"If the question of the Postal Service’s power were before us in something other than the context of an ultra vires claim..."

".... the Government’s argument would present a difficult question. But here the question is different. In order to assert an ultra vires claim, the plaintiffs must show that the challenged regulation of envelopes here is 'entirely "in excess"' of the power to govern collecting, handling, transporting, delivering, forwarding, and returning of mail. The same is true of the requirement to pass along information about each recipient of ballot mail. At the very least, the Postal Service did not act '"contrary to a specific prohibition"' in enacting the rule... [T]he plaintiff States’ statutory claim is based on a contestable reading of a broadly drawn statute empowering the Postal Service to regulate the mail."

Writes Justice Alito, dissenting, joined by Justice Thomas, in United States Postal Service v. California.

Here's the NYT: "Two Conservative Justices Would Have Allowed Trump’s Mail-In Ballot Rules/Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas, called the challenge to the restrictions a 'Hail Mary pass' that was unlikely to prevail because of the Postal Service’s broad authority to regulate the mail" (gift link).

"Supreme Court Again Blocks Republican-Backed Missouri Voting Map."

"The ruling deferred to Missouri’s state Supreme Court, which had invalidated G.O.P.-friendly district lines, saying voters must first have an opportunity to approve the map in a statewide referendum."

NYT gift link.

"The emergency request marks the latest turn in a dizzying legal fight over mail-in voting, even as states begin distributing mail-in ballots to voters."

"The upshot has become clear in recent days: It will be the Supreme Court that has the final say on President Trump’s plans to restrict mail voting in the midterms. It’s unclear how fast the justices will move and announce a ruling.... The Trump administration had already filed emergency request to the justices challenging a shorter-term pause [the trial judge] had imposed on the plan. But the trial court judge acted to extend her freeze before the justices ruled, necessitating a new request from the administration for Supreme Court action...."

I'm reading "Trump Administration Again Asks Supreme Court to Allow Mail Voting Restrictions/The filing puts the legality of the president’s push to impose limits on mail voting squarely before the justices even as states begin sending out ballots" (NYT gift link).

"Trump is going to get his ballroom — even if courts conclude it’s illegal."

Said lawprof Leah Litman, quoted by Adam Liptak in "Trump’s 'Lightning Speed' Outpaces the Courts/In his breakneck construction of a grand ballroom and in many other initiatives, critics say, the president has tried to outrun judicial review" (NYT gift link).

When the ballroom case was argued before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in June, Judge Patricia A. Millett asked... If the government were to move very quickly to bulldoze the Statue of Liberty... was it true that “nothing can be done” by the courts? 

Yaakov Roth, a Justice Department lawyer, did not try to duck the question. “I think that’s right, yes,” he said.... 

When the case reached the Supreme Court last month, the challengers warned the justices that Mr. Trump had “decided to try to outrun judicial review.” In response, Solicitor General D. John Sauer did not exactly deny the charge. He crowed that a 250-person crew had been working 20 hours a day, seven days a week, and that the project, which he said included key security upgrades for the White House, had passed the point of no return....

It's in the structure of things that the Executive has speed as a tool. Remember when Justice Robert Jackson quoted Napoleon — "The tools belong to the man who can use them"?

"In 1986, Justice Byron R. White... summoned his clerks to his chambers for a special assignment that took several weekends. Together they marked his quarter-century on the court..."

"...  by feeding his records, including from the landmark Miranda rights case, into a shredder purchased for the occasion, according to Dennis J. Hutchinson, his biographer. 'Well, here’s an article. Here’s an entire book,' one of the clerks later told Mr. Hutchinson, describing what it was like to insert invaluable history into the jaws of the machine. 'I couldn’t believe how much history was going down the chute,' he said."

Writes Jodi Kantor "How the Supreme Court Locks Away Its Own History/After Justice Scalia died, the justices held private negotiations about locking away their papers. We may not see the ultimate record of the Roberts court for decades" (NYT gift link).

