“Five votes can do anything around here.”

Whenever one of William Brennan’s law clerks would come to his chambers to vent about a Supreme Court decision they found unconscionable, the justice would simply remind them how arithmetic works. As Nan Hentoff recounted in a New Yorker profile of Brennan, the staunch liberal who stepped down in 1990 at age 84: “Brennan holds up his hand, wriggles his five fingers, and says, ‘Five votes. Five votes can do anything around here.’”

Neil Gorsuch and Brett Kavanaugh would have missed the last live rendition of this “Rule of Five” speech; both of them clerked for Justice Anthony Kennedy from 1991 to 1992, a year after Brennan’s retirement. But the Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization, which overrules Roe v. Wade and ends five decades of constitutional protections for the right to abortion care, makes clear that they absorbed this lesson anyway.

Justice Samuel Alito, who wrote the opinion, spills plenty of ink to explain the intellectual underpinnings of his decision. The dissent strains just as diligently to explain why it is wrong. All of it is jurisprudential dressing on an easy counting exercise: A 6-3 conservative supermajority has more than enough votes to do whatever it wants. Thanks to a tangle of “trigger laws,” pre-Roe abortion bans, and pending legislation to which Dobbs gives the green light, abortion will be illegal in more than a dozen states by Labor Day. In a handful of states with especially ambitious Republican leadership, abortion will be illegal by the time you read this sentence.

For years, Joseph Kennedy was a junior varsity football coach at a public high school in Bremerton, Washington, until he insisted on his right to pray with his players at midfield at the end of games. When the school district told him to stop the public version but offered a private space to accommodate him, he refused. More than that, he sued, claiming the district was discriminating against him for his faith. Today, the Court decided in his favor in Kennedy v. Bremerton School District, saying that the Free Speech and Free Exercise Clauses of the First Amendment protect his right to pray without fear of official reprisal.

Conservative legal activists have long engaged in plaintiff shopping—finding a sympathetic person whose claim can push forward a desired change in law. The Pacific Legal Foundation, for example, is at the Supreme Court representing the Sacketts, an Idaho couple whose fight with the government over their homebuilding plans has been recast as an effort to weaken the Environmental Protection Agency’s regulatory power Kennedy, too, has lawyers for the First Liberty Institute, a well-funded, religious-right-oriented organization, in his corner, and former Solicitor General Paul Clement pressing his case at oral argument.

Now, with six sympathetic justices on the Court, the conservative movement has moved beyond plaintiff shopping to fact invention. The opinion in Kennedy, written by Justice Neil Gorsuch, signals to these advocates that they can fudge timelines and fabricate narratives going forward, confident that this Court will uncritically accept them as true. The story before the justices didn’t support their latest assault on the separation between church and state, so they decided to tell their own story instead.

Radley Balko
@radleybalko

There’s a mile-wide gap between how the court’s conservatives describe what the coach in Bremerton was doing, and what he was actually doing.

https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf









https://twitter.com/radleybalko/status/1541431562671194113

The Supreme Court wrapped its term and headed off on summer vacation this week with a pair of opinions in West Virginia v. Environmental Protection Agency and Biden v. Texas. Together, these cases establish that executive agencies CANNOT do anything meaningful about the climate crisis (or anything else the Republican justices don’t care about), but also, that Donald Trump is NOT an emperor-god-king whose trademark brand of zombified xenophobia will dictate U.S. immigration policy forevermore. Incredibly, for anyone to the left of, say, Mitt Romney, the Court’s last day of school falls somewhere on the spectrum between “not bad” and “actually kind of encouraging, if you think about it, I guess.”

West Virginia is a case about the scope of the EPA’s authority to regulate greenhouse gas emissions, which, as you may recall, are in the process of choking the planet to death. Using its authority under the Clean Air Act to set emissions limits using the “best system of emission reduction” available, the EPA under President Barack Obama rolled out a rule known as the Clean Power Plan in 2015. This rule, among other things, required fossil fuels-burning power plants to do their part to reduce emissions by cutting production, investing in renewable energy, or offsetting their pollution via cap-and-trade.

