When Conservative Supreme Justices Revolt

CNN has been carrying pieces looking at the the just finished term of the U.S. Supreme Court and the manner in which two justices, Gorsuch and Roberts delivered decisions that will prove to be on the right side of morality and history but which caused apoplexy among Christofascists and others in the far right. Gorsuch's majority opinion in Bostock v. Clayton County which extended non-discrimination protectons to the LGBT community is perhaps the best example.  A piece in The Atlantic looks further into the failure of conservative justices to rule as demanded by Der Trumpenfurhrer and those demanding special rights for far right Christians.   While defeats at the Court may not lessen evangelical ardor for Trump on a wide scale - further proof of their moral bankruptcy - the just ended term must have a few believing they were betrayed by Trump's appointees.  Here are article excerpts:

Until two months ago, Leonard Leo was among the unambiguous winners of the Trump era. The bookish lawyer and architect of the conservative legal movement has spent the past three and a half years executing his decades-long vision of remaking the federal judiciary—he was instrumental in the Supreme Court appointments of Brett Kavanaugh and Neil Gorsuch. But during the Court’s term this summer, an old conservative nightmare recurred: Republican-appointed justices, including Gorsuch, aligned with their liberal colleagues on big, consequential decisions about immigration, abortion, and LGBTQ protections.

In recent decades, conservative justices have consistently moved to the left once reaching the bench: Anthony Kennedy, who was nominated by Ronald Reagan, routinely cast the deciding vote against social conservatives on gay rights. Conservative-movement stalwarts have never forgiven David Souter, the George H. W. Bush appointee, for voting to uphold the constitutional right to abortion in the 1992 decision Planned Parenthood v. Casey, or for siding with his liberal colleagues in the battle over the 2000 presidential election, Bush v. Gore. Leo spent his career building a conservative legal machine in Washington that would forestall this kind of leftward drift among Supreme Court justices. But this summer, the machine began to sputter.

Leo’s greatest strategic success, perhaps, has been convincing Donald Trump of his methodology: He helped Trump craft a list of potential Supreme Court nominees during the 2016 presidential campaign, which Trump widely advertised to demonstrate his conservative bona fides, and, in less than four years, Leo has shepherded 200 judges to their confirmation on the federal bench. But the president—and his supporters—made a pact premised on results. If even Leo can’t guarantee conservatives the rulings they crave, can Trump?

Conservative-movement activists were frustrated by setbacks at the Court this term, even going so far as to question Trump’s judicial vetting process. But Leo is taking the long view, arguing that his movement’s philosophical overhaul of the judiciary will yield dividends for years to come.

As they did for Trump’s other Supreme Court prospects, Leo and his team reviewed Gorsuch’s record for what they saw as independence and fearlessness. “His judicial record demonstrates a faithful commitment to the Constitution and the rule of law,” Senator Ted Cruz of Texas said at Gorsuch’s confirmation hearing. “He has refused to litigate his own policy preferences from the bench.” In mid-June, however, Gorsuch shocked conservatives by writing the opinion in one of the biggest cases of the term, consolidated under Bostock v. Clayton County, arguing that federal civil-rights law protects LGBTQ employees from discriminatory practices. . . . . Backed by Chief Justice John Roberts and all four of the Court’s liberals, Gorsuch wrote that he reached his decision in favor of LGBTQ rights using textualism, the conservative judicial philosophy. “It’s no contest,” he wrote. “Only the written word is the law, and all persons are entitled to its benefit.”

Leading conservative lawyers in Washington were shocked. . . . . Senator Josh Hawley of Missouri, who wrote a glowing CNN op-ed in support of Gorsuch’s nomination to the Supreme Court, decried Bostock on the Senate floor as a flashing sign of danger for religious conservatives, who fear that extending civil-rights protections to LGBTQ people will threaten their freedom of conscience. “If this case makes anything clear, it is that the bargain that has been offered to religious conservatives for years now is a bad one,” Hawley said. In exchange for going along with the conservative establishment, religious voters are promised judges who will protect their rights, he said, but those judges consistently fall short.

Bostock was just the beginning of bruising conservative defeats during this term. In June Medical Services v. Russo, the Court’s first big case on abortion since Trump was elected, Roberts cast the deciding vote to strike down a Louisiana law that regulated abortion providers. This was a “disaster,” Hawley tweeted. “It is a big-time wake up call to religious conservatives.

As the term produced one defeat after another—on abortion, LGBTQ rights, immigration, and tribal affairs, conservative justices leading the way each time—the sniping from conservative commentators grew more pronounced. If these are the conclusions a majority-conservative Court comes to, they asked, is the conservative legal machine really as effective as Leo and his allies have claimed?

Trump has spent the past month making the case that religious conservatives need him to protect their legal rights. “If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and … Religious Liberty, among many other things, are OVER and GONE!” he tweeted. He promised to release a new list of potential Supreme Court nominees by September 1, and added the current justices to a long list of his political enemies: “Do you get the impression that the Supreme Court doesn’t like me?” he tweeted. Like [Trump] the president they support, religious conservatives are likely discontent with this term at the nation’s high court. And yet, their defeats may only redouble their commitment to supporting [Trump] the president.

Supreme Court Blocks Trump’s Bid to End DACA

This week has not been a good week for Donald Trump and his racist/Christofascist base. On a number of fronts - especially LGBT rights and today the so-called Dreamers - the Supreme Court has handed Trump and his Department of Justice that reminds one of 1930's Germany major loses.  Frankly, defeat could not happen to more deserving people.  In both rulings, Chief Justice John Roberts joined the so-called liberal Justices to hand Trump defeat - suggesting to me that Roberts cares more about his place in history and the legitimacy of the Court in the eyes of a majority of Americans than her cares about pleasing the ugliest elements of today's Republican Party - including the horrific occupant of the White House. The sad truth is that Trump's actions were motivated by his hatred of non-whites and his desire to pander to the white supremacist/Christofascist base of his support.  A piece in the Washington Post looks at today's ruling.  Here are excerpts:

The Supreme Court on Thursday rejected the Trump administration’s attempt to dismantle the program protecting undocumented immigrants brought to the United States as children, a reprieve for nearly 650,000 recipients known as “dreamers.”

