US Supreme Court Discussions

[N.E. Brigand]

Here's a useful article on the Moore case by Jennifer Taub. She thinks the Supreme Court is unlikely to give an outright win to the Moores, although they may send the case back to the Ninth Circuit. (She also wonders whether the Republican Congress that passed this law did so with the hope that it might be overturned.)

[N.E. Brigand]

As you may know, political scientist Claudine Gay, the president of Harvard, came under a lot of pressure when she and two other Ivy League college presidents -- including Liz Magill of Pennsylvania, who has since resigned -- weren't very nimble in Congressional testimony when asked about campus policies regarding antisemitism. Gay has rejected calls for her to resign based on her testimony, and Harvard's board has backed her up, but all the media attention led to Gay's past academic writings being closely scrutinized and the discovery of as many as 27 instances of improper citation if not outright plagiarism in her work. This had led even some previous supporters of Gay to call for her resignation, because how else can Harvard uphold these standards for students and for other professors?...

Claudine Gay has resigned from her position as the president of Harvard University.

I either didn't know or forgot what was revealed when Neil Gorsuch was nominated to the Supreme Court in the spring of 2017: he very obviously engaged in plagiarism in part of his 2006 book, The Future of Assisted Suicide and Euthanasia:



While not as bad as the plagiarism that led Claudine Gay to step down as Harvard's president, it's still plagiarism. (FYI, Gorsuch graduated from Harvard, but apparently this is an Oxford problem too.) But as Wikipedia notes, Gorsuch's defenders (like Gay's defenders now) said that it wasn't:

John Finnis, who supervised Gorsuch's dissertation at Oxford, said, "The allegation is entirely without foundation. The book is meticulous in its citation of primary sources. The allegation that the book is guilty of plagiarism because it does not cite secondary sources which draw on those same primary sources is, frankly, absurd." Kuzma said, "I have reviewed both passages and do not see an issue here, even though the language is similar. These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the 'Baby/Infant Doe' case that occurred in 1982."

Finnis was wrong, as are Gorsuch's defenders who even now (as at that link) claim that Gorsuch wasn't plagiarizing because he used footnotes. That's not how footnotes work! Footnotes tell readers where you got the information. Quotation marks are required if you use the actual language; if you don't do that, you're telling readers that the words are your own. (And when you do it by just changing a word here and there, it looks pretty deliberate. This is what I caught the author of the longest article in the J.R.R. Tolkien Encyclopedia doing in 2007.) This is basic stuff, and I'm shocked at people claiming otherwise.

Edited to add an example of Claudine Gay's plagiarism for reference:

[N.E. Brigand]

Here's an interesting discussion at Slate between Dahlia Lithwick and Mark Joseph Stern about the two cases the Supreme Court heard last week that are widely understood to be conservative efforts to overturn "Chevron deference," a doctrine that's been in place since a 6-(0) SCOTUS ruling in 1984 (I put the zero in parentheses because there were no dissents: the other three justices were all recused) by which federal agencies' interpretation of laws that are ambiguous are presumed to be correct so long as they are "based on a permissible construction of the statute." In short, the new cases are meant to undermine 40 years of jurisprudence and just make an absolute mess of government regulations. And many observers believe the conservative view will prevail.

While I heard about these cases last week and broadly understood their implications, I hadn't realized that the cases were arguably moot. And honestly, it sounds like the Trump administration set it up deliberately to cause this result:

These cases are about a federal law that requires observers to join herring fishing vessels to ensure that they’re complying with overfishing rules. In 2020, the Trump administration directed the fishermen and their companies to help cover the costs of bringing monitors on their boats. The fishermen sued and argued that the statute doesn’t explicitly authorize the government to make industry cover compliance costs. They said: We want our money back. We don’t want to have to keep paying for these monitors.

And the federal government agreed to do all of that! The federal government shut down this cost-sharing program. The federal government repaid all the money that the fishermen paid observers. It said: We are making you whole again. We are giving you all of your cash back.

I really appreciate Stern saying "what the court did here was unlawful," because, as you know, it is my belief that the Supreme Court can and does break the law.

