Billions for mass torts -litigation financing

Donald Trump’s Cabinet of Wonders | The New Yorker

                                                Solon - Athenian statesman, law maker, poet

Deliberate as a verb means to consider choices and examine evidence.  But deliberate also means to act with intent.  The latter definition characterizes Donald Trumps choices of Cabinet members.  This year it is a clown car, not a group of solons. - GWC

Donald Trump’s Cabinet of Wonders | The New Yorker

By David Remnick

***Meanwhile, the President-elect convened his loyalists at Mar-a-Lago, where they went about putting together a White House staff and a Cabinet. Historically, this is a deliberative process that can, even with the noblest intentions, go horribly wrong. In “The Best and the Brightest,” David Halberstam wrote about an American tradition of mandarins in Washington as

an aristocracy come to power, convinced of its own disinterested quality, believing itself above both petty partisan interest and material greed. The suggestion that this also meant the holding and wielding of power was judged offensive by these same people, who preferred to view their role as service.

Halberstam’s larger subject was the aristocracy of Robert McNamara, Dean Rusk, McGeorge Bundy, and all the other exceptional men of the Ivy League and corporate boardrooms who helped guide the country into the Vietnam War.

At least as a matter of rhetoric, Trump is uninterested in conventional notions of expertise (which smacks of élitism). Nor is he focussed on assembling a council of constructive disagreement, a team of rivals (which smacks of disloyalty). As his personnel choices rolled out in recent days, it became clear that they pointed wholly to his long-held priorities—and they are not the common good. The nominations of Matt Gaetz as Attorney General, Robert F. Kennedy, Jr., as Secretary of Health and Human Services, Pete Hegseth as Secretary of Defense, and Tulsi Gabbard as the director of National Intelligence are the residue of Trump’s resentments and his thirst for retribution.

The Electoral College stinks

Popular vote

73,794,005  48,23% 76,464,848 49.9%

Total votes 153,011,39949.97%

 Electoral College:

Harris 226 Electoral votes

Trump 312 Electoral votes

A 1.7% Republican edge in popular vote becomes an electoral college landslide.

The Electoral College distorts our politics.

Vermeule: Democracy, Disagreement, and Authority: A Response to the Symposium on Common Good Constitutionalism :: SSRN

Democracy, Disagreement, and Authority: A Response to the Symposium on Common Good Constitutionalism by Adrian Vermeule :: SSRN

Democracy, Disagreement, and Authority: A Response to the Symposium on Common Good Constitutionalism

29 Pages Posted:

Adrian Vermeule

Harvard Law School

Date Written: November 13, 2024

Abstract

In this response to a recent symposium on Common Good Constitutionalism in the American Journal of Jurisprudence, I principally take up themes related to democracy, disagreement, pluralism, and authority. I emphasize that the classical legal tradition is teleological, oriented to performance standards rather than design standards. Thus it does not attempt to prescribe an identical set of constitutional and institutional arrangements for all polities everywhere, but asks whether constitutional arrangements are ordered to the common good and (thus) compatible with natural and divine law. Subject to those conditions, political authority is natural, inevitable, inescapable, and good. The possibility of social and political disagreement is just a precondition for all law, not an objection to the classical legal framework. None of this entails judicial supremacism in any form, which the classical legal tradition squarely rejects.

Keywords: common good constitutionalism, classical legal tradition, democracy, legal interpretation, judicial review

Suggested Citation:

Vermeule, Adrian, Democracy, Disagreement, and Authority: A Response to the Symposium on Common Good Constitutionalism (November 13, 2024). Available at SSRN: https://ssrn.com/abstract=

The End of the Synod… | Commonweal Magazine

The End of the Synod… | Commonweal Magazine

By Massimo Faggioli (Villanova)

When Francis was elected pope in 2013, “synodality” was a technical term used mostly by ecclesiologists and Church historians. But a synodal Church was the hope of many who did not have the word for it. The conclusion of the second assembly in October did not necessarily satisfy those hopes. But the process and the Final Document suggest that Catholicism is moving in the direction of a more communional, participatory, and missionary Church—if slowly.

