SCOTUS Watch: End of Biden Presidency Edition

Oral Arguments 

This week was largely intermediate as we tried to forget what was coming next time. For instance, a deputy Biden solicitor general argued a case on Wednesday, the last one for the Biden Justice Department. He took a moderate position. 

The case is of some importance for accessing online speech. My red flag was the low "one-third" threshold -- the law covered websites where most of the material was not whatever sexual material harmful to minors entails. A term that in practice will be overbroad.

The other cases were more eye-glazing over. I didn't listen to much of them but do not think we had bits like Alito talking about being carded when buying wine. What sort of wine do you like, Sam? 

Pam Bondi Confirmation Hearing 

Meanwhile, Pam Bondi's confirmation took place with the expected "highlights." She's a Trump hack but meets the low threshold of competence when compared to some of Trump's other picks. I would vote against her. If many Democrats vote for her, however, I would not be surprised.  

There is no special magical thing Democrats can do in these situations, even if some people are annoyed at so-called "business as usual" hearings. They do not control the Senate. They are flagging problems, including being suitably annoyed at her bullshit. 

These are Trump nominees and the most we can hope for is so degree of competence, especially in the also ran type Cabinet slots.  Pam Bondi is a troubling case given the ability of the Justice Department to abuse its power in particularly dangerous ways.  She can do that while not being Robert Kennedy-esque about it.  

Opinions

Monday's Order List suggests the ho-hum nature of the week overall, down to Alito and Barrett continuing the conservative justices' policy of not explaining why they do not take part in certain cases. Kavanaugh and Kagan had unanimous ho-hum opinions. 

There are still some little tidbits that caught my eye. Gorsuch concurred briefly in the first case to sanctimoniously show that justices do not make policy. I found this a bit curious since the issue involved a common law rule, which is a judge-made law that tends to balance policy in some fashion. It is not just some above-the-fray sort of affair. 

Kagan's opinion was longer in part to explain why the lower court was incorrect (at least in hindsight) to rely on something the Supreme Court previously said. It included a bit too blithely phrased dicta (a portion of an opinion not necessary for the judgment). 

As she notes, the Supreme Court gets to decide that. The lower court was not wrong to rely on it until the justices made things clearer. Anyway, don't take it too seriously! One of the cases covered was written by her old boss, Justice Marshall. It might have been her term as a clerk too. If so, logically she would know of it.

Kagan also has done a good job clearly expressing the law in these law school-type cases. For instance, a conservative-leaning law professor who regularly kneejerks ideologically praised her analysis. 

Biden Final Address

On the goals for the future front, President Biden in his final speech to the nation reaffirmed his support of court reform, which has bipartisan popular support: 

We need to enact an 18-year time limit, term limit, time and term for the strongest ethics -- and the strongest ethics reforms for our Supreme Court.

Likewise, without citing Trump, he again supported an amendment "to make clear that no president — no president — is immune from crimes that he or she commits while in office."

Some were annoyed that Biden didn't promote his goals expressed in the speech before now. He has spoken about the themes addressed in various respects. He had many accomplishments.

People do have some reason to critique him for going so slow on judicial reform. Nonetheless, to hit an old hobbyhorse, his presidential commission on the Supreme Court provided an opening that OTHERS also failed to seize. The public has shown their discontent on this issue. It has potential.  

Tom Goldstein

Tom Goldstein, a top U.S. Supreme Court attorney, and publisher of the SCOTUSblog news website, was indicted on Thursday in Maryland federal court for allegedly failing to report millions of dollars he won in poker matches and using his former law firm's accounts to pay his gambling debts.

Ouch. I have long found SCOTUSblog a very helpful resource, including his wife's (Amy Howe) reporting and commentary. Goldstein's own views sometimes leave something to be desired, including a suggestion that Trump's election should wipe away his guilt. 

His possible guilt should not erase the value of the blog and hopefully, it will not be negatively affected. 

BTW, some have suggested his infamous op-ed was really a way to get in Trump's good graces akin to Mayor Eric Adams (also indicted) going to the Florida White House and talking up Trump some. Either way, the op-ed was moronic.  

