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.

KEEP READING

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

Kaveny: Abortion after Dobbs -Deepening the Divisions | Commonweal Magazine

Deepening the Divisions | Commonweal Magazine

By Cathleen Kaveny

With Dobbs v. Jackson Women’s Health Organization, the Supreme Court has attempted to repair the fissures in its own legitimacy created a half century ago by Roe v. Wade. Will this attempt work? Or will it only deepen our moral and political divisions?

In my view, both the dissent and the majority opinions represent approaches that are unlikely to heal the divisions precipitated by Roe. The most promising—because it is the most judicious—approach was proposed by Chief Justice John Roberts in his concurring opinion, which would have upheld the Mississippi law at issue without technically overturning Roe. It is unfortunate that he was unable to convince Justice Brett Kavanaugh to join him rather than the majority, despite Kavanaugh’s clear reservations about the majority opinion. We might then have had a controlling opinion that allowed us, slowly and haltingly, to move forward together as one people on the vexing question of abortion. Instead, by returning abortion to the states for each to regulate as it sees fit, Justice Alito’s majority opinion condemns us to more severe balkanization.

Drawing on Justice Robert Jackson’s famous observation, we can say that the Supreme Court is not final because it is right; it is right because it is final. By this standard, Roe v. Wade was not at all right, because it was by no means final. In the late 1960s and early 1970s, abortion was at the margins of our national political debates. It was nearly exclusively the province of academics and a few activists on either side. Roe v. Wade provoked a raging political controversy about abortion where there was none.

But that controversy has proven irresolvable. As many polls show, opinions on abortion have shifted very little over the past few decades. Gallup concluded that in 2022, 35 percent of the population said that “abortion should be legal under any circumstances,” 18 percent said that it “should be legal under most circumstances,” 32 percent said that it should be legal “only in a few circumstances,” and 13 percent said that it should be “illegal in all circumstances.” Three percent of the respondents expressed no position. In 1994, the first year for which Gallup provides data on this question, the responses were extremely similar.

Viewing these polls, we are tempted to claim that Roe made no difference in our national views on abortion. But such a claim would be deeply misleading. Roe functioned like a political virus, whose mutant DNA reconfigured and divided the country, as abortion morphed into a wedge issue. Gallup polls show that in 1995, 51 percent of Republicans identified as pro-life, while 42 percent viewed themselves as pro-choice. By 2022, 70 percent of Republicans were claiming the pro-life label, while only 23 percent described themselves as pro-choice. The opposite trend is evident among Democrats. Fifty-eight percent of them were pro-choice in 1995; 88 percent were pro-choice in 2022. One-third of Democrats still identified as pro-life in 1995; only one in ten identified as such in 2022.

Political divisions in the United States are increasingly correlated with other divisions. One study showed that Democrats and Republicans are now less likely to marry and form families with each other. With the solidification of “red states” and “blue states,” they are also less likely to have to govern together. In a recent article in the Atlantic (“America Is Growing Apart, Possibly for Good”), Ronald Brownstein provocatively argues that the divisions of the Civil War still exert their influence—although this time, the South may have the upper hand.

Roe failed to convince the majority of the country of its approach to abortion and the law. Crucially, however, it also failed to fail. The fact that Americans remain so evenly divided about the question is what distinguishes Roe from other key cases where the court has overruled a prior decision, such as the court’s repudiation of the constitutional impediments it placed in the way of Franklin Roosevelt’s New Deal. By the time the court reversed course on the New Deal, nearly the entire country recognized that addressing the suffering caused by the Great Depression required a new approach.

One could argue that times have changed since the 1930s; we are now helplessly riven by the culture wars. But consider two other watershed Supreme Court cases that involved culture-war issues. In 1997, in Washington v. Glucksberg, the Supreme Court declined to recognize physician-assisted suicide as a constitutional right, leaving the matter to the states to regulate as they saw fit. Nearly twenty years later, in Obergefell v. Hodges, the court recognized that the Constitution protects the right of same-sex couples to marry on the same terms as opposite-sex couples. Although controversial at the time, neither of these decisions has proven to be incendiary in the way that Roe did.