Alas, the Clean Power Plan never took effect: The Supreme Court stayed the rule in 2016, and the Trump administration replaced it with a (much weaker, of course) rule of its own. This rule also never took effect: In January 2021, a federal appeals court decided that Trump’s rule and his rescission of the Clean Power Plan were unlawful, too. When President Joe Biden took office, he quite sensibly concluded that he wanted no part of this mess. His administration is working on its own emissions-related rule, hopeful that it can find some kind of Goldilocks approach to climate regulation that judges won’t immediately stuff in the trash.

Marc E. Elias
@marceelias
🚨SCOTUS will hear 2 critical voting/election cases in Fall.

Merrill v Milligan--GOP wants to undermine Sec 2 of VRA.

Moore v Harper--GOP wants to strip state courts of power to limit legislatures in election cases.

Democracy is literally on the docket.

https://www.democracydocket.com/

Jo 🌻
@JoJoFromJerz

When Hillary lost she went for a walk in the woods.
When trump lost he tried to choke out his secret service agent because he wouldn’t drive him to his coup party, but do go on about how women are too emotional to lead.

President Joe Biden struck a deal with Senate Minority Leader Mitch McConnell to nominate Chad Meredith, a Republican anti-abortion advocate, to a federal judgeship on the Eastern District of Kentucky, Slate has confirmed. Under the arrangement, Meredith would take the seat currently occupied by Judge Karen Kaye Caldwell, a George W. Bush nominee. Caldwell submitted her move to senior status on June 22, which, once complete, will allow Meredith to take the seat. A lawyer with connections to the Kentucky governor’s office who is familiar with the agreement told Slate that Caldwell conditioned her move upon the confirmation a successor—specifically, the conservative Meredith. In exchange, McConnell will allow Biden to nominate and confirm two U.S. Attorneys to Kentucky.

The Supreme Court ended its term Thursday having produced a string of decisions that with casual brutality threatened Americans’ privacy, health and well-being. Democrats, in the face of this assault on the rights and privileges of their constituents, haven’t responded with the necessary anger or urgency.

The framers intended Congress to be the most powerful of the three branches of government, consisting of representatives of the people and the states. The executive was to be feared and constrained; the judiciary was, in comparison, an afterthought mostly left to future Congresses to craft. In drafting the Federalist Papers, Alexander Hamilton considered the courts the “least dangerous to the political rights of the Constitution.”

What we’ve seen this term is a court determined to prove Hamilton wrong. While Congress has the ability to curtail the authority that the unbalanced, undemocratic courts have accumulated, there seems to be almost no drive among Democrats to even challenge the third branch.

Let me clarify that I do not propose invalidating the principle of judicial review, whereby the courts have the authority to block and overturn legislative and executive actions. The Supreme Court’s function as arbiter of the Constitution is an important and needed one, given the possible abuses from the other branches.

It’s a power that is more easily used to strike down than to build. As Vox’s Ian Milhiser has noted, while the court can’t establish an agency to protect the rights of citizens, it can absolutely erase one out of existence.

But too often the role of Congress in limiting the power of the courts is reduced to the Senate’s “advise and consent” function in confirming judges and justices. That should be more properly seen as a check on the executive’s power to name members to the court rather than a check on the judiciary. As for checking the judiciary itself, the Constitution grants Congress wide leeway to address how the federal courts function and to respond to Supreme Court rulings.

Republican lawmakers are proposing what they call "pro-family" platforms following the Supreme Court's scrapping of the constitutional protections around abortion to try to help people who, in some states, could now be forced to carry a pregnancy to term.

Florida Sen. Marco Rubio put out a sprawling framework last week, while Sens. Steve Daines of Montana, Mitt Romney of Utah and Richard Burr of North Carolina put out their own proposal pushing for a monthly cash stipend for working families pulled from other tax benefits.

Specific states have also touched on new or forthcoming tools for new parents, such as a website to connect moms with resources that South Dakota's Republican Gov. Kristi Noem discussed on ABC's "This Week."

Yet implementing these small handful of new plans, which would institute policies that would be novel in some states, could prove easier said than done, critics and experts say -- raising concerns over the resources that will be available for new parents in the 12 states and counting without access to abortion.

"This ruling and the result that people are going to be forced to have unplanned pregnancies and care for children that they weren't planning for … means that people are going to be suffering economic consequences," Amy Matsui, the director of income security and senior counsel at the National Women's Law Center, told ABC News. "These plans nod to that fact, but don't actually do anything to address it in a meaningful way."

Among the top concern cited is a historic lack of investment in social safety net programs by states that are restricting or outlawing abortion.