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In It to Win It

In It to Win It's Journal
In It to Win It's Journal
May 20, 2024

The "Originalist" Justices Keep Getting History Spectacularly Wrong

Balls and Strikes

Last week, despite the fervent wishes of Justices Samuel Alito and Neil Gorsuch, the country avoided a federal judiciary-induced economic crisis. On Thursday, the Supreme Court ruled 7-2 that the funding structure of the Consumer Financial Protection Bureau is indeed constitutional, allowing the Bureau to go about its business of protecting consumers from the nation’s sketchiest and most predatory financial institutions.

The CFPB is a product of the Dodd-Frank Act, which Congress passed after the Great Recession to protect the public from the wheeling and dealing of unscrupulous Wall Street-types. Conservative activists who benefit from the aforementioned unscrupulousness have been trying to roll back those laws ever since. The case the Court decided on Thursday, CFPB v. Community Financial Services of America, offered the Court a back road it could use to get Republicans where they wanted to go.

CFSA, a trade association of payday lenders, did more than challenge a single CFPB rule. It asked the Court to hold that the way Congress funds agencies like the CFPB is illegal, and that the CFPB’s regulations—all its regulations—are illegal too. Under Dodd-Frank, the Bureau can request a budget of up to 12 percent of the Federal Reserve System’s total operating expenses as reported in fiscal year 2009, adjusted for inflation. CFSA argued that this scheme violates the Constitution’s Appropriations Clause, which requires that “no money shall be drawn from the Treasury, but in consequence of appropriations made by law.” Federal courts have rejected previous challenges to the CFPB’s funding structure, but because of the Court’s six-justice conservative supermajority, CFSA figured that this time might be different. Mercifully, it was wrong, and the CFPB’s funding and rulemaking authority both remain intact.

The majority opinion was written by Justice Clarence Thomas. In standard originalist fashion, he purported to consult the text of the Constitution and contemporaneous sources to conclude that, in order to satisfy the original public meaning of the Appropriations Clause, appropriations “need only identify a source of public funds and authorize the expenditure of those funds for designated purposes.” Since “the statute that provides the Bureau’s funding meets these requirements,” Thomas wrote, the funding structure is constitutional.

May 17, 2024

DeSantis signs bills to add new judges

Sun Sentinel - Gift Link

Gov. Ron DeSantis on Thursday signed 11 bills, including a measure that will increase the number of circuit-court and county judges and a bill that will revise a major housing law, known as the “Live Local Act,” that passed in 2023.

The bill adding judges (HB 5401) will create a circuit-judge position in the 1st Judicial Circuit, which is made up of Escambia, Santa Rosa, Okaloosa and Walton counties.

It also will create a circuit-judge position in the 20th Judicial Circuit, which is made up of Charlotte, Collier, Glades, Hendry and Lee counties.

The bill also will add three county judges in Orange County, two county judges in Hillsborough County and one county judge each in Columbia and Santa Rosa counties.

The bill exceeds the recommendations of the Florida Supreme Court, which in November called for a new judge in the 20th Judicial Circuit, three new county judges in Orange County and two new county judges in Hillsborough County.
May 17, 2024

Abortion rights amendment qualifies for the South Dakota ballot


South Dakota officials on Thursday certified a proposed amendment that would enshrine abortion access in the state’s constitution to appear on the November ballot.

South Dakota Secretary of State Monae Johnson, a Republican, said in a statement that her office had validated the petition for the ballot measure, finding that organizers behind the effort had filed more than the required number of signatures for it to qualify.

The measure will appear on the November ballot in the state as “Constitutional Amendment G” and would “establish a right to abortion in the Constitution of South Dakota,” Johnson wrote.

The ballot measure's placement can still be challenged before June 17.

The development makes South Dakota the fourth state where a proposed constitutional amendment to enshrine abortion rights will appear on the ballot in November, along with Florida, Maryland, and New York. Organizers in other seven states are attempting to do the same.
May 16, 2024

Brett Kavanaugh: Ending School Segregation Is a Lot Like Ending Abortion Rights, If You Think About It

Balls and Strikes

The worst time of year is almost here. The Supreme Court’s term usually ends by late June or early July, which means that in the next few weeks, the justices will begin handing down their blockbuster bad opinions—which, this year, could include protecting racial gerrymanders, cutting off access to abortion medication, and giving Donald Trump a free pass for crimes.