 

Roe failed to convince the majority of the country of its approach to abortion and the law. Crucially, however, it also failed to fail.

How should the Supreme Court treat a decision like Roe, which not only failed to succeed, but also failed to fail, thereby leaving the country divided in numerous ways? There are three basic options, each of which is taken by the three major opinions in the case. Let’s begin with the dissent (Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan), which is arguably the most conservative of the opinions in Dobbs, because it argues that the right decision is to stay the course and uphold Roe. The dissenting justices emphasize the importance of following precedent for the sake of judicial humility and respect for the rule of law. Moreover, they point out that the right to abortion is protected by precedent upon precedent; Planned Parenthood v. Casey reaffirmed—while also reconfiguring—the right to abortion almost twenty years after Roe. Because nothing fundamental has changed since Casey was decided except the membership of the Supreme Court, the dissent argues that overruling Roe is a political decision, not a decision of sound jurisprudence.

Abortion After Dobbs | Symposium// Commonweal Magazine

Abortion After Dobbs | Commonweal Magazine 

A Symposium

The Editors:

"The U.S. Catholic Church has squandered much of its credibility on the issue of abortion by aligning itself with a political party that cannot plausibly claim to have the best interests of struggling mothers and families at heart."

Remembering Tom Cornell ‘I Believe in the Beatitudes’ | Commonweal Magazine

Tom Cornell and a couple of other guys showed up one 1966 morning at Kimball Hall, where we ate all our meals and picked up our mail.  Debate about the war in Vietnam was intense.  We had already lost two classmates - athletes who had flunked out - quarterback Mike Cunnion and quarter miler Bob Donovan. Rev. Charles Dunn, S.J. - the Dean of Discipline - said that the Catholic Workers were entitled to respect even if we disagreed with them.  That was my first contact with the CW and the Catholic Peace Fellowship which Tom had started with Jim Forrest.  When I visited in New York I saw that CPF was just a desk in the cluttered offices of the War Resisters League on Lafayette Street south of what is now the Public Theatre.

That was my introduction to the peace movement and the Catholic Worker.

- GWC

‘I Believe in the Beatitudes’ | Commonweal Magazine

By Patrick Jordan

he illustration on the program for the funeral Mass for Thomas C. Cornell said it all. A colorful mandala by Commonweal and Catholic Worker artist Rita Corbin declared—and illustrated—“Pray, Study, Work for Peace & Justice.” Tom Cornell, who died on August 1, had done precisely that nearly every day of his eighty-eight years.

A graduate of Jesuit schools with a New England upbringing, Cornell arrived at New York’s Catholic Worker headquarters in 1962. He had read Dorothy Day’s The Long Loneliness in college, had heard her speak, and had applied for his conscientious-objector status, which he finally received after a four-year delay. (It took that long because, at the time, “Catholic conscientious objector” seemed an oxymoron to his local draft board.)

On coming to New York, Cornell was immediately dragooned by Day into editing the Catholic Worker paper, an on-the-job training assignment at which he quickly excelled. But life at the Worker included far more than correcting galleys and laying out the pages. It required living with the poor in poor circumstances, serving countless meals, welcoming waves of guests and seekers, and publicly demonstrating against war and other injustices. As an editor, Cornell interviewed striking mine workers, traveled to Alabama to cover civil-rights developments, demonstrated at a nuclear submarine base, and personally inaugurated the first public protest against the Vietnam War—all in his first year and a half at the Catholic Worker.

Still, there was community life to be lived—and redeemed—on a daily basis, and Tom had an eye for reporting on that as well. As he noted, the atmosphere at the Chrystie Street house was “tremendously dynamic.” To prove his point, he begins a 1963 column by describing the sound of shattering glass from the Worker’s first-floor storefront window, “a window we replace often.” The column then transitions to a scene at New York’s Centre Street courthouse. Here Tom accompanies a young Beat poet to a court hearing. The man’s name is Szabo. An illustration accompanying the article—unusual for the Catholic Worker paper—highlights the young poet’s Elvis-like features and Fonzie-like carriage. Significantly, he sports a large crucifix around his neck.