The 5-to-4 decision, written by Chief Justice John G. Roberts Jr., stunned President Trump, who said in a tweet that it and a ruling earlier this week that federal law protects LGBTQ workers were “shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.”

Roberts was in the majority in both cases, and Thursday’s ruling showed once again the pivotal role he now plays at the center of the court.

His low-key ruling was technical — the administration had not provided proper legal justification, he said, for ending the Deferred Action for Childhood Arrivals (DACA) program implemented by President Barack Obama eight years ago. It allows qualified enrollees to work, study and remain in the United States on a renewable permit.

Trump has often suggested the conservative-leaning Supreme Court would protect him against adverse rulings from lower-court judges. But Roberts has at times joined the court’s liberal members — as happened Thursday — to make clear for [Trump] the president that his administration does not make the rules.

Whether this pattern continues over the coming weeks will frame what already has proved to be one of the court’s most controversial terms in years.

Still to come: decisions on Trump’s long-running legal battle to shield his private financial records from Congress and a New York prosecutor; several cases involving the separation of church and state; and the court’s first reexamination of abortion rights since Trump’s nominees, Justices Neil M. Gorsuch and Brett M. Kavanaugh, ascended to the bench.

Politicians on the other side of the issue were elated, even if they were as stunned as Trump seemed to be.

“I cannot — the Supreme Court, who would’ve thought, would have so many good decisions in one week, who would’ve thought . . . wow,” said Senate Minority Leader Charles E. Schumer (D-N.Y.), seemingly overcome with emotion.

Trump’s first attorney general, Jeff Sessions, advised the new administration to end it, saying it was illegal.

But lower courts found that directive questionable. At any rate, they said, the Department of Homeland Security did not properly weigh how ending the program would affect those who had come to rely on its protections against deportation, and the ability to work legally. Roberts agreed.

He added: “We address only whether the [Department of Homeland Security] complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.”

“Since 2012, DACA recipients have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on the DACA program, Roberts wrote, quoting from briefs in the case.

“The consequences of the rescission, [advocates] emphasize, would ‘radiate outward’ to DACA recipients’ families, including their 200,000 U.S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. . . . In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years.”

Immigration advocates were euphoric over the court’s actions.

California Attorney General Xavier Becerra (D), who led a coalition of 20 states and the District of Columbia in bringing the challenge, said in a statement that ending DACA “would have been cruel to the hundreds of thousands of Dreamers who call America home, and it would have been bad for our nation’s health.”

Nearly 800,000 people over the years have taken part in the program. More than 90 percent are employed and 45 percent are in school, according to one government study. Advocates recently told the Supreme Court that nearly 30,000 work in health care and that their work is necessary to fighting the coronavirus.

While the program does not provide a direct path to citizenship, it provides a temporary status that shields them from deportation and allows them to work. The status lasts for two years and can be renewed.

Technically, the Trump administration could restart the process and provide the justification the court’s majority said was required. But the process is long, and there is no evidence Congress would want to pass legislation that would end the program.

In fact, it is quite popular with the public. A Pew Research survey conducted this month found that 74 percent of Americans favored granting permanent legal status to immigrants who came illegally to the United States when they were children, while 24 percent opposed.

Trump is so sick that he may try to restart the process.  Hopefully, Americans will throw him out of office in November and end his reign of hate, bigotry and misogyny.

The Supreme Court’s LGBT Ruling Will Extend Far Beyond Employment Law

Justices Gorsuch and Roberts: targets of Christofascist venom.

Yesterday's much welcomed U.S. Supreme Court ruling in Bostock v. Clayton County was limited to Article VII of the Civil Rights Act of 1964 and focused on employment discrimination.  However, the spill over effect will likely spread much farther and impact the application of other statutes that bar discrimination based on sex.  One likely victim of the ruling - even though court challenges will likely be required - is the Trump/Pence regimes efforts to roll back Obama era rules that bar discrimination in the health care realm. Applying the reasoning of Bostock, the Department of Health and Human Service's re-write of the rules runs head on into what the Court just ruled is illegal discrimination. Yes, the Christofascists are indeed seething because Bostock now provides a further weapon against their demands that the have a license to discriminate. A piece in Mother Jones looks at the likely spill over effects.  The irony, of course, is that a Trump appointee wrote the ruling,  Here are highlights:

On Monday, the Supreme Court handed LGBTQ Americans one of their biggest civil rights victories yet. In a 6-3 decision, the court ruled that gender identity and sexual orientation were protected under Title VII of the 1964 Civil Rights Act’s prohibition on sex discrimination in employment. The decision means LBGTQ folks can no longer lose their jobs simply for being queer. 

“In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964,” writes Justice Neil Gorsuch, a Trump appointee, in the majority opinion. “There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The ruling provides some much-needed clarity for lower courts and state officials, who are currently working with a hodgepodge of different (and sometimes conflicting) nondiscrimination policies.  

And though the case was specific to employment discrimination, the implications beyond the workplace are huge. The ruling won’t directly overturn discriminatory policies outside the realm of employment, says Sharon McGowan, Legal Director for Lambda Legal—which argued one of the Title VII cases before the Second Circuit Court—but it does set a precedent that makes it incredibly difficult to exclude gay and transgender people from other laws that prohibit discrimination on the basis of sex. 

Take, for example, the Fair Housing Act. In 1974, the act was amended to prohibit housing discrimination on the basis of sex, but to date, only 24 states interpret that to include LGBTQ people (or have passed state legislation that explicitly includes them). One additional state, Wisconsin, prohibits discrimination against gay people, but not transgender people. Through the years, studies have shown that LGBTQ renters and home owners have been overcharged, less likely to secure rental housing or even evicted because of their sexual orientation and gender identity.

Experts say the Supreme Court ruling could also effect things like Title IX of the Education Amendments Act of 1972—which prohibits sex discrimination in education and has recently been weaponized against transgender student athletes—and health care nondiscrimination policies. 

Just last week, Trump’s Health and Human Services Department released a prepublication version of a rule change that would roll back protections for transgender patients under the Affordable Care Act. The change is meant to undo an Obama-era policy that barred providers and insurance from rejecting care based on gender identity.