Tik-Tok Ban Upheld

The Supreme Court put a notice on its website on Thursday that opinion(s) would be released on Friday without them showing up on the bench. As expected, this was about the Tik-Tok ban. Which was upheld.

The unsigned opinion was narrowly written to address the legitimacy of safeguarding data from foreign adversities. Justice Sotomayor briefly noted the law clearly affected speech. Gorsuch had a sound longer statement in part appreciating (as do I) that they did not rely on classified material.  

President Biden has announced he will not enforce the ban (which kicks in a day before he leaves office and any enforcement would require investigation). So, the whole thing might not matter too much. 

Still, it is appreciated the opinion is carefully done, even if some might reasonably argue the law should be struck down. Finally, unlike multiple Trump cases, we see the Court can speed things along when it wants to do so. 

Upcoming

Roberts will have to work on the holiday -- Monday is Martin Luther King Jr.'s Birthday (observed) as well as the inauguration of you know who. Roberts swearing in the person he helped get the job is fitting.

The next scheduled order list and oral argument day is thus shifted to Tuesday. First, the Supreme Court announced Friday afternoon that it will hear five more cases. For now, we still have a constitutionally qualified president of the United States. 

One of the cases involves parental opt-outs for LGBTQ-friendly lessons. It is MAGA red-meat grant. Republicans in Congress are already targeting trans people. Trump will help. What will his SCOTUS do?

Biden Says We Have Another Amendment

Multiple members of Congress, including Sen. Gillibrand (NY), lobbied President Biden to announce that the Equal Rights Amendment was ratified. 

Somewhat surprisingly, he has. Various constitutional scholars and the American Bar Association agree with him. It isn't just an idiosyncratic statement. 

It is long past time to recognize the will of the American people. In keeping with my oath and duty to the Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex. 

He, however, is not instructing the National Archivist to formally announce it is ratified. CNN (see link) reached out and she reaffirmed her statement from last month. It isn't ratified. It's in the hands of Congress and the courts. The president does not have a role in the amendment process. 

Biden's statement is advisory. It is also in my view wrong.  I have talked about this here and elsewhere multiple times. Let's take a summary view. 

Simply put, the original deadlines were appropriate to ensure that the proposal and ratification of amendments were timely. See, e.g., Coleman v. Miller. Congress has the power (but it would be bad policy) to extend it. Art. V and the Necessary and Proper Clause provide the suitable constitutional authority.  

The Trump OLC (Office of Legal Counsel) disagreed. The Biden OLC didn't repeal that statement but noted it was debatable. And, ultimately, it said Congress could still act regardless of what it said on the matter.  It is after all an executive advisory group.

The ERA does not simply guarantee equality based on sex. Its wording is broader than the Equal Protection Clause. It was understood by many to have a broad reach. The true reach of the ERA, contrary to its symbolic meaning, is rarely discussed. 

The matter remains symbolic since Biden's statement does not mean -- like some sort of Easter Egg -- the Constitution was amended while most of the nation was not aware. It is not how we should run a railroad.

The statement --- even without formal instruction to the archivist -- will likely be fodder for litigation. For instance, Merrick Garland has determined that the current drug used for executions is not safe enough. The Trump Justice Department will -- safe to say -- have a different view. OTOH, the finding will influence challenges to state protocols. 

I think an open-ended view of equal protection is warranted. Like Ainsley Hayes on West Wing, at the very least, I think the current Constitution applies equal protection based on sex and gender. Trying to force the ratification of a fifty-year-old amendment through the back door is not a good way to do it.  

Anyway, NPR and others have more. 

To Be or Not to Be (1942)

I watched Carole Lombard in Supernatural. Her last film was a comedy with some very serious overtones. Lombard died in a plane crash before the film was released. Mel Brooks was in the remake. 

Brooks is most famous for his earlier Hitleresque parody, The Producers, which I found tiresome. I vaguely remember watching him in the remake of this film (he didn't direct) and liking it okay. I liked this film. It has more bite than the remake, especially when the stuff is coming down mid-war. 