Tom reports that the first thing he hears walking through the marble corridors is the booming voice of a red-faced Irish cop. “Hey kid,” yells the officer at Szabo, “What are you wearing that crucifix for?”

“Well, it’s like I feel an identification with Jesus,” the young man replies.

Policeman: “What do you mean by that?”

Szabo: “I believe in the Beatitudes.”

Policeman (laughing uproariously): “It sounds like a pretty shitty organization to me!”

Whether writing or speaking, Tom would often offset his ingrained “New England conservative instincts” with a wry—and sometimes ribald—humor. At the end of that “Chrystie Street” column, he returns to the scene of the shattered window. But now he describes a different sound: “There’s quite a racket downstairs,” he relates. “The fellow who broke the window just came back and kicked down the door.”

What liberals can learn from The Federalist Society// SLATE

What liberals can learn from The Federalist Society

By Sam Datlof

Recently we saw the consequences of a politics of intelligence and individualism put in stark relief, as the profession’s most public faces repeatedly embarrassed themselves at the moment FedSoc’s project culminated in a supermajority of reactionaries on the Supreme Court. From professors Noah Feldman, Akhil Amar, and Amy Chua, to practitioners Lisa Blatt and Neal Katyal, prominent liberals cheered the appointments of each FedSoc Supreme Court nominee—while for the most part claiming to disagree very seriously with FedSoc’s politics.  Professor Feldman told us: “I disagree with [Barrett] on almost everything. But I still think she’s brilliant.” Katyal applauded Gorsuch’s “independence.” Blatt put it most succinctly, saying of Kavanaugh: “Sometimes a superstar is just a superstar.”

An ideology whose north star is the independent exercise of personal brilliance will never be capable of fighting the reactionary right. The fetishization of intellect displaces moral and political values, leading liberals to act as if both left and right are always legitimate–as long as each position is argued with pizazz and wit. To them, it does not matter whether left is universal healthcare, civil rights, or police abolition and whether right is transphobia, melting the planet, or child slavery.

‘Deeply Problematic’: Experts Question Judge’s Intervention in Trump Inquiry - The New York Times

‘Deeply Problematic’: Experts Question Judge’s Intervention in Trump Inquiry - The New York Times

By Charlie Savage

WASHINGTON — A federal judge’s extraordinary decision on Monday to interject in the criminal investigation into former President Donald J. Trump’s hoarding of sensitive government documents at his Florida residence showed unusual solicitude to him, legal specialists said.

This was “an unprecedented intervention by a federal district judge into the middle of an ongoing federal criminal and national security investigation,” said Stephen I. Vladeck, a law professor at University of Texas.



Siding with Mr. Trump, the judge, Aileen M. Cannon, ordered the appointment of an independent arbiter to review the more than 11,000 government records the F.B.I. seized in its search of Mar-a-Lago last month. She granted the arbiter, known as a special master, broad powers that extended beyond filtering materials that were potentially subject to attorney-client privilege to also include executive privilege.

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Shugerman - fold 'em ?-Biden's Student-Debt Rescue Plan Is a Legal Mess - The Atlantic

The poker players motto - you need to know when to hold 'em and when to fold 'em - is the progressive lawyers and judges question of the moment.  Do we rage against the dying of the light, or go gentle into that good night?  Jed Shugerman has opted for the latter.  Confronted with the newly minted "major questions doctrine" - the conservative sabre du jour - Shugerman takes the practical lawyer's route. Count the votes, face the music and dance.  Some lawyers will label the "doctrine" specious; judges will try to evade its expectations, or craft more dissents [the fate of the high Court's Greek chorus of three] ; others will aim to counter-pack the Courts; and more will cry, with Joe Biden, Vote, Vote, Vote for Democrats.

Twitter has seen a raft of commentary as by Julian Mortenson (Michigan) who foresees a hostile Supreme Court but a reasonably well-founded initiative.  Luke Herrine criticizes Shugerman for downplaying the challengers standing problems, and for positioning himself as an "even liberal professors" critic.

