"The anti [Obergefell] forces will get Thomas and probably Alito. Roberts was strongly against at the time but..."

"...has been careful to treat it as legitimate precedent since. Gorsuch usually sides with religious litigants but also wrote Bostock, the most important gay rights decision in years, and Roberts raised eyebrows by joining him. Most people who know Barrett and Kavanaugh believe them to have zero appetite for reopening this issue. Trump isn't pushing for it. Granting cert takes four votes, overturning a case five. I don't see [Kim] Davis getting up even to three on the question of whether to overturn Obergefell. Each time I write a version of this prediction I get called rude names, as if I were consciously misleading people for some fell purpose. But as someone with real rights of my own at stake, I'm just trying to give you my honest reading. We'll probably know within three months whether the Court will hear Davis's case and if so on what question presented. Save your anger till then."

Walter Olson, quoted by Ilya Somin, in "Why the Supreme Court is Highly Unlikely to Overturn Obergefell in the Kim Davis Case/My Cato Institute colleague Walter Olson explains" (Reason).

Should we "save [our] anger" if we don't want Obergefell overruled? Even if that's unlikely, now might be a good time to demonstrate how much it would hurt, before things escalate.

Meanwhile, I'm interested in Olson's dipping into the archaic to write "I get called rude names, as if I were consciously misleading people for some fell purpose." Fell! Why not "evil" or "nefarious"?

One answer is that he was influenced by the last syllable of "Obergefell." I don't think one would do that consciously. 

I'd guess Olson felt motivated to sound deeply literary. Some historical examples of the adjectival "fell" from the OED):

1747 I will risque all consequences, said the fell wretch. S. Richardson, Clarissa

1812 And earth from fellest foemen purge. Lord Byron, Childe Harold

1813 His fell design. W. Scott, Rokeby

1847 Even the fell Furies are appeased. R. W. Emerson, Poems

"Supreme Court allows Tennessee ban on gender-transition care for minors."

Free-access link to WaPo, here.

Here's the full text of the opinion, which is 6-3, divided as you would expect a 6-3 case to be divided. The Chief writes the opinion, and the other 5 conservatives join, but Alito only joins parts I and II-B. There are concurring opinions from Thomas, Barrett, and Alito. There's also some discord among the dissenters, with Kagan only joining part of Sotomayor's opinion. 

MORE: The Chief's opinion rejects heightened scrutiny because the Tennessee law — "[w]hen properly understood from the perspective of the indications that puberty blockers and hormones treat" —  "does not classify on the basis of sex." 

When, for example, a transgender boy (whose biological sex is female) takes puberty blockers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty.

"The Supreme Court appeared split along partisan lines Monday over the creation of a second Black-majority congressional district in Louisiana...."

Writes Justin Jouvenal, in "Supreme Court seems split on Louisiana voting map, majority-Black districtsSeveral conservative justices were skeptical that the Voting Rights Act’s attempts to redress past discrimination can coexist with the Equal Protection Clause" (WaPo).

The legal arguments in the case center on the extent to which states can consider race in drawing legislative maps, a power they were granted as part of the Voting Rights Act in an attempt to address discriminatory electoral practices.

I wouldn't have written "granted."

Such maps cannot, however, be explicit racial gerrymanders.

Whatever happened to implicit racism? 

"Just hours after President Trump called for the impeachment of a judge who sought to pause the removal of more than 200 migrants to El Salvador, Chief Justice John G. Roberts Jr. issued a rare public statement."

"'For more than two centuries,' the chief justice said, 'it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.' Mr. Trump had called the judge, James E. Boasberg, a 'Radical Left Lunatic' in a social media post and said he should be impeached."

Writes Adam Liptak, at the NYT.

Liptak was reminded of something the Chief said in 2018, "after Mr. Trump called a judge who had ruled against his administration’s asylum policy 'an Obama judge'": "We do not have Obama judges or Trump judges, Bush judges or Clinton judges.... What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."

Of course, that doesn't stop the NYT from telling us the name of the President who appointed the federal judges whose names arise in the news.

"Chief Justice John G. Roberts Jr. on Wednesday night handed the Trump administration a victory for now..."

"... in saying that the U.S. Agency for International Development and the State Department did not need to immediately pay for more than $1.5 billion in already completed aid work. A federal judge had set a midnight deadline for the agencies to release funds for the foreign aid work.... The Trump administration [made] an emergency appeal to the Supreme Court just hours before the deadline.... Chief Justice Roberts issued an 'administrative stay,' an interim measure meant to preserve the status quo while the justices consider the matter in a more deliberate fashion.... However tentative, the stay was nonetheless the first victory for the administration in a deluge of cases that the justices could hear over President Trump’s blitz of executive actions...."

