Category Archives: Supreme Court

The Handmaid already has blood on her hands

The Daily Mail produced the wonderful graphic above to go with a story published October 3, 2020. The photo was taken on September 26 and shows the crowd gathered in the White House Rose Garden as Donald Trump introduced Amy Coney Barrett as his nominee to be an associate justice of the Supreme Court of the United States, filling the seat which became vacant upon the death on September 18 of Justice Ruth Bader Ginsburg.

In its October 3 story the Mail reported that nine of the people who attended this event had, at that point, tested positive for the Covid-19 virus. As the picture demonstrates, few of the 100 or so people who attended wore face masks, and all were sitting close together. On October 9, Dr. Anthony Fauci, America’s top infectious disease expert, labeled this as a “Superspreader event.”

An October 5 poll report said more than 9 out of 10 Americans wear a face mask when they leave home. But that clearly does not include Donald Trump, our Covid denying superspreader-in-chief. Nor apparently does it include Amy Coney Barrett, whose nomination was rammed through the Senate on a strict partisan vote and who took her seat on October 27. America’s newest associate justice wants to be sure you can attend superspreader events too.

In the 5-4 decision, Roman Catholic Diocese of Brooklyn v. Cuomo, the new conservative majority, with Barrett casting her decisive first vote, ruled New York Governor Andrew Cuomo had violated the First Amendment guarantee of the right to practice religion when he set temporary pandemic restrictions designed to prevent superspreader events. That decision conflicts with Court rulings earlier this year related to coronavirus restrictions in California and Nevada.

This case, decided along with Agudath Israel of America, et al. v. Cuomo, which raised the same issues and involved a Jewish Synagogue, requested an emergency injunction to permit religious services to continue without the Covid restrictions the governor had imposed when the number of Covid cases in several Brooklyn neighborhoods spiked to alarming numbers.

It’s bad enough that in rendering this decision the hypocritical majority abandoned the oft-cited conservation principal of Federalism, leaving decisions to local authorities. They also abandoned the principal of stare decisis, literally “stand by things decided” in Latin, by rejecting the Court’s ruling earlier this year, defying precedent.

But the most egregious of the new majority’s transgressions was its need to issue the opinion in the first place. The number of Covid cases in Brooklyn had fallen. The Governor’s temporary restrictions had been removed. The case was, in legal terms, “moot,” meaning the decision would have no consequences. The Court usually dismisses such cases.

But not this Court. The new right-wing majority had something to prove. They wanted to announce that they had arrived, they had the power, and they intend to use it. The three “Trump judges,” Trump calls them that, Barrett, Brett Kavanaugh and Neil Gorsuch, joined by Justices Samuel Alito, Clarence Thomas, both to the right of Atilla the Hun, also wanted to stick it to John Roberts, the Chief Justice of the United States.

You know that they knew this decision would stink. Why do you think they released it just short of midnight on Thanksgiving eve? That’s when cowards make an announcement they know will draw criticism. They hope it will be ignored at a time when people are distracted and not paying so much attention to the news.

Roberts is a conservative Republican, there is no question about that. But Roberts is also, alone among the new right-wing of the Court, concerned about the Court’s image and concerned about rendering opinions which are out of touch with a majority of the people. He is also concerned with precedent and order. That has led him to side with the liberal-wing in some key cases. The Affordable Care Act cases in 2012 and 2015. The pandemic restrictions cases earlier this year.

In the May 29 California case, South Bay United Pentecostal Church v. Newsom, Roberts wrote, “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect.”

Roberts’ break with the conservative line outraged the right-wing, and Neil Gorsuch, the man sitting in the seat stolen for him by Moscow Mitch McConnell, drove his shive into Roberts’ back with an acerbic concurring opinion, several pages accusing Roberts of “rewriting history” in his dissenting opinion as well as in his vote in the cases earlier this year. “In the end,” said Gorsuch, while Roberts and the other dissenters may wish to “stay out of the way” and let state officials and experts deal with the crisis of a pandemic, “we may not shelter in place where the Constitution is under attack.” 

Both Catholic Cardinal Timothy Dolan, Archbishop of New York, and Brooklyn Bishop Nicholas DiMarzi praised the Supreme Court for striking down Cuomo’s order. Rabbi Chaim Dovid Zwiebel, executive vice president of Agudath Israel, said of the decision “This is is an historic victory.”

So places of worship can now ignore pandemic restrictions if they choose. In both California and Nevada, congregations are planning to ask the Supreme Court to overturn the decisions that went against them. And what’s next, exempt places of worship from observing construction codes, fire safety rules, or OSHA regulations?