[N.E. Brigand]

But not everything at the Supreme Court is awful. They just granted the "Biden administration request to vacate Fifth Circuit injunction in the Texas border razor-wire case; this clears the way for federal officials to remove physical impediments to the border." It should have been a 9-0 decision. It was 5-4: the majority includes all three Democratic appointees (Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson) joined by Bush-appointed chief justice John Roberts and Trump-appointed justice Amy Coney Barrett.

[Voronwë the Faithful]

I was surprised it wasn't 6-3. I expected Kavanaugh to also vote to vacate the injunction. But I'll take it.

[N.E. Brigand]

Here's an interesting discussion at Slate between Dahlia Lithwick and Mark Joseph Stern about the two cases the Supreme Court heard last week that are widely understood to be conservative efforts to overturn "Chevron deference," a doctrine that's been in place since a 6-(0) SCOTUS ruling in 1984 (I put the zero in parentheses because there were no dissents: the other three justices were all recused*) by which federal agencies' interpretation of laws that are ambiguous are presumed to be correct so long as they are "based on a permissible construction of the statute." In short, the new cases are meant to undermine 40 years of jurisprudence and just make an absolute mess of government regulations. And many observers believe the conservative view will prevail.

*A little more detail on that: only one justice, Sandra Day O'Connor, recused for conflict reasons. The other two who didn't offer an opinion, William Rehnquist and Thurgood Marshall, recused because they were ill. (At the time of oral arguments? Throughout the process? I'm not sure.)

[N.E. Brigand]

Decades ago, our eighth-grade American history teacher had us write a paper explaining who we thought was the best 20th Century U.S. president and why. I chose Woodrow Wilson because I liked what he tried to do with the League of Nations and other post-World War I efforts, even if he failed to achieve them, and because of his support for women's suffrage. (The importance of the Federal Reserve, which Wilson signed into law and which was affected us so much over the past several years, made no impression on me.) But I knew nothing about Wilson's now notorious racism,* which wasn't covered in our history books. Even so, apparently mine wasn't as wild a choice as it might now seem: as recently as 1962, "surveys of American historians rated Wilson fourth among American presidents, lagging behind only Abraham Lincoln, George Washington, and Franklin D. Roosevelt." (My second choice in 1985 was Lyndon Johnson, because of civil rights legislation and the Great Society, but I felt those achievements were offset by the debacle of Vietnam. For the life of me, I cannot recall why I didn't pick FDR.)

*And Wilson was definitely racist, even by the standards of his time. Although his infamous quote praising The Birth of a Nation as "history written with lightning" appears to have been fabricated, he did screen the film at the Whtie House (although he later distanced himself from it), and the film actually quotes volume five of Wilson's History of the American People, and while reading the relevant pages of that text suggests it's a little more nuanced than it seems, that's not saying much.

Tomorrow marks 100 years since Wilson's death -- I had not realized before that Wilson, who was seriously ill for the last year of his presidency, outlived his successor, Warren Harding, who died in office in 1923. To mark the occasion, David Frum in The Atlantic tries to "Uncancel Woodrow Wilson."

Frum's is a long article, and I haven't read it all yet, but I'm noting here because in a Twitter postscript, Frum observes how some on the right try to use Wilson's sins to justify, well:

An unexpectedly eminent victim of Wilson quote-manipulation is Supreme Court Justice Neil Gorsuch. This instance suggests why extreme Wilson-denigration has become dangerous to the present-day, as well as to our understanding of history.

in the 2022 case West Virginia v. Environmental Protection Agency, the U.S. Supreme Court reduced the EPA's power to regulate climate-changing emissions. Neil Gorsuch wrote a concurrence. In Footnote 1, Gorsuch unleashed a barrage of abuse at Woodrow Wilson:

