are bullies, they think they are projecting strength.

  96. 96.

    TriassicSands

    @Splitting Image:

    Add to that the fact that their (the SCOTUS) main and most profound power is getting to be the final arbiter of what the Constitution says, even though the Constitution doesn’t actually give them that power. If they can claim that right nationally, then why would it make sense to deny that power to state supreme courts.

    Roberts has terrible trouble with consistency. He bowed out of the gerrymandering question because, I believe, his choice was to either explicitly back grotesque partisan districts or reject them, which would have hurt the  corrupt electoral prospects of Republicans. By saying it wasn’t the Court’s business, he got the result he wanted without, supposedly, actually taking sides. But some people noticed.

  97. 97.

    RaflW

    For what it’s worth, I do think the recent scandalous revelations about the corrupt behavior of several justices has had an impact. CJ Roberts is, above all else, a political animal. He has sensed that the Court has been on a rocketship arcing towards complete societal disregard.

    The recent rulings re: racial gerrymanders in the deep south, and now this, I think are an effort to keep the wheels from totally coming off the hard-right bus. I despise Kavanaugh for his moronic “I like beer” fratboy defense of his gross behaviors. But he too seems to get that a court that pushes too far gets more than slapped back.

    All that said, N.C. needs a ton of help from national Dems (and from us Bj peeps). This coming gerymander will suck, but Youngkin should be vulnerable, and every legislative seat should be contested. Grrr.

  98. 98.

    davecb

    @Rusty:  what is entirely clear in the last few years has been the court gathering more and more power to itself… Forget co-equal branches of government, everything is subject to their wisdom

    The 13 colonies lived in a world of “parliamentary sovereignty”, with the British king occasionally getting his head chopped off for disagreeing too much.  The US tried three coequal branches, with each having at least one ability to beat up the others.  Canada and the UK have each created a supreme court, but are theoretically still following parliamentary sovereignty, so parliament can cut the judges heads off, too (;-))   I think they’re both converting on the approach of the revolutionary-era US.

  99. 99.

    Scout211

    @The Moar You Know:  I don’t think “our” people have done anything wrong.  But I think the possibility needs to be eliminated.

    They have all accepted travel and lodging for trips all over the world, over many years.  Open Secrets and other sites have listed them and who paid for them. It’s one thing for the organization or University to pay for these trips for speaking engagements but there is a history of many of them (yes the liberal side too, even RBG) getting the trips paid for by donations from private citizens.  Only a few of those donors have had cases before the court, but those are the cases that the right wing are using to complain that “both sides do it” and “what about” the liberal justices, in order to distract from Alito and Thomas.

    I agree, they all need to be above any kind of suspicion.  I hope that happens.

    Edited typos and for clarity

  102. 102.

    Matt McIrvin

    @RaflW: I still think it’s interesting that they even care about being respected. If they were to just hand down right-wing rulings and say “what are you gonna do about it?” as long as they retained the support of the right, there’s not really a lot we can actually do. An impeachment conviction is impossible, court expansion probably takes a filibuster-proof Senate majority, we don’t really do violent rebellion and certainly not if we have the White House. But they actually seem to care if the public thinks they’re hacks or bought and paid for.

  103. 103.

    RaflW

    I am all for having 13 Justices. One for each Circuit + the CJ. And the 13 Justices have their Circuit changed periodically.

    To term limits, I kind of want to say mandatory retirement/term limit at age 70 or after 15 years, whichever comes first, but I’d imagine there would be few presidents who would then want to appoint a 56 or 60 year old jurist, no matter how excellent they are. And I generally think age limits for desk jobs are not very necessary. So I end up just coming to a conclusion of some sort of reasonably long single term limit for every Justice. 15 or so.

    How to get to a rotating, periodic distribution – and stay on it – I am less clear on. The 9 justices/18 years idea seems great (but does that mean that if a Justice dies in year 16 then someone has to do a two year term and then is just SOL?). Its complicated! But lifetime appointment is not working well for the nation, IMO.