The assemblies of October 2023 and October 2024 had the difficult task of slowing down runaway local synodal experiences (Germany, for example) while at the same time spurring synodal momentum in churches where it was lacking (including some U.S. dioceses). The model Pope Francis had in mind was Latin American, infused with Jesuit practices. The process has been complex—conversations at the local, national, and continental levels, and then at the central level. It differed from previous synods and Vatican II, where the restitutio to the local churches of what was elaborated at the center took place formally only at the end of the Synod’s assembly in Rome. But there was a sensible improvement from the first assembly to the second. The first took the form of a “conversation in the Spirit,” with little or no integration of theological expertise. But the intersession and the second session of October 2024 corrected this in important ways—providing evidence that theology still matters. 

Another difference from previous synods was the way information was imparted to the public. In the past, the speeches that participants delivered during the proceedings provided a view of what was developing. This time, the media had limited access to the proceedings, so as to allow participants to speak more freely while also encouraging them to focus on the spiritual dimension—while also limiting the likelihood of it being covered as a media event (this succeeded only in part). But there were daily press conferences with speakers chosen by the Synod’s leaders. The feed available to the public had a feel akin to a World Youth Day split: between the 350 attendees and their followers “sharing” their enthusiasm, and the rest of the Church that was not in Rome. The social dynamics of the “peri-council” at Vatican II and its predecessors—theological work in informal meetings and evening lectures—turned into the social-media Synod: selfies and photos of colleagues’ and friends’ reunions, dinners, and gelato. Synodality as communion and participation now must take into account the digitalization of religious and ecclesial identities—a reality that simply didn’t exist at synods of Francis’s predecessors. 

The Church’s work on synodality since 2021, locally and in Rome, has been important. If the Synod on Synodality didn’t settle on a clear preference for a theory or theology of synodality, it did settle on a style: one based on Vatican II.

Stephen Vladeck | Will the Supreme Court Stand Up to Trump? - The New York Times

Opinion | Will the Supreme Court Stand Up to Trump? - The New York Times

By Stephen I. Vladeck

Mr. Vladeck is a professor at Georgetown University Law Center.

Because of all that has happened since President-elect Trump’s first term in office, it is easy to forget that the Supreme Court repeatedly stood up to him during those chaotic four years.

The court impeded Mr. Trump’s initial efforts to ban people from six Muslim-majority countries from entering the United States. It blocked Mr. Trump’s attempt to put a question on the 2020 census asking whether the respondent was a U.S. citizen. It rejected his effort to rescind the program that shields people brought to the United States as children from deportation and allows them to work. It ruled against him in a high-profile subpoena dispute. And it sat on its hands as Mr. Trump and his supporters tried to use the legal process to challenge the results of the 2020 election.

Mr. Trump won some big cases, too, but his track record was surprisingly poor for a Republican president before a Supreme Court with a majority of Republican-appointed justices.

Now, with Republicans looking likely to control both chambers of Congress by the time Mr. Trump is inaugurated for his second term on Jan. 20, and with fewer moderating influences within Mr. Trump’s own party to restrain him, it seems inevitable that the court will once again be the last institution standing between Mr. Trump and whatever he wants to do.

Lawfare What does a second Trump term look like? video

 