For example, Woodrow Wilson famously argued that "popular sovereignty" "embarrasse[d]" the Nation because it made it harder to achieve "executive expertness." The Study of Administration, 2 Pol.Sci. Q. 197, 207 (1887) (Administration). In Wilson's eyes, the mass of the people were "selfish, ignorant, timid, stubborn, or foolish." Id., at 208. He expressed even greater disdain for particular groups, defending "[t]the white men of the South" for "rid[ding] themselves, by fair means or foul, of the intolerable burden of governments sustained by the votes of ignorant [African-Americans]. 9 W.Wilson, History of the American People 58 (1918). He likewise denounced immigrants "from the south of Italy and men of the meaner sort out of Hungary and Poland," who possessed "neither skill nor energy nor any initiative of quick intelligence." 5 id., at 212. To Wilson, our Republic "tr[ied] to do too much by vote." Administration 214.

Gorsuch's footnote reveals a big motive for the anti-Wilson project. He wants to argue:
1) Wilson was racist and bad.
2) Wilson urged administrative agencies to regulate business in the public interest.
3) Therefore business regulation is racist and bad.

If you look carefully, however, you'll notice that Gorsuch's footnote is assembled of fragments, phrases, and incomplete sentences. Read in context, they often have quite different meanings than Gorsuch or his clerk wanted them to carry in the footnote.

For example, Gorsuch quotes Wilson as denigrating ordinary voters as "selfish, ignorant, timid, stubborn, or foolish." Here's the whole of the passage from which those words were taken. Read in context, they sound quite different, don't they?

In government, as in virtue, the hardest of hard things is to make progress. Formerly the reason for this was that the single person who was sovereign was generally either selfish, ignorant, timid, or a fool,--albeit there was now and again one who was wise. Nowadays the reason is that the many, the people, who are sovereign have no single ear which one can approach, and are selfish, ignorant, timid, stubborn, or foolish with the selfishness, the ignorances, the stubbornnesses, the timidities, or the follies of several thousand persons,--albeit there are hundreds who are wise. Once the advantage of the reformer was that the sovereign's mind had a definite locality, that it was contained in one man's head, and that consequently it could be gotten at: though it was his disadvantage that mind learned only reluctantly or in small quantities, or was under the influence of some one who let it learn only the wrong things. Now, on the contrary, the reformer is bewildered by the fact that the sovereign's mind has no definite locality, but is contained in a voting majority of several million heads; and embarrassed by the fact that the mind of this sovereign also is under the influence of favorites, who are none the less favorites in a good old-fashioned sense of the word because they are not persons but preconceived opinions; i.e., prejudices which are not to be reasoned with because they are not the children of reason.

My point is not to defend Wilson absolutely. There's a lot to criticize! Wilson however has suffered the historical account of a Twitter-mobbing. That mobbing not only stunts our understanding of history. It perverts present-day politics.

Now, you'll notice that Frum does not try to rehabilitate the other Wilson passage that Gorsuch cites, which would be a much more difficult task. But I think Frum has a point. Do we see the conservative justices denigrating the Federalist Papers because James Madison owned slaves? (Unlike Madison and eleven other preisdents, Wilson, despite being just one of two presidents to have lived in the Confederacy, did not.)

[Voronwë the Faithful]

No news on the Trump immunity appeal stay request, but there was some surprising (and positive) news in today's order list.

[N.E. Brigand]

A FOIA request to the U.S. Marshals, who typically provide security to Supreme Court justices when they travel outside of D.C., has revealed more than 200 previously unreported trips by several different justices from 2018 to 2022.

It also appears that the Marshals stopped completing the relevant forms as of May 2022, when the Dobbs decision was leaked to the public.

And the Marshals didn't provide security on these trips for Clarence Thomas or John Roberts. Apparently Thomas and Roberts have been traveling using other security.

- - - - - - - - - - - - - - -
Meanwhile, writing in The Nation, William Taylor argues that Justice Thomas should be prosecuted for violating disclosure laws, but I think that Thomas would probably be able to convince some jurors either that he was just ignorant of the laws and got bad advice or that the law is only meant for unimportant people.

[Voronwë the Faithful]

Here's a configuration you don't see all the time:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and THOMAS, ALITO, KAVANAUGH, and BARRETT, JJ., joined. GORSUCH, J.,
filed a dissenting opinion, in which SOTOMAYOR and JACKSON, JJ., joined.