  109. 109.

    rikyrah

    philip lewis (@Phil_Lewis_) tweeted at 2:21 PM on Mon, Jun 26, 2023:
    Florida officials have declined to file murder charges against Susan Lorincz, who is accused of shooting and killing her neighbor Ajike Owens through a closed door, citing “insufficient evidence” t.co/M8Znpj1k8K
    (twitter.com/Phil_Lewis_/status/1673411235872919552?t=68kaYMTJnCewF1bI8Us-Lg&s=03)

    🇰🇭Petty Tendergrass 🇰🇭 (@2nPac) tweeted at 5:35 PM on Mon, Jun 26, 2023:
    they’re filing manslaughter 1 and assault 1 charges and she’s facing 30 years. I understand why they’re doing this.

  110. 110.

    lowtechcyclist

    By “treasonweasel” I do not mean that the “justices” in question are traitors to the United States in the form delineated in the criminal code. They have, however, betrayed their oaths: they are not merely failing to defend the Constitution, but are actively working to undermine it.  In my book that’s close enough to a colloquial definition of treason to merit the epithet, with apologies to weasels everywhere.

    Between ‘treason’ and ‘traitor’, ‘treason’ is apparently the more narrowly defined term, and the definition (for Americans, anyway) is right there in the Constitution (Article III, Section 3).

    Whether ‘traitor’ does or doesn’t have a definition in the criminal code, its generic meaning is ‘one who betrays’ without being specific to who or what is being betrayed.  So you can be a traitor, including being a traitor to our democracy, without having specifically committed treason.

  111. 111.

    Mai Naem mobileI

    This was such a stupid case. I cannot believe that 1/lawmakers believed they could do this and 2/it got to the USSC. Also while I know it’s unlikely because Dems usually don’t have state legislative majorities in red states, do these people not think that the Dems could pull this off in some oddball situation in the future?

  112. 112.

    Deputinize Eurasia from the Kuriles to St Petersburg

    @Scout211:

    RBG has been on my shit list for a very long time.  I’ve seen her as a shoddy intellect who was little more than a foil for the shoddiness on the other end.

  113. 113.

    Doc Sardonic

    @Scout211: Sounds like to me the standard is now make all the social media threats you want, then when you get arrested and go to trial claim it was all hyperbole, collect your acquittal and move on to civil suit for your troubles. Removes any consideration of the victim’s of whether the situation is threatening.

  114. 114.

    Calouste

    @trucmat: There are arbitrary age limits for young people a lot of whom might not be fully mature yet, so I don’t see the problem with arbitrary age limits for old people a lot of whom are in in cognitive and/or physical decline. Do you want to fly on an airplane piloted by an 80-year old?

  115. 115.

    TriassicSands

    @Omnes Omnibus: 3-4-2

    3 — Brown, Kagan, Sotomayor

    2 — Thomas, Alito — corrupt, hyper-partisan, extremely extremely extreme and annoying whiners; sorta turds of a feather.

    4 — Roberts, Kavanaugh, Gorsuch, Barrett

    Roberts: a hypocrite who is very partisan, but worried about his legacy and the Court’s legitimacy (but mostly his legacy); will always try to favor Republican electoral propects until they collide with legacy and legitimacy.

    Gorsuch: mostly just as extreme as Alito and Thomas, but he has some quirks, like Native Americans and maybe some LGBTQ+ issues, though you might be able to toss out the “T” — I’m not clear on that at all.

    Kavanaugh: he may be trying to repair some of the damage he did in his confirmation hearing; he’s basically more of a hyper-partisan than a radical like A, T, and G; not courageous and seems to be willing to hide behind Roberts’ skirt.