To suppress these communications is to promote the belief that the Justices are humble servants of the law, a belief that enhances their power. But how can that work unless all the Justices go Byron White on their papers? And it's too late for that. Justice Blackmun set the release date for all his papers at 5 years after his death. He died in 1999. You might think that would motivate the other Justices to formalize their position one way or the other, but Justice Scalia, who died in 2016, did not. Perhaps his papers are full of material that offsets things in Blackmun's, but it doesn't seem that he cared. Perhaps he thought the final written opinion was the operative text. That's what a humble servant of the law would believe. 

"In 2021, Columbia University law professor Philip Hamburger argued that the U.S. public school system violates the First Amendment."

"'Education,' he wrote, 'consists mostly in speech, and parents have a right under the First Amendment to exercise authority over what their children hear.' Forcing families to accept government messaging — or pay a steep price to escape it — amounts to unconstitutional pressure. A lawsuit filed in Nebraska on Aug. 13 brings that argument into court — and could open a path toward universal school choice."

From "Are public schools unconstitutional? A Nebraska court will decide. The challenge to compulsory education combined with public-school-only funding could lead to universal school choice" (WaPo)(gift link).

The headline is bad. The argument is about compelled public schooling, and the Supreme Court recognized long ago that parents have a right to choose to send their children to private school. The lively dispute is over whether privately schooled children are entitled to their share of public spending. If public school is the only free choice, then the choice is heavily weighted toward the government's preferred speech.

The Hamburger article, in the WSJ, is "Is the Public School System Constitutional? Education consists mostly in speech, and parents have a right under the First Amendment to exercise authority over what their children hear." The word "system" makes that headline less bad. The system is that if you pay your own way you can control your child's schooling but government schooling is free.

The old Supreme Court case is Pierce v. Society of Sisters, a unanimous 1925 case. Memorable passage: "The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."

"The Supreme Court on Friday temporarily allowed President Trump to continue construction of a luxury White House ballroom to replace the East Wing he demolished last fall."

The NYT reports.

In a one-sentence order, Chief Justice John G. Roberts Jr., acting on his own, issued a place holder that gives all nine justices additional time to more fully consider whether construction of the planned 90,000-square-foot ballroom can proceed. The chief justice’s order did not provide a timeline for when the court would act next, stating only that a lower-court ruling against the Trump administration was paused “pending further order of the undersigned or of the court.”

"Over the past 21 terms, the closest any member of the court got to Justice Jackson’s loquaciousness was Justice Stephen G. Breyer..."

"... who was famous for unspooling elaborate hypothetical questions featuring flights of fancy like marshmallow guns (in a case about attempted robbery) and tomato children (in a case about a federal drug law). Still, Justice Breyer... uttered an average of 818 words, or roughly two thirds as many as Justice Jackson [who averages 1263 words]. The runner-up to Justice Jackson in the four years since she joined the court... is Justice Sonia Sotomayor, at 791 words. His colleagues treated Justice Breyer’s professorial digressions with bemused tolerance. Justice Jackson’s extended questioning, by contrast, has been a source of annoyance to some of the other justices, The New York Times reported last October...."

Writes Adam Liptak, in "How a Covid-Era Scramble Transformed Supreme Court Arguments/Live audio, a new format and new voices have transformed and unsettled the court’s signature public ceremony" (NYT gift link).

Liptak offers 3 reasons why Justice Jackson seizes the opportunity to speak far more than anyone else and in defiance of clearly expressed annoyance: 1. She developed her style as a trial judge, the only judge in the courtroom, 2. Her side of the Court is outnumbered, 3. As the junior member of the Court, she's forced to go last when the Justices speak in order of seniority.

Jackson's outsized role at oral argument is so extreme, and so much attention has been paid to it. Clearly, she's choosing it, in spite of the criticism and even disdain and ridicule. She must believe she's doing exactly the right thing. Perhaps she views her contribution as proportionate if you measure not by the number of Justices but by the weight and power of the ideas they represent.

As political as you want it to be.

I'm just answering the question posed in this New Yorker title: "How Political Is This Supreme Court?"

