"Supreme Court Allows Trump Administration, for Now, to End Biden-Era Migrant Program."

The NYT reports.

Subheadline: "The Trump administration had asked the court to allow it to end deportation protections for more than 500,000 people facing dire humanitarian crises in their home countries."

The court’s order was unsigned and provided no reasoning, which is typical when the justices rule on emergency applications. Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, dissented, saying the majority had not given enough consideration to “the devastating consequences of allowing the government to precipitously upend the lives and livelihoods of nearly half a million noncitizens while their legal claims are pending.”... 

In an emergency application to the Supreme Court on May 8, Solicitor General D. John Sauer argued that... the lower court had “needlessly” upended “critical immigration policies that are carefully calibrated to deter illegal entry” and had undone “democratically approved policies that featured heavily in the November election,” Mr. Sauer argued.

ADDED: "Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, dissented..." Not only didn't the Chief Justice join the dissenters, Justice Kagan went with the majority. The middle has spoken. I'm picturing many Trump victories to come in these "injunctivitis" cases.

AND: Here's Jackson's opinion. Excerpt:

"Writing for the majority, Justice Samuel A. Alito noted many predominantly Black precincts in Charleston were moved out of one district and into another."

"But 'because of the tight correlation between race and partisan preferences, this fact does little to show that race, not politics drove the legislature’s choice,' he wrote. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett. Justice Elena Kagan, writing for the justices nominated by Democrats, said the majority got it 'seriously wrong'.... Kagan warned that the majority opinion sends a message to lawmakers and mapmakers to use race as a proxy to achieve partisan ends. 'And so this "odious" practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue,' she wrote. 'In the electoral sphere especially, where "ugly patterns of pervasive racial discrimination" have so long governed, we should demand better — of ourselves, of our political representatives, and most of all of this Court.'"

From "Supreme Court allows disputed South Carolina voting map/At issue was whether the map was an unconstitutional attempt to divvy voters up by race -- or was permitted partisan gerrymandering" (WaPo).

"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."

"While other countries have inferred abortion rights protections from their constitutions, as the U.S. Supreme Court did in Roe v. Wade..."

"France will be the first to explicitly codify in its constitution that abortion rights are protected. France is not interpreting its constitution; it is changing its constitution. Activists and politicians have been transparent that this is a response to what has been happening in the United States since the Supreme Court overturned Roe in 2022 and determined that the right to abortion has no constitutional stature — it could no longer be inferred from constitutional privacy protections."

Writes Karla Adam, in "France votes on adding abortion rights to constitution — a reaction to U.S." (WaPo).

Inference isn't what it used to be. As Elena Kagan famously put it years ago: "We're all textualists now." And "all" means all. 

"I think that the question that you have to confront is why a single state should decide who gets to be President of the United States."

"In other words, you know, this question of whether a former president is disqualified for insurrection to be president again is, you know, just say it, it sounds awfully national to me. So whatever means there are to enforce it would suggest that they have to be federal, national means. Why does -- you know, if you weren't from Colorado and you were from Wisconsin or you were from Michigan and it really -- you know, what the Michigan secretary of state did is going to make the difference between, you know, whether Candidate A is elected or Candidate B is elected, I mean, that seems quite extraordinary, doesn't it?... Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?"

Said Justice Elena Kagan in today's oral argument in Trump v. Anderson (transcript here).

Kagan's question was reinforced by Justice Ketanji Brown Jackson: "Can I just ask you about... the concern about uniformity and the lack thereof if states are permitted to enforce Section 3 in presidential elections.... I guess my question is why the Framers would have designed a system that would -- could result in interim disuniformity in this way where we have elections pending and different states suddenly saying you're eligible, you're not, on the basis of this kind of thing?"

"[S]eeking gender balance is particularly important because neither male nor female prospective applicants prefer a campus with a large majority of women..."

"... and, thus, it harms the school’s ability to recruit desirable students.... In equal-protection analyses under the Fourteenth Amendment, the Court has indeed allowed more leeway for using gender, but, in order to be constitutional, the use of gender must be substantially related to an important interest. The question, then, would be whether colleges’ interest in having a gender-balanced student body is so important that it justifies holding women to higher admissions standards than men...."

Writes Jeannie Suk Gersen, in "What Would Sandra Day O’Connor Have Thought About Affirmative Action for Men? For decades, college-admissions offices have quietly imposed higher standards on female applicants" (The New Yorker).

Sandra Day O'Connor has died.

"Sandra Day O’Connor, pathbreaking woman on Supreme Court, dies at 93/The court’s first female justice was known for her independence on the bench" (WaPo).

"Sandra Day O’Connor, First Woman on the Supreme Court, Is Dead at 93/During a crucial period in American law — when abortion, affirmative action, sex discrimination and voting rights were on the docket — she was the most powerful woman in the country" (NYT).