    Barrett: something of a puzzle at this point to me; she’s a religious zealot and very partisan but I can’t figure out her quirks or soft spots; maybe if Roberts tells her how to vote on non-religious issues, she “obeys,” cuz he’s a man and she’s just some surplus rib.

  116. 116.

    Deputinize Eurasia from the Kuriles to St Petersburg

    @trucmat:

    Olds (and I’m including myself in this list at 61) have less of a stake in the society we leave behind, and need to be aware that the world never has been as we remember it, that nostalgia for nostalgia’s stake sucks, and that as a generation, boomers and immediate post boomers have held our grasping claws around the necks of the youngs in government, employment, and society for far too fucking long.

    I want to see everyone over 70 encouraged to retire, period.  We’re not vital to the economy, the survival of the species, the economy or anything else.  We’re replaceable, and until we recognize these things, we are inhibiting progress and advancement.

  117. 117.

    Mai Naem mobileI

    @RaflW: it needs reforming for sure. I think 70 is kind of young. 72-75 is a better. I would rather have appointees be in their 50s where they’ve got a healthy amount of life experience but hopefully have a settled personal life without distractions.  The 13 judges makes sense. I also like the idea of maybe 3 senior judges being around for institutional memory.

  118. 118.

    Omnes Omnibus

    @Martin: The four are clearly right wing judges.  So there is a 7-3 right wing majority on the Court.  A selection of them are not doctrinaire on all issues all of the time.

  120. 120.

    Mai Naem mobileI

    @TriassicSands: this might sound crazy and I am kind of hesitant to even write this down for posterity but I think there’s a chance  Kavanaugh becomes the moderate voice on the court. This might sound really stupid but I base it on him having daughters who I believe are teens/college age.  It’s possible his daughters could turn out to be MTGs but unlikely.

  121. 121.

    Omnes Omnibus

    @TriassicSands: I wouldn’t argue with your general summation.   I would just reiterate that the four are not moderates by any means.  They are right wing.

  123. 123.

    JWR

    @cmorenc:

    When Bush jr was choosing a replacement for retiring Justice Sandra O’Connor, he chose the corruptible, arrogant Alito

    Back when everyone was speculating about who Junior would pick, a couple of journalists working for I think Knight-Ridder down in St. Louis(?), did a deep, very thoughtful dive into the candidates positions, and Alito came off as the most monstrous of the bunch.

    I emailed them a nice thank you note for their work, and one replied, thanking me in a way I thought indicated they probably weren’t getting much fan mail that week, so they were happy to hear from me. That felt good.

  125. 125.

    Roger Moore

    @Calouste:

    The reason lower age limits are remotely sensible is that young people tend to age at similar rates, do so quickly, and making them wait a little while will still leave them eligible when the wait is over.  It is not a huge burden to force someone to wait until they’re 25 to run for Congress, because at the end of the time they’ll still be able to run.

    In contrast, upper age limits are a lot more questionable because people age out at very different rates.  Some people are mentally done by the time they’re 60; other people are still sharp when they’re 90.  And once you force someone out, they’re done and never get another chance.  That makes upper age limits a lot more questionable.

    I think some kind of term limit makes more sense than an absolute age limit.  If justices have a limited term that can’t be renewed, the people who appoint them are still going to want to choose someone relatively young just to minimize the chance they die or become decrepit before the term is over.  The upper age limit really only makes sense if there’s no term limit, so you want to force them out so they don’t stay in the job even after they’re useless.

  126. 126.

    Sister Machine Gun of Quiet Harmony

    @Martin: Who the persuadables are on the Conservative side varies depending on the issue. Gorsuch came out really strong for indigenous rights recently. I was a bit surprised.

  128. 128.

    Deputinize Eurasia from the Kuriles to St Petersburg

    @Roger Moore:

    So often, so many people think they’re “indispensible” when they’re long past ideal retirement age, causing organizational ossification and keeping a boot on the head of talented younger managers as they cling to positions in the organizational table like ticks on a fat beagle.

