Abortion Politics and the Rise of Movement Jurists by Robert L. Tsai, Mary Ziegler :: SSRN

Abortion Politics and the Rise of Movement Jurists by Robert L. Tsai, Mary Ziegler :: SSRN

This article employs the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and litigation in its wake as the jumping off point to reconsider the connections between judges, the Constitution, and social movements. That movements influence constitutional law, and that judicial pronouncements in turn are reshaped by politics, is well-established. But, while these accounts of legal change depend upon judges to embrace movement ideas, less has been written about the conditions under which judicial codification can be expected to take place. There may, in fact, be different types of judicial dispositions towards external political phenomena.

In this article, we focus on one type of judge that is ascendant in the current constitutional moment: the movement jurist. Although movement judges are not new, they are more visible and influential today than in recent years. In fact, identifying this kind of figure—who is already shaped by movement beliefs or shares social experiences making such a person open to non-establishment constitutional perspectives—has emerged as a visible supplement to older methods of entrenching mobilized legal knowledge and political beliefs. By peering behind the Dobbs decision and offering fresh context, we present a new set of analytical terminology for understanding the touchpoints between law, institutions, and politics. Along the way, we offer a corrective to what are often uncritical calls for more movement jurists.

Judging involves its own institutional imperatives and purposes, many of which are at odds with social activism. There are reasons why we might want judges under certain circumstances to pay attention to movements, and we discuss what some of those institution-enhancing and constitution-interpreting reasons might be. But there are risks as well. Movement judges need not be committed to any particular vision of justice or democracy or even interpretive methodology—as Dobbs plainly shows, it is more accurate to identify movement judges by their constitutional politics and social networks rather than by ideology or party loyalty.

We describe the characteristics of movement judges so their legal output can be evaluated with this crucial context in mind. Adopting a historical and institutional perspective, we point to some benefits that can come from having the occasional movement figure join the judiciary. But we also offer some words of caution about corresponding tradeoffs when too many movement figures appear within a single organization like the Supreme Court.

J. Michael Luttig: It’s Not Too Late for the Republican Party - The New York Times

Opinion | It’s Not Too Late for the Republican Party - The New York Times

By J. Michael Luttig

Judge Luttig was appointed by George H.W. Bush and served on the United States Court of Appeals for the Fourth Circuit from 1991 to 2006.

Donald Trump this month became the first former or incumbent American president to be charged with crimes against the nation that he once led and wishes to lead again. He cynically calculated that his indictment would ensure that a riled-up Republican Party base would nominate him as its standard-bearer in 2024, and the last few weeks have proved that his political calculation was probably right.


The former president’s behavior may have invited charges, but the Republicans’ spineless support for the past two years convinced Mr. Trump of his political immortality, giving him the assurance that he could purloin some of the nation’s most sensitive national security secrets upon leaving the White House — and preposterously insist that they were his to do with as he wished — all without facing political consequences. Indeed, their fawning support since the Jan. 6 insurrection at the Capitol has given Mr. Trump every reason to believe that he can ride these charges and any others not just to the Republican nomination, but also to the White House in 2024.

In a word, the Republicans are as responsible as Mr. Trump for this month’s indictment — and will be as responsible for any indictment and prosecution of him for Jan. 6. One would think that, for a party that has prided itself for caring about the Constitution and the rule of law, this would stir some measure of self-reflection among party officials and even voters about their abiding support for the former president. Surely before barreling headlong into the 2024 presidential election season, more Republicans would realize it is time to come to the reckoning with Mr. Trump that they have vainly hoped and naïvely believed would never be necessary.

Brian Highsmith "In addition to its role in labor history, the Pullman Strike also has a fascinating local govt law angle! In the aftermath, Illinois' AG challenged Pullman's status as a company-owned town; IL's Supreme Court revoked its municipal charter in 1898, and it was annexed into Chicago. https://t.co/PGyn3Ru1j4" / Twitter

Brian Highsmith on Twitter: "In addition to its role in labor history, the Pullman Strike also has a fascinating local govt law angle! In the aftermath, Illinois' AG challenged Pullman's status as a company-owned town; IL's Supreme Court revoked its municipal charter in 1898, and it was annexed into Chicago. https://t.co/PGyn3Ru1j4" / Twitter

In addition to its role in labor history, the Pullman Strike also has a fascinating local govt law angle! In the aftermath, Illinois' AG challenged Pullman's status as a company-owned town; IL's Supreme Court revoked its municipal charter in 1898, and it was annexed into Chicago.