Ernst Lubitsch, a famous director involved in multiple classics, directed and produced this film. The film -- like Hotel Berlin -- had added weight since it was released during World War II. Poland was invaded in September 1939. This film came out shortly after Pearl Harbor.  

The film made some fun of the Nazis but the events overall were quite serious mixed with some farce. The Nazis invade Poland. There is potential for a turncoat exposing the Polish underground. The beautiful lead actress and others now are working with the resistance. A Jewish actor has a chance to speak the words of the famous Shylock soliloquy. 

There are various familiar faces. Jack Benny plays the lead (the Mel Brooks role in the remake).  A supporting player was also in the director's earlier film, A Shop Around the Corner (Jimmy Stewart). The ham actor (the Jewish actor notes "You are something I won't eat") also played in several familiar films. 

The interesting commentary helps us understand the various complexities of the film and its charms. For instance, certain bits are repeated in different contexts, including the real person and imposter saying something.  The Shylock speech pops up 3x. 

I also watched Brief Encounter (again) the family doomed love story. Richard Burton and Sophia Loren later played in the remake. Hard to see that those two would have the same effect as the originals. 

The film has many cinematic touches along with the classic performances, especially Celia Johnson as the female leader and narrator. It is a great piece of filmmaking. She does seem to have two annoying kids. To be unkind, unlike her. 

Jack Smith Report (Partially) Released

Senator Elizabeth Warren said back in 2019: 

First, a hostile foreign government attacked our 2016 election to help candidate Donald Trump get elected. Second, candidate Donald Trump welcomed that help. Third, when the federal government tried to investigate, now President Donald Trump did everything he could to delay, distract, and otherwise obstruct that investigation. 

That's a crime. If Donald Trump were anyone other than the President of the United States right now, he would be in handcuffs and indicted. Robert Mueller said as much in his report, and he said it again on Wednesday. 

That's why I came out in favor of impeachment after reading all 448 pages of Mueller's report. This is not about politics — it's our constitutional duty as members of Congress. It's a matter of principle.

Warren supported changing the current policy against indicting sitting presidents. She supported a special task force to investigate the Trump Administration when she ran for president. 

I cannot find the exact words but as I recall it would be separate from a normal investigation in the Justice Department. President Warren probably would have appointed a special counsel before Trump ran for re-election (2024). Biden did not do #2 and #3.

Attorney General Elliot Richardson promised Congress he would not fire the Watergate special counsel except for cause. Merrick Garland did not promise Congress to appoint a special counsel to investigate Trump. The Senate Democrats could have made that a grounds for their confirmation vote.

The release of Jack Smith's report related to the election interference case brings to mind these things. In hindsight, at least, a special counsel should have been appointed earlier. But, this is not just about Merrick Garland. The investigation of Nixon was not just about one person either. We need to know the full story to assign responsibility and know how to act in the future. Scapegoating is not advisable.  

One analysis takes a strong potshot -- "dithering coward" etc. -- at Merrick Garland for not changing the policy against prosecuting a sitting president. What good was that going to do in context? 

The policy allegedly is constitutionally required. I disagree but many liberal law types disagree with me. It is not just Merrick Garland. And, if the prosecution continued, Trump would have gone to the courts to try to block it. There was not enough time after the election to prosecute Trump before January 20, 2025.  

Jack Smith's report argued that if Trump did not win the election, that evidence was there to convict. Chief Justice Roberts and his conservative crew slowed things down via Trump v. U.S. The trial could have been over months before the election. 

The impeachment managers in Trump's first impeachment warned that if he was not convicted and removed he would "do it again." He did. As summarized by the Washington Post:

[Trump] pressed officials in key swing states to ignore the popular vote and flip electoral votes from Joe Biden to Trump; tried to submit fraudulent slates of electors from such states; threatened Justice Department leaders to open sham investigations and falsely claim election fraud to get states to join the plan; and pressured Vice President Mike Pence to use his ceremonial role overseeing Congress’s election certification on Jan. 6, 2021, to overturn the results.

The second impeachment involved a charge of insurrection. Others pointed to the 14A, sec. 3. disqualification provision. Jack Smith argued that as a criminal matter, the case was not clear enough to warrant that route. He used other criminal provisions. 