Coincidentally or not, a Hasidic synagogue in Brooklyn planned the wedding of a chief rabbi’s grandson with such secrecy it was able to host thousands of maskless celebrants without the city catching on. The November 8th nuptials inside the Yetev Lev temple in Williamsburg might never have been noticed except that someone posted video on Twitter.

If people want to be so irresponsible during this pandemic why should we care? After all, whatever happens to them, happens to them. But of course the damage is not limited to just them. They will go out and spread the virus throughout the community. And when they get sick, they will crowd the emergency rooms and the intensive care units using up resources which should rightfully go to people who caught Covid even though they acted responsibly. They will also endanger the health care workers who are put at risk as they treat Covid patients. It might be nice if the ERs could turn these people away. But the Hypocritic Oath and in most states the law prohibits that.

In a fiery dissent Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote, “Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.” Noting that the Court had rejected they challenges to similar measures in California and Nevada earlier this year, she saw no reason for its apparent change of heart. The Court’s ruling, she noted, “will only exacerbate the Nation’s suffering.”

Trust me. There are more reversals, and more suffering, to come from the new conservative majority on Trump’s Supreme Court.


the notorious supreme court

Ruth Bader Ginsburg

Before we get to the travesty that is the Republican’s 30 day sprint to ram a right-wing ideologue judge down our throats, let us take a minute to take note of the last occupant of the seat she is filling.

I can’t get over the picture above. At least 1000 people, maybe more, gathered in front of the Supreme Court building in the evening of September 18th to mourn the passing of Justice Ruth Bader Ginsburg. They were peaceful, quiet, many cried, some carried candles, all in their own way feeling a great sense of loss. They continued to come through the weekend, bringing flowers, newspaper front pages and pictures of Ginsburg.

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The Justices Take a Landmark Step. Unwillingly.

Mark your calendar. Beginning May 4 and ending May 13, the Supreme Court of the United States will make history. It took the coronavirus pandemic to do it, but over six dates the Court will hear oral arguments on ten cases, and the people of the United States will be able for the first time to hear those arguments as they happen.

This is happening because the Court, like most of us, is practicing Covid-19 social distancing protocols, with the justices and staff working mostly from their homes. The Court first delayed these arguments, then decided to hold the hearings via teleconference.

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I Have a Dream….

My dream is that Mitch McConnell of Kentucky, Republican Leader of the Senate, solemnly announces that he has received from the House of Representatives Articles of Impeachment of Donald J. Trump, President of the United States, and that as detailed by the Constitution and the rules of the Senate he is turning the gavel over to the Chief Justice of the United States, John Roberts, who will preside (Article I, Section 3, Clause 6).

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L’état n’est pas Donald Trump

L’affaire Trump has entered a new stage. In a scathing eight page letter to Democratic leaders in the House of Representatives, White House counsel Pat Cipollone declared that Donald Trump “cannot participate” in the House’s impeachment inquiry, complaining the “inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections.”

The Trumpies of course love the letter even though it reads like Trump himself sketched it out, filling it with his long list of lies and manufactured grievances, and then handed it to Cipollone. I can imagine Cipollone struggling to take out Trump’s usual adjectives like, “lil’ Adam Schiff,” and adding some legalese. The resulting argument would get a failing grade in anyone’s first year Constitutional Law course.

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Again With the Guns

I have now learned that a great way to increase the amount of public participation on your blog is to talk about guns. The feedback on my last post set a record.

I have also learned that having a reasonable debate on this subject is pretty much impossible. There is so much disinformation out there that people involved in the discussion seem to be speaking different languages.

Part of the problem is that there really is, as I noted in the last post, not a lot of good data on the effects of gun ownership and gun regulation. I know that sounds crazy and I have to tell you, as one who believes in making informed data driven judgments it is very frustrating. But it is true mostly because the government, which funds much of the academic research in the United States, has for years forbidden the organizations responsible for public health and safety to fund studies into the causes of death by gunfire. That leaves us arguing, for example, on the effectiveness of the assault weapons ban which expired in 2004. 

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On September 13, 1994, a ten-year ban on assault weapons was signed into law by President Bill Clinton. It had been supported by three former presidents, Gerald Ford, Jimmy Carter and Ronald Reason. The law had a built-in “sunset” provision and was allowed to expire on September 13, 2004, when President George W. Bush was in office.

The so-called Federal Assault Weapons Ban, part of the Violent Crime Control and Law Enforcement Act of 1994, was limited. It included a prohibition on the manufacture for civilian use of certain semi-automatic firearms that were defined as assault weapons as well as certain ammunition magazines that were defined as “large capacity”.

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