The NYT obituary is by Linda Greenhouse. Excerpt:

Fifty-one years old at the time of her nomination, she served for 24 years, retiring in January 2006 to care for her ailing husband. As the court moved to the right during that period, her moderate conservatism made her look in the end like a relative liberal.

From the WaPo obituary, by Fred Barbash:

She never went far enough in any area of the law to fully satisfy either conservatives or liberals of the day, Republicans or Democrats....

The Supreme Court issues its "true threats" case.

"The state must show, Kagan writes, that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The state need not prove any more demanding subjective intent to threaten another."

Summarizes SCOTUSblog.

Opinion here: Counterman v. Colorado.

ADDED: From the majority opinion by Justice Kagan:

"What speech, she said, comes close to being a 'true threat' but is so 'supervaluable' that we need to be worried about it?"

"She" = Justice Kagan, described in "Justices hear 'true threat' protected speech case" (SCOTUSblog). 

At the end of nearly two hours of debate, the justices generally appeared skeptical of Colorado’s contention that courts should use an objective test, that looks at whether a reasonable person would regard the statement as a threat of violence.... 

Chief Justice John Roberts... cited one of the statements for which Counterman was convicted, in which he told Whalen that “staying in cyberlife is going to kill you. Come out for coffee.”....

Justice Amy Coney Barrett... asked “[Who] is the reasonable person?” She outlined a hypothetical involving a college classroom in which a professor, for “purely educational” reasons, “puts up a picture of a burning cross and reads aloud some threats of lynching that were made at the time.” “Maybe it’s the case,” Barrett suggested, “that nowadays people would be more sensitive to that and … a reasonable Black college student sitting in that classroom would interpret that as threats … that might materialize into actual physical harm.”

"Should Justices Sonia Sotomayor and Elena Kagan, 68 and 62, respectively, do what Ginsburg would not?"

Asks Ian Millhiser in "Sotomayor and Kagan need to think about retiring/The US Senate is a fundamentally broken institution. Democratic judges need to account for that in their retirement decisions" (Vox). 

Is this a ludicrous suggestion? Millhiser has no news of ill health from either Justice (though "Sotomayor has diabetes"). His main worry seems to be that the Democrats are going to lose power — and for a long time. But at least they have the Senate and the presidency for these next 2 years. They could slot in 2 reliable liberal Justices — young Justices, 20 years younger than Sotomayor and Kagan. So give them the chance to do it while they can. That's my paraphrase of Millhiser's position. 

Millhiser has a dark view of the Democrats' chance in 2024:

"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 Elena Kagan on Wednesday temporarily blocked a subpoena from the House committee investigating the Jan. 6 attack on the Capitol for phone records of Kelli Ward..."

"...  the chairwoman of the Arizona Republican Party.... Justice Kagan ordered the committee to respond to Ms. Ward’s emergency application by Friday. That was an indication that the full court would rule on the matter. Inquiries into efforts to subvert the 2020 presidential election have given rise to all sorts of litigation, but relatively little of it has reached the Supreme Court. That may be changing...."

The NYT reports.

Ward's argument in the court below was based on the First Amendment right to freedom of association. The dissenting judge there wrote: "The communications at issue here between members of a political party about an election implicate a core associational right protected by the First Amendment."

"Justice Kagan wondered if the Warhol case benefited from a 'certain kind of hindsight,' since 'now we know who Andy Warhol was and what he was doing and what his works have been taken to mean'...."

"At the same time, other Justices seemed more comfortable interpreting Warhol’s works. Justice Sotomayor took it for granted that Warhol’s works commented on Prince’s 'superstar status' and 'his consumer sort of life.' The idea that Warhol’s art depicted the flattening of celebrity was repeated so many times over the course of the morning that it flattened out, too. Justice Kagan recognized that Warhol 'took a bunch of photographs and he made them mean something completely different.' Even Chief Justice Roberts repeated, rather uncritically, the foundation’s view that Warhol sent a 'message about the depersonalization of modern culture and celebrity status and the iconic' and showed 'a particular perspective on the Pop era.'"

From "Controversy/In a case litigating Andy Warhol’s use of a photograph of Prince, the Supreme Court wades into the uncomfortable territory where art criticism and copyright law collide" by Liza Batkin (NYRB).

"I think judges create legitimacy problems for themselves — undermine their legitimacy — when they don't act so much like courts and when they don't do things that are recognizably law."

"And when they instead stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences."

Said Justice Kagan, quoted in "Kagan calls leak of draft opinion overturning Roe 'horrible' and expects investigation update by month's end" (CNN).

It's traditional to critique judges for deciding cases according to their political preferences instead of strictly saying what the law is.

