6 quotes from today's oral argument in Trump v. United States.

I listened live and took some handwritten notes, so I could find various things in the transcript. Here are the 6 quotes that made the cut for me. All but one are from the Justices.

1. Trump's lawyer, D. John Sauer, encourages the Court to see far beyond Trump to the true horror of criminally prosecuting ex-Presidents:

The implications of the Court's decision here extend far beyond the facts of this case. Could President George W. Bush have been sent to prison for... allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?

2. In a similar vein, from Justice Alito:

So what about President Franklin D. Roosevelt's decision to intern Japanese Americans during World War II? Couldn't that have been charged under 18 U.S.C. 241, conspiracy against civil rights?

3. Justice Gorsuch makes a brilliant suggestion. If Presidents didn't have immunity from prosecution, they could give themselves the equivalent by pardoning themselves on the way out. And note the reminder that Obama could be on the hook for those drone strike murders:

"Do you think that someone who is a drug addict is absolutely incapable of -- that all people who are drug addicts are absolutely incapable of refraining from using drugs?..."

"All right. Then compare that with a person who absolutely has no place to sleep in a particular jurisdiction. Does that person have any alternative other than sleeping outside?... They have... none. They have absolutely none. There's not a single place where they can sleep.... So the point is that the connection between drug addiction and drug usage is more tenuous than the connection between absolute homelessness and sleeping outside."

Said Justice Alito, in yesterday's oral argument in City of Grants Pass v. Johnson. There's a precedent, Robinson v. California, that found it to be cruel and unusual punishment to make a crime of the "status" of drug addiction. The 9th Circuit said that the city — by prohibiting sleeping outdoors — had made a crime out of the status of homelessness.

For more detail, see the SCOTUSblog coverage: "Court divided over constitutionality of criminal penalties for homelessness."

"We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee."

"The platforms are not newspapers. Their censorship is not speech."

That's from one of the opinions up for oral argument in the Supreme Court today. Quoted in "Supreme Court to Hear Free Speech Challenges to Social Media Laws/The tech industry argues that laws in Florida and Texas, prompted by conservative complaints about censorship, violate the First Amendment. The court’s decision could fundamentally alter the nature of speech on the internet" (NYT).

The Supreme Court blocked the Texas law in 2022 while the case moved forward by a 5-to-4 vote.... Justice Alito wrote... that he was skeptical of the argument that the social media companies have editorial discretion protected by the First Amendment the way newspapers and other traditional publishers do.

“It is not at all obvious,” he wrote, “how our existing precedents, which predate the age of the internet, should apply to large social media companies.”

ADDED at 9 a.m.: Listen to the oral argument here. 

"No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period."

"If we’re viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular."

Said Justice Alito, quoted in "Congressional Dems pile on Alito after he says SCOTUS ethics can’t be regulated/Democrats — especially progressives — have increasingly expressed more anger at the high court in recent years" (Politico).

The anger is, as Politico puts it, expressed "on X" — in other words on Twitter. We're supposed to say "on X" now? I view that as illegitimate and will disregard it.

What's the relationship between those 2 sentences of Alito's?

I get the first sentence. It's the simple point that the third branch of government is separate from the other branches except when particular checks and balances are provided for. It would violate separation of powers for Congress to impose a code of ethics on the Court. Let them stick to voting not to confirm nominees who lack good ethics and just impeach and remove Justices who don't measure up to Congress's idea of proper ethics.

But does the second sentence mean that if there were a code of ethics imposed by Congress, then violations of that code would cause people to view the Court as illegitimate, and then it might become acceptable and popular to flout the Court's decisions, which would undermine the rule of law? Or does that second sentence mean there can be no code of ethics, but there's a check on the Court in that the Justices know that if they are unethical, they will be viewed as illegitimate, in which case it would become acceptable and popular to disregard the Court's decisions, and the Justices, aware of this threat, feel pressure to adhere to ethical behavior?

"Well, I went to a law school where I didn't learn any law," said Justice Alito, who went to Yale.

He was responding to Lisa S. Blatt, the lawyer for Jack Daniel's, who'd just said — transcript here — "Justice Alito, I don't know how old you are, but you went to law school, you're very smart, you're analytical, you have hindsight bias, and maybe you know something...."

It was a gratuitous shot at Yale Law School, because Blatt wasn't arguing about Alito's knowledge of law compared to that of ordinary people, but reacting to his assertion that no reasonable person would think Jack Daniel's had authorized a dog toy shaped like a bottle of Jack Daniel's but bearing references to dog urine and feces. He'd said:

"The court came to Monday’s argument equipped with hypotheticals — mall Santas who might refuse to take photographs with minority children, political speechwriters..."