The NYT reports.

For the annals of Things I Asked Grok: Do you think this is a mixed metaphor: "a deluge of cases about a blitz of executive actions"? And: Would George Orwell have a problem with this dead metaphor?

Anyway, Trump's victory in the Supreme Court isn't much... just preserving the status quo (as Trump disrupts the status quo), but it may feel awfully auspicious.

"At some point, presumably, the justices will draw the line...."

"In any consequential ruling, Chief Justice Roberts will likely be tempted to narrow his reasoning, soften his tone.... For Chief Justice Roberts, unanimity will be hard — even impossible — to achieve in most cases concerning Mr. Trump’s actions as president... Of course, Mr. Trump might defy the court.... Without the support of federal marshals, who answer to Mr. Trump’s attorney general, Pam Bondi, the court cannot enforce its order.... The court will stand alone, abandoned; and Chief Justice Roberts, it is safe to assume, will not escalate a conflict his institution has already lost. He will, however, have one last tool in his arsenal: his voice.... If Mr. Trump flouts a court ruling, the nation will need its chief justice to explain what is happening — and why the executive branch, for all its prerogatives, must be bound by the Constitution...."

Writes Jeff Shesol, in "John Roberts Is on a Collision Course With Trump" (NYT).

"In our constitutional system, the executive power belongs to the president, and that power generally includes the ability to supervise and remove the agents who wield executive power in his stead."

"While we have previously upheld limits on the president's removal authority in certain contexts, we decline to do so when it comes to principal officers who, acting alone, wield significant executive power."

Wrote Chief Justice John Roberts, 5 years ago, quoted in "Trump's firings of independent agency heads put 90-year-old Supreme Court precedent in crosshairs" (CBS News).

In what is likely to be the Trump administration's first Supreme Court emergency appeal of his second term, the solicitor general is expected to ask the high court to permit Dellinger's firing, according to documents obtained Sunday.

Dellinger = Hampton Dellinger, "who oversees the office that investigates whistleblower complaints"

The 90-year-old case =  Humphrey's Executor. Justice Clarence Thomas, joined by Neil Gorsuch, called Humphrey's Executor "a direct threat to our constitutional structure and, as a result, the liberty of the American people," and said he "would repudiate what is left of this erroneous precedent."

(It's Humphrey's Executor because the man, who was fired by FDR, had died, and the family was suing for back pay.)

"The Supreme Court’s rejection... of President-elect Donald J. Trump’s request to be spared from being sentenced... was just a few lines long, and it made modest and practical points...."

Writes Adam Liptak, in "A Rebuke to Trump Provides a Telling Portrait of a Divided Supreme Court/Two Republican appointees, Chief Justice Roberts and Justice Barrett, joined the court’s three liberals in ordering the president-elect to face sentencing on Friday" (NYT).

If the votes of the three liberal justices were predictable, those of the two conservative members of the court who voted with them on Thursday — Chief Justice John G. Roberts Jr. and Justice Amy Coney Barrett — were more surprising.

The chief justice was the author of not only the immunity decision but also of majority opinions in two other victories for Mr. Trump last term, one casting doubt on some of the federal charges against him and the other allowing him to seek another term despite
a constitutional provision barring insurrectionists from holding office.

His vote on Thursday was of a piece with the old Chief Justice Roberts.... 

Mr. Trump, for his part, has been a longtime critic of the chief justice. After the Affordable Care Act ruling, Mr. Trump wrote on Twitter that “I guess @JusticeRoberts wanted to be a part of Georgetown society more than anyone knew,” citing a fake handle. During his first presidential campaign, Mr. Trump called the chief justice “an absolute disaster.”...

“I’m not happy with the Supreme Court,” he said on Jan. 6, 2021, during his speech near the White House. “They love to rule against me.”...

And Trump loves to win. He fights for every win — fight, fight, fight — even when the arguments are weak. But he's better off losing some of the time. It shows that the Supreme Court acts independently of him and undercuts those who'd like to say the Court is in his pocket. So this is one of his losses. He can handle losses. He's quite good at doing that. It leveraged his re-election.

"The chief justice’s Feb. 22 memo, jump-starting the justices’ formal discussion on whether to hear the case... tore into the appellate court opinion greenlighting Mr. Trump’s trial..."

"... calling it inadequate and poorly reasoned. On one key point, he complained, the lower court judges 'failed to grapple with the most difficult questions altogether.' He wrote not only that the Supreme Court should take the case — which would stall the trial — but also how the justices should decide it. 'I think it likely that we will view the separation of powers analysis differently' from the appeals court, he wrote. In other words: grant Mr. Trump greater protection from prosecution."