Quote Tweet

Erik Loomis

@ErikLoomis

·

Jun 26

This Day in Labor History: June 26, 1894. The American Railway Union, headed by Eugene Debs, called a nationwide boycott in solidarity with their striking members at Pullman, Illinois! Let's talk about Pullman, Debs, and the Cleveland administration's violent suppression!

9:56 AM · Jun 26, 2023

·

30.2K

Views

6

Retweets

1

Quote

26

Likes

3

Bookmarks

HOW AND WHY: AN ETHICS CODE FOR THE HIGH COURT

 

Top: Samuel Alito (center) as a guest of Paul Singer (right)  at an Alaska fishing lodge

Center: Leonard Leo, center on the 2008 trip with Justice Alito and Singer

The latest Pro Publica Report (this one re Justice Samuel Alito)  reinforces the picture painted recently of Justice Clarence Thomas as beneficiary of  billionaire sugar-daddy Harlan Crow.   It appears that Federalist Society leaders like the  Catholic conservative lawyer Leonard Leo,  ideological soulmates, and  Candyman benefactors who  lavish favors on the Supreme Court Historical Society, on vacationing judges, and bestow honorifics and campaign contributions have as great a say in how abortion, gun, and environmental matters are adjudicated as do the commands of statutes and properly adopted  rules and regulations.  Maybe more because Leo is often to whom  conservative judges and justices owe their jobs. And their special fishing trips, hunting lodges, and other such favors.

Alone among nations the national courts of the United States are staffed by life-tenured judges.  The only constitutional process for removal is impeachment – a process designed to be an unscalable wall. The Court long ago claimed to be the last word on Constitutional interpretation.  See McCullough v. Maryland telling the state it could not tax the Second Bank of the United States. But it has long arrogated power far beyond those initial confines.   In Prigg v. Pennsylvania (1842) Justice Joseph Story of Massachusetts declared that protection of property in human beings was  a make or break part of the Constitutional compromise on which no state could impinge.  The Supreme Court in Prigg protected the south from anti-slavery initiatives such as  Pennsylvania’s  law criminalizing re-capture of the enslaved.  A result of that was the catastrophe of the war to save chattel slavery, history’s then bloodiest war – the wounds of which have not yet been bound up, despite President Lincoln’s hope expressed in his 1965 Second Inaugural Address.

Georgetown's Josh Chafetz describes Nixon/Trump Judicial Aggrandizement. Now the Court refuses even to account to Congress for its members ethical lapses.  Every Justice, including the most junior, signed such a statement which was appended to the Chief Justice’s letter to Senator Dick Durbin in which he refused to appear before the Senate to discuss problems of ethics and the high court.  Stanford Law Mark Lemley has labeled it an Imperial Court.  Of course that is the sort of attack on the Court made by participants in the massive resistance – in the south, and elsewhere (viz. Boston i/a 1972) to the Supreme Court’s decision in Brown v. Board of Education voiding legally sanctioned or mandated segregated public school education..  Even today one cannot get conservative judicial candidates to firmly commit to embrace of  the 1954  decision of the Supreme Court.

The then 7^th Circuit Court of Appeals judge Amy Coney Barrett at her Supreme Court confirmation hearings could manage only this:

“In my writing I was using a framework that’s been articulated by other scholars, and in that context, ‘super precedent’ means precedent that is so well established that it would be unthinkable that it would ever be overruled”.

But Roe v. Wade did not constitute such a “super-precedent”, even though for half a century women had relied on it to make the painful decision to terminate a pregnancy.  Rather she embraced the opinion of Samuel Alito in Dobbs b Jackson Women’s Health in which the majority embraced the opinion of Samuel Alito that Roe was wrong the day it was decided.

Today the Supreme Court has revoked its 50 year old precedent recognizing nationwide a right to terminate a pregnancy – leaving the issue to state by state political struggle.  And the Court has declared that the voters of 1789 spoke and recognized a personal right to bear arms that is unalterable by the States.

An unelected court that asserts such sovereign powers scarcely merits Alexander Hamilton’s Federalist 78 endorsement of the judiciary as the “least dangerous” branch.