And it's traditional to emphasize the way it looks to people and the attendant threat to the Court's power: If we don't look as though we're doing what we're supposed to do — or what people have long believed we are supposed to do — then we'll lose "legitimacy." 

But how do people know whether judges are doing it right? They can't — and won't — read the Court's lengthy written justifications for the momentous decisions they impose on the people. Who can they trust? No one! Not even themselves. 

So judges had better be careful to look as though they doing it the "legitimate" way and not just following their own personal and political preferences. 

Kagan's point — courts need to look legitimate — stands in contrast to Chief Justice Roberts's recent comments about legitimacy: "[S]imply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court." And: "You don't want public opinion to be the guide of what the appropriate decision is."

Kagan concentrates on whether the judges are deciding cases properly, and Roberts concentrates on whether people are properly assessing whether judges are deciding cases properly.

I suspect that if confronted, both Kagan and Roberts would agree that judges should decide cases properly and that people should criticize decisions based on whether judges decided them properly.

But that's agreement at a high level of abstraction. And I doubt if anyone really believes judges can drive all personal preference out of their decisions. But if they could, I'll bet people wouldn't like that either. 

"As a practical matter, personal loans will sometimes be the only way for an unknown challenger with limited connections to front-load campaign spending."

"And early spending — and thus early expression — is critical to a newcomer’s success. A large personal loan also may be a useful tool to signal that the political outsider is confident enough in his campaign to have skin in the game, attracting the attention of donors and voters alike."

Wrote Chief Justice John Roberts, quoted in "Supreme Court Rules for Ted Cruz in Campaign Finance Case/The Texas senator challenged a federal law that put a $250,000 cap on repayments of candidates’ loans to their campaigns using postelection contributions" (NYT). 

Roberts wrote for the 6-person majority. Justice Elena Kagan, writing for the 3-person dissent, said:

"Repaying a candidate’s loan after he has won election cannot serve the usual purposes of a contribution: The money comes too late to aid in any of his campaign activities. All the money does is enrich the candidate personally at a time when he can return the favor — by a vote, a contract, an appointment. It takes no political genius to see the heightened risk of corruption."

"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:

Justice Kagan makes a watermelon wisecrack: "[T]he law does not require that the State equally treat apples and watermelons."

That's from the dissenting opinion in Tandon v. Newsom, which came out just last night. 

I'm amazed to see the gratuitous insertion of watermelon in a Supreme Court case. It's a play on the old "apples and oranges" expression generally used to assert that things are too different to compare to each other. To switch from oranges to watermelons is to say these 2 things are ludicrously different, because watermelons are even more different from apples than oranges are. They're so large. 

It's not hard to get the idea, just as it was not hard to get what Joe Biden meant when he said "This makes Jim Crow look like Jim Eagle." Eagles are bigger than crows. Watermelons are bigger than oranges. But Biden was talking about something he wanted to portray as racial — the new Georgia voting law. The Tandon v. Newsom case is not about race but religion: Did California discriminate against religion when it banned religious gatherings in private homes? The question depends on how California treated other gatherings. Did it treat like gatherings alike?

From the majority opinion:

This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise. It is unsurprising that such litigants are entitled to relief. California’s Blueprint System contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny. And historically, strict scrutiny requires the State to further 'interests of the highest order' by means 'narrowly tailored in pursuit of those interests.' That standard 'is not watered down'; it 'really means what it says.'

Kagan's point is that all those exceptions were for activities that were not comparable — they were the apples in comparison to which the private-home religious meetings were watermelons. In that view, no strict scrutiny is needed, because there's no discrimination in seeing apples as apples and watermelons as watermelons. 

Is the fruit analogy helpful? Is the watermelon joke worthwhile? If race were anywhere in the picture, the mention of watermelon would provoke outrage. But the sensitive topic here is religion, not race. Nevertheless, I would have thought that racial sensitivity is so great that you'd never mention watermelon in a court case unless there were actual watermelons in the facts of the case.

Here's the NYT article by Adam Liptak, "By 5-4 Vote, Supreme Court Lifts Restrictions on Prayer Meetings in Homes/The court shifted direction in cases on Covid-related limits on religious services after Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg." 

The Supreme Court late Friday night lifted California’s restrictions on religious gatherings in private homes, saying they could not be enforced to bar prayer meetings, Bible study classes and the like.... The majority said California had violated the Constitution by disfavoring prayer meetings. 

“California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts and indoor restaurants,” the opinion said....

In dissent, Justice Elena Kagan, joined by Justices Stephen G. Breyer and Sonia Sotomayor, said the majority had compared in-home prayer meetings with the wrong kinds of activities.

***

There is no comments section anymore, but you can email me here. Unless you say otherwise, I will presume you'd enjoy an update to this post with a quote from your email.

