Supreme Court Term Preview: Just Call the Justices "Republicans" and "Democrats"

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” - John Roberts, C.J. (2018)

Supreme Court Term Preview: Just Call the Justices "Republicans" and "Democrats"

By Jay Willis

For people who write about the Supreme Court, a well-established shorthand exists for describing who the justices are and how they do their jobs: “conservatives” and “liberals.” This language reinforces a core tenet of American legal culture: Judges—officers of the court who have taken an oath to administer justice faithfully and impartially—are not politicians. Whenever partisan affiliation does come up in a story, reporters are careful to attribute it not to judges, but to the elected officials who nominated and confirmed them.

Consider coverage of Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade earlier this year. “CONSERVATIVE JUSTICES SEIZED THE MOMENT AND DELIVERED THE OPINION THEY’D LONG PROMISED,” read a headline at CNN, which went on to distinguish between the justices in the majority and the “Republican-appointed conservatives who first voted for Roe and then upheld it.” Bloomberg described the Court’s decision as taking place “along ideological lines,” not to be confused with the reactions from elected officials, which came “along party lines.” In the New York Times, this dichotomy was on display in the very same sentence: The end of the right to abortion access vindicated “a decades-long Republican project of installing conservative justices prepared to reject the precedent.”

This convention is not only useless. It’s dishonest. This Court, controlled by a six-justice conservative supermajority, is the most partisan Court in living memory, and its life-tenured members are at the center of Republican political power in America. And for all the attention that occasional defections or scrambled lineups receive, the more important a case is to the GOP’s electoral prospects, the less likely it is that the final vote will include any surprises. 

Legal journalists have a powerful self-interest in maintaining the illusion of a distinction between erudite law and bareknuckled politics: If judges appointed by Republican elected officials simply do what Republican elected officials would have done in their shoes, the need for media outlets to hire specialized legal correspondents suddenly feels a lot less pressing. But after a term like last year’s, it is past time for commentators to abandon the constrained vocabulary of “conservatives” and “liberals,” or Republican and Democratic “appointees,” if they’re feeling spicy that day. They should feel free to refer to Supreme Court justices—to all judges, really—as “Republicans” and “Democrats,” too.

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The Development of Black Catholic Parishes in the Washington Area

The Development of Black Catholic Parishes in the Washington Area

The manifestations of racism and its results in the history of Holy Trinity parish have been and are continuing to be examined by Holy Trinity’s history committee. The following essay is an attempt at comparative history.

There are similarities and parallels in the histories of a number of parishes in the District of Columbia and the segment of Virginia which had been part of the district from 1790 to 1846. African American parishioners offended by the fact that they were not treated as equal members of the Body of Christ withdrew from a number of Washington area Catholic Churches and founded their own Catholic parishes where they could worship without being subjected to demeaning treatment.

The first of these stories of exclusion, exodus, and rebirth occurred in 1858. In that year, free Black Catholics repelled by the racism they experienced at St. Matthew’s, where they were forced to attend Mass in the basement, founded Martin de Porres, the first Black Catholic parish in the District of Columbia. According to St. Augustine’s parish history, “Faced with a society that was not yet willing to put off the last vestiges of slavery and a Church that, at best, tolerated the presence of Black people in its congregation, these men and women founded a Catholic school and chapel on 15th Street under the patronage of Blessed Martin de Porres.”

The parish was re-dedicated in 1876 to St. Augustine, and in 1908 the parish school, which had been forced to close in 1885, reopened under the direction of the Oblate Sisters of Providence, the first religious order of Black Catholic women. It was that order which Anne Marie Becraft, Holy Trinity’s pioneering promoter of education for Black children, joined in 1831 when she was 26. St. Augustine’s, today, proudly calls itself the mother church of Black Catholics in the United States.

Anne C. Singer - Remembered

Anne C. Singer Brilliant in life. Courageous in death.

Anne C. Singer passed away peacefully at 77 years old on Monday, September 26th at her home, surrounded by her family and loved ones. Anne is survived by her husband David Berengut, daughters Laurel Singer (husband John Boardman) and Karyn Singer (husband Chris Otundo), stepchildren Sarah O’Grady (husband Jamie O’Grady) and Josh Berengut (wife Alex Berengut), three grandchildren and two step-grandchildren, and brother Paul Rosenzweig (wife Miriam Bailin), as well as a host of dear and cherished friends.

She leaves behind a long legacy of accomplishment as a lawyer and advocate.

Anne graduated from the University of Chicago with a degree in biology, and received her Masters in Biology from the University of Alabama. She then obtained her JD from the University of Cincinnati in 1973. There she served as the first female Editor-in-Chief of the Law Review, the first of many of her highly-regarded career accomplishments.