“There is still a chance for HHS to see the error of their ways and pull the rule back and fix their mistake, which I hope they will do,” McGowan says. “But assuming that they’re going to continue to forge ahead, they basically have put forth a rule that says ‘we, in the federal government, think that sex discrimination doesn’t mean the things that the Supreme Court has just said sex discrimination means.’

But now, the bad news: Monday’s Supreme Court ruling does nothing for laws that don’t include sex in their nondiscrimination policies—and unfortunately there are more of them than you might think. Federal law prohibits discrimination in public accommodations (e.g. restaurants, retail businesses, parks, libraries) based on race, color, religion and national origin only. The same is true of discrimination prohibitions in certain federally funded programs. 

“I remain more optimistic than I’ve ever been, that we will continue to succeed in rooting out discrimination in all of its forms,” says McGowan. “But I do think that there are going to be issues that that many courts—particularly courts that are hostile to the underlying pinnings of these rulings—may try to find wiggle room maybe where it doesn’t exist. We know that our work is going to continue.”

The struggle for full equality under the law continues.

The Supreme Court Is on the Brink

While the Supreme Court made the right call late last Friday in rejecting a church challenge to California's shutdown order involving church services, what is disturbing is that four of the justices (two are Trump appointees) put right wing ideology and a preference to grant special rights to far right christian groups - I use a small "c" because many are Christian in name only - ahead of public safety and religious freedom for all citizens. But for Chief Justice Roberts' shift to vote with the so-called "liberals," gubernatorial orders across the nation would have been struck down.  These four justices exemplify the extremists and ideologues that Trump and his Senate Republican enablers are appointing to life time positions on the federal bench.  The harm being done will last literally for decades.  Should Trump get to appoint another justice to the Supreme Court, the damage could be irreparable during the lifetimes of anyone over 40 years of age.  It is yet another reason Trump must be defeated in November.  A piece in the New York Times looks at the politicizing of the Court by Trump and the far right.  Here are excerpts:

The Supreme Court made the indisputably right call last week when it refused to block California from limiting attendance at religious services in an effort to control the spread of Covid-19.

Given the obvious difference between walking through a store and sitting among fellow worshipers for an hour or more, as well as the documented spread of the virus through church attendance in such places as Sacramento (71 cases), Seattle (32 cases) and South Korea (over 5,000 cases traced to one person at a religious service), California’s limits are both sensitive and sensible, hardly the basis for constitutional outrage or judicial second-guessing.

So why did the court’s order, issued as midnight approached on Friday night, fill me with dread rather than relief?

It was because in a ruling that should have been unanimous, the vote was 5 to 4. And it was because of who the four dissenters were: the four most conservative justices, two of them appointed by the president who a couple of months ago was demanding that churches be allowed to open by Easter and who, even before the murder of George Floyd in Minneapolis, was openly encouraging protests in the capitals of states not reopening as quickly as he would like.

As an astonished country witnessed on Monday night, as he [Trump] held a Bible in front of a church near the White House after demonstrators were violently cleared from his path, Donald Trump is using religion as a cultural wedge to deflect attention from the consequences of his own ineptitude. The recognition that four Supreme Court justices — Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh — would have invoked the court’s power to undermine fact-based public policy in the name of a misbegotten claim of religious discrimination was beyond depressing. It was terrifying.

Take a look at Justice Kavanaugh’s dissenting opinion. “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses,” he wrote. “Such discrimination violates the First Amendment.”

It’s interesting that while Justices Gorsuch and Thomas signed Justice Kavanaugh’s opinion, Justice Alito did not. Perhaps he’s just too good a lawyer to subscribe to the flimsy analysis underlying this opinion. . . . . but he evidently couldn’t be bothered to explain his own dissenting vote. And no less than his fellow dissenters, he obviously inhaled the unfounded claim of religious discrimination that the president has injected into an atmosphere already saturated with polarizing rhetoric.

The concept of discrimination, properly understood, simply doesn’t fit this case. California is not subjecting things that are alike to treatment that’s different. Churches are not like the retail stores or “cannabis dispensaries” in Justice Kavanaugh’s list of “comparable secular businesses.” Sitting in communal worship for an hour or more is not like picking up a prescription, or a pizza, or an ounce of marijuana. You don’t need a degree in either law or public health to figure that out. If anything, California is giving churches preferential treatment, since other places where people gather in large numbers like lecture halls and theaters are still off limits.

So what was the dissenters’ problem?

Last weekend was also Shavuot, a major Jewish holiday. But it’s the Christian calendar about which recently appointed federal judges seem exclusively concerned. In April, Judge Justin Walker of the Federal District Court in Louisville, Ky., blocked that city from enforcing a ban on drive-in church services. “On Holy Thursday, an American mayor criminalized the communal celebration of Easter,” his overheated opinion began.

The only other opinion filed in this case was that of Chief Justice John Roberts, explaining why the court was denying the church’s request. I am willing to bet that he never intended to write anything; orders denying applications of this sort are typically issued without explanation.

But he must have concluded that the Kavanaugh dissent couldn’t go unrebuted. Writing just for himself in five paragraphs devoid of rhetoric and labeled “concurring in denial of application for injunctive relief,” he offered a sober explanation of the obvious. He noted that “similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” The California rule, he observed, “exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”

After noting the severity of the pandemic and the “dynamic and fact-intensive” question of how to respond to it, Chief Justice Roberts said that the politically accountable state officials charged with answering that question were entitled to act within “broad limits” and “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

Predictably, the chief justice was excoriated on the political right, in recognition that his vote was the one that mattered, just as in the Obamacare case eight years ago, for which the right has never forgiven him.

Everyone who cares about the Supreme Court is busy looking for signs of how John Roberts will navigate the political thicket in which the court finds itself, how he will reconcile his conservative heart and his institution- and history-minded head.

Justice Kavanaugh might have chosen to observe the norm, casting his vote without issuing an opinion that served only to raise the political temperature. Instead of that unspoken gesture toward collegiality, he gave us more proof that the polarization roiling the country has the Supreme Court in its grip. The court can’t save us; that much is clear. It can’t even save itself.

The GOP Effort to Maintain A White Man’s Republic

Trump, Pence and Ross.