The boldness of the recent Dobbs and New York State Rifle & Pistol rulings highlights the concerns about the Court and its composition.  Much attention has focused on Associate Justice Clarence Thomas whose “dear friend” Harlan Crow bought Thomas’s mother’s house, fixed it up, and let her live there rent-free, among other favors.  The Justice’s friend also lavished on Thomas and his wife private air fare and stays at comfortable resorts. Others express concern because Justice Neil Gorsuch sold a vacation property to the head of the major law firm Greenberg Traurig which often has business before the Court.

Since the Supreme Court has spurned calls to adopt a Code of Ethics.  Further the United States judiciary’s disciplinary mechanism 28 USC 351-364 is unsuited to the determination of most concerns about ethical conduct. It is designed only for instances of allegations  that “ a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability”. 

The judicial disciplinary rules – a product of a 1995 report led by Justice Stephen Breyer - created case by case reviews of judicial conduct dependent on the non-appealable decision as to probable cause by the Chief Judge of a

District.

Nor does the process – flawed though it is -  reach the most important judges of all – those of the United States Supreme Court whose decisions on matters of Constitutional interpretation are unreviewable and unalterable save by change in membership of the court or amendment of a Constitution designed to protect the most cherished of state prerogatives such as the right to property in human beings.

The gap between judges removable at will and those embedded for life terms can certainly be filled by the Congress.  28 USC 455 applies to judges and justices but its broad terms contain no mechanism for application.  The basic standard in §455(a) is that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As the Justices recently unanimously declared “Individual Justices, rather than the Court, decide recusal issues.” In no other case is any officer an unreviewable judge in her own cause.  Congress can change that.  The composition of the Court is its jurisdiction.  We could have a Supreme Court of one or of dozens.  The members’ qualifications, composition, and procedures are legislative choices. The Code of Judicial Conduct is within the power of the Congress.

Senator Sheldon Whitehouse has introduced S. 359 The Supreme Court Ethics, Recusal, and Transparency Act of 2023.  It would require the Supreme Court to within 180 days introduce by notice and comment a code of ethics for its members.  It would create a “judicial investigation panel” of chief judges randomly selected.

  Senators Angus King and Lisa Murkowski have offered the Supreme Court Code of Conduct Act.

• The Murkowski/King measure would require the Supreme Court to implement a code of conduct within one year, produce an annual report, give the Supreme Court authority to initiate investigations, as needed, to determine if any Supreme Court Justices or staff may have engaged in conduct that is prejudicial to the administration of justice or that violates other federal laws or codes of conduct.

Neither of these legislative proposals adequately addresses the problem of who will decide and with what practical effect.  But they are a start. The Court can itself propose to Congress a permanent office to investigate and to advise the Courts.  It could be governed by retired judges and Justices of the United States.  Even if its decisions as to the Supreme Court’s members were advisory such a prestigious body’s judgments would carry weight with both public and courts.

 -          George Conk

       June 25, 2023

S359 Supreme Court Ethics,Recusal and Transparency Act of 2023  - Sen. Sheldon Whitehouse

Supreme Court Code of Conduct Act - King and Murkowski

Judicial Conduct and Disability - U.S. Courts

 In Bi-partisan Bill Senators Urge Justices to Adopt and Ethics Code

 

Book Review: Casting a Bright Light on the Supreme Court's Shadow Docket//NY Times

Casting a Bright Light on the Supreme Court's Shadow Docket//NY Times

 Review by Jennifer Szalai June 25, 2023

THE SHADOW DOCKET: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, by Stephen Vladeck

“Because Y is a crooked letter”: The first time I heard a parent saying this to her child it took me a few beats to understand what she meant. The boy had been asking, “Why?” about a perceived injustice — an order to leave the playground before he was ready. The mother’s response was simply a poetic variation of that old standby “Because I said so.” No explanation was forthcoming because none was needed. Mom was laying down the law. The kid had to obey it. Case closed.

I was reminded of this episode as I read Stephen Vladeck’s important new book about the Supreme Court, “The Shadow Docket.” The title draws a direct contrast with the so-called merits docket that we usually associate with the court, which includes extensive briefings, comprehensive oral arguments and written opinions that are signed by the justices, detailing their reasoning. But merits decisions turn out to be “only a small sliver” of the Supreme Court’s output, Vladeck writes. All the soaring rhetoric and painstaking legal analysis amount to little more than 1 percent of the court’s decrees.