Anne dedicated most of her career to public service, beginning with a clerkship for Judge Robert Clifford of the New Jersey Supreme Court from 1973-1974. She spent four years as a public advocate working for the Division of Mental Health Advocacy. This work inspired her to publish a book in 1981 titled ‘Mental Health Law in New Jersey.’ She worked as an Assistant US Attorney at the US Attorney’s Office from 1978-1990.

Anne held several positions and partner roles at major local law firms before starting her own solo practice in 2005, which she maintained in Haddonfield until a few months before her death.

Her proudest career accomplishments included representing indigent criminal defendants, and in her longstanding roles on professional boards and committees. Anne was a long-time active member of the Editorial Board of the New Jersey Law Journal, the District IIIB Ethics Committee for Burlington County, the New Jersey Supreme Court Advisory Committee of Professional Ethics and the Disciplinary Review Board of the Supreme Court of New Jersey. Additionally, she was a member of the Criminal Justice Act panel which provides private lawyers to represent indigent defendants in federal criminal court.

Anne was a staunch opponent of capital punishment and a vocal supporter of separation of church and state and women’s rights. There was never a political or legal discussion she shied away from – bringing a highly engaged, educated and unwavering point of view to the table. Second to her career, her great passion was world travel. She and her husband David – often accompanied by some of their very dear friends – counted trips to South Africa, Italy, Peru, Thailand, Vietnam and France among some of their most memorable.

In the fall of 2021, Anne was dealt a crushing ALS diagnosis – one that accelerated far too quickly and eventually led to her untimely passing.

In lieu of flowers, the family requests consideration of donations to the ALS Association www.als.org or the ALS Hope Foundation www.alshf.org.

Eric Segall : The Supreme Court and Race: A Sordid History is About to Repeat Itself // Dorf on Law

Understated, if anything.  Rodriguez v. San Antonio,(1972)  and Milliken v. Bradley were key moments of cowardice, to be kind about it. - GWC

Dorf on Law: The Supreme Court and Race: A Sordid History is About to Repeat Itself

By Eric Segall

The Supreme Court’s new term starts a week from today with several scary cases on its docket. Among them are two affirmative action cases. It is more than likely that the Court will issue a decision prohibiting both public universities and private ones that receive federal funds from using race in any way in their admissions processes. And, once again, the Court will stand directly in the way of racial progress.

In 1857, the Supreme Court stopped Congress from prohibiting slavery in the territories despite express constitutional text granting Congress the power to make all “rules and regulations” for those territories. In 1883, the Supreme Court prevented Congress from prohibiting racial discrimination in places of public accommodations such as hotels and restaurants despite Section 5 of the 14th Amendment, which gives Congress the power to enforce the equal protection clause. But in 1896, when Louisiana required separate (and obviously unequal) seating compartments for Blacks and Whites on railroads, the Supreme Court said yes, ushering in generations of segregation in public schools and government and private facilities.

Even when the Court finally ordered public schools desegregated in 1954 in Brown v. Board of Education, the Justices failed to enforce that decision. Ten years later in twelve Southern states, approximately 98% of schoolchildren attended completely segregated schools. Only when Congress passed the Civil Rights Act of 1964 did segregation under law begin to wither.

In part due to the Court’s horrific record on racial issues, we remain a country where institutional racism still runs rampant. To address these racial inequities, universities across America employ limited racial criteria to admit diverse classes of students to help Black Americans and other people of color overcome our racist past and expose young White Americans to a hopefully less racist future.

This term the Supreme Court will decide in two cases whether the 14^th Amendment prohibits the use of all racial criteria in admissions by public universities and whether an important federal statute prohibits all use of race by private universities which accept federal grants (most colleges and universities). Both cases are brought by a non-profit organization long committed to ending all affirmative action in the United States. In one suit the group alleges that Harvard University discriminates against Asian Americans. The trial court in a detailed 130 page opinion, however, rejected that argument and the court of appeals agreed. Under existing legal rules, the Supreme Court can only reverse that finding if it finds it clearly erroneous.

Even if the Court were to make such a finding, however, the Court could limit its holding to the facts of the Harvard case and not end all affirmative action. But don't hold your breath for such a limited ruling.

In the other case, the organization sued the University of North Carolina for discriminating against whites (the real purpose of the Harvard suit as well). The University today is almost 60% white and only 8% black. The argument that the Constitution bars this major Southern university from trying to improve those numbers through the limited use of racial criteria in its admissions process is just as mind-numbing as the racist Court decisions of the past.