Unjust Enrichment in Law and Equity by Jennifer Nadler :: SSRN

Unjust Enrichment in Law and Equity by Jennifer Nadler :: SSRN

Jennifer Nadler

York University - Osgoode Hall Law School

Date Written: October 17, 2024

Abstract

In Moses v Macferlan, Lord Mansfield used money had and received, a common law money count, to provide relief in a case where an action’s outcome failed to align with the actor’s intention. In the First Restatement of Restitution, Warren Seavey and Austin Scott gathered together all cases, quasi-contractual and equitable, under the single principle that ‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other.’ These two influential acts of fusion between common law and equity have caused a great deal of confusion in the scholarship and jurisprudence on unjust enrichment. With the fundamental differences between quasi-contract and equitable unjust enrichment obscured, scholars and judges have struggled to find the single principle or core case that unifies liability in what is now called the law of unjust enrichment. I argue that we can resolve the puzzles of unjust enrichment by rejecting the fusionist claims that started them all – that is, by distinguishing cases of quasi-contract (the common law money counts) from cases of equitable unjust enrichment – and by recognizing that each has a distinctive normative foundation. Quasi-contract, like other common law doctrines, is grounded in respect for the freedom and equality of agents conceived as beings with the capacity for free choice. Quasi-contract is concerned with the objective significance of external acts like requests and agreements on terms; it is not concerned with the frustration of the plaintiff’s particular purpose in acting. Equitable unjust enrichment, like other equitable doctrines that attend to mistakes, expectations, and intentions, is grounded in concern for individual autonomy. It recognizes that a court, as a public institution attuned to law’s self-imposability, cannot enforce an alienation of property with indifference to the way in which it may fail as an expression of the individual’s purposes and reasons for action.

Keywords: Unjust enrichment, quantum meruit, equity

Suggested Citation:

Nadler, Jennifer, Unjust Enrichment in Law and Equity (October 17, 2024). Osgoode Legal Studies Research Paper No.4990834, Accepted for publication in the University of Toronto Law Journal, Available at SSRN: https://ssrn.com/abstract=4990834 or http://dx.doi.org/10.2139/ssrn.4990834

Catholic reaction to Trump's 2024 election win falls along ideological lines | National Catholic Reporter

Catholic reaction to Trump's 2024 election win falls along ideological lines | National Catholic Reporter

By NCR Staff

With a mix of emotions that fell along ideological lines, Catholics awoke to the early morning news Nov. 6 that Donald Trump had secured a second term in the White House.

Trump's supporters touted his victory over Vice President Kamala Harris as a triumph for a nation worried about the economy and moving to the right, while opponents expressed fears his return to the White House opens a dark and uncertain period for American democracy.

Archbishop Timothy Broglio, president of the U.S. Conference of Catholic Bishops and head of the Archdiocese for the Military Services, USA, congratulated Trump for his win and stressed that now the task is to "move from campaigning to governing" and to "transition peacefully from one government to the next."   

Broglio said the Catholic Church is "not aligned with any political party, and neither is the bishops' conference. No matter who occupies the White House or holds the majority on Capitol Hill, the Church's teachings remain unchanged, and we bishops look forward to working with the people's elected representatives to advance the common good of all."

He also said Christians and Americans "have the duty to treat each other with charity, respect, and civility, even if we may disagree on how to carry out matters of public policy." He asked for Mary's intercession to guide leaders to "uphold the common good of all and promote the dignity of the human person, especially the most vulnerable among us, including the unborn, the poor, the stranger, the elderly and infirm, and migrants."

Editorial: Hope in a time of darkness | National Catholic Reporter

Editorial: Hope in a time of darkness | National Catholic Reporter

We now must live with our worst fears.

The incompetent, dishonest, divisive and authoritarian-prone Donald J. Trump again has been elected president of the United States. In time, volumes of books will attempt to explain this colossal lapse of judgment. Sooner explored are the dire consequences of this election for our nation, wider human family and the planet.   

For now, as we embark on an uncharted journey, allow no time for debilitating self-pity or anger. Shed these temptations for the sake of individual and collective health. We need balance and wholeness to move forward while protecting the most vulnerable. We need mental acuity to decide how to support each other and our nation's democratic institutions.

We are not the first to face such darkness; we now join countless others living uncertain lives amidst political turmoil. We can learn from them, first by taking less for granted and then by reaching out to them and the rest of the human family to know better how to keep the faith, build courage and sustain resilience and resistance. We need each other more than ever to avoid doubt and to hold fast to principles of fairness, decency and truth. So, how large is this community from whom we need this encouragement? It is global, crosses cultures, races and religions and reaches back generations

*****

We will endure Donald Trump and his sycophants. His time will pass. Sadly, he will cause significant damage. However, we can, indeed we must, limit this damage through our unceasing resolve. As active witnesses of justice and mercy, we will transform darkness into light and weakness into strength for ourselves and others. Every act of love, every gesture of kindness and healing builds the nation that, for now, seems to elude us.