This is a case in which a defendant pleaded guilty to distributing at least 50 grams of methamphetamine, and sought to take advantage of a “safety valve” provision of federal sentencing law, which allows a sentencing court to disregard the 15 year statutory minimum if the defendant meets certain criteria. Kagan, writing for the majority that otherwise included 5 of the "conservative" justices, concluded that for the "safety valve" to apply, the defendant needed to meet each of the provision’s three conditions. Gorsuch, writing for himself and the other two "liberal" justices, concluded that the defendant should only have to meet one of the 3 conditions.

I tend to agree with Gorsuch, Sotomayor and Jackson, but reading the opinions, I can certainly see both arguments. It is particularly interesting to see how the usual lineups don't always apply.

Here are the opinions, if anyone is interested: https://www.supremecourt.gov/opinions/2 ... 0_3e04.pdf

[Voronwë the Faithful]

A very important essay by Ryan Goodman and Justin Hendrix at JustSecurity about the case Murtha v. Missouri that the court is going to hear arguments on tomorrow.

A Conspiracy Theory Goes to the Supreme Court: How Did Murthy v Missouri Get This Far?

To be sure, there are important questions about the relationship between social media companies and the U.S. government, particularly when it comes to any governmental involvement in content moderation. Those questions should be addressed on a foundation of facts. The Supreme Court is instead about to address them on the basis of a concocted conspiracy theory.

On Monday, the Supreme Court will hear oral argument in Murthy v Missouri, a case that requires the justices to consider whether the government coerced or “significantly encouraged” social media executives to remove disfavored speech in violation of the First Amendment.

While the legal questions presented are legitimate, a substantial amount of the underlying evidence now before the Court in this case is problematic or factually incorrect. Snippets of various communications between the government, social media executives, and other parties appear to be stitched together – neigh, manufactured – more to support a culture war conspiracy theory than to create a credible factual record. How such claims made their way to the highest court is as worthy of consideration as the underlying legal questions on which the court must now rule.

Murthy v Missouri may become a landmark Supreme Court case in which the justices are led astray on the basis of a disinformation-laden record. The early signs are that some of the justices are already swept up in it.

[N.E. Brigand]

A very important essay by Ryan Goodman and Justin Hendrix at JustSecurity about the case Murtha v. Missouri that the court is going to hear arguments on tomorrow.

A Conspiracy Theory Goes to the Supreme Court: How Did Murthy v Missouri Get This Far?

If the other side is arguing the sky is red, it's your job to frankly call out the lie. Should the Solicitor General come out swinging and flatly tell the Court that Judge Doughty is a liar who should be sanctioned for manipulating evidence? He falsely quoted the White House Press Secretary as saying things she never did. He misleadingly edited an email sent by a CDC doctor without even noting the edit with an ellipsis. And there appear to be at least another half-dozen such egregious lies. This is far worse than what led FBI lawyer Kevin Clinesmith to plead guilty to making a false statement by editing one document (without actually changing its meaning). Why should judges get to make false statements in legal documents? Lock Doughty up?*

In fact, to me it appears that Doughty may be an (unwitting?) agent of the Russian government. The Solicitor General probably can't say that, but he should hammer hard on the fact that Doughty wanted to protect Russian disinformation which he claimed were the social media posts of Americans. Sounds a bit treasonous?*

The Solicitor General should also make the points that Sen. Warner does: U.S. national security is being put in danger by this case. (And what if the Court should rule for the plaintiffs? Could President Biden fulfill his oath to defend the constitution while simultaneously allowing foreign actors to manipulate the election? I don't think so. Let's hope he doesn't have to make that choice.)

*Edited to stress that these are rhetorical flourishes and that Judge Doughty is of course due a legal presumption of innocence until proven otherwise in court.

[Voronwë the Faithful]

Should the Solicitor General come out swinging and flatly tell the Court that Judge Doughty is a liar who should be sanctioned for manipulating evidence?