That’s right — almost 99 percent of the court’s decisions take place on the shadow docket, a term that was coined in 2015 by the conservative legal scholar William Baude for those orders that aren’t subject to the “high standards of procedural regularity set by its merits cases.” Orders on the shadow docket are, in Vladeck’s description, “unseen, unsigned and almost always unexplained”: the juridical equivalent of “Because I said so.” While such summaries aren’t new — they arose over the last century as a way to help the justices manage their growing caseload — Vladeck argues that they are being deployed more frequently and in increasingly novel ways. The shadow docket doesn’t just serve as a neutral realm of routine case management; instead, “the court’s new conservative majority has used obscure procedural orders to shift American jurisprudence to the right.”

Vladeck, a professor at the University of Texas School of Law and an analyst at CNN, chronicles how the shadow docket came to be. He traces the development of a generally weak Supreme Court in the antebellum era to one that by the early 20th century had expansive discretion to decide which cases it wanted to hear (and which it didn’t) by granting (or denying) what’s known as a “writ of certiorari” as part of its shadow docket. But it was capital punishment, he says, that really gave rise to the shadow docket as we know it. The finality of an execution meant that all appeals needed to be fully resolved before a person was put to death. A prisoner seeking emergency relief from the court could petition for an expedited ruling, arguing that an unlawful execution would cause “irreparable harm.”

KEEP READING

In NJ, an ambitious plan to study slavery reparations starts on Juneteenth - Gothamist

In NJ, an ambitious plan to study slavery reparations starts on Juneteenth - Gothamist

By Nancy Solomon

A social justice organization in New Jersey is observing the Juneteenth holiday by taking on the question of reparations for Black residents of the state.

“The Reparations Council, which is convened by the New Jersey Institute for Social Justice, is an effort to study the history of slavery and segregation and its relationship to ongoing evidence of racial disparities and anti-Black racism and a number of inequalities, including the racial wealth gap,” said Khalil Gibran Muhammad, co-chair of the council.

Muhammad is a professor of history, race and public policy at Harvard University’s Kennedy School of Government, and a resident of South Orange, New Jersey. Much of his research has focused on racial inequalities and the criminal justice system.

The institute created the council after a bill to create a state Reparations Task Force stalled in the state Legislature.

“And so this council is doing the work that the Legislature should be doing in an effort to move forward with a plan of action,” Muhammad said. “The issue of reparations, perhaps in the state of New Jersey, remains controversial enough that some elected officials fear that there may be political backlash by moving forward.”

The bill to study reparations was first proposed in 2019, and reintroduced every year since. Sponsored by Democrats Shavonda Sumter, Britnee Timberlake and Verlina Reynolds-Jackson in the Assembly and by Sandra Cunningham, Renee Burgess and the late Ronald Rice in the state Senate, the bill would have done what the Institute for Social Justice now plans to do.

Why the Supreme Court Really Killed Roe v. Wade - POLITICO

Why the Supreme Court Really Killed Roe v. Wade - POLITICO

By ROBERT L. TSAI and MARY ZIEGLER

06/25/2023 07:00 AM EDT


Robert L. Tsai is professor of law at Boston University and the author of Practical Equality: Forging Justice in a Divided Nation.

Mary Ziegler is a professor of law at Florida State University and the author of Abortion and the Law in America: Roe v. Wade to the Present.


We’ve had a year now to contemplate the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization and what led up to the justices’ decision to overturn 50 years of jurisprudence and end the constitutional right to abortion. Many abortion rights supporters and others on the left blame the court’s Republican-appointed majority, seeing those judges as too politically partisan.

But we see something a bit different going on. To really understand why the Supreme Court overruled Roe v. Wade, we think it’s crucial to see Dobbs as the triumph of two social movements and the rising influence of a distinctive kind of judge.First, there is the grassroots anti-abortion movement, which has long been in the trenches and seeks the elimination of elective abortions and recognition of fetal personhood. Second, there’s the elite legal conservative movement, which is motivated to restore what it describes as the original meaning of the U.S. Constitution. Since at least the 1980s, when conservative legal icon Robert Bork denounced Roe as an egregious example of judicial policymaking, these legal elites have also called for the undoing of abortion rights.

KEEP READING