From "How Roberts Shaped Trump’s Supreme Court Winning Streak/Behind the scenes, the chief justice molded three momentous Jan. 6 and election cases that helped determine the former president’s fate" (NYT)(reporting based on hearing from "several people from the court who saw the document").

"Smith’s team pushed the court into adopting a legal rule that massively constrained prosecutorial power vis-à-vis former presidents, not just for Trump but for all future presidents."

Said James Burnham, "a former law clerk for Justice Neil M. Gorsuch who has also worked at the Justice Department and Trump White House."

Quoted in "Supreme Court’s Trump immunity ruling shows risk of Jack Smith’s approach/The conservative high court often disapproves of how the Justice Department charges public corruption. Donald Trump’s Jan. 6 case was no exception" (WaPo).

The special counsel and the Justice Department, Burnham said, overplayed their hands by charging Trump based on his discussions with Justice Department officials and his vice president — government officials whose communications with the White House can be at the heart of a president’s job. 

Burnham called the indictment “a prime example of the Justice Department overreaching and ending up miles behind where it began.” 

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:

"Chief Justice John G. Roberts Jr. asked a series of questions reflecting what seemed to be an emerging consensus..."

"... that the 14th Amendment was not meant to permit states to determine whether a candidate was an ineligible insurrectionist. 'The whole point of the 14th Amendment was to restrict state power, right?' he asked, adding that the challengers’ contrary argument was 'a position that is at war with the whole thrust of the 14th Amendment.' Chief Justice Roberts noted that the challengers’ position would have empowered the former Confederate states to determine whether candidates were disqualified from holding federal office. The 14th Amendment was adopted to constrain states’ rights and empower the federal government, the chief justice said, and it is 'the last place you’d look for authorization for the states, including Confederate states, to enforce the presidential election process.'"

Writes Adam Liptak, about this morning's oral argument, pointing to a passage that I was going to wait until I had the transcript to write about. 

"Law professors report with both awe and angst that A.I. apparently can earn B’s on law school assignments and even pass the bar exam."

"Legal research may soon be unimaginable without it. A.I. obviously has great potential to dramatically increase access to key information for lawyers and nonlawyers alike. But just as obviously it risks invading privacy interests and dehumanizing the law.... At least at present, studies show a persistent public perception of a 'human-A.I. fairness gap,' reflecting the view that human adjudications, for all of their flaws, are fairer than whatever the machine spits out.... Judges, for example, measure the sincerity of a defendant’s allocution at sentencing. Nuance matters: Much can turn on a shaking hand, a quivering voice, a change of inflection, a bead of sweat, a moment’s hesitation, a fleeting break in eye contact. And most people still trust humans more than machines to perceive and draw the right inferences from these clues.... Many appellate decisions turn on whether a lower court has abused its discretion, a standard that by its nature involves fact-specific gray areas. Others focus on open questions about how the law should develop in new areas. A.I. is based largely on existing information, which can inform but not make such decisions...."

Wrote Chief Justice John Roberts, quoted in "Chief Justice Roberts Sees Promise and Danger of A.I. in the Courts/In his year-end report, Chief Justice John G. Roberts Jr. focused on the new technology while steering clear of Supreme Court ethics and Donald J. Trump’s criminal cases" (NYT).

Speaking of humanity, remember when Senator Barack Obama voted against the confirmation of Justice John Roberts because Roberts said "he saw himself just as an umpire"?: "But the issues that come before the court are not sports; they’re life and death. We need somebody who’s got the empathy to recognize what it’s like to be a young teenage mom.... In... 5 percent of cases, you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be."

By the way, in literal, as opposed to figurative, baseball, A.I. does a better job of calling balls and strikes.

The student loan case is out: "The court agrees with the states that the HEROES Act does not authorize the debt forgiveness plan."

I'm quoting SCOTUSblog.

Here's the opinion: Biden v. Nebraska.

Another 6-3 conservative liberal split. The Chief Justice writes the main opinion, there's a Barrett concurrence, and Justice Kagan dissents, joined by Sotomayor and Jackson.

Excerpt from the majority opinion:

Whatever happened to the affirmative action concept of "critical mass"?

From the majority opinion in the new case, Students for Fair Admission v. Harvard:

The principal dissent’s reliance on Fisher II is similarly mistaken. There, by a 4-to-3 vote, the Court upheld a “sui generis” race-based admissions program used by the University of Texas, 579 U. S., at 377, whose “goal” it was to enroll a “critical mass” of certain minority students, Fisher I, 570 U. S., at 297. But neither Harvard nor UNC claims to be using the critical mass concept—indeed, the universities admit they do not even know what it means. See 1 App. in No. 21–707, at 402 (“[N]o one has directed anybody to achieve a critical mass, and I’m not even sure we would know what it is.” (testimony of UNC administrator)); 3 App. in No. 20–1199, at 1137–1138 (similar testimony from Harvard administrator).