Brett Kavanaugh is trying to get out ahead of the coming public outrage. Last Friday, the justice attended a conference in Austin, Texas, for the Fifth Circuit Court of Appeals—the origin point of many of the Court’s bad decisions—where he sat for an interview with the Circuit’s chief judge, Priscilla Richman. In this interview, Kavanaugh argued that unpopular Supreme Court decisions aren’t necessarily bad—and suggested that their unpopularity may be evidence that they are good and correct.

Kavanaugh specifically highlighted some of the landmark Supreme Court cases from Earl Warren’s tenure as chief justice: Brown v. Board of Education, the school desegregation case, which only 53 percent of the public approved of when it was decided in 1954, and Miranda v. Arizona, the 1966 case that obligated police to warn suspects of their constitutional rights, and that Richard Nixon used to fuel his successful presidential campaign two years later. According to Kavanaugh, decisions like these made the Warren Court “unpopular basically from start to finish.” But, he said, many of those “unpopular” decisions are “landmarks now that we accept as parts of the fabric of America, and the fabric of American constitutional law.”

The implication here is that perhaps this Supreme Court, which needed just three years’ worth of a six-justice conservative supermajority to reverse longstanding protections for affirmative action and end the right to abortion care, is not behaving in a way that is so unusual, after all. Perhaps it’s fine that the Court’s approval ratings are embarrassingly low! (Last month, its approval creeped up to its highest level in over a year: all of 47 percent.) After all, what’s right isn’t always popular, and what’s popular isn’t always right.
May 16, 2024

The Supreme Court decides not to trigger a second Great Depression


The Supreme Court delivered a firm and unambiguous rebuke to some of America’s most reckless judges on Thursday, ruling those judges were wrong to declare an entire federal agency unconstitutional in a decision that threatened to trigger a second Great Depression.

In a sensible world, no judge would have taken the plaintiffs arguments in CFPB v. Community Financial Services Association seriously. Briefly, they claimed that the Constitution limits Congress’s ability to enact “perpetual funding,” meaning that the legislation funding a particular federal program does not sunset after a certain period of time.

The implications of this entirely made-up theory of the Constitution are breathtaking. As Justice Elena Kagan points out in a concurring opinion in the CFPB case, “spending that does not require periodic appropriations (whether annual or longer) accounted for nearly two-thirds of the federal budget” — and that includes popular programs like Social Security, Medicare, and Medicaid.

Nevertheless, a panel of three Trump judges on the United States Court of Appeals for the Fifth Circuit — a court dominated by reactionaries who often hand down decisions that offend even the current, very conservative Supreme Court — bought the CFPB plaintiffs’ novel theory and used it to declare the entire Consumer Financial Protection Bureau unconstitutional.

In fairness, the Fifth Circuit’s decision would not have invalidated Social Security or Medicare, but that’s because the Fifth Circuit made up some novel limits to contain its unprecedented interpretation of the Constitution. And the Fifth Circuit’s attack on the CFPB still would have had catastrophic consequences for the global economy had it actually been affirmed by the justices.
May 16, 2024

SCOTUS reversed the 5th Circuit's decision, upholds Consumer Financial Protection Bureau's funding structure

Steve Vladeck

Third (and last) decision is CFPB.

For 7-2 Court, Justice Thomas *reverses* Fifth Circuit; upholds CFPB funding scheme.

Alito, joined by Gorsuch, dissents:



The Supreme Court on Thursday rejected a conservative-led attack that could have undermined the Consumer Financial Protection Bureau.

The justices ruled 7-2 that the way the CFPB is funded does not violate the Constitution, reversing a lower court.

The CFPB was created after the 2008 financial crisis to regulate mortgages, car loans and other consumer finance. The case was brought by payday lenders who object to a bureau rule.