Read the article if you like. It contains material like "My argument is that the Court is neither entirely political nor that it is entirely apolitical. I think we have to be a little more nuanced in the way we go about this. First, how do we define political?..."

What is closest to your reaction?

I'm not the sort of person who needs to read that sort of thing.

Good. That sounds substantive and nuanced.

I'm distracted by the Althouse "nuance" tag.

 

pollcode.com free polls

"The justices did find unanimity 45 percent of the time, up two points from last term. They joined together, for instance..."

"... to say a Texas man could not be prosecuted for violating a law banning drug users from gun possession merely because he frequently used marijuana, and they agreed that a New Jersey anti-abortion group could bring a challenge in federal court to government efforts to seek its donor list. There were also examples of ideologically diverse lineups during the term. In a 5-to-4 vote on Monday, Chief Justice Roberts and Justice Amy Coney Barrett joined the court’s three liberals in supporting Mississippi’s grace period for late-arriving mail-in ballots, rejecting a push by the Trump administration to invalidate a state law. Justice Barrett also joined Chief Justice Roberts’ majority opinion this week to uphold birthright citizenship on constitutional grounds. Mr. Trump appointed Justice Barrett to the court in his first term, and her tendency to occasionally rule against his priorities has drawn harsh criticism from the president’s allies. Justice Gorsuch, who has a libertarian streak, also aligned at times with his colleagues on the left, more often than he has in the past.... But even so, a conservative bloc routinely controlled the outcome in cases large and small, with the center of the bench shifting considerably to the right...."

From "Despite Some Losses for Trump, Supreme Court Delivers Enduring Conservative Wins/The justices pushed back on some of President Trump’s signature moves, but they also expanded presidential power and supplied victories on long-sought conservative goals" (NYT).

"Experts said that the decision would immediately cut into one of the Democratic Party’s critical financial advantages in television advertising."

"That’s because federal law requires that television broadcasters give political candidates low advertising rates, but extends no such requirement to super PACs, which are often charged double, triple and even four times as much for the same television time. Republicans in recent election cycles have been more reliant on super PACs and national party committees than Democrats, whose candidates have tended to out raise Republicans and who therefore often have been able to take advantage of the lower television ad rates. Allowing unlimited coordinated spending between candidates and parties would essentially permit both to take advantage of the lower rates...."

From "Supreme Court Lifts Spending Limits on Political Parties and Candidates/Republicans had asked the court to strike down restrictions on how much political parties can spend in coordination with candidates" (NYT)(gift link).

The Supreme Court is about to hand down its last decisions of the term.

Here's the live blog at SCOTUSblog.

And here's where to get the text of the opinions immediately, starting in a few minutes, at the Supreme Court's website.

UPDATE: West Virginia v. B.P.J.: "Title IX allows schools to provide separate women’s and men’s sports teams defined by biological sex, and West Virginia has permissibly maintained female sports for biological females consistent with Title IX." Kavanaugh has the opinion joined by Roberts, Thomas, Alito, Gorsuch, Barrett. Thomas and Gorsuch have concurring opinions. There's an opinion concurring in the judgment in part and dissenting in part, by Sotomayor that is joined by Kagan and Jackson, and then Jackson has an opinion concurring in the judgment in part and dissenting in part. To what extent is this unanimous? 

From the Kavanaugh opinion: "In short, States are not required to conduct an individual-by-individual comparison of the physical and athletic capabilities of all biological males in order to satisfy intermediate scrutiny. Intermediate scrutiny permits a sex-based classification that, as here, is 'not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.”

UPDATE 2: "FECA’s political-party coordinated-expenditure limits violate the First Amendment." The case is National Republican Senatorial Committee v. Federal Election Committee. Another Kavanaugh opinion. It's joined by the 5 you'd expect to join, and the 3 dissenters are then, as you'd know, Kagan, Sotomayor, and Jackson. 

UPDATE 3: Birthright citizenship survives. Here's the opinion, Trump v. Barbara. Roberts writes the majority opinion and is joined by Sotomayor, Kagan, Barrett, and Jackson. Kavanaugh writes an opinion concurring in the judgment in part and dissenting in part. Thomas, Alito, and Gorsuch all write their own dissenting opinions, with Gorsuch also joining the Thomas opinion. 