"... who might be forced to write for the opposition, newspapers or websites told they could not choose which wedding announcements to publish. Justice Ketanji Brown Jackson brought up the mall Santa, wondering whether a photographer who wanted to create the ambiance of the movie 'It’s a Wonderful Life' might be able to exclude Black children. Alito countered by conjuring up a Black Santa at the other end of the mall who wanted to be free to refuse a photograph to a child wearing a Ku Klux Klan outfit. When Justice Elena Kagan said that Santa could refuse anyone wearing such an outfit, regardless of their race, Alito said it would be unlikely that his example would be a Black child.... Colorado Solicitor General Eric R. Olson said Smith was conflating speech with commerce. A store would be free to sell only Christmas items if it wanted to, Olson said. But it couldn’t post a sign that said 'No Jews allowed.'"

From "Supreme Court seems to side with web designer opposed to same-sex marriage/Colorado’s Lorie Smith says being forced to create websites for gay couples would violate her right to free speech" by Robert Barnes , reports on the oral argument in 303 Creative v. Elenis in The Washington Post.

For more background on the case, see the post I wrote this morning, before the argument, based on the NYT article by Adam Liptak.

"Justice Samuel A. Alito Jr. denied an allegation from a former antiabortion activist that Alito or his wife disclosed to conservative donors the outcome of a pending 2014 case..."

"... regarding contraceptives and religious rights. The New York Times reported Saturday that Rob Schenck, who on his website identifies himself as a 'once-right-wing religious leader but now dissenting evangelical voice,' said he was told the outcome of the case, Hobby Lobby v. Burwell, several weeks before it was announced. Schenck said a conservative donor to his organization relayed the information after a dinner with Alito, who wrote the majority opinion in the case, and the justice’s wife. But the donor, Gayle Wright, told the Times and affirmed in an interview Saturday that the account given by Schenck was not true, and Alito issued a statement denying it as well."

WaPo reports.

Whatever the truth is about whether Schenck really heard what he says he heard from Wright and whether Wright is accurately telling us now what she got from Alito and what she relayed to Schenck at the time — and it's easy to imagine that all 3 are kinda-sorta telling the truth! — I'd just like to say that there's a big difference between leaking the draft opinion — as was done with Dobbs — and revealing the outcome of a pending case.

With the leak of the draft opinion in Dobbs, we saw the text and we saw it before the opinion was released. With this report that the outcome was revealed in advance in Hobby Lobby, we're hearing about it after the fact and second hand. 

And I wonder if there have been other times when leaks like this one — assuming it happened — have occurred. Where there is no published draft opinion to show the leak to us all, there needs to be not only a leak, but a leak to someone with a motivation to talk about it. 

"Princeton went coed in Alito’s sophomore year. Alice Kelikian, who became a friend of his, remembered hanging out with him around a microwave oven..."

"... that had just been installed on campus, warming up chocolate-chip cookies while talking about Italy and the philosopher John Rawls. Kelikian, who dated one of Alito’s friends, noted that Alito was always 'very respectful of me,' adding, 'A lot of male classmates were not.' Still, feminism was in the air...."

From "Justice Alito’s Crusade Against a Secular America Isn’t Over/He’s had win after win—including overturning Roe v. Wade—yet seems more and more aggrieved. What drives his anger?" by Margaret Talbot (The New Yorker). This is a very long article, and my excerpts don't represent the overall thesis justifying the article title. I'm just pointing to some things that intrigued me.

In 1973, the year after Alito graduated...

The year I graduated from college. 

Laughing in the grave.

That's the fantasy of the headline writers at Politico, who came up with "How Ruth Bader Ginsburg Will Have The Last Laugh on Samuel Alito/The Dobbs decision is clearing the political ground for a resolution in favor of abortion rights."

The article is by Politico founding editor John F. Harris, and I'm not in the mood to wade through his scenario of posthumous mirth, but I will state the obvious: Alito's written opinion is not about preventing abortion, but about allowing the issue to be decided through the political process.

"But what really wounded me — what really wounded me — was when the Duke of Sussex addressed the United Nations and seemed to compare the decision whose name may not be spoken with the Russian attack on Ukraine."

Said Samuel Alito, quoted in "U.S. Supreme Court Justice Alito mocks foreign critics of abortion ruling" (Reuters, reporting on the contents of the video that is embedded in the previous post).