Hope is not a mere feeling. Hope is a choice we make every day. When we choose hope, we embody the essence of our Christian calling — a calling to be agents of change and witnesses of the love our nation so desperately needs, now more than ever. 

Ralph Wolf - Civil Court

Proud to celebrate my friend and former student's move to the Bench.

Judge Of The Civil Court 5th Municipal Court District (New York County)

• Ralph L. Wolf (Democratic): 99.24%

 Ralph Wolf for Civil Court

Induction December 18, 10 AM

Trump Attorney Chesebro Suspended by New York Court

State of New York Supreme Court, Appellate Division Third Judicial Department 

Decided and Entered: October 31, 2024 PM-213-24

 ________________________________ 

In the Matter of KENNETH JOHN CHESEBRO, an Attorney. 

MEMORANDUM AND ORDER ON MOTION (Attorney Registration No. 4497913) 

Calendar Date: October 10, 2024

________________________________ 

PM-213-24 Chesebro.pdf

Thirty five years ago I picked up the Saturday morning New York Times and saw a squib that the Supreme Court had accepted a case Jason Daubert v. Merrell Dow Pharmaceuticals.  The appeal challenged the admission of evidence that an anti-nausea drug Bendectin blocked the development of healthy bone in utero.  The claim was plausible but plaintiffs' experts could point to no definitive statistical or widely accepted opinion evidence to establish a causal connection.    Junk Science! was the battle cry of pharmaceutical companies eager to avoid liability - particularly for such dramatic injuries.

I dialed long distance information and got the number of the lawyer who had filed the petition for certiorari. - Kenneth Chesebro, a young protege of Harvard's lion of constitutional law Laurence Tribe.

I had represented trial lawyers and the CIO in similar challenges in New Jersey.  I cited our successes and volunteered my time.  That began months of work on a team of lawyers and law professors mustered by the plaintiffs trial lawyers organization Association of Trial Lawyers of America.

Chesebro was a principal brief writer for Georgetown professor Michael Gottesman.  Justice Harry Blackmun wrote the majority opinion calling for trial judges to be "gatekeepers" but not final judges of the facts.  The case established the framework used to this day in Federal Rule of Evidence 702.  Expert opinion testimony must be based on reliable principles and methods" which are "reliably applied" to the facts of the case.  The transformation of jury trial into battles of experts was complete.

Despite his Massachusetts Avenue office and Harvard pedigree Chesebro drifted into the Trump orbit.  He was in the January 6, 2021 crowd at the Capitol which disrupted the legal transfer of power.  He helped devise and implement  scheme to submit  as valid a slate of unsuccessful Georgia electors who were pledged to Donald J. Trump, the defeated candidate for President.  Indicted  as a co-conspirator of the former President,  Chesebro pleaded guilty rather than face trial.     The Appellate Division of the New York Supreme Court has declared

Count 15 of the indictment alleged that respondent, along with Donald] Trump, [Rudy] Giuliani, John Eastman and others, unlawfully conspired in Georgia between December 6, 2020 and December 14, 2020 to knowingly file, enter and record a document entitled "Certificate of the Votes of the 2020 Electors from Georgia," in a court of the US, while having reason to know that the document contained a materially false statement. Specifically, the Certificate wrongfully stated that the signatories thereof were "the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Georgia." Additionally, count 15 alleged that defendants David Shafer, Shawn Micah Tresher Still, and Cathleen Alston Latham – but notably not respondent – acting as co-conspirators, had placed in the US mail a document addressed to the Chief Judge of the US District Court for the Northern District of Georgia, with such act being an overt act to effect the object of the conspiracy.

His career in ruins Chesebro, who now resides in Puerto Rico finds himself unable to practice law in Massachusetts,, California, Florida, and Illinois. 

As China sentences prominent dissidents, others protest behind bars

As China sentences prominent dissidents, others protest behind bars

 Renowned Chinese legal scholar and leading human rights lawyer Xu Zhiyong, who was sentenced to 14 years, has been on a hunger strike since October 4 in protest against the deprivation of his rights, including being placed under "close surveillance" and denied communication with his family. As a result, his weight has dropped dramatically, and his health has deteriorated.