From the Roberts opinion: "If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design. Words appearing frequently in the Executive Order—'mother,' 'father,' 'lawful,' 'temporary'—are absent from the Clause. For a simple reason: they did not matter. And while the Clause does ensure state citizenship attaches for U. S. citizens in 'the State wherein they reside,” Amdt. 14, §1, the explicit invocation of residence for state citizenship only highlights its absence from the criteria for U. S. citizenship. See Slaughter-House Cases, 16 Wall. 36, 74 (1873) (a person can 'be a citizen of the United States without being a citizen of a State'). When the principal dissent does grapple with the operative legal text—'subject to the jurisdiction' of the United States—it has little to say...."

Also from Roberts: "Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to 'every free-born person in this land.”' Cong. Globe, 39th Cong., 1st Sess., at 600 (Sen. Trumbull). We keep that promise today."

UPDATE 4: From SCOTUSblog: NPR is announcing that Alito is retiring -- but still has not been confirmed... "Justice Samuel Alito, who wrote the Supreme Court's opinion reversing Roe v. Wade, is retiring, the court announced Tuesday."

"[T]he court overruled its 91-year-old decision in Humphrey’s Executor v. United States... [M]ore broadly, Monday’s decision was a major victory for proponents of the 'unitary executive' theory..."

"... the idea that the president should have complete control over the executive branch. Under this theory, the president should be able to fire any member of the executive branch, and laws – like the one that the court struck down – that restrict his ability to do so violate the separation of powers. Writing for the majority, Chief Justice John Roberts contended that 'the President must have the assistance of officers he can trust. Although it is up to the Senate to decide whether to confirm those with whom the President would prefer to work, neither Congress nor the courts may saddle him with those with whom he cannot work. Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.'..."

I'm reading "Supreme Court allows Trump to fire FTC commissioner and overturns major restraint on presidential power" by Amy Howe at SCOTUSblog, writing about yesterday's Trump v. Slaughter.

"In a 36-page opinion... Roberts first emphasized that the Constitution gives the president '[t]he executive Power,' as well as the responsibility to 'take Care that the Laws be faithfully executed.' The Framers of the Constitution, Roberts explained, wanted to create a system in which the one person, the president, was in charge of the executive branch. The officials who work for him, Roberts continued, are there to help him, but the president must be able to fire them if they are not performing well – so that he can carry out his own job.

Waiting on the Supreme Court.

Following the live chat at SCOTUSblog: "The cases still to be decided: birthright citizenship; the president’s power to fire the heads of independent agencies; the transgender athletes cases; two election law disputes; and whether a geofence warrant violated the 4th Amendment."

The full text of new opinions will be available here, at the Court's website.

ADDED: We have Watson v. RNC:  "The federal election-day statutes do not prevent Mississippi from counting absentee ballots postmarked by election day but received up to five days thereafter; nothing in the federal election-day statutes requires ballots to be received by election day." That's written by Justice Barrett and joined by the Chief and Justices Sotomayor, Kagan, and Jackson. Dissenting are Justices Alito, Thomas, Gorsuch, and Kavanaugh.

Next is Chatrie v. United States: "Police officers conducted a Fourth Amendment search when they acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information. Justice Kagan writes the majority opinion, joined by the Chief and Justices Sotomayor, Kagan, Kavanaugh, and Jackson. Justice Gorsuch writes a concurring opinion, and Justice Alito has a dissent joined by Thomas and Barrett. From the Kagan opinion:

Consider just a few trips that a person is apt to think “indisputably private”: to “the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, [or] the by-the-hour motel.” And unlike a GPS device, Location History enables police officers to focus on precisely those sites—to see, in a given time block, who shows up. Similarly, Location History—even two hours of it—allows officers to target one-off events of potential interest: a gun show, say, or a political rally....