Numerous studies have shown that despite the myth that economic angst motivated whites to vote for Donald Trump in 2016, the real motivation was racial and a desire to protect white privilege and white political power.  Under Trump, the GOP has moved from dog whistle racism to overt and express calls to white racism and has emboldened white supremacists across the country.  Having spent last weekend in Charlottesville with family and attending my college reunion, that community remains traumatized over the actions of Trump emboldened white supremacists and Neo-Nazis - those who Trump called "very good people."  Sadly, as a piece in The Atlantic argues, the GOP agenda is to uphold white political power and domination at the expense of racial minorities. Now, the looming question is whether the Supreme Court will validate this effort by allowing the Trump/Pence regime to add a citizenship question to the U.S. census to skew the results to increase white representation.  Here are article highlights:

The disparate approaches taken by two of the Court’s conservatives to the Voting Rights Act reflect the right’s dueling impulses toward civil-rights laws. Where Scalia rejected the very effort to guarantee black people the same right to cast a ballot as white people as a “racial entitlement,” Roberts insisted that he agreed with the law’s underlying premises, but that the statute now did more harm than good.

Lingering beneath the surface was a defining question for the American right: Does it agree with Roberts that “any discrimination in voting is too much”? Or with Scalia, who saw ensuring equal participation in the polity as a black “racial entitlement”?

The Supreme Court’s looming decision over the addition of the citizenship question on the U.S. census will hinge on the answer to that question. The census provides the basis for congressional apportionment and the distribution of federal resources. Empirical studies of the impact of adding the question have determined that it would result in a dramatic undercount of Latinos and immigrants—exactly contrary to one of the Donald Trump administration’s stated rationales, that it would provide a more accurate count.

Since the rise of Trump, the American right has been offered a stark choice between the democratic ideals it has long claimed to believe in, and the sectarian ethno-nationalism of the president, which privileges white identity and right-wing Christianity over all. Scalia didn’t quite have it right: The fundamental question for American democracy since the founding has indeed been whether it is a “racial entitlement,” but only because of those who have tried for centuries to ensure that white people alone are entitled to it.

The Roberts Court has already taken steps in this direction. Last year it endorsed Trump’s travel ban, despite the president’s public statements identifying Muslims as the ban’s target, on the basis that the order itself did not mention religion, a blueprint for allowing further discriminatory efforts to pass constitutional muster as long as the high court’s conservatives retain control. Later that year, the conservative justices, self-styled champions of the freedom of religion, denied a request by a Muslim death-row inmate to have an imam present for his execution, forcing the condemned man to make do with the prison’s Christian chaplain. In both cases, the Court’s conservatives could hide behind the letter of the law in dismissing the government’s official disapproval of Islam. But recent revelations in the census case will force the Roberts Court to decide whether America is a nation for all of its citizens, or a white man’s republic.

On the surface, State of New York v. United States Department of Commerce appears to be a dry question of administrative and constitutional law. In January 2017, the news leaked that the Trump administration wanted to add a question asking census respondents whether they were American citizens. The Trump administration enlisted the acting head of the Civil Rights Division of the Department of Justice, John Gore, to state that the question should be included to improve enforcement of the Voting Rights Act. Wilbur Ross, the head of the Department of Commerce, which administers the census, insisted to Congress that this was the reason for the addition of the question. In fact, Ross had sought the addition of the question long before this rationale was provided.

A recent Court filing by groups challenging the addition of the citizenship question shows what the administration really had in mind. The filing shows that Thomas Hofeller, the late Republican redistricting expert, concluded that adding the citizenship question would, in his words, “be advantageous to Republicans and Non-Hispanic Whites.” That analysis was offered in a 2015 memo, as Hofeller was helping Republicans draw redistricting lines that they believed would cement a majority in Congress. That memo, along with a 2017 document written by Hofeller on the subject, which contains some language identical to a later Justice Department memo on the matter, was turned over to the liberal group Common Cause by Hofeller’s daughter after his death.

Voting districts are typically drawn using total population. A switch to using the voting-age citizen population would, Hofeller concluded in his 2015 memo, expand white political power at the expense of people of color, and thereby increase Republican advantage. But, Hofeller wrote, that shift could only occur with the addition of a citizenship question to the 2020 census, which would provide the federal government with data necessary for that switch.

In other words, long before Trump was even elected, Republican Party insiders were plotting to increase white political power at the expense of people of color. After Trump was elected, they implemented this plan by insisting that their actual goal was the protection of minority voting rights. As with the Voting Rights Act, there was the real reason and the stated reason, the truth and the pretext. . . . . “No one believes that anyone in this administration has any intention of enforcing the Voting Rights Act.”

The use of the Civil Rights Division, which was established to protect Americans’ fundamental rights, to undermine those very rights is a perversion of justice. But it also illustrates that Trumpism merely traveled a few stops down the road from where the Republican Party leadership had been. The risk with Trump was not that the GOP would become a vehicle for the preservation of white political and cultural hegemony; it was that he would discredit that project by making its agenda explicit, by saying, as Scalia did, the quiet part loud.

That the Republican effort to increase white political power might be motivated by partisanship rather than racism is little solace. . . . Whether motivated by partisanship or racism, though, the result is the same. If the Roberts Court does not draw a line here, this will not be the last step toward reestablishing a white man’s government it will be asked to take.

The census case does not hinge on whether the citizenship question is discriminatory. Rather, as a matter of administrative law, the executive branch must follow certain procedures before making decisions. The Trump administration’s blatant dishonesty settles the question of whether it followed procedure definitively: It did not.

“This kind of smoking-gun evidence of what the real illicit reason is behind a government action is incredibly rare. Court decisions don’t require it, and it’s really quite shocking to read it so explicitly,” Wendy Weiser, a voting-rights expert at the Brennan Center, told me. “Every procedural constraint on agency decisions was violated in this case, and the reason that was provided, every lower court found, was not the real reason that the secretary of commerce added the citizenship question.”

The census case is not ultimately about administrative procedure; it is, more fundamentally, about whether the Trump administration can use the federal government for the explicit purpose of increasing white political power. The Trump administration, and by extension, the conservative masses, are already on board, convinced by years of right-wing propaganda that all the opposition’s victories at the ballot box are suspect. Those elements of the Republican establishment that funded and conceived of the census scheme are all in, as well. The only remaining question is whether, and to what extent, the high court is willing to ratify this step toward white man’s government. It is not the first time it has been asked to do so.