The CFPB case is among several major challenges to federal regulatory agencies on the docket this term for a court that has for more than a decade been open to limits on their operations. The CFPB, the brainchild of Democratic Sen. Elizabeth Warren of Massachusetts, has long been opposed by Republicans and their financial backers.

Unlike most federal agencies, the consumer bureau does not rely on the annual budget process in Congress. Instead, it is funded directly by the Federal Reserve, with a current annual limit of around $600 million.

May 16, 2024

Georgia's governor and others pile into state court race where challenger has focused on abortion

Georgia's governor and others pile into state court race where challenger has focused on abortion

Georgia Gov. Brian Kemp says he will spend more than $500,000 from his political committee to help a state Supreme Court justice he appointed win election.

The Republican Kemp isn't the only conservative supporting Justice Andrew Pinson in his May 21 nonpartisan election against John Barrow, a former Democratic congressman who has built his campaign around abortion rights.

It’s a notable escalation as Barrow tries to knock off an incumbent justice, something almost unheard of in Georgia. While the contest hasn't grown as intense as high court races in other states including Wisconsin, attention and spending are higher than in the state's historically sleepy judicial campaigns. Three other justices are running unopposed for new six-year terms, despite Georgia's battleground status in partisan elections.

At least two religiously conservative groups are also spending to support Pinson, while some backers of abortion rights are trying to mobilize votes for Barrow.

Kemp rolled out a television ad Tuesday endorsing Pinson that campaign strategist Cody Hall said is airing on Atlanta-area stations.

“We need judges who follow the law and uphold the Constitution, not more partisan politicians in the courtroom,” Kemp said in the ad, describing Pinson as “a conservative voice we can trust.”
May 15, 2024

#SCOTUS issues stays in Louisiana congressional redistricting case

Steve Vladeck

#BREAKING: #SCOTUS issues stays in Louisiana congressional redistricting case; clears way for second majority-minority House district in 2024 election.

The three Democratic appointees publicly dissent, with Justice Jackson worrying about the apparent expansion of Purcell.

To explain why the three Democratic appointees are (likely) dissenting, it’s not that they oppose this *outcome*; it’s that they think that the Supreme Court’s intervention here is both premature and potentially setting a problematic precedent going forward.

In other words, it’s a short-term win for Black voters in Louisiana, but a long-term expansion of a controversial principle for how federal courts handle election-year voting cases going forward.

May 15, 2024

An Arizona judge helped revive an 1864 abortion law. His lawmaker wife joined Democrats to repeal it

An Arizona judge helped revive an 1864 abortion law. His lawmaker wife joined Democrats to repeal it

When it was Shawnna Bolick’s turn to speak, the words tumbled out of her for 20 minutes. The conservative lawmaker was in the middle of a heated debate in the Republican-led Arizona Senate on a bill to repeal an 1864 law banning nearly all abortions.

Democrats needed at least one more vote from the right to advance the bill.

Bolick, head hung low and tripping over her words, described her three difficult pregnancies, including one that ended in miscarriage. She said she wouldn't have got through it "without the moral support of my husband.”

Her husband, Arizona Supreme Court Justice Clint Bolick, was part of the majority that voted in April to restore the near-total ban.

Observers in the gallery jeered as the senator declared herself “pro-life." Only in the final moments of her speech did her intention become clear.

“I am here to protect more babies,” she said. “I vote aye.”
May 15, 2024

Many Floridians don't know 6-week abortion ban is in effect, claims Nikki Fried


Many Floridians are in the dark about the state’s six-week abortion ban going into effect this month, Democrats said at a press conference.

“Most people don’t know, but this not knowing is going to have a forever impact on people’s lives,” said Florida Democratic Party Chair Nikki Fried.

Fried and other Democratic leaders spoke at a virtual press conference that centered around the upcoming Amendment 4 November ballot question on abortion rights.

Florida’s 15-week abortion ban was replaced with the six-week ban as of May 1. Abortion rights advocates argue that many women don’t even realize they are pregnant at six weeks, so the new policy feels like a total ban.

“We’re going have to continue telling these stories from every advocate to every elected official, to the media. We’re going to have to keep talking about it to make sure that more and more people are hearing it,” Fried said on the call.

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