From the Gorsuch concurrence:

I might have hoped that the Court would have pursued a more traditional approach to the Fourth Amendment today. But look carefully and you will see hints of it at work even in the Court’s opinion. Why is the Court so protective of Location History data, email, and electronically stored photos and calendars? Because, it turns out, “a user reasonably understands” all those things “as his own.” Put another way, they are his effects. And why does the Court hold Mr. Chatrie’s effects protected by the Fourth Amendment even though a third party stores them? Because, the Court says, those effects remain his “even though [they are] stored on Google’s servers.” Put another way, entrusting your effects to a third party for certain agreed purposes doesn’t mean they are no longer yours....

Now, we get the last opinions of the day, Cook and Slaughter, the cases about the President's power to fire heads of independent agencies. David Lat at SCOTUSblog: "In terms of their bottom lines at least, Slaughter and Cook came out as many expected. 'The Fed is different' carried the day."

"In its 6-to-3 ruling, the court said noncitizens must fully cross the border to gain the right to apply for asylum. The court’s conservative majority said migrants standing in Mexico do not 'arrive' by 'attempting, and failing, to set foot in this country.'"

From "Supreme Court Allows Trump to Block Asylum Seekers at Border/A policy of turning back asylum seekers at the border was rescinded in 2021, but the Trump administration wants the flexibility to reinstate it as a tool for border control" (NYT).

Here's the full opinion: Mullin v. El Otro Lado. Excerpt from the majority opinion, written by Justice Alito:

This case presents a straightforward question: whether an alien1 who seeks to enter the United States from Mexico “arrives in the United States” when he or she is still in Mexico. In the decision below, the United States Court of Appeals for the Ninth Circuit answered “yes.” That is wrong. In ordinary speech, no one would say that a person “arrives in” a place—for example, a house, a city, or a country—before the person enters that place. The context in which the phrase “arrives in the United States” is used in the immigration statutes at issue here supports an ordinary-meaning reading. So does the presumption against extraterritoriality. We therefore reverse.

 From Justice Sotomayor's dissenting opinion (joined by Justices Kagan and Jackson):

The Court’s illogical interpretation is driven almost entirely by a fixation on a single word: “in.” Words, however, must be read in context and with attention to how they fit into the statute as a whole. The majority ignores the statutory context and history, not to mention the longstanding position of the Executive Branch, all of which show that any noncitizen arriving at our doorstep and seeking admission must be inspected and allowed to apply for asylum, regardless of whether her foot has crossed the threshold....

"The Supreme Court on Thursday allowed the Trump administration to end humanitarian protections that have permitted hundreds of thousands of people from Haiti and Syria..."

"... to live and work legally in the United States. President Trump has pushed to terminate the program, known as Temporary Protected Status, as part of his broader crack down on immigration. The program was created by Congress with bipartisan support in 1990 to provide temporary legal status to people whose home countries were deemed unsafe because of war, natural disasters or other crises."

The NYT reports in "Supreme Court Lets Trump End Deportation Protection for Haitians and Syrians/President Trump has pushed to rescind Temporary Protected Status for hundreds of thousands of people from countries convulsed by humanitarian crises."

Here's the full opinion: Mullin v. Doe. Excerpt from the majority opinion, written by Justice Alito:

None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications. For example, one may oppose TPS and favor tighter restrictions on immigration for economic or other reasons that have nothing to do with race. And a person without racial bias can provide a harshly unfavorable description of living conditions in some of the countries with TPS designations....Political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago.... But whatever one may think of the cited statements, they are insufficient to show that the termination of Haiti’s TPS designation was based on the race of the Haitian people....

From the dissenting opinion by Justice Kagan:

The evidence [the Haiti plaintiffs] have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print....

"Supreme Court says Rastafarian can’t sue prison officials over shorn dreadlocks."

WaPo reports. 

This is a complicated case, written by Justice Gorsuch, for a 6-person majority, in Landor v. Louisiana Department of Corrections and Public Safety. It's about limits on Congress's power to impose conditions as it exercises its Spending Power. The statute is the Religious Land Use and Institutionalized Persons Act, and I assume most of us feel empathy for a Rastafarian prisoner who experiences a routine prison haircutting. The federal statute is designed to relieve prisoners of substantial burdens on their religion (unless the strict scrutiny standard is met). The problem is the scope of Congress's power.