No, because that won't make any real difference to the resolution of the case. She will instead focus on how the Fifth Circuit's analysis deviated from Supreme Court precedent, as she outlines in her brief.

https://www.supremecourt.gov/DocketPDF/ ... Murthy.pdf

[N.E. Brigand]

Should the Solicitor General come out swinging and flatly tell the Court that Judge Doughty is a liar who should be sanctioned for manipulating evidence?

No, because that won't make any real difference to the resolution of the case. She will instead focus on how the Fifth Circuit's analysis deviated from Supreme Court precedent, as she outlines in her brief.

https://www.supremecourt.gov/DocketPDF/ ... Murthy.pdf

Right, Doughty will get away with this malfeasance. But I do hope that there is some acknowledgement by the Court that the judge was wrong on the facts. And Supreme Court justices shouldn't be allowed to lie in legal documents either, but as we saw in the football coach prayer case, they sometimes do so.

[Voronwë the Faithful]

I knew you would mention the Kennedy v. Bremerton School District case (rightly).

[N.E. Brigand]

This is fun, not:



SB4 is Texas's "papers please" law.

[N.E. Brigand]

Sen. Richard Blumenthal, Democrat of Connecticut, has called for Justice Sonia Sotomayor to retire, so that President Biden can replace her with a younger, healthier justice now and we don't end up in another situation where Donald Trump gets to replace a justice who had been appointed by a Democrat. Sotomayor will turn 70 in June, and we learned from Court travel expense documents a few months ago that when Sotomayor travels, she is accompanied by a medic.

[N.E. Brigand]

Tomorrow the Supreme Court will hear arguments in City of Grants Pass, Oregon v. Johnson, a case in which homelessness has been criminalized.

The conservative Washington Post columnist George Will wrote about this case recently that "Most of those who are homeless are unemployable casualties of mental illness (schizophrenias, depression, bipolar disorder, etc.) and drug abuse." This is an argument that I have seen since the 1980s. Certainly here in Cleveland, most of the apparently homeless people I encounter on the street do seem to be suffering from these ailments. They should be provided treatment and shelter. (The answer to this problem as to many other problems is probably just: spend a lot more money.) But I'm sure I don't personally encounter anything like a representative sample. And I know that a sheer lack of housing is a huge issue in many parts of the country and certainly contributes to the homeless problem. (In other words, some of the big spending I encourage should go to building more houses and apartments.) But I take issue with this argument by Washington Post writer against Will's claim:

Claiming "most" unsheltered people are mentally ill or have drug issues (no data cited) has to be unpacked. US official homeless pop is 650k. Casually claiming anything about more than 1/2 million people falls apart logically and rhetorically. Really? "Most"? If anyone made a broad claim about any other group like that, we wouldn't take it seriously.

I don't have a Post subscription and haven't read Will's column. Maybe he really did pull his characterization out of thin air. If he didn't offer evidence to support it, it's certainly fair to ask him to do so. And Swenson offers nothing firmer than his own observations to push back on Will's claim. But my main point is that there's actually nothing wrong with making casual claims about large groups of people. Most American adults are more than four feet tall. Most Americans do not live in Alaska. Most Americans can speak English. Most Americans are white. That last one will change in the next few decades, at which time one could casually say that most Americans aren't white. And if Will can point to his source and that source seems accurate, then there's nothing wrong with him making the claim he did. A quick internet search reveals widely differing results, with some claiming that as many as 77% of the homeless have these conditions. But this government page says that "the majority of people experiencing homelessness have neither a severe mental health nor substance use issue." If that's correct, then Will is wrong, and it would be perfectly fine to casually say of the 650,000 homeless Americans that most of them are not unemployable casualties of mental illness (schizophrenias, depression, bipolar disorder, etc.) and drug abuse.

[RoseMorninStar]

I'll post George Will's column.

The phrase “often in error but never in doubt” could have been coined for the U.S. Court of Appeals for the 9th Circuit. The appellate court most frequently reversed by the Supreme Court in recent years should brace itself for another reprimand during Monday’s oral arguments before that court.