Since July, Xu has been required to get permission if he wants to go to the bathroom or leave his cell and whenever he leaves his cell, he will be closely followed by other inmates. He was forced to work, and prohibited from talking to other people, and other detainees were not allowed to talk to him. This kind of torture is called Baojia(包夹), a cruel form of solitary confinement and humiliation.

The Comstock Act Where Freedom Ends | Laurence H. Tribe | The New York Review of Books

Where Freedom Ends | Laurence H. Tribe | The New York Review of Books

The great Supreme Court advocate, Harvard constitutional law professor Laurence Tribe, now Emeritus,  has joined those raising the alarm about the threat that the 19th century Comstock Act could be used to criminalize aid to abortion. A prime example would be making indictable the mailing the abortifacient drug Mifestiprone.  A Texas federal judge's order to block that long FDA approved drug has already been stayed.  But the prestigious Harvard professor Adrian Vermeule has joined with Conor Casey, his sometime collaborator, to argue that the 1873 Comstock Act 18 USC 1461 bars it from the mails.

The Act's prohibition should be broadly construed, Vermeule and Casey argue, because it concurs with the natural law which abhors abortion. Since the Supreme Court in Dobbs v. Jackson Women's Health has overturned Roe v. Wade there is no obstacle, other than prosecutorial discretion, to enforcing the law which was once used to prosecute birth control pioneer Margaret Sanger.

Tribe, writing in the New York Review of Books,  recalls the first time he confronted the issue:

***in 1976, when I was teaching a class about the separation of church and state in American law. I was talking about the connection between religion and the federal ban on mailing so-called obscene matter—including, as Congress viewed things a century earlier in 1873 when it passed the Comstock Act, not just printed materials but contraceptives and pregnancy-ending drugs or devices that some religious groups considered sinful.

 Named after the misogynist crusader Anthony Comstock, it outlawed, among other things, mail-order condoms, which were being delivered to men along with risqué photos that its sponsors saw as ungodly aids to sexual pleasure and accompaniments to prostitution. Despite several efforts to repeal it, the bulk of the Comstock Act has remained on the books to the present day and could still be used by anti-abortion federal prosecutors against anyone who distributed by mail materials for medical management of miscarriages, including by inducing abortion, whether with mifepristone or other medications. And it could be used that way even if the Congress we elect this fall does not enact a nationwide abortion ban.

One question I explored with students of the Constitution in 1976 was whether federal enforcement of the Comstock Act’s prohibition against mailing pregnancy-ending drugs would be precluded by the Supreme Court’s then-recent overturning of the sweeping abortion ban that the Texas legislature had enacted in the Comstock spirit. Did that decision, Roe v. Wade (1973), invalidate a nationwide federal ban on some category of abortions or only a ban enacted by a single state with especially little regard for women’s control over their own bodies?

Depending on the results of the November elections we may find that the Comstock Act has vigorous support in the United States Department of Justice. - GWC

Thomas Edsall | America Is Playing With Fire - The New York Times

Opinion | America Is Playing With Fire - The New York Times

By Thomas Edsall

***What might constrain Trump if he wins another term in the White House?

Jack Balkin, a professor of constitutional law at Yale, emailed his response to my queries:

Imagine a set of concentric circles of defense against presidential misbehavior. The first consists of the president’s own advisers, military officials, the Justice Department, and the civil service. The second circle of protection is the threat of impeachment and removal. The third is the threat of subsequent criminal prosecution after a president leaves office.

If Trump wins, the first two circles of defense will collapse, Balkin wrote, because Trump “will choose advisers who will not stand up to him” and “two failed attempts at impeachment and removal during Trump’s first term have demonstrated that impeachment is not a viable remedy for presidential misbehavior in a highly polarized environment.”

The Supreme Court’s decision in Trump v. United States, Balkin continued, “threatens to remove the third circle of protection because Trump can launder everything through discussions with his close subordinates, especially members of the Justice Department, and claim absolute immunity.”