Let's look at the Gorsuch opinion:

"What is clear is that the majority today forecloses future reliance on Sosa and shuts the courthouse doors to almost any claimed violation of international law under the [Alien Tort Statute]."

"That includes torture. See, e.g., Filartiga v. Pena-Irala, 630 F. 2d 876, 878 (CA2 1980) (ATS suit brought by plaintiff alleging that his son had been kidnapped and tortured to death in retaliation for the plaintiff’s political beliefs). It includes forced labor. See, e.g., Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355, 1359 (SD Fla. 2008) (ATS suit alleging that the defendant trafficked Cubans to Curacao, held them in captivity, and forced them to work repairing ships and oil platforms). It also includes perhaps the most universally condemned crime in the modern era: genocide. See, e.g., Kadic v. Karadzic, 70 F. 3d 232, 236–237 (CA2 1995) (ATS suit alleging 'brutal acts of rape, forced prostitution, forced impregnation, torture, and summary execution, carried out by Bosnian-Serb military forces as part of a genocidal campaign'). 'Like the pirates of the 18th century,' whose conduct so concerned Blackstone and the First Congress, 'today’s torturers, slave traders, and perpetrators of genocide are "hostis humani generis, an enemy of all mankind."' Nestlé, 593 U. S., at 647 (opinion of SOTOMAYOR, J.). As to each of these offenses, as to each of these enemies of mankind, the majority decides that there is simply no way that a suit could possibly proceed without offending Congress. Noticeably absent from the majority’s analysis is any evidence that Congress would be offended by these suits. Of course, there may be reasons why allowing an individual ATS suit to proceed would be unwise. That possibility, however, should be addressed on a case-by-case basis...."

Writes Justice Ketanji-Brown Jackson, dissenting in Cisco Systems v. Doe, announced this morning.

"Race and partisanship have closely tracked each other for decades. But the justices said that under their new standard..."

"... courts must disentangle the two and could step in only if race, not politics, was at play. Analysts who cheered as well as those who criticized the ruling agreed that the justices were signaling that from now on lawmakers — not the courts — should be in the driver’s seat of redistricting."

From "In Alabama Ruling, Supreme Court Signals Limited Role for Federal Courts in Redistricting Fights/In an emergency ruling on Tuesday night, the court’s conservative majority gave a first glimpse into congressional district battles under a weakened Voting Rights Act" (NYT).

"There's something that's kind of weird out there... Can I call it the painfully unsophisticated, highly educated political hobbyist?"

"And this is the audience for an awful lot of political media... and it is people who have a pretty good degree of education. They're highly attuned to politics and they're highly partisan. And that last bit of it — the highly partisan — actually means they become much less sophisticated about politics and law because... the volume consumers of political media are the most wrong about their political opponents. So... your median TED Talk listener is probably... a very partisan audience.... And if... you're left-leaning, and you're highly partisan, and you're highly attuned to political media, what is the one thing that you have in your mind about the Supreme Court? Totally biased against this [challenge to Trump's power]. You can't win. It's always gonna rule for Trump, blah, blah, blah.... They are just deluged with... it's rigged, it's rigged, it's illegitimate, it's rigged..... So then you have this attorney come in who's a fellow liberal who won in front of the six three Supreme Court. And he is going to, if that's your mindset, look like Zeus walking down from Mount Olympus.... You know, I walked in to the Lion's den of the 6-3 Republican court and got a 6-3 Republican court to strike down the signature policy of a Republican administration. Look at me. I am the God king!.... And it is a message that lands with a particular audience incredibly well because... it's premised on all of their false assumptions about the Supreme Court. If you actually walked in with a realistic view, he was the favorite. He was the favorite!"

Said David French in the new episode of the podcast "Advisory Opinions," "The TED Talk Heard ‘Round the World" (at 00:44:17)(transcript at that link).

And here's the Neal Katyal TED talk they're talking about.