Amy Coney Barrett "may be giving Justice Elena Kagan a run for her money in the department of well-designed hypothetical questions" — according to Linda Greenhouse...

... writing in "Testing Time at the Supreme Court/The outcome of a property rights case could foretell how much conservatives can expect from the justices" (NYT). 

The California law, enacted in 1975 as the product of Cesar Chavez’s drive to organize the state’s farmworkers, authorizes the union to approach workers in the field before and after the working day for up to three hours on 120 days of a year.

“So let me ask you this,” Justice Amy Coney Barrett said to [the lawyer arguing that any authorization of entry onto private property is a taking]. “What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per se rule?”

Yes, the lawyer replied. His answer was certainly no surprise to the justices listening remotely to the argument. His theory of the case required precisely that answer, as Justice Barrett — who may be giving Justice Elena Kagan a run for her money in the department of well-designed hypothetical questions — surely knew.

Nonetheless, it underscored just how audacious the Pacific Legal Foundation’s position is....

Senator Hirono schooled Amy Coney Barrett for saying "sexual preference." It's an offensive term... as many people just learned yesterday.

Here's a good clip showing Hirono's earnest, mildly contemptuous attitude toward the Supreme Court nominee and editing in the use of "sexual preference" by a few notables, including Joe Biden and Ruth Bader Ginsburg:

Ruth Bader Ginsburg, who Mazie Hirono called "our champion" on Monday, used the term "sexual preference" in 2017. Hirono jumped on Amy Coney Barrett for saying it Tuesday, calling it "offensive and outdated." pic.twitter.com/8bHIQTSVFk https://t.co/JlcRA35g59

— David Rutz (@DavidRutz) October 14, 2020

I was surprised to hear that "sexual preference" has become — at least in some circles — a politically incorrect term. I could immediately see the reason for objecting to it: It vaguely suggests that sexual orientation is a choice, even though I don't think it's true that we choose our preferences. It might suggest that who we love — and who we feel sexually attracted to — is lightweight, more like which flavor ice cream we like better than another. Yes, you prefer to have sex with a blonde, but if you can't have the blonde, the brunette will do just as well. 

Why not get bent out of shape about "sexual orientation" then? Orientation suggests pointing east or west on a landscape. All you have to do is turn around and you'll have a different orientation. 

And why the focus on immutability anyway? I think even if sexual attraction is a matter of choice,  your choice is worth of respect. Choices are important and a good foundation for rights in a free society. Think of freedom of religion, freedom of conscience, freedom to have political opinions and to speak about them. These things matter in part because they can change and you do have a choice. 

Indeed, the right to have an abortion is referred to as the right to choose. It's about individual autonomy. Let me quote the 3-Justice opinion that determined the outcome in Planned Parenthood v. Casey (the case that partially overruled Roe v. Wade in 1992):

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

But I took Hirono's scolding to heart. Even though what I've just said is what I genuinely think upon reflection, my first reaction was: Oh! I didn't know this was offensive! Have I offended?! I knew I could look in my 17-year blog archive and in my classnotes from conlaw2 to see if I'd used the offending phrase.

"The Supreme Court ruled unanimously Monday that states may require presidential electors to support the winner of the popular vote and punish or replace those who don’t..."

"... settling a disputed issue in advance of this fall’s election. Justice Elena Kagan wrote for the court, and settled the disputed 'faithless elector' issue before it affected the coming presidential contest. The Washington state law at issue 'reflects a tradition more than two centuries old,' she wrote. 'In that practice, electors are not free agents; they are to vote for the candidate whom the state’s voters have chosen.' Lower courts had split on the issue, with one saying the Constitution forbids dictating how such officials cast their ballots."

Robert Barnes reports (at WaPo).

ADDED: Here's what I wrote about the case — Chiafolo v. Washington — back in January:

Wow! The answer had better be that these laws are constitutional or all hell will break loose!

Ha ha. Phew!

What if the electors have a constitutionally based power to make up their own minds and apply their personal judgment? It's one thing for them to think they might and to contemplate going off on their own and for some of them, occasionally, to do it. It would be quite another thing for the Supreme Court to enshrine this power in constitutional law, to specifically give the electors the go-ahead!

And how would we, the humble voters feel if we found out that we're not voting for Donald Trump or Biden/Sanders/Warren/Bloomberg but for some local character who's free to do what he/she thinks is best? There would be another dimension of analysis. Some person we haven't cared at all about will need to be scrutinized for iron-clad party fealty. Horrible!

On the other hand, for those who hate the Electoral College and have felt bad about the seeming impossibility of amending the Constitution to change it, the crazy chaos of constitutionally empowered electors could be horrible enough to push the states to ratify an abolition of the Electoral College.