But the dissenting opinions never use the term "critical mass."

The only other mention of "critical mass" is in the concurring opinion by Justice Gorsuch:

Following Bakke, this Court declared that judges may simply “defer” to a school’s assertion that “diversity is essential” to its “educational mission.” Grutter, 539 U. S., at 328. Not all schools, though—elementary and secondary schools apparently do not qualify for this deference.... Only colleges and universities, the Court explained, “occupy a special niche in our constitutional tradition.” Grutter, 539 U. S., at 329. Yet even they (wielding their “special niche” authority) cannot simply assert an interest in diversity and discriminate as they please. Fisher, 579 U. S., at 381. Instead, they may consider race only as a “plus” factor for the purpose of “attaining a critical mass of underrepresented minority students” or “a diverse student body.” Grutter, 539 U. S., at 335–336 (internal quotation marks omitted).

So is "critical mass" something no one believes in anymore? Here's how I — as a lawprof teaching these cases — explained it a decade ago:

Watching the Supreme Court. [ADDED: Supreme Court makes a moderate, minimalist change to affirmative action doctrine.]

 At SCOTUSblog.

"We have the university cases."

"The court holds that Harvard and UNC's admissions programs violate the equal protection clause of the 14th Amendment."

The Chief Justice wrote the opinion. The question is how moderate/extreme is it. 

I'm just hanging on the SCOTUSblog feed.

Ah.. no... wait: Here's the opinion.

Excerpt from syllabus:

Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice. Pp. 39–40.

The decision must be somewhat moderate, I'm inferring, because there are concurring opinions from Thomas, Gorsuch, and Kavanaugh. 

The Chief quotes Grutter — "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today" — and adds:

"The Supreme Court, in a surprise decision, ruled that Alabama had diluted the power of Black voters by drawing a congressional voting map..."

"... with a single district in which they made up a majority. Chief Justice John G. Roberts Jr. wrote the majority opinion in the 5-to-4 ruling. He was joined by Justice Brett M. Kavanaugh and the court’s three liberal members, Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Voting rights advocates had feared the decision would undermine the Voting Rights Act, which instead appeared to emerge unscathed. The chief justice wrote that there were legitimate concerns that the law 'may impermissibly elevate race in the allocation of political power within the states.' He added: 'Our opinion today does not diminish or disregard these concerns. It simply holds that a faithful application of our precedents and a fair reading of the record before us do not bear them out here.'"

 Writes Adam Liptak at the NYT.

"The same justices who feel harassed and exposed because reporters are combing through their undisclosed financial dealings right now could have solved this problem..."

"... with candor and honest reporting of their financial dealings on the routine occasions on which they were asked. In the midst of the crisis, they eschew a commitment to candor to instead mutter something about the nature of checks and balances, with the proviso that they are susceptible to neither. These are the ploys of emperors.... He wields a gavel, not a scepter. And the Constitution grants him no overarching right to insulate his entire court from the kind of minimal accountability without which no democracy can thrive."

Write Dahlia Lithwick and Mark Joseph Stern, in "King Roberts/The chief justice’s latest trick to ward off oversight is the ploy of a royal, not a judge" (Slate).

But the Constitution does insulate the Court from political pressure. It's not complete insulation, but that's why this article is framed as a call for "minimal accountability." The question then is whether what Roberts's refusal to do was in fact only a request for minimal accountability. Senator Dick Durbin asked him testify before the Senate Judiciary Committee about the Court's ethics. Roberts, declining, wrote: 

“Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.” 

Was Durbin seeking "minimal accountability" or a theatrical occasion to smack the Chief Justice around? Roberts had good reason to suspect the latter.

And speaking of theatrical: that Lithwick and Stern piece in Slate. All this talk of emperors and wielding a scepter! 

I remember when that was the rhetoric of the right. Here's Ed Meese in 1997, railing about "The Imperial Judiciary":

"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.”

Who does not presume the investigation is over and the results are being suppressed?

Instapundit writes: "IN THE LATEST YEAR-END REPORT ON THE JUDICIARY, Chief Justice John Roberts talks about judicial independence, but says not a word about the unprecedented leaked decision in Dobbs. Allegedly there is an investigation, but at this point it’s hard to believe, and that alone does little for the Court’s — or Roberts’ — credibility."

If they don't even refer to an ongoing investigation, I presume the investigation is over and the hope is that we'll forget that the leak ever occurred. We have an institution investigating itself over its own secrecy, and it's being secretive about its investigation and its secrecy.