The interference of the electoral count cited in the criminal indictment very well involves the sort of thing that is "insurrection" for purposes of 14A, sec. 3. The provision is not a criminal provision for purposes of the "beyond a reasonable doubt" standard. 

But, even there, there were seditious conspiracy convictions in a few January 6th cases. There is a clear overlap between insurrection and sedition:

In order to win a seditious conspiracy case, prosecutors have to prove that two or more people conspired to “overthrow, put down or to destroy by force” the U.S. government or bring war against it, or that they plotted to use force to oppose the authority of the government or to block the execution of a law.

Garland did not release the second part of the special counsel's report respecting the classified documents case. First, let us recall the multiple delays there involved different issues than in the election interference case. Garland himself has even less blame in that case for the delay. Judge Aileen Cannon had a large role, for instance, in multiple delays. 

Second, the reason is that two prosecutions are pending involving Trump flunkies involved in the mishandling of the documents. There is a sort of formal reasonableness to that but (1) without Trump, the cases are fairly trivial (2) the Trump Justice Department is likely to drop them. 

(Yes, something to ask the presumptive Attorney General.)

The rest of the report will then likely be stuffed (again, ditto). Why not just drop the two cases and release the report now? I think it is correct to call out Attorney General Merrick Garland (who overall I think is a tragic figure who some people think was there to do one thing) here.

Trump is already a felon for election interference in New York related to the 2016 election. I heard on Fox News (someone else was watching it as I put together a table) an argument that the unconditional discharge shows how the prosecution was phony. 

A confusion of cause and effect. The judge only provided that sentence for the same reason why Jack Smith dropped the prosecutions -- the rules for a sitting you know what. The special counsel's reminder is no less true because of its bad taste:

The Department’s view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution, which the Office stands fully behind. Indeed, but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.

If you want an assured happy ending, watch a Hallmark Channel movie. But, gaslighting aside, guilt is not washed away with nearly fifty percent of the fraction of the voting population that deigned to vote. 

There are certain safeguards in place when handling dangerous items. Let us remember that when handling things after noon next Monday.  

SCOTUS Watch: Welcome to 2025

Tik Tok

The big thing this week, after the Supreme Court took part in the national day of mourning for Jimmy Carter (Thursday), is the TikTok oral argument. 

The first miscellaneous order of the new year was a housekeeping matter that included a TikTok-related matter. The order also dealt with argument time in a few upcoming cases for which oral argument will occur in the opening days of the next administration. 

How the Supreme Court, filled with Trump appointees/enablers (and three dissenters who go along at times -- see, e.g., Trump v. Anderson), will react will be forthcoming.  

The TikTok case is somewhat tricky as seen by these competing arguments from liberal-friendly sources. See also, John Oliver's last episode before the break during which he warily noted the justification of the law is largely "trust us, we need it."  

The assumption is TikTok and the companion case involving its users will lose. The oral argument in my view offered some reason to be concerned about upholding the ban. The concern is also how SCOTUS will handle the loss. We shall see.  

Alito Does Alito Things 

Alito -- again showing an inability to know and/or care about boundaries -- decided it was a good time to chat with Trump about one of his former law clerks. Meanwhile, a Trump case was pending. 

I will just insert this Fix the Court quote without comment. See also, Chris Geidner, who reminds us this is also on John Roberts and others. 

The whole thing is as ridiculous as it is outrageous. Alito and Trump's baggage is central here even if you want to handwave this. Alito could not just talk to someone in charge of personnel or write a letter? 

And, the guy already served in the first Trump Administration. What did Alito say now that was relevant? There are some good comments (among the dross) in the linked discussion. 

One analyst noted that the news leaked rather fast, suggesting someone was either so "smug" (I figure that is Alito?) or pissed off about it to speed things along. Well, I know how I feel. I saw a reference about it and my first reaction was "WTF?"

I grant by now that is a bit silly. It's to be expected. If there was a binding ethics process that applied to the Supreme Court, this could have been addressed, answering the "there is nothing to see here" claims. 

Not that I think that. It just is a reminder that in-house regulations can be watered down and even in that respect, Republicans/SCOTUS conservatives have opposed them having a binding effect. 