Trump’s victory settled the question of whether the GOP would seek to expand its base by diversifying it, or rely on the imposition of white political hegemony over a changing electorate. This is a counter-majoritarian strategy that, in the long run, relies on abandoning the pretense of liberal democracy in favor of something else: A white man’s republic, if they can keep it.

Chief Justice Roberts Set the Stage for the Insane Anti-Obamacare Ruling in Texas

s noted in a previous post, anti-gay, pro-Christofascist and general right wing ideologue U. S. District Court Judge Reed O'Connor (a GOP appointee) issued a ruling striking down the Affordable Health Care Act.  Numerous legal experts excoriated O'Connor's ruling and a number of state attorney generals, including Virginia Attorney General Mark Herring, have made it clear that they will oppose O'Connor's ruling.  While it is easy to blame the ruling out of Texas on O'Connor's general extremism and constant placement of Republican partisanship over the rule of law, a piece in The Atlantic lays part of the blame on Chief Justice John Roberts and his ill advised refusal to uphold Obamacare under the Commerce Clause of the U.S. Constitution and instead base his pro-Obamacare ruling on the power of taxation. With healthcare spending comprising nearly 20% of the U.S. economy and equating to roughly $10,739 per person for every American, it is ludicrous for Roberts to have pretended that healthcare was outside the scope of the Commerce Clause.  Admittedly, this is possibly viewed by many as a "nerdy lawyer analysis and hairsplitting," but it is important.  Here are article highlights:

Friday’s decision striking down the Affordable Care Act, Texas v. United States, is wrong and should be reversed on appeal for reasons ably explained by its many critics. Yet in focusing their wrath on the Texas decision, the critics overlook the fact that Chief Justice John Roberts put us in this mess by making a bad choice in the Supreme Court’s 2012 decision upholding Obamacare, NFIB v. Sebelius. Roberts erred—and opened the door to the Texas debacle—by failing to follow a famous and well-established 200-year-old precedent set by Chief Justice John Marshall.

Joining the four conservatives, Roberts maintained that the mandate could not be sustained as an exercise of Congress’s power to regulate interstate commerce. But he joined the four liberals to uphold the mandate under the taxing power.

Congress’s 2017 move to eliminate the tax on nonpurchasers of health insurance gave rise to the theory that the legal foundation for the individual mandate had thereby disappeared, and that therefore the whole law should go down, too. So ruled the judge in Texas v. United States. The argument is nonsensical, because without the tax, there is no mandate: People are free to decline health insurance with no legal consequence. But the argument would not even exist if Roberts had voted to uphold the mandate as an exercise of the commerce power.

The constitutional challenges to Obamacare harken back to the first great debate over the powers of Congress. In 1791, then–Treasury Secretary Alexander Hamilton proposed establishing a national bank to act as financier to the federal government. Congressional opponents objected that the Constitution gave no express power to create a national bank. Supporters responded that Congress necessarily possessed implied powers to effectuate those specifically enumerated in the Constitution.

Late in the debate, Congressman James Madison offered a novel constitutional theory against the bank bill. Yes, there were implied powers, he conceded, but those could reach only minor matters and could not extend to “great, substantive, and independent” objects, no matter how useful to implementing the enumerated powers. Creating a national bank fell into this latter “great powers” category.

Madison’s argument was voted down by a two-thirds House majority. Congress passed the bank bill, and President George Washington signed it into law.

This victory for implied congressional powers was confirmed by the Supreme Court three decades later, when states’ rights advocates challenged the constitutionality of the Second Bank of the United States, chartered by Congress to succeed Hamilton’s bank in 1816—at the request of President James Madison. In the celebrated 1819 case of McCulloch v. Maryland, Marshall upheld the constitutionality of the second bank. Although the Constitution did not expressly authorize Congress to create banks, Marshall concluded that under the Necessary and Proper Clause, Congress may enact any legislation that is “conducive,” “convenient,” “useful,” or “plainly adapted” to implementing an enumerated power.

In the 2012 Obamacare decision, Roberts could have joined the four liberals to uphold the individual mandate under the Commerce Clause power “to regulate commerce … among the several states.” Individuals who choose not to purchase health insurance may or may not be engaged in interstate commerce. But if an individual mandate to purchase health insurance is useful for effective regulation of the interstate health-care market, Congress has the implied power to enact it, according to Marshall’s theory in McCulloch.

Instead, Roberts joined the four conservative justices to define “commerce” as “economic activity,” and to conclude that the Commerce Clause does not permit Congress to regulate the “inactivity” of someone’s refusal to buy health insurance. Relying on Madison’s 1791 House speech, Roberts argued that regulating the “inactivity” of refusing to buy health insurance is “a great, substantive, and independent power” that cannot be implied, no matter how effective it might be in regulating the national health-care market.

Yet in McCulloch, Marshall had rejected this very contention. Marshall stated that no exercise of power could be deemed “great, substantive, and independent” if it was being used as a means to an end that falls within the enumerated powers. The individual mandate’s requirement to join the health-insurance pool is no end in itself, but rather a means to the plainly constitutional end of regulating the interstate market in health care.

Madison’s half-baked argument against implied powers never got off the ground. It was rejected by Congress and President Washington in 1791, and by the Supreme Court in 1819. Before Roberts resurrected it in 2012, it had not entered American constitutional jurisprudence. And for good reason: It doesn’t work. The bank, the military draft, and countless other federal laws belie the notion that the Constitution prohibits implied “great” powers. And if the draft can be implied, surely the individual mandate can be, too.

The Texas decision can easily be overturned, and Obamacare upheld, without Roberts revisiting his ill-fated choice of Madison over Marshall. But the Texas case highlights just why he should have sided with the long-standing precedent set by the Great Chief Justice, not the twice-rejected, eccentric argument of a flip-flopping congressman.

Chief Justice Roberts Rebukes Trump

Chief Justice John Roberts.