The Court should not second-guess university decisions to use racial classifications to address our racist past and present. As Justice Stevens once said, there is a significant constitutional difference between a welcome mat and a no trespassing sign. Our country put up no trespassing signs for people of color for most of our history. For example, in 1950 no flagship university in the former Confederacy admitted Black students. Today, most colleges and universities are still overwhelmingly white, and it is highly unlikely that these metaphorical welcome mats will turn into no trespassing signs for whites anytime in the future.

There is quite simply an enormous difference between using race to keep out all people of color and using race to ameliorate the present effects of past racism. To equate the two is absurd.

The 14th Amendment to the Constitution was enacted in 1868 in large part to guarantee that the persons only recently freed from enslavement would receive equal treatment under the law. The Court betrayed that effort in the cases mentioned earlier and many others. If the Justices truly believe that originalism is the dominant and preferred method of constitutional interpretation, as they said last term, then, as many scholars have argued, there is no warrant to use that Amendment to overturn the use of affirmative action to try and design a less racist future for America.

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Treason, Insurrection, and Disqualification: From the Fugitive Slave Act of 1850 to Jan. 6, 2021 - Lawfare

Treason, Insurrection, and Disqualification: From the Fugitive Slave Act of 1850 to Jan. 6, 2021 - Lawfare

By Mark Graber (U of Maryland)

On Sept. 6, Judge Francis Mathew, a state district court judge in New Mexico, disqualified Couy Griffin, an Otero County commissioner who enthusiastically participated in the events of Jan. 6, 2021, from holding office under Section 3 of the 14th Amendment. That clause provides: “No person ... shall hold any [state or federal] office, who, having previously taken an oath, as [a state or federal officer] to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” If someone has taken the oath of office—whether or not that person is currently in office—and later “engage[s] in insurrection or rebellion,” that person is constitutionally prohibited from holding any state or federal office in the present or future. 

State v. Griffin is an important test case for efforts to disqualify elected or formerly elected officials who supported the Jan. 6 insurgents from holding or seeking public office—including any efforts to block Donald Trump from appearing on ballots in the 2024 presidential election. Although the Griffin decision is not binding law outside of a judicial district in New Mexico, Mathew’s opinion provides a foundation for current or future legal actions seeking to disqualify past or present Republican officeholders under Section 3 of the 14th Amendment. Citizens for Responsibility and Ethics in Washington, which litigated the Griffin case with assistance from prominent law firms in Washington, D.C. and New Mexico, and other public interest associations, is likely to bring lawsuits against other officeholders “leagued” in some way with the insurgents who invaded the Capitol grounds and building. (One such group has already written letters to all 50 secretaries of state urging them not to permit Trump’s name to appear on state ballots in 2024.) 

Will these other cases succeed?

Ta-Nehisi Coates: A Remembrance of Tony Judt - The Atlantic

Ta-Nehisi Coates: A Remembrance of Tony Judt - The Atlantic

I always find it hard to list the books that have influenced me the most. Memory is tricky, and a work can assert its influences over my thinking long after I’ve forgotten its particular details, or even its title. Moreover, people who set as their job the task of judging what others do, and why, are not always reliable when turning the lens upon themselves. And then there’s the fact that any list of books that I feel made me, as both a writer and a human, changes with the day and feeling. Still, on that changing list there are a few mainstays.

Take Tony Judt’s Postwar. I first encountered Tony in a swirl of legend and myth, an intellectual hero who, in the dark post-9/11 years, inveighed against the Israeli occupation and filleted the “useful idiots” who sanctified the War on Terror. Having, at that time, read very little of Tony, I was left with the impression of an intellectual monk who eschewed the dictates of party or crowd. I’ve always been skeptical of writers who are spoken of in this way, intellectuals praised for violating the dictums of both “the left and the right” as though the best answer somehow lay unerringly in between. Maybe that’s why I didn’t read a book by Tony until after he’d died. It was my mistake. It was my loss.

Republican State Attorneys General Back Trump and Judge on Mar A Lago Document Search

 Oh fer chrissakes.

Republican State Attorneys General Back Trump and Judge on Mar A Lago Document Search

***It is a well-established axiom that “[m]en must turn square corners when they deal with the Government.” Rock Island A. & L. R. Co. v. United States, 254 U.S. 141, 143 (1920) (Holmes, J.). But an important corollary to this principle is that “‘the Government should turn square corners in dealing with the people.’” United States v. Winstar Corp., 518 U.S. 839, 886 n.31 (1996) (quoting Heckler v. Cmty. Health Servs. of Crawford Cnty., 467 U.S. 51, 61 n.13 (1984)). The latter principle is a key assumption undergirding the “‘presumption of regularity’” that courts afford government officials, and which “presume[s]” such officials “have properly discharged their official duties.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). In this sui generis case, however, there is reason to doubt that this presumption of regularity should be afforded to the decisions of the Biden Administration in connection with the raid of, and seizure of documents from, the personal residence of President Trump. The district court recognized as much by appointing a special master to review the set of documents at issue...