The Shugerman `practical lawyer' strategy looks to minimize the damage and find interstices in which to avoid the worst of the Supreme Court conservative super-majority's wrath.  Jed Shugerman dismisses the Department of Justice elite Office of Legal Counsel's reliance on the 2003 HEROES Act as doomed for its failure to accede to the high court's increasingly firm embrace in West Virginia v. EPA of the so-called Major Questions Doctrine. The court there stripped the EPA of its right to enact a contemplated rule forcing power plants to move away from fossil fuels.  Because Congress had not spoken "clearly", Chief Justice John Roberts wrote for the six right wing Justices,  the agency lacked authority to adopts its contemplated generation-shifting Clean Power Plan.

The problem of how specific a law need be is an ancient one.  Too much and the judge's equity power to adapt to the individual case is erased, too little and the judge's preference may vitiate the legislators purposes.  Twenty five hundred years ago Aristotle observed:

Equity’s existence partly is and partly is not intended by the legislators; not intended where they have noticed no defect in the law; intended where they find themselves unable to define things exactly, and are obligated to legislate as if the that held good always  which in fact only holds good usually.

Aristotle - Rhetoric - Book I, para 13

Deference to legislative intent, and to the administrative will of elected executives has earned the judiciary the term "the least dangerous branch".  But the Supreme Court, flush with its supermajority, has now elevated a handful of its recent anti-regulatory rulings into a "doctrine", the so-called `major questions doctrine'. 

In these cases the conservative court declares that an agency - relying on a  statute  "[d]espite its textual plausibility"- cannot take action that will have major impact unless Congress has spoken "clearly".  

This is not a recently invented rule of statutory interpretation.  It is a substantive policy objection to the powers of federal administrative agencies which must implement broad legislative directives, subject to Administrative Procedure Act judicial review 5 USC 706 for arbitrariness and unconstitutionality.  It is the latest of a string of cases that began with the Court's invalidating FDA efforts to regulate nicotine - the addictive drug in tobacco. FDA v. Brown & Williamson Tobacco Co. 529 U. S. 120, 159 (2000).  That decision - which granted the tobacco industry years of continued free rein, has recently been developed in a string of cases.  John Roberts for the majority writes in the WVA v. EPA opinion:

In Brown & Williamson, for instance, the Food and Drug Administration claimed that its authority over “drugs” and “devices” included the power to regulate, and even ban, tobacco products. Id., at 126–127. We rejected that “expansive construction of the statute,” concluding that “Congress could not have intended to delegate” such a sweeping and consequential authority “in so cryptic a fashion.” Id., at 160. In Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ____ (2021) (per curiam) , we concluded that the Centers for Disease Control and Prevention could not, under its authority to adopt measures “necessary to prevent the . . . spread of ” disease, institute a nationwide eviction moratorium in response to the COVID–19 pandemic. We found the statute’s language a “wafer-thin reed” on which to rest such a measure, given “the sheer scope of the CDC’s claimed authority,” its “unprecedented” nature, and the fact that Congress had failed to extend the moratorium after previously having done so.

The Department of Labor's test or vaccinate Rule fell.  In NFIB v. OSHA the high court  enjoined that emergency Rule, with Justices Gorsuch and Alito relying on the so called major questions doctrine despite the text of 29 USC 655(c)(1) which instructs OSHA to issue Emergency Temporary Standards if "necessary to protect employees" from "new agents". 

Similarly the per curiam opinion in Alabama Realtors Association v. Department of Health and Human Services acknowledges that the Public Health Services Act 42 U. S. C. §264(a) states: “The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.

But the court's unsigned opinion enjoining the moratorium declared:

Even if the text were ambiguous, the sheer scope of the CDC’s claimed authority under [42 USC 264(a) would counsel against the Government’s interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)). 

So much for textualism.  Plain language now may be found an insufficient "paper-thin reed", which dissolves under the weight of judges disdain.  The super-majority of six styles their demand for legislative clarity as deference to the elected branches,  It is more aptly seen as encroachment .  Perhaps it can be better framed in Josh Chafetz's phrase "judicial aggrandizement" or, in Mark Lemley's provocative essay The Imperial Supreme Court from which none is safe - not federal agencies, nor states, nor precedents declaring or limiting fundamental rights.  