In Prince Harry's July 18 speech, he spoke of 2022 as "a painful year in a painful decade" before citing the war in Ukraine and "the rolling back of constitutional rights here in the United States," which appeared to reference the abortion ruling.

Did Prince Harry "compare" the 2 things in any way other than listing them as painful things that happened in the past decade? It was a "rolling back" of a constitutional right. What's the point of Alito's sarcasm? It's close to saying, ha, ha, I have power and you don't. 

Why the comedy? Women have lost an important right that we'd thought for decades was guaranteed by constitutional law. Now, Alito snarks that the opinion he wrote is "the decision whose name may not be spoken." Is that funny? 

If people don't want to say the case name — Dobbs — it's because: 1. They don't remember it, 2. Roe is much more familiar and it's easier to say the case that overruled Roe, or 3. They intend to express anger and antagonism toward Dobbs by refusing to acknowledge its existence and envisioning its quick demise.

To jokingly call Dobbs "the decision whose name may not be spoken" is to seem to exult in your power. And that's ironic, considering that the best justification for what the Court did is judicial restraint. 

"It is hard to convince people that religious liberty is worth defending if they don’t think that religion is a good thing that deserves protection."

"The challenge for those who want to protect religious liberty in the United States, Europe, and other similar places is to convince people who are not religious that religious liberty is worth special protection.... If religious liberty is protected, religious leaders and other men and women of faith will be able to speak out on social issues. People with deep religious convictions may be less likely to succumb to dominating ideologies or trends, and more likely to act in accordance with what they see as true and right. Civil society can count on them as engines of reform.... The Cultural Revolution [in China] did its best to destroy religion, but it was not successful. It could not extinguish the religious impulse. Our hearts are restless until we rest in God. And, therefore, the champions of religious liberty who go out as wise as serpents and as harmless as doves can expect to find hearts that are open to their message."

Said Samuel Alito, quoted in "U.S. Supreme Court Justice Samuel Alito delivers keynote address at 2022 Notre Dame Religious Liberty Summit in Rome" (University of Notre Dame website).

"In the end, the [School] District’s case hinges on the need to generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties..."

"... and then develop some explanation why one of these Clauses in the First Amendment should '"trum[p]"' the other two. But the project falters badly. Not only does the District fail to offer a sound reason to prefer one constitutional guarantee over another. It cannot even show that they are at odds. In truth, there is no conflict between the constitutional commands before us. There is only the 'mere shadow' of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights. Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a [football] field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination."

From Kennedy v. Bremerton School District, announced just now, written by Justice Gorsuch and joined by the 5 Justices most likely to join Gorsuch.

"The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a '"deeply rooted'" one, '"in this Nation’s history and tradition."'"

"The dissent does not identify any pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise. Nor does the dissent dispute the fact that abortion was illegal at common law at least after quickening; that the 19th century saw a trend toward criminalization of pre-quickening abortions; that by 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy; that by the late 1950s at least 46 States prohibited abortion 'however and whenever performed' except if necessary to save 'the life of the mother,' and that when Roe was decided in 1973 similar statutes were still in effect in 30 States. The dissent’s failure to engage with this long tradition is devastating to its position. We have held that the 'established method of substantive-due-process analysis' requires that an unenumerated right be '"deeply rooted in this Nation’s history and tradition"' before it can be recognized as a component of the 'liberty' protected in the Due Process Clause. But despite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy."

Writes Justice Alito in the majority opinion in Dobbs v. Jackson Women's Health Organization (citations omitted).

"In 6-3 ruling, court strikes down New York’s concealed-carry law."

 SCOTUSblog reports.

The state law at the heart of New York State Rifle & Pistol Association v. Bruen required anyone who wants to carry a concealed handgun outside the home to show “proper cause” for the license. New York courts interpreted that phrase to require applicants to show more than a general desire to protect themselves or their property. Instead, applicants must demonstrate a special need for self-defense – for example, a pattern of physical threats. Several other states, including California, Hawaii, Maryland, Massachusetts, and New Jersey, impose similar restrictions, as do many cities.

ADDED: The majority opinion is written by Justice Thomas, and he is joined by the Chief Justice and Justices Alito, Gorsuch, Kavanaugh, and Barrett. From the Thomas opinion: 

"The Supreme Court on Tuesday sided with the technology industry and blocked a controversial Texas law that bars large social media platforms..."