Balkin’s concerns over the consequences of the immunity decision are widely shared.

 

https://x.com/NickKnudsenUS/status/1848756211023548531

NJ Supreme Court adopts readmission process

Since In re Wilson   45 years, ago disbarred attorneys in New Jersey had no path to reinstatement.  But they now will have an opportunity to apply for readmission to the Bar under a series of administrative determinations released today by the New Jersey Supreme Court. The Court acted on the recommendations of a committee created under the direction of a 2022 Supreme Court opinion In the Matter of Dionne Larrel Wade. 

The Wade opinion reaffirmed the longstanding practice that attorneys who knowingly misappropriate funds should be disbarred, but also raised the question of “whether and how to create a rigorous system that can determine if a lawyer disbarred for those reasons deserves a second chance years later.” But pursuant to the Wade decision, the Court convened a Special Committee comprised of lawyers, judges, and a cross-section of the public to examine the issue of permanent disbarment from multiple perspectives. 

 The Special Committee, by a significant majority, recommended that the Court adopt a path back from disbarment. Twenty-one (21) members voted for a path back, five (5) voted to maintain permanent disbarment, and two (2) abstained.

The Committee released its report in May 2023 allowing application for restoration after a five-year period if they have satisfied a series of requirements designed to evaluate whether they now possess the necessary competency, integrity, and character to practice law in New Jersey. The readmission process also includes case-specific safeguards designed to protect the public and retain confidence in the legal profession. 

“Going forward, New Jersey’s legal system will have a robust and fair review process that not only protects the public but also affords disbarred attorneys, who have taken appropriate steps, a chance to practice law again after five years,” Chief Justice Stuart Rabner said. “We are grateful to the members of the Wade Committee, particularly its co-chairs, retired Associate Justice Virginia A. Long and Camden County College President Dr. Lovell Pugh-Bassett, for their thoughtful review and thorough examination of the disbarment issue,” Chief Justice Rabner said. Along with approving the recommendation to allow for the possibility of reinstatement, the Court also determined that petitioners must: - bear the burden of proof in demonstrating clear and convincing evidence of rehabilitation in readmission proceedings. - earn a passing score on the New Jersey Bar Exam no more than one year prior to the filing of their application and pass the Multistate Professional Responsibility Examination (MPRE). - complete Continuing Legal Education courses specified by the Court before applying for readmission. - provide notice to all individuals whose complaints resulted in disbarment, including those whose complaints were docketed but dismissed as a result of the disbarment. - repay all aggrieved individuals. 

 The Court’s determination also allows it to use its discretion in imposing any number of conditions necessary to maintain the public trust. Should the Court deny a petition for readmission, the disbarred attorney must wait two years to reapply. The Court also retains the authority to impose permanent disbarment in egregious circumstances, and to order that no further applications be permitted from a specific petitioner. Petitions for readmission will be adjudicated by a new board, the Attorney Regulatory Board, which will make recommendations to the Court. New Jersey is now one of 42 states that provide disbarred attorneys a path to readmission. The Administrative Determinations and the Order can be found at njcourts.gov.

Judge Chutkan releases redacted evidence in Trump January 6 case

rump Election CaseRead Volume 1, Volume 2, Volume 3 and Volume 4 of the redacted appendices to the special counsel’s evidentiary brief.

Inside The Mystery Of Why The Supreme Court Declined To Hear A Pressing Abortion Case - TPM – Talking Points Memo

Inside The Mystery Of Why The Supreme Court Declined To Hear A Pressing Abortion Case - TPM – Talking Points Memo

By Kate Riga

|

October 14, 2024 9:41 a.m.

214

Start your day with TPM.

Sign up for the Morning Memo newsletter

Last week, the Supreme Court surprised court-watchers by declining to take up an emergency abortion case out of Texas, leaving the state’s near-absolute ban in place.

The case, almost identical to one in Idaho the Court heard last term, centers on whether even states with abortion bans must allow emergency room physicians to provide abortions in critical cases. The federal Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals taking federal funds to stabilize all patients in crisis — and the Biden administration has clarified that that mandate includes abortions, when that’s the needed care.