Since entering the White House - thanks to Electoral College electors failing to protect the nation as envisioned by the Founders - Donald Trump has proceeded to undermine and destroy public confidence in America's core institutions, including but not limited to the federal court system.  No doubt Vladimir Putin is smiling broadly as he watches from afar and sees Trump trying to replicate Putin's dictatorial rule in Russia.  Typically, the Supreme Court remains aloof from political disputes - although this may change given Trump's placement of rank partisans Neil Gorsuch and Brett Kavanaugh on the Court - but this week Chief Justice John Roberts found he could no longer bite his tongue and issued a rebuke to Der Trumpenführer's attacks on the 9th Circuit Court of Appeals that sounded like it came from Hitler or Putin's playbook of how to emasculate the judiciary and turn it into a tool of autocracy.  A piece in NPR looks st this rare but much needed rebuke of the foul individual at 1600 Pennsylvania Avenue.  Here are highlights:

In a rare moment of direct criticism, Supreme Court Chief Justice John Roberts rebuked President Trump on Wednesday for [Trump's] the president's description of a federal judge who ruled against his asylum policy as "an Obama judge." Within hours, the president fired back on Twitter, launching an unusual conflict between the executive and judicial branches.

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts said in a statement. "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," Roberts said. Roberts has never responded to any president so directly and publicly before.

Trump's initial response was to a ruling by U.S. District Judge Jon Tigar, who issued a temporary restraining order against Trump's asylum policy Monday, saying it violated a provision of the asylum law. Trump called the decision a "disgrace," adding, "this was an Obama judge and I'll tell you what, it's not going to happen like this anymore."

Trump went on to excoriate the 9th Circuit Court of Appeals which he wrongly blamed for the ruling, saying, "Every case that gets filed in the Ninth Circuit, we get beaten. And then we end up having to go to the Supreme Court, like the travel ban, and we won," Trump said.

However, Tigar is a district court judge who sits in San Francisco, and the Ninth Circuit, which encompasses much of the western United States, has not yet been asked to rule on his decision. Tigar's decision is also temporary, lasting only until Dec. 19 when the judge is scheduled to hear arguments about whether the order should remain permanent.

This is not the first time Trump has criticized a judge. During the presidential campaign, he called one judge with a Spanish surname who ruled against him a Mexican, alleging he couldn't rule fairly because of Trump's proposal to build a wall along with border with Mexico and called another who ruled against his travel ban "a so-called judge."

The American Bar Association joined in the criticism of Trump's comments.

"Disagreeing with a court's decision is everyone's right, but when government officials question a court's motives, mock its legitimacy or threaten retaliation due to an unfavorable ruling, they intend to erode the court's standing and hinder the courts from performing their constitutional duties," said ABA president Bob Carlson.  

The Post also noted the rare rebuke to the man seeking to destroy the independent judiciary: 

[I]t appeared Roberts, when asked to comment by the Associated Press, was eager to counter Trump’s criticism Tuesday of District Judge Jon S. Tigar. The Roberts statement did not mention the president by name.

The chief justice is an aggressive defender of the judiciary and has frequently expressed concern about attacks on its impartiality, whether they come from the left or the right. In 2010, he called the timing of President Barack Obama’s criticism of the court’s decision in Citizens United v. FEC during the president’s State of the Union speech “very troubling.”

Roberts made it clear last month that he is particularly sensitive about the image of the courts because of the recent partisan battle over the confirmation of Justice Brett M. Kavanaugh.

At an event at the University of Minnesota just after Kavanaugh’s confirmation, Roberts said the court served “one nation” and not “one party or one interest.”

“Our role is very clear: We are to interpret the Constitution and laws of the United States, and to ensure that the political branches act within them,” he said. “That job obviously requires independence from the political branches. The story of the Supreme Court would be very different without that sort of independence.”

Will Chief Justice Roberts Vote to Allow Businesses to Discriminate Against Gays?

Being gay in America leaves one constantly targeted for discrimination or worse by Christofascists and/or denied protections afforded to other citizens.  Here in Virginia LGBT employees have zero protections currently from being summarily fired simply because business owners or superiors are anti-gay bigots.  Most people are shocked when they hear there are neither state or federal non-discrimination protections and I regularly get calls from those who have been fired and have to tell them that unless their employer is a large company with internal protections, they are simply out of luck.  Even state employees have no protections other than a gubernatorial Executive Order which can disappear with the election of a new governor.  Now, the U.S. Supreme Court has accepted a case that could well determine if businesses can refuse services to LGBT couples (and by extension individuals) based on "religious belief."  If allowed, it would put in place something equivalent to the "whites only" signs of the Jim Crow era.   If one of the "liberal" justices should retire and Der Trumpenführer (or a President Pence) appoints another anti-gay bigot, the swing vote on the Court will be Chief Justice John Roberts.   Newly appointed Justice Gorsuch has already tipped his hand and shown that to him, religious belief trumps all else and that such discrimination would be perfectly allowable.  A piece in the Washington Post looks at what Roberts might or might not do in the pending case.  Here are excerpts:

A Supreme Court mystery: Has Chief Justice John G. Roberts Jr. embraced the court’s same-sex marriage decision that he so passionately protested two years ago?

The “does-he-doesn’t-he” question is prompted by a case that the court decided without oral arguments at the end of the recently completed term. The justices ruled in favor of same-sex couples, but did so in a way that has turned those who closely follow the court’s actions into a debating society.

And the answer could be important for more than curiosity’s sake. The court has accepted for its next term a case dealing with whether business owners must provide services for same-sex unions even if they are religiously opposed, and the nation’s courts are filling with cases about how far the 2015 same-sex marriage ruling extends.

Usually, there is no question about where the justices stand. One of the Supreme Court’s boasts about its transparency is that justices put their names on their work, joining the reasoning of a majority or dissenting opinion or writing their own.

“Except sometimes they don’t,” said Joshua Matz, a former clerk to Justice Anthony M. Kennedy and proprietor of the legal blog Take Care.

And one of the times they don’t is when issuing a “per curiam” decision, an unsigned opinion that is filed on behalf of the court. In Pavan v. Smith , the court summarily overruled a decision of the Arkansas Supreme Court and agreed with same-sex married couples who said the state treated them differently than heterosexual married couples when issuing birth certificates. The state automatically listed spouses of mothers on birth certificates when the spouse was a man, but not when she was a woman.