A Powerful, Forgotten Dissent | Linda Greenhouse | The New York Review of Books

 

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” John Roberts, C.J..S.C. o t U.S.

How John Roberts will be remembered  is too  early to say - because we don't know how much of the fabric of democracy will survive his hesitance in the face of the barbarians who have breached the gates of the wished for City on a Hill.  The Supreme Court appears to be poised to put out the embers of its now 68 year old declaration that the Constitution demands we dismantle the dual systems of education, one black, one white, separate, and unequal.

We know that Roberts's disingenuous claim at his confirmation hearing that a Justice of the United States Supreme Court is like a baseball umpire calling balls and strikes will be remembered for its intellectual dishonest and its damage to genuine discussion of the complexity of judging on a Constitutional Court.

And then there is Citizens United and Shelby County - gutting campaign finance law and the Voting Rights Act of 1965 which waited a century before Congress reacted the "appropriate legislation" called for by the 15th Amendment.

But this year - or this Term of the Supreme Court - will presumably be the final blow to the principle that in order to understand our present we must understand our history - which Roberts  notorious aphorism about racial discrimination denies.

Linda Greenhouse, whose brilliant career as a reporter commentator on the United States Supreme Court has now survived two retirements, draws attention to the plain-spoken dissent of Stephen Breyer in the Supreme Court's scuttling of the voluntary Seattle and Louisville public school racial integration plans.  Breyer's dissent began:

Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education, 347 U. S. 483 (1954) , long ago promised—efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has recognized that the public interests at stake in such cases are “compelling.” We have approved of “narrowly tailored” plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.

The plurality pays inadequate attention to this law, to past opinions’ rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing re-segregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown’s promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause.

- GWC September 19, 2022 

A Powerful, Forgotten Dissent | Linda Greenhouse | The New York Review of Books

Among the thousands of cases the Supreme Court has decided, only a handful of dissenting opinions stand out. There is Justice John Marshall Harlan’s solitary dissent in Plessy v. Ferguson, the 1896 decision upholding the doctrine of “separate but equal.” “All citizens are equal before the law,” Harlan objected. “There is in this country no superior, dominant, ruling class of citizens.” Another is Justice Robert Jackson’s warning in Korematsu v. United States—the 1944 ruling that upheld the wartime internment of more than 120,000 people of Japanese descent, most of them American citizens—that the Court had delivered a decision that “lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Justice Ruth Bader Ginsburg’s dissenting opinion in the 2013 Shelby County case that eviscerated the Voting Rights Act—throwing out the law “when it has worked and is continuing to work…is like throwing away your umbrella in a rainstorm because you are not getting wet”—has also made it into the canon. The opinion written jointly by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in dissent from Dobbs v. Jackson Women’s Health Organization, the decision that overturned Roe v. Wade in June, is likely to find its way there as well.


Another Breyer dissent, in the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1, rarely makes such lists today. The decision, which invalidated modest efforts by two public school systems to resist the tide of resegregation, received a fair amount of attention at the time—and so did Breyer’s dissent, which he delivered from the bench on the final day of the Court’s 2006–2007 term for an astonishing twenty-two minutes, the longest oral delivery of any opinion, majority or dissenting, in Supreme Court history.
But memories have faded as other sharply contested cases have filled the Court’s docket. The legal historian Melvin I. Urofsky, in his Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue (2015), briefly discusses the case without even mentioning Breyer’s opinion.



Parents Involved is important nonetheless. The question at its heart—whether student-placement policies or, by extension, university admissions programs can ever take account of race—is arguably even more relevant now than it was fifteen years ago. Chief Justice John Roberts’s answer, for himself and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito, was no. (Justice Anthony Kennedy wrote a separate concurring opinion.) Invoking what he characterized as the nondiscrimination principle of Brown v. Board of Education—the unanimous 1954 ruling that racial segregation of children in public schools was unconstitutional
—Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The Role of the Attorney General in the Government of the United States | Knight First Amendment Institute//Theodore Olson//1982

The Role of the Attorney General   in the Government of the United States | Knight First Amendment Institute

Memorandum to Attorney General William French Smith by Theodore Olson, Assistant Attorney General, Office of Legal Counsel, Department of Justice, Washington, D.C.    February 10, 1982

At your request, I have attempted to synthesize the many facets of the relationship in our constitutional government between the Attorney General and the President and to describe in a few words the responsibilities of the Attorney General to the. Constitution and laws of the United States as well as to the Executive Branch and the President.