The Court released its Texas order on the shadow docket, with no explanation or noted dissents. 

“When I saw the news, I was very surprised — and surprised that the liberals didn’t say anything,” David Cohen, professor at Drexel University’s Thomas R. Kline law school, told TPM. 

The move was odd for two reasons; first, the Court considered virtually the same issue — whether state abortion bans preempt federal emergency room standards — last term, with the Idaho case, ultimately punting it back down to the appeals court and deciding that it had intervened too early. The case is almost certainly going to bubble back up to the Court at some point (if the justices choose to take it up), but the justices still kicked it down the road. 

Second, in the Texas case, U.S. Solicitor General Elizabeth Prelogar had asked the justices to grant certiorari, vacate the 5th Circuit’s opinion siding with Texas and send the case back down to the lower court for further consideration. She cited factors including the Court’s Idaho proceedings and Texas’ assertion that there is no daylight between its abortion ban and the care it is required to provide in emergency rooms as reasons why the case is ripe for further litigation.

The Court did none of that. It rejected the government’s petition, letting the 5th Circuit’s decision stand. Meanwhile, the near-identical case out of Idaho that the Court heard last term is back at the 9th Circuit. 

For experts, the flat rejection of the Texas case raised both additional questions and possible insight into how the critical question may ultimately be decided. 

“I guess a majority of the Justices (unlike many doctors and patients) just feel like this isn’t a hair-on-fire emergency that they need to deal with right away, and they are fine to let Texas continue enforcing its law in the meantime? And it’s likely that this issue goes away completely if Trump wins the election, so why get everyone all worked up if the EMTALA interpretation gets repealed anyway?” Jessie Hill, associate dean and reproductive rights scholar at Case Western Reserve University School of Law, mused to TPM. “And finally, I suspect this is a bit of a tell about where the majority stands — they are not going to rule for the Biden Administration anyway, so it’s not going to change the ultimate outcome if they take the case now vs decide the issue later.”

That read would match the tenor of oral arguments in the Idaho case, where the right-wing justices insistently tried to paint a world in which the state’s abortion ban — one of the strictest in the country — contained exceptions that would amenably stretch to cover a litany of gruesome cases the liberals and Prelogar described for listeners. They sounded so strongly arrayed against the Biden administration that some court-watchers interpreted their decision to kick the case back down to the 9th Circuit as an attempt to keep a major anti-abortion headline out of the news before the election. 

“One possibility is that they want to avoid another abortion case, especially right before the election,” Cohen said, adding: “Another possibility is that they want to let this case — especially after the Idaho one — play out fully in the lower court.” (The district court had not yet gotten to the merits of the case, with litigation so far focused on whether Texas’ ban should be suspended while the case plays out.)

If Trump is elected, both experts noted, the cases likely disappear. Idaho’s definitely would, as it was initially brought by the Biden Justice Department. And Texas officials might drop their lawsuit, knowing that a Trump administration would never come after them under EMTALA for declining to provide abortions. 

The other oddity in the justices’ rejection of the Texas case is the silence from the liberals. While we don’t know how they voted on the case, there were no noted dissents. Justices can and often do write when they disagree with the majority’s decision to take up or reject a case. 

“That could indicate that the liberals know this case is not going to go their way, so it’s better to hold off on granting cert and at least leaving the Idaho law blocked for however long it takes for that case to make it back, rather than having it decided this term and then losing the Idaho injunction too,” Hill theorized. 

It doesn’t explain why, she noted, they didn’t write in defense of the Solicitor General’s plan. 

The Supreme Court has never been a transparent institution, its justices shielded from reporters’ questions and increasingly making decisions via the shadow docket without oral arguments or often any writing at all to indicate their thinking. 

For women risking permanent injury or death from pregnancy complications, their right to get an emergency abortion (already nonexistent in Texas), exists tenuously in this silence, predicated on the Court’s whims, the speed of the appellate courts, who wins the election.

“Ultimately, I would read it at least partly as an indication of where the conservative bloc of Justices stand on the merits,” Hill concluded. 