The per curiam decision said that Arkansas’s justices had failed to properly apply the court’s landmark decision that same-sex couples have a constitutional right to marry, Obergefell v. Hodges.

“Differential treatment infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the states have linked to marriage,’ ” the unsigned opinion said.

The court’s three most conservative justices objected. Justices Clarence Thomas and Samuel A. Alito Jr. joined a dissent written by Justice Neil M. Gorsuch, which said the court should have accepted the case for full briefing and argument because the outcome wasn’t nearly as clear-cut as the majority claimed.

Noticeably absent from the dissent was Roberts, who was on the losing side in Obergefell. He issued a strongly worded dissent and underlined his opposition by reading a summary of it from the bench — the first and only time he has taken such a step in more than a decade on the court.  Same-sex couples are justified in celebrating their newly found right, he said, but he added tartly that “the Constitution has nothing to do with it.”

But if Roberts wasn’t with the named dissenters in the recent Arkansas case, does that mean he was with the unnamed majority?

Constitutional scholar Erwin Chemerinsky said during a recent panel discussion at the University of California at Irvine Law School that the answer was yes and the vote should be seen as 6 to 3.

Law professor Leah Litman said she wasn’t sure Chemerinsky could make such a claim. But another panelist, Alex Kozinski, the celebrated and conservative longtime judge on the U.S. Court of Appeals for the 9th Circuit, was definitive: Yes, Roberts was in the majority.

Will Baude, a University of Chicago law professor and former Roberts clerk who has closely studied the per curiam decisions, rulings on emergency filings and stay requests that collectively have been referred to as the court’s “shadow docket,” is skeptical of Kozinski’s pronouncement.

Because the five members of the Obergefell majority — Kennedy and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — remain, Roberts certainly knows there is no way of dislodging Obergefell as precedent, and perhaps he thought it covered the Arkansas case, whether he liked it or not.

But it doesn’t dictate what a judge might do in the next case, he said, if circumstances — for instance, the court’s membership — change.

Republicans and Der Trumpenführer have promised Christofascists that they will overturn Obergefell, or gut it, to "protect religious liberty" and by default grant special rights to Christian extremists.  This is what "friends" who voted for Trump gave to their friends and neighbors.  Feigning ignorance should no allow them forgiveness. 

Will SCOTUS Throw Out the Right's Immigration Case?

Other than bashing and stigmatizing gays few things bring the far right closer to orgasm that mistreating and demonizing immigrants - correction, non-white immigrants.  The two activities, of course are related in that the far right, especially the "godly Christian" crowd cannot stand anything or anyone who does not conform to their cult and racial niche.  This hatred of the "other" is what is really fueling the challengers to Barack Obama's immigration rules in United States v. Texas regardless of what the anti-immigration forces may claim.  With the United States Supreme Court scheduled to he oral arguments in the case, some now wonder if the court will punt and find that Texas has no standing to bring the challenge.  A piece in The Daily Beast looks at the possibility.  Here are article highlights:

The great immigration showdown is finally here. Today, the Supreme Court hears ninety minutes’ worth of oral arguments in United States v. Texas, conservatives’ challenge to President Obama’s executive orders on immigration policy.

The Court may decide to dodge the bullet rather than bite it, though.

They have that choice because there are, at heart, two major issues at stake in the case: first, whether Obama exceeded his executive authority, and second, whether states can sue him if so.

Normally, that second question—whether a party has standing—is the kind of thing that only lawyers care about. Standing is a requirement for any lawsuit, and it is at issue in many of them. But standing rarely makes the headlines, because it’s boring to ask whether we should even be asking the question the case is asking. Most non-lawyers would say, Get to the substance, already.

In this case, though, standing is substance. Anyone who watches a Republican debate, knows that immigration policy is a hot issue, and a huge mess. In theory, according to the Immigration & Nationality Act (INA), all eleven million “undocumented immigrants”/ “illegal aliens” (you can usually tell what someone thinks based on which term they use) should be immediately deported from the United States.

In practice, however, only Donald Trump thinks that should really happen, and Trump, of course, is nuts. It would be enormously expensive, disruptive, and cruel to deport so many people at once. Families would be torn apart, and a massive system akin to a police state (internment camps included) would have to be set up, at a direct cost of an estimated $166 billion and an indirect cost of billions more in economic disruption.

As a result, for decades, the federal government has prioritized whom to deport and when. But who gets caught and who doesn’t is often arbitrary, with the government acting like a fisherman with a tiny net, grabbing a few fish at random but letting more slip away. Indeed, progressives have complained that deportations have actually increased under Obama, who is compelled to uphold the existing law.

Comprehensive immigration reform has stalled again and again, most recently in 2013, when a bill with support among conservatives and liberals died in the House due to Tea Party nativist fears.

That is why in 2012, and again in 2014, Obama put into place two administrative policies to attempt to rationalize and prioritize deportations actions. Those policies, DACA and DAPA, would effectively de-prioritize (“defer action” in their terms) about 1.2 million and 4 million people, respectively. For three years, they’d effectively be off the deportation list.

Republicans hate this. As evidenced by Trump’s rise, a significant portion of the Republican base really does want to deport 11 million people.

Here’s where standing comes in. Texas, joined by 24 other states, has said that it will suffer monetary harm if these policies are enacted—specifically, the cost of issuing driver’s licenses to all those now-quasi-legal illegal immigrants.

Of course, that monetary harm isn’t the real reason they’re suing. They’re suing because they’re Republican-led states (15 Democrat-led ones have filed an amicus brief on the other side) and they detest these policies. But this is how standing works all the time.

If Texas succeeds, then theoretically any state could sue the federal government to oppose a policy it doesn’t like: an environmental policy, a trade policy. All federal actions impose some costs on the states; is there anything that they couldn’t challenge?

Perhaps that’s why the district court’s opinion took 50 pages to grant standing to Texas, providing three separate bases for it in an opinion built out of right-wing talking points. But it’s easy to see the Supreme Court going the other way. Immigration is a political question, yet here it is at the Supreme Court, which is supposed to decide the law.

So the Supreme Court may well say “we don’t decide cases like these” both for reasons of Roberts Court judicial conservatism, and because if the Court does get to the merits of this case, we may end up with yet another 4-4 deadlock, and nothing resolved whatsoever.