We can see the imperial approach in the elevation of the self-defense right above state police power in New York State Rifle & Pistol v. Bruen,  erasing a constitutional privacy right to abortion in Dobbs v. Jackson Women's Health, and now in WVA v. EPA in which fossil fuel dependent states and power plant operators succeeded in putting a keep away sign on the EPA's door.

Senator Sheldon Whitehouse, with his New England colleagues Richard Blumenthal, Elizabeth Warren, and Bernie Sanders,  in an amicus brief in the  WVA v. EPA case paint a picture of a phalanx of fossil fuel funded amici entreating the Court to bypass Congress and the EPA to turn the court into their protectors. The progressive Senators warn too of the threat posed to EPA authority by the court's closely related non-delegation doctrine.

As Blake Emerson (UCLA) points out in a recent Slate piece  titled "What's Really at Stake" in the West Virginia case:

Together with the court’s elimination of the constitutional right to abortion, restriction of gun regulations, and expansion of religious authority, a clear picture is emerging: The people have less power now to create a safe and healthy society. Instead, the court has consolidated power in its own hands to the benefit of factional economic and cultural interests.

- GWC 9/6/2022

Biden’s Student-Debt Rescue Plan Is a Legal Mess - The Atlantic

The good news is that there’s still time to fix it.

By Jed Shugerman [ Jed Shugerman is a professor at Fordham Law, a visiting professor at Boston University School of Law, and the author of The People's Courts and shugerblog.com.]

The Biden administration’s recently announced plan to reduce student debt for borrowers who earn less than $125,000 is popular, according to recent polls. Unfortunately, the plan has a major legal flaw: The administration’s arguments for its executive power to make such a broad effort under federal law will likely lose—and should lose—in the courts. The good news, for President Joe Biden and for borrowers, is that the administration has time to change those arguments.

In conjunction with the announcement of the program, the Office of Legal Counsel at the Department of Justice issued a memo explaining the legal basis for it: the COVID-19 emergency. Unfortunately, no evidence has emerged that the Biden administration is tailoring the program to fit this justification, nor have Biden and his team offered any sign that they are taking seriously the Supreme Court’s recent administrative-law rulings or its clear skepticism about invoking the COVID-19 emergency as a reason for any far-reaching government policy.

In its memo, the Office of Legal Counsel relied on a post-9/11 statute—the Higher Education Relief Opportunities for Students (or HEROES) Act of 2003—as the legal basis for this executive action. That statute, the OLC explained, allows the secretary of Education to make major changes to policy if “a national emergency” caused student borrowers to be “placed in a worse position financially.”

The OLC concluded that the coronavirus pandemic fit the text of the statute as a “national emergency” and that a debt-relief program would ensure that Americans with student debt were not left in a “worse position.” As a matter of narrow textualism, all of this seems plausible. And as a matter of administrative law circa 1990 or 2000 or 2010, under a famous (or infamous) precedent known as Chevron, courts were supposed to defer to reasonable interpretations of ambiguous statutes.

However, a lot of administrative law has changed over the past decade, especially in the past year. The Roberts Court has effectively abandoned Chevron deference to the executive branch in questions of “vast economic and political significance.” This new approach, known as “the major-questions doctrine,” does not turn on “textualism”—reading just the words of the statute on their own—but instead emphasizes the context, purposes, and legislative history of the statute. As a matter of theory and common sense, this distinction between “major questions” and more mundane or technical agency policies makes sense: Judges do not have the time or expertise to dig into the historical details of statutes in many mundane or technical cases, but when the policy is major, the statutory purposes are more readily discoverable, and they must be clear and salient to permit an executive agency to make a major policy change. The Roberts Court relied on this “major-questions doctrine” approach to strike down two of the Biden administration’s boldest COVID-emergency policies—the eviction moratorium and the vaccine-or-testing mandate at certain places of employment—and a significant Obama-era climate-change policy in West Virginia v. EPA.****

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