    It isn’t that we’re getting rid of the talented old too quickly (I don’t know that we ever did), it is that the olds are keeping the talented younger folks from their best opportunities for experience and advancement and inhibiting organizational improvement that should be occurring.

  129. 129.

    aretino

    I am dubious that principle played any part for Roberts, Coney Barrett, and Kavanaugh.
    they are partisans through and through. They certainly realized there was no remaining upside for the GOP from ISL in NC. On the other hand, they might have imagined a downside in, say, New York.

  130. 130.

    Sister Machine Gun of Quiet Harmony

    @TriassicSands:

    Barrett: something of a puzzle at this point to me; she’s a religious zealot and very partisan but I can’t figure out her quirks or soft spots;

    I’m not sure either, but it is possible her quirk is what she said it is: federalism. As a religious fanatic, she has to recognize the world is changing and that her only hope is states being able to go their own way on controversial issues. Trying to force a national gay marraige ban will lose the way things are now. Protecting states that want to ban marraige is the best way to preserve islands of Christian fundamentalist policy.

  131. 131.

    boatboy_srq

    I am beginning to think that Barrett may not be quite the Reichwing trainwreck we had feared. Gorsuch, though, is immeasurably worse even than anticipated.

  132. 132.

    satby

    @Deputinize Eurasia from the Kuriles to St Petersburg: So often, so many people think they’re “indispensible” when they’re long past ideal retirement age, causing organizational ossification..

    Agree and have seen it too often IRL. Add in that in many cases those older people have a secure income in (at minimum) SS while younger people don’t and the lost opportunity cost goes a bit higher. As Americans we tend to work too many hours a year, take less vacation time, and work longer into old age because we have such a limited safety net and an ethos that says “you are what you do”. And way too many people hit retirement age and don’t retire because they have no idea what to occupy their time with.

  133. 133.

    brantl

    This is just too much of a step at once, they intend to boil the frog incrementally, not all at once , and noticeably. Remember Citizens United?

  135. 135.

    Burnspbesq

    @New Deal democrat:

    You can always find Chicken Littles in the legal commentariat who won’t take yes for an answer. The scholars whose judgment I respect most aren’t reacting like that, so I’m standing by my view that the language you originally quoted is a nothingburger.

    The sky may fall someday, but it ain’t happening today.

  136. 136.

    Chris T.

    @Redshift:

    (Of course, the same theory allows you to rule in the exact opposite way by citing some different text, which ought to make it clear to anyone that the whole legal “school of thought” is bullshit.)

    But this requires finding some text! That’s hard work! This is why the proper theory is “inspection of kerning”: there’s always some white space between some letter(s) that will justify your desired conclusion!

  137. 137.

    Chris T.

    @Rusty:

    The most controversial decisions have all been jammed into the Thursday (and maybe the Friday) right before a major holiday and the summer.

    The   reason   excuse for this is, of course, that the caseload is too big to address any other way. Which itself is justification for expanding the court, but they never put it that way themselves…

  138. 138.

    Miss Bianca

    @Burnspbesq:

    Interestingly, there is no mention at all of Moore v. Harper on the front page at LGM. Guess it takes several hours to properly smoke and barbecue a murder of crows.

    Ha ha! It’s been a long time since I checked in over there – I pretty much only go when I see that Cheryl Rofer has an article up.

  139. 139.

    TriassicSands

    @Omnes Omnibus:

    I wouldn’t stop at righ-wing. Alito, Thomas, Gorsuch, and Barrett qualify in one way or another as radical.  Thomas is simply crazy, a determination that Scalia made.

    Roberts defining quality, I believe, is hypocrisy. He’s is extremely partisan, but adjusts his votes accordingly.

    Kavanaugh. When Roberts votes with the left, I feel like I know why, but with Kavanaugh, I’m really not sure. He may provide more “surprise” votes than any of the other five.

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