We are supposed to allow them to self-regulate.  That is bullshit. So, yes, I find the whole thing appalling.

SCOTUS Allows Trump Sentencing

The New York trial judge was allowed to sentence Trump in the election interference trial, particularly because he said he would hand down an unconditional discharge. The liberals and Roberts/Barrett via a per curiam particularly noted that bit. The others would have held up even that largely symbolic sentence.  

An unconditional discharge doesn't involve a jail sentence, fine, or any probation oversight. A criminal sentence, especially a felony, does provide certain limits. He also has to submit a DNA sample. 

The importance still is largely symbolic: the criminal justice system sets forth a process to determine certain facts. It determined he was a felon.  Of course, before the judge handed down the sentence, Trump (who earlier said he was fine with the SCOTUS ruling) whined about everything a bit more.  

The arguments to hold up a president-elect being sentenced were bogus. But, four justices still would have gone along. Roberts and/or Barrett likely required the statement, which suggests any significant penalty (how about a fine?) would be a problem.  

A bare majority allows an appealable sentence that reaffirms Trump is a felon. This result is made out to be a controversial matter. Such is our Supreme Court and the state of the rule of law in this country.  

Other Matters 

Justice Breyer is back on the bench. He is posing his usual hypos while filling in on his old stomping grounds, the First Circuit Court of Appeals. 

Upcoming 

We are back on the normal schedule -- three Friday conferences with Monday orders following, putting aside 1/20, which besides you know what is a federal holiday (Martin Luther King Jr.). The order list is handed down on Tuesday there.  

There are also two regular weeks of oral arguments. As usual, you can go to the SCOTUS website and look at the home page calendar, color-coded.  

January 15 will be an Opinion Day. Also, after I first wrote this, they granted cert for three cases. They decided to do it "Friday evening" to annoy me.  One case in particular has ideological content:

Four individuals and two small businesses that object on religious grounds to the ACA’s requirement that health insurers provide coverage for pre-exposure prophylaxis (PrEP) medications, which can be highly effective at preventing HIV infection, went to federal court. They argued that the task force’s structure violates the Constitution’s appointments clause, which requires “principal” officers to be appointed by the president and confirmed by the Senate.

The continual efforts to attack ACA on various grounds continues, now with likely help of the Trump Administration. So tiresome.  

Supernatural

Carole Lombard lived a few years longer than Jean Harlow, who we talked about recently, and had a less tragic life. Her death was via a plane crash, helped by WWII conditions (shutting down some safety lights).

Lombard is known for her comedies, including Nothing Sacred. This 1933 thriller of sorts was not her usual fare. Randolph Scott, a screen heartthrob including in Westerns (as noted in Blazing Saddles) also was out of sorts here. And rather boring. Lombard was reported uncomfortable with the role but overall did a good job. Good supporting cast as well. 

I was intrigued when reading the review about an early example of the spirit of an executed person going into someone else. The "science" involved is the usual mumbo-jumbo. There are also some bits of comedy (especially a drunken/evil landlady) and pathos (Lombard is sad about her brother dying). 

Once the spiritual transfer occurs, the comeuppance takes a tad long. And, the film is careful to make sure the innocent Lombard cannot be blamed.  Still, the whole thing is a fairly well-paced sixty-five minutes. It's like a pair of Twilight Zone episodes.  

Another worthwhile 1930s film.  

Christmas Completion

Epiphany (January 6) commemorates when the Magi met the infant Jesus as portrayed in the gospel of Matthew. It also celebrates the baptism of Jesus and the wedding at Cana, the sight of Jesus' first miracle. 

It sometimes is treated as the end of the Christmas season. The "twelve days of Christmas" are 1/25-1/5. The event, honored by creches, often is portrayed as involving the baby Jesus. 

The gospel account does not say this. It actually implies (e.g., the killing of the innocents involving children under two) that it happened later. The later portrayals are part of the attempt to combine the different accounts of Matthew and Luke into one.