The town of Grants Pass, Ore., and many other cities in the nine Western states within the 9th Circuit’s jurisdiction are seeking relief from one of its decisions. The consequences of it include (Grants Pass said in asking the Supreme Court to hear the case) “the reemergence of medieval diseases” such as typhus and tuberculosis.

In 2020, a court in nearby Medford struck down a Grants Pass ordinance imposing fines, as well as a possible 30-day sentence for repeat offenders, on homeless people camping on public property, when there are sufficient shelter beds available in the city. The court said this violated the Constitution’s Eighth Amendment prohibition of cruel and unusual punishments, and excessive fines. In 2022, a three-judge panel of the 9th Circuit affirmed this decision, having ruled similarly in a previous case, requiring sufficient “secular shelter space.” (Otherwise, the First Amendment guarantee against “establishment of religion” would be violated. Really.) Grants Pass’s only shelter has a religious affiliation.

The full 9th Circuit refused to reconsider this. Dissenting from this refusal, one judge (joined by 14 others) said that the majority had created a constitutional right “to camp or to sleep on sidewalks and in parks, playgrounds, and other public places in defiance of traditional health, safety, and welfare laws.”

Enforcement of camping ordinances is impermissible if even one homeless person is without a bed. This paralyzes cities’ attempts to cope with the disease, disorder and crime associated with homeless encampments. And many homeless people — sometimes a majority — reject shelters, fearing violence and inhibitions on drug use.

Progressives say the 9th Circuit’s decision regarding “our unhoused neighbors” simply prevents criminalizing the “underlying status” of being homeless. This, they say, results from racism, low wages and insufficient affordable housing. Disregard the verbal tic about racism. Rhetoric about “living wages” and “affordable” this or that ignores a fact: Most of those who are homeless are unemployable casualties of mental illness (schizophrenias, depression, bipolar disorder, etc.) and drug abuse.

Furthermore, the court-concocted constitutional right to unrestricted camping misconstrues the Eighth Amendment, which concerns modes of punishment (e.g., burning at the stake, branding, flogging), not activities that might be punished. The 9th Circuit thinks the Eighth Amendment prohibits punishing conduct (e.g., drug abuse) that is supposedly involuntary because it is unavoidable: It is inseparable from a status (homelessness).

But by erasing the distinction between an activity and a status, such reasoning erases individual agency, a foundational concept of law. And it potentially places sweeping limits on what conduct can be criminalized. The 9th Circuit transforms the Eighth Amendment from a restriction on kinds of punishment into a doctrine that radically dilutes the idea of criminal responsibility.

An amicus brief from the Pacific Research Institute notes that, in all eras, vagrants have experienced pressures from circumstances. (As have most criminals.) So, is any punishment disproportional for behavior an individual cannot control? What about a “compulsive” desire for child pornography? Beware, the PRI brief says, of “simplistic dichotomies between voluntary and involuntary conduct or avoidable and unavoidable choices.”

The 9th Circuit has, in effect, created a subsidy for being homeless, which often is the outcome of multiple choices. And if homeless people lack, as some of their advocates seem to say, volition in controlling their behavior, they lack the capacity to care for themselves, and could be involuntarily committed to institutions.

Homelessness involves political choices that courts are ill-suited to make. And it is a subject concerning which public health institutions can further ruin the reputations they damaged during the pandemic.

The meddlesome Centers for Disease Control and Prevention, which recommends social distancing in homeless shelters, warns that clearing encampments of the homeless will “break connections with service providers” and should not occur unless “individual housing units” are provided. The CDC is the 9th Circuit of public health institutions. But, then, the 9th Circuit seems to fancy itself a public health policymaker, sweepingly removing choices from local governments.

Since 2007, the Supreme Court has reversed 80 percent of the rulings it has considered from the 9th Circuit. In the term that began in October 2020, the court reversed 94 percent; in the October 2021 term, 100 percent. Grants Pass should have an agreeable Monday in court.

George Will may scoff at 'secular shelter space' but a counsel-person (someone who grew up next to us) in our state recently stated that homelessness should be addressed from it's root cause, which is original sin and sinfulness.