"... like Facebook and Twitter from removing posts based on the viewpoints they express. The justices divided 5-4 in an ideologically scrambled vote.... When Texas Gov. Greg Abbott signed the law last September, he declared that 'conservative viewpoints in Texas cannot be banned on social media.' Tech companies challenged the law, saying it violates their First Amendment right to control what speech appears on their platforms.... Texas Attorney General Ken Paxton [argued that because the law] only requires social media platforms to serve customers on an equal footing... [and that they are] 'common carriers' – a legal term for businesses that transport people, goods, or services and cannot pick and choose among their customers.... In his dissent, Alito explained that the court should not reinstate [the district court's] injunction unless the technology groups can show that, under existing law, they are likely to prevail on the merits of their challenge. But whether the groups can make that showing, Alito suggested, 'is quite unclear,' because both the law and the business models for social media platforms are 'novel.'"

Writes Amy Howe at SCOTUSblog.

“Supreme Court has voted to overturn abortion rights, draft opinion shows.”

Politico reports with a link to a long draft opinion of the Court written by Justice Alito.

This is so shocking I have difficulty believing it’s real. The top of NYT is blithe coverage of the Met Gala, replete with a photo of Hillary Clinton in a shiny vivid red dress, Hillary who would have had 3 Supreme Court nominations giving the Court a 6-3 liberal majority averting this calamity… this seeming calamity.

ADDED at 8:41: The NYT is now covering the story in “Leaked Supreme Court Draft Would Overturn Roe v. Wade/A majority of the court privately voted to strike down the landmark abortion rights decision, according to the document, obtained by Politico.”

Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.

The leak seems designed to create pressure on the Justices to step back from the precipice.

"For years, Boston has allowed private groups to request use of the flagpole to raise flags of their choosing. As part of this program, Boston approved hundreds of requests..."

"... to raise dozens of different flags. The city did not deny a single request to raise a flag until, in 2017, Harold Shurtleff, the director of a group called Camp Constitution, asked to fly a Christian flag. Boston refused. At that time, Boston admits, it had no written policy limiting use of the flagpole based on the content of a flag. The parties dispute whether, on these facts, Boston reserved the pole to fly flags that communicate governmental messages, or instead opened the flagpole for citizens to express their own views. If the former, Boston is free to choose the flags it flies without the constraints of the First Amendment’s Free Speech Clause. If the latter, the Free Speech Clause prevents Boston from refusing a flag based on its viewpoint. We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint 'abridg[ed]' their 'freedom of speech.' U. S. Const., Amdt. I." 

Writes Justice Breyer, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh, and Barrett, in Shurtleff v. City of Boston, issued this morning. Justice Alito has a concurring opinion, joined by Justices Thomas and Gorsuch, and Justice Gorsuch has a concurring opinion that is joined by Justices Thomas and Alito. Justice Kavanaugh also has a concurring opinion.

You might wonder whether the Establishment Clause can justify viewpoint discrimination, but that's been dealt with in the past. That's why all the Justices agree: precedent. 

The text (at the link) includes this photo of the site of the flagpoles, Boston City Hall, which is ludicrously ugly:

 

"At oral argument, Justice Elena Kagan, one of the court's best questioners, sometimes... just shuts down... Still, her anger is often palpable, the color literally draining from her face. "

"And Justice Stephen Breyer on occasion just holds his head.... There isn't a lot of love lost among the court's six conservatives either.... If you watch carefully, you can see conservative eyes rolling from time to time.... [M]any of the conservatives are vying for the position of intellectual leader of the conservative majority, while the chief justice privately worries about going too far too fast. There are, in addition, some long and perhaps not so buried resentments among the conservatives. Alito on occasion barely conceals his disdain for Roberts.... In recent decades, the court has built its legitimacy on a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted. The left got gay rights and gay marriage, and some limits on presidential power exercised in the name of national security. And the right got expanded religious liberty and expanded free speech, which brought with it expanded corporate spending in elections.... But... the court's conservatives detest each other in the same way that the justices did in the 1940s. Back then, they couldn't agree on anything because, as [Noah] Feldman notes, 'they hated each other.' and even though they might have been able to to reach a consensus, they didn't 'because the hatred was so deep.' To cite just one example of how bad it was, Justice Felix Frankfurter called Justice William O. Douglas 'one of the completely evil men I have ever met.' And Douglas referred to the Austrian-born Frankfurter, who was Jewish, as 'Der Führer' and that was during World War ll."

Writes Nina Totenberg in "Supreme Court justices aren't 'scorpions,' but not happy campers either" (NPR). 