Around one in eight Christians are Orthodox. They use the Julian Calendar, which led Orthodox Christians to celebrate Christmas on the same day. The day now falls on January 7th. A reason to extend the Christmas season, including taking down decorations, for one more day.  2025 will truly begin all the same.

The new Congress and certification of the electoral vote are means to dip the toes in the water. 2025 will be for real politically at noon on January 20th.  

Meanwhile, one thing that people do for the new year is to have resolutions. I have not done too well with resolutions over the years. One way to go is to see what works and connect it to some tradition's new year. There are various dates there including in March (Spring) and September (Jewish). 

The 9th is a national day of mourning for Jimmy Carter. Martin Luther King Jr. Day falls on 1/20. 

Trump/Vance Electoral Victory Confirmed (One Is Still Disqualified)

Trump aided and abetted the attack on the U.S. Capitol on January 6, 2021, which was an attempt to stop the peaceful transfer of power. 

After a violent attempted insurrection, the electoral votes were counted early the next morning. The 14th Amendment specifically addresses keeping such people out of federal and state office:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Supreme Court, not even showing up to announce the unsigned opinion (5-4 on some points), blocked a state attempt to keep his name off the ballot in Trump v. Anderson. Later, they split by ideological lines regarding criminal immunity for such presidential acts. The case was well named: Trump v. U.S. 

As Rep. Jayapal noted:

I know that many Americans across the country are still processing how it is possible that a President, who resisted the peaceful transfer of power four years ago and is also the first ever convicted felon elected, could enter the Oval Office.

Since the days of John Adams in 1793, vice presidents have presided over official counts even if they were one of the candidates. Vice President Humphrey skipped it in 1969. Might be the best policy.  

There often were a small number -- not a majority of one party as with House Republicans in 2021 -- electoral vote challenges. 

There was a proud but bipartisan tradition of using Jan. 6 to make technical objections within the byzantine electoral college system. And I think all of that got washed away with the attempted political coup and the mass insurrectionary violence of January 6 the last time around,” said Rep. Jamie Raskin (D-Md.), who had made a symbolic objection along with other Democrats to Trump’s victory in 2017.

Such challenges were not "election denial" generally speaking. They might have been picayune or wrongminded in certain cases. I think there was a reasonable ground to challenge after the 2000 elections. But, it is quite different when it is done after the Capitol is attacked as in 2021. 

A majority of Republican House members (under 10 senators) furthered the lies that motivated the violence. That was wrong. We now will bend the other way. For instance, it would have been appropriate for someone to go on record to argue Trump was not constitutionally qualified.  

They did not but a peaceful token resistance would not be what happened last time. As Jayapal reminds:

What we do today will be in stark contrast to what happened four years ago, when insurrectionists—fueled by sitting President Donald Trump — attacked the U.S. Capitol in the most violent attack since the War of 1812. That day, U.S. Capitol Police officers were killed, and hundreds — including over 140 law enforcement officers—were injured.  

We still are processing "how it is possible" that Trump will be in power in two weeks. We should not just move on and congratulate ourselves on a peaceful transfer of power (when one specific side wins). 

On a basic level, Trump won in the end, even if it took a few years.  Rick Hasen continues the effort -- oh so reasonably -- of helping him to resist even largely symbolic consequences. For instance, reference to Trump's sentence "hanging over him" is some reason to block even an unconditional discharge.  

(Hasen opposed the prosecution in the first place. I'm not going to shade his analysis generously here.) 

What was the New York trial judge supposed to do? If he sentenced Trump before the election, there was a reasonable concern that it would be deemed problematic. Maybe wrongly, but his fears were well founded. So, he waited.

The sentencing process then involved some more procedural stuff that would take time. The appellate courts, especially the Supreme Court, have not shown much inclination to speed things along. Months upon months of appeals would still have occurred. 

Same result: he runs out the clock. We failed as a nation in November 2024. It was a joint effort. We should at least remember what happened and still is happening. The voice of the people is not god.  

We saw that in 2016. The person who tried to violently overturn the election last time gets a peaceful transfer of power this time. Rightly so, putting aside the whole 14A, sec. 3 issue, though I think it was a bit too easy. Still, shades of ...

Two more weeks of sanity.