The following few paragraphs represent my effort to distill a very complex subject into its essence. The responsibilities of the Attorney General are unique within the Executive Branch. While he is a policy-adviser and servant of the President like other cabinet members, his peculiar role as a lawyer -the lawyer for-the United States -adds a significant additional' dimension to his relationship to the President, the balance of the government, and to its citizens. .While the Attorney General :functions as the lawyer for'the President and the Executive Branch, he is also charged with representing the government of the United States as a whole, including the Legislative Branch. Furthermore, he is subject to the ethical standards of his profession and he is an officer of the Supreme Court. Finally, he is the Administration official with the paramount responsibility for guiding the President in the performance of the President's foremost duty under the  Constitution -to take care that the laws be faithfully executed.

Vindicating Cassandra: A Comment on Dobbs v. Jackson Women's Health Organization by Evan D. Bernick :: SSRN

Despite its radicalism the Dobbs v. Jackson Women's Health majority opinion by Samuel Alito doesn't close the door on the most decisive of issues.   Though Alito opinion flirts with the fetal personhood issue it does snot say that permitting, limiting, or banning abortion is beyond the national government's "enumerated powers".  

So we see today Lindsey Graham's fifteen week ban trial balloon bill.  The bipartisan Kaine/Murknowski Reproductive Freedom Act also lies on legislators desks.

Alito's opinion invited the states to step up - strongly suggesting that a state which embraced fetal personhood from the moment of conception would be free to do so.  Using the fiction of  federalism - states as laboratories - the five member majority encourages states to act.  This could yield state laws criminalizing the prescription and use of abortifacient drugs.  

So Congress, courts, and the FDA will be exploring the contested boundaries of national and state powers for the foreseeable future.

Though conservatives have long deplored "judicial activism" the Dobbs majority has opened floodgates. Evan Bernick develops the argument that Dobbs has settled little.  

- GWC September 14, 2022

Vindicating Cassandra: A Comment on Dobbs v. Jackson Women's Health Organization by Evan D. Bernick :: SSRN

Vindicating Cassandra: A Comment on Dobbs v. Jackson Women's Health Organization

44 Pages Posted: 13 Jul 2022 Last revised: 14 Sep 2022

Evan D. Bernick

Northern Illinois University - College of Law

Date Written: July 12, 2022

Abstract

In Dobbs v. Jackson Women’s Health Org., the Supreme Court of the United States overruled Roe v. Wade and held that the U.S. Constitution does not protect the right to terminate a pregnancy. The decision triggered abortion bans in 11 states. Nine other states have pre-Roe abortion bans on the books, and it’s unclear what will happen with them. It is certain that no Supreme Court decision has so quickly resulted in the prohibition of so much private conduct that was once afforded the highest constitutional protection.

Justice Samuel Alito’s opinion for the Court is shocking. Not just because of the circumstances in which a draft of the opinion was leaked to the public. Because of the impact Dobbs will have on the lives of millions; the new legal conflicts it’s already generating; and the uncertainty in which the Court’s reasoning leaves other rights—to marriage, to sexual intimacy, to contraception—once considered fundamental.

Still and all, Dobbs is but one victory for one side in an ongoing constitutional conflict. Justice Alito does his best to make it more than that, but the moment passes without decisive resolution. This Essay explains why and describes and criticizes Dobbs’s reasoning.

Part I summarizes the history of abortion in the United States. Part II describes and evaluates Roe’s reasoning; explains how Roe became a focal point of constitutional conflict; and maps the political and legal landscape prior to Dobbs. Part III summarizes the opinions in Dobbs. Part IV argues that Alito’s opinion for the Court fails to achieve three of its major goals. The opinion lands some blows on Roe but falls well short of demonstrating that it was (as Alito claims) “egregiously wrong.” Its own constitutional interpretation suffers from crippling flaws, with the result that it fails to show that the Constitution doesn’t protect abortion rights. And it not only fails to extricate the federal judiciary from abortion-related conflict but invites attacks on other rights.

Keywords: Constitutional Law, Constitutional Theory, Abortion, Reproductive Rights, Dobbs v. Jackson Women's Health Org., Roe v. Wade, Social Movements, Originalism

Suggested Citation:

Bernick, Evan D., Vindicating Cassandra: A Comment on Dobbs v. Jackson Women's Health Organization (July 12, 2022). Available at SSRN: https://ssrn.com/abstract=4161063 or http://dx.doi.org/10.2139/ssrn.4161063