The "scorpion" quote refers to "9 scorpions in a bottle," a famous phrase that Totenberg doesn't give a source, perhaps because it's so famous, but perhaps because the usual attribution — to Oliver Wendell Holmes Jr. — seems incorrect. Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices Paperback" begins with the quote "The Supreme Court is nine scorpions in a bottle," attributed to Alexander Bickel, law clerk to Justice Felix Frankfurter, 1952–53, and drops this footnote:

"The refusal of Philadelphia to contract with CSS for the provision of foster care services unless [Catholic Social Services] agrees to certify same-sex couples as foster parents violates the Free Exercise Clause of the First Amendment."

 The Supreme Court has just ruled in Fulton v. Philadelphia.

ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, KAVANAUGH, and BARRETT, JJ., joined. BARRETT, J., filed a concurring opinion, in which KAVANAUGH, J., joined, and in which BREYER, J., joined as to all but the first paragraph. ALITO, J., filed an opinion concurring in the judgment, in which THOMAS and GORSUCH, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined.

I'll have much more about this soon.

UPDATE: This is a unanimous decision. The existing precedent, Smith, applies strict scrutiny to burdens on religion only when there isn't a neutral and generally applicable policy, which there wasn't here. The concurring opinions are about overturning that precedent and giving even more protection from substantial burdens on religion. 

The Barrett opinion is critical of Smith but frets about what doctrine would replace it and finds it unwise to go any further. The paragraph Breyer doesn't join is the one that is critical of Smith.

Alito wants to overturn Smith and views this case as showing why Smith is so dangerous. The majority was able to get to strict scrutiny because there happened to be a provision empowering a city official to give exemptions. But the city hasn't given exemptions and could easily now eliminate that provision and make it's policy neutral and generally applicable. Thus: "This decision might as well be written on the dissolving paper sold in magic shops." 

Alito goes on at great length in an attack on Smith that will feel entirely familiar to anyone who's been paying attention to Free Exercise Clause doctrine. Clearly, he setting up for the next phase, and we can see that there are the 5 votes to overrule Smith, if only Barrett and Kavanaugh can be presented with a practical enough new doctrine.

AND: Here's the NYT article by Adam Liptak, "Supreme Court Backs Catholic Agency in Case on Gay Rights and Foster Care/The unanimous ruling was further evidence that claims of religious liberty almost always prevail in the current court." Key speculation:

The court’s three-member liberal wing — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — joined the opinion, which was a surprise and may have been part of an effort to avoid a broader ruling that might have allowed religious objections to override all sorts of government policies and programs.

Breyer must have played an important role, since he also teamed up with Barrett and Kavanaugh, who might otherwise have heeded to the powerful call of Alito, Gorsuch, and Thomas.

"The question before the court on Wednesday was whether the Supreme Court’s 1969 ruling in Tinker v. Des Moines Independent Community School District, holding that public school officials can regulate speech that would substantially disrupt the school’s work..."

"... applies to speech by students that occurs off campus. Arguing for the school district, lawyer Lisa Blatt told the justices that Tinker should apply off campus because off-campus speech can also cause disruption, particularly when it comes to social media. 'Time and geography are meaningless' when it comes to the internet, Blatt emphasized.... Justice Stephen Breyer described [the student's Shapchat] as using 'unattractive swear words' off campus. But, Breyer continued, he didn’t see evidence that the snap caused the kind of 'material and substantial disruption' that Tinker requires. If Levy can be punished for this snap, he suggested, 'every school in the country would be doing nothing but punishing.'... The court, Alito proposed, could reiterate that Tinker applies in school, without saying more about a school’s power to discipline off-campus speech. And the court could make clear that although the comments in Levy’s snap are 'colorful language,' they 'boil down' to disliking the cheer team and her private softball team, and the school can’t discipline Levy for having no respect for the school...."

From "Justices ponder narrow ruling in student speech case" (SCOTUSblog).

Here's the transcript. 

FROM THE EMAIL: rrsafety writes:

I think Kavanaugh is asking the right questions here. This case is about coaches, not schools. School athletes have often been told they will be held to a higher standard of behavior than other students and are responsible for doing their part in support of team unity and team chemistry. Off-field behavior has always been part of a coach’s calculus and the courts should (generally) not intervene.

I notice you said "behavior." We're talking about freedom of speech, and the young woman only wrote something. Searching the transcript, I notice that only Amy Coney Barrett used the term "behavior":