On Obama’s side, the government has argued that DACA and DAPA are within the executive branch’s discretion. The government has to prioritize somehow, and this is no different from how previous administrations have prioritized for decades. 

If the Court reaches those questions, there will be ample law to guide it. But if the two sides are actually arguing politics while pretending to argue law, that’s a good sign that this is a political question after all, and not an actual case or controversy between parties with standing to sue. Maybe this debate belongs more on the courthouse steps than in the courtroom itself.

I hope Chief Justice John Roberts hands a defeat to the right wing hate merchants.

Antonin Scalia’s Death has Changed the Supreme Court

As regular readers know, I was never a fan of Antonin Scalia and, in fact, on more than one occasion opined that he needed to be removed from the U.S. Supreme Court because of his inability to put aside his own religious, racial and male chauvinist prejudices when confronted with cases.  Nature - or God, if one is a Christofascist - stepped in and Scalia was removed from the Court in a manner I had not contemplated.  Now, if only Clarence Thomas would be removed, we might begin to see a Court with mostly responsible justices (Alito remains a boil on the Court, but might come around if sufficiently isolated).  A piece in Slate looks at how the passing of one bigot and opponent of modernity has changed the Court - most likely for the better, especially  if the Republicans fail to win the White House.  Here are column highlights:

Nobody quite knows what to make of it yet, but nobody disputes it, either: The Supreme Court of March looks nothing like the court we knew in February. The loss of a single justice, Antonin Scalia, has blown up the court and reshuffled everything. It’s the early days yet, and much of the evidence of newish, liberalish outcomes at the court lies in routine housekeeping matters: unsigned orders and withdrawn appeals. Still, it’s safe to say the high court is no longer going to be a candy store for pro-business and socially conservative litigants. What will rise in its place is still a work in progress.

The crazy new vibe at the court isn’t even limited to the raft of orders that have come down in the past week. Those include a critical and unanimous order affirming the right of same-sex partners to adopt children and the tossing of a death penalty conviction in Louisiana because the state withheld significant exculpatory evidence.

There was also last Friday’s unsigned order allowing several abortion clinics in Louisiana to reopen their doors, following an emergency decision from the 5^th U.S. Circuit Court of Appeals that would have shuttered all but one clinic in that state. In one sense, the order to keep the clinics open while the case progresses was not a massive surprise. Last June, the Supreme Court issued a similar last-minute stay of the 5^th Circuit’s Whole Woman’s Health decision that would have closed a significant number of clinics in Texas. . . . .   in choosing to reinstate the Louisiana abortion rules, the 5^th Circuit brushed aside the fact that the Supreme Court had prevented Texas’ clinics from closing last June. Faced with the snub, the court tartly reminded the 5^th Circuit that keeping the Louisiana clinics open is “consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole.” In other words, says the Supreme Court to Louisiana, “We may be 4–4 now, but we are still here. Thank you.”

This week, the Wall Street Journal’s Jess Bravin also noted that a new alliance seems to have cropped up between the court’s two most conservative members, Thomas and Justice Samuel Alito. The emerging split between these two determined conservatives and their colleagues might be in reaction, writes Bravin, to Chief Justice John Roberts “apparently seeking consensus where he can on a court hobbled by potential 4-4 ideological splits.” By contrast, Thomas and Alito seem to be redoubling their efforts to form a bulwark against “the path set out by their six colleagues.” . . . . . The two conservatives also aligned in an effort to uphold the right of states to sentence juveniles to life in prison without parole.

But changes at the court itself are only half of it. There’s also a growing sense among conservative interest groups and litigation shops that the good times and rich bounty of the old Roberts court are no longer on offer and that it may be better to cut and run than stick around and lose.

In an incredibly short time frame we have seen, for instance, a major antitrust appeal from Dow Chemical settled for $835 million last month, when the company determined that it wasn’t worth the risk to spin the wheel at a 4–4 court. Having only last month granted a completely unprecedented stay in a challenge to President Obama’s new environmental regulations—before the case had even been adjudicated in a lower court—Roberts batted away a similar request challenging a different pollution regulation without comment last week. Not here, he seemed to be cautioning Michigan and the other states that wanted to challenge the law. Not anymore.

Consider, too, that in New York this week a key gun rights group opted to drop its challenge to Gov. Andrew Cuomo’s SAFE Act—the big post–Sandy Hook gun control initiative—out of a concern that it could not prevail at the high court without Scalia on the bench. According to the New York Daily News, a National Rifle Association board member explained that the challenge had been halted en route to the court because “it’s just the wrong time.” His lawyers advised that “going forward could damage the case because the High Court at the very least would likely deliver a split 4-4 decision that would leave the law in place.”

This is a shocking turn from how the judicial landscape looked earlier this year. Going into this term, a number of important cases had been seen as likely to change the way we vote, the way we regulate abortion, and the way we fund public-sector unions. So certain were some plaintiffs of their likelihood of success that they had their appeals rocketed to the Roberts court on a fast track.

Suddenly, in a scenario where the conservative justices have been reduced to four, the high-speed pipeline looks far less attractive. It’s not at all clear these fast-track appeals will continue, so long as outcomes are uncertain and given the possibility of a long-term vacancy. By the same token, the tactics deployed to hustle last year’s big Obamacare challenge to the high court will likely lose their allure now. Nobody wants to rush a case to the court with even odds. Watch for a lot of hurry up and wait from conservatives groups that used to be all hurry.

Expect a lot more weirdness and subtle signaling from the court as the term rolls on. An institution that never wished to be an election issue has become one. What might have once been routine orders have now turned into a complex game of reputation management. Whether it’s the chief justice trying to appear apolitical, the conservative justices trying to fly the flag of ideology, or the liberals making hay while the sun briefly shines, nothing at the court these days is exactly what it appears to be, and it appears it will be that way for a while.

[T]he sudden frailty of the conservative bloc and the almost giddily emboldened left reveal how high the stakes will be in the general election. These past few weeks have proved to the right that its fears about the post-Scalia court are justified and tantalized the left with promises of a golden era with Ruth Bader Ginsburg tossing thunderbolts around from on high. Even as it tries to speak softly and subtly this month, the court reveals just how much now hangs in the balance.