Mifepristone Lawsuit: Abortion Pills are Under Attack

Mifepristone Lawsuit: Abortion Pills are Under Attack

By Jessica Valenti

As I reported earlier today, the Republican Attorneys General of Kansas, Missouri, and Idaho have filed an amended complaint against the FDA—a suit that seeks to significantly roll back access to mifepristone and ban the shipping of abortion medication. 

The attack on abortion medication comes just weeks before an election that’s been defined by abortion rights and Republicans’ attempts to run from voters’ post-Roe fury. (There’s a reason that the three AGs aren’t shouting the case from the rooftops!) 

The suit—which is filled with anti-abortion misinformation, scare tactics, and bizarre claims about women and girls’ health, including the idea that abortion medication “starves the baby to death in the womb”—is conservatives’ latest attempt to go after mifepristone. This summer, the Supreme Court ruled that previous plaintiffs didn’t have standing to challenge the FDA.

Anti-abortion groups are hoping that this newer complaint will have better luck. 

It’s also worth noting that the complaint was filed with Judge Matthew Kacsmaryk, the ultra-conservative asshole who ruled in favor of the previous mifepristone suit and tried to take mifepristone off the shelves. What’s interesting is that obviously none of these AGs are from Texas—so why did they get to file in Amarillo? Essentially, they were able to ensure they’d be in front of Kacsmaryk by filing their case as an “intervening” complaint—piggybacking off the old mifepristone case. Sneaky stuff.

Before I get into the nitty gritty of the complaint, a few important things to remember: While this case was brought by three specific states, a ruling would impact the entire country—even pro-choice states. And for as much as Republicans are trying to run from their anti-abortion extremism, this complaint makes crystal clear just how hyper-focused they are on banning abortion everywhere.

As law professor David S. Cohen tells me, “Believe what the Republicans do, not what they say.” He points out that the filing proves everything we’ve warned about—from Republicans trying to get abortion pills off the market to using the Comstock Act to enact a back-door ban.

“This might as well have been written by the people who wrote Project 2025,” he says.

Judicially Executed Cover-Up | Brennan Center for Justice

Judicially Executed Cover-Up | Brennan Center for Justice

By Michael Waldman (President and CEO - Brennan Center _ NYU)

Last week, Special Counsel Jack Smith submitted a 165-page brief to Judge Tanya Chutkan in the prosecution of Donald Trump for trying to overthrow the Constitution’s peaceful transfer of power.

The filing shows how outrageous it was for the Supreme Court to issue Trump v. U.S. just four months ago. That ruling conferred vast immunity on presidents who break the law, so long as they do so as part of “official” acts.

When the justices stalled the arguments and delayed the ruling until the last day of the term, then sent fuzzy instructions to the trial judge, they ensured that Trump would not face a criminal jury before the election. Voters were deprived of vital information too. This was a judicially executed cover-up.

As the Supreme Court term starts this week, the most important cases may well be those that have not yet even been added to the docket. The justices will likely rule on election cases. And they may hear appeals in the Trump prosecution, offering them a chance to compound the damage already done. All of which makes clear, yet again, why the Supreme Court itself needs reform.

According to Smith’s filing, Trump knew he had lost the election. His aides and his vice president told him so repeatedly. He reportedly told family members, “It doesn’t matter if you win or lose. You have to fight like hell.” His schemes to overturn the voters’ will were a direct and conscious effort to stay in the White House for another term.

Sen. Tom Cotton (R-AR) called the filing “a temper tantrum from a deranged fanatic.” (He meant Smith, by the way, not Trump.) That’s wrong. By stalling the case, Trump’s lawyers and the Supreme Court pushed these proceedings into the weeks before the election. Nothing in Justice Department rules or the criminal law stops a prosecutor from making a filing like this, as top Watergate prosecutor Phil Lacovara and others have explained. As for the complaint that this sworn testimony has not been subjected to the rigors of a trial, with the defendant able to rebut the damning evidence, well, yes — all the more reason for a speedy and public trial.

All of this underscores why term limits for the Supreme Court make sense. ***