Nel's New Day

October 3, 2022

New Supreme Court Term:   Repeal the 20th Century, Part II

The launching of the new Supreme Court term began with a case about the Clean Water Act, whether it covers connections such as creeks and ditches between bodies of water. Two conservative justices, Samuel Alito and Clarence Thomas, had already joined Chief Justice John Roberts in backing a stringent test requiring wetlands to have a “continuous surface water connection.” Another justice, Neil Gorsuch, appeared in favor of building a house on wetlands in Idaho, in opposition to retired Justice Anthony Kennedy, for whom he clerked. In her questioning, new Justice Ketanji Brown Jackson appeared to have joined other progressive justices, Elena Kagan and Sonia Sotomayor in favor of federal regulation of wetlands under the law. In concern about the “vagueness” of the law, six conservative justices could “shrink” the Clean Water Act, as Ian Millheiser wrote.

In a second SCOTUS case on its first day, the Supremes need to define “money order” in Delaware v. Pennsylvania. States can take possession of unclaimed or abandoned property within their borders, but states argue about “intangible property,” such as uncashed states. In Delaware, MoneyGram is one of its many incorporated businesses providing 8 percent of state revenue in 2021. People buy “official checks” used to transmit funds; if no one cashes the check, it becomes unclaimed property. Similar products such as money orders and traveler’s checks to the state where the item was purchased, according to a 1974 law. Thirty states argue that Moneygram checks are a money order, but Delaware has a narrower definition of money order. Conservative justices seemed to lean toward Delaware.

The Supreme Court also declined to hear three major cases:

The $1.3 billion civil defamation lawsuit by Dominion Voting Systems against MyPillow CEO Mike Lindell can go forward after he continues to falsely claim that the voting equipment was used to help give the 2020 election to President Joe Biden.

The DOJ can continue its practice of using “filter teams” not assigned to a given case to determine whether classified documents seized at Mar-a-Lago are privileged. The 11th Circuit Court had permitted the DOJ use of this process in other situations. At least eight federal circuits had permitted the DOJ to use these teams, also called “taint teams,” but the 4th Circuit Court finally ruled against the DOJ in 2019.

Two challenges to the 2017 federal ban on bump stocks that transform semi-automatic rifles into the ability of machine guns lost as both the 6th and 10th Circuit Courts upholding the ban.

Almost 60 percent of people think the Supreme Court is out of touch with the values and beliefs of most individuals, and 66 percent want term limits on judges including over half the Republicans. A current House bill puts an 18-year term on Supreme Court justices and requires appointments of new justices in the first and third year of every president’s term. After their 18-year term, justices hear cases only if the number of justices falls below nine. With this law, Thomas would immediately lose his active status, and Alito would be retired in another year.

While destroying democracy law year, the Supremes decided the fewest number of cases after oral argument in over 150 years. By early June, justices had issued opinions in only half of these 62 cases, resulting in the least productive court in history. The lack of cases cannot be an avoidance of interference. The Roberts court has created more chaos in the U.S. with rulings across a broad number of issues than most of the courts in the past century.  [visual – Supreme Court unproductive]

 

The court is also the most conservative in 90 years, when Franklin D. Roosevelt considered taking action, and at the same time overly aggressive. Congressional gridlock with the GOP unwilling to compromise has exacerbated the serious problems.

In addition, the Roberts court has also ruled in favor of religious groups over 80 percent in its cases—the most pro-religion since the 1950s—and has the six most pro-religion justices since at least World War II. Taxpayers are increasingly being forced to pay for Christian activities while churches pay no taxes. Two of the most notoriously far-right judges—Clarence Thomas and Amy Coney Barrett—took the seats of justices most advocating religious liberty and human rights when Thurgood Marshall and Ruth Bader Ginsburg were gone.

The U.S. is only 22 percent Catholic, but six of nine Supreme Court justices are Catholic—two-thirds of the total—making decisions for 100 percent of the nation. Episcopalian Neil Gorsuch, raised and educated a Catholic, joins his five Catholic colleagues to make the Catholic majority 78 percent. The other two justices are Jewish and Protestant. The Catholic Church elevates virginity, requires female subservience in marriage, restricts women from controlling their own bodies, and damns LGBTQ people. Evangelical Christians follow the same philosophies.

These personal beliefs will guide the Supreme Court majority decisions of the Supreme Court after Dictator Donald Trump (DDT) and former Senate Majority Leader Mitch McConnell’s (R-KY) Republicans put three highly conservatives on the court to join two others. Chief Justice John Roberts looks almost moderate compared to those five although he frequently votes with them as in banning abortion. Heresy to Catholics is freedom of conscience, general human rights, and the belief that sacredness cannot be found outside organized religion, especially Catholicism.

Amy Davidson Sorkin writes about “a feeling with this Court that the conservative Justices could make a landmark ruling out of almost any case.” Roberts’ denial of court problems bodes poorly for this term as the conservative Supremes try to make their mark with these landmark cases.

Addressing Roberts’ whining about how SCOTUS is legitimate, former Sen. Al Franken (D-MN) said GOP senators “destroyed the legitimacy of the court” when they stole two seats—using a fake rule to ignore Barack Obama’s nomination of Merrick Garland and then ignoring their own rule by putting Amy Coney Barrett onto the court days before a presidential election.

Dahlia Lithwick, who has reported on the Supreme Court for almost 25 years, wrote, “In the matter of the Supreme Court v. the Supreme Court, it’s safe to say the Supreme Court is most assuredly losing.” She cited some of its disasters: overturning Roe v. Wade, expanding gun ownership in a nation overwhelmed by sheer numbers of them, fetishizing “religious liberty” over basic equality and other freedoms, and a multitude of other problems such as conflicts of interest, internal leaks, and inappropriate speeches.  She left out climate change.  

The court is so anti-disability rights that lawyers don’t file lawsuits that would give the justices the chance to set back rights for disabled people. Twenty-three years ago, Justice Ruth Bader Ginsburg wrote the majority opinion for Olmstead v. L.C. revolutionary ruling that unjustified segregation of people with disabilities violated the principles of the Americans with Disabilities Act. Clarence Thomas, the only remaining justice from that 1999 court, wrote the dissent. At that time, Amy Coney Barrett clerked for another dissenter, Antonin Scalia. While on the D.C. Circuit Court, Brett Kavanaugh ruled that the District of Columbia could improperly authorize elective surgeries for women in their care because they “lack …” the mental capacity to make medical decisions.” On the 10th Circuit Court, Neil Gorsuch ruled against a professor receiving six months of paid leave after a cancer diagnosis because it “would turn employers into safety net providers.”

Marc Ash issued the most dire warning: “This Court is dead forever. A new Court must rise.”

The conservative Supremes claim they follow the Founding Fathers statements, their own version of originalism, but Sotomayor pointed out that the Constitution doesn’t allow the Supreme Court having “the last word,” as conservative justices have claimed. Their claims come, not from the Constitution, but from Marbury v. Madison (1803) when the court declared legislative and executive actions unconstitutional. True originalism erases the high court’s superiority over the other two branches of government. In 1868, the court decided that the court’s jurisdiction was subject to congressional limitation, and other justices have agreed in the past century. Even Warren Burger, appointed by Richard Nixon, wrote that Congress could pass simple legislation “limiting or prohibiting judicial review of its directives.”

The Constitution states that the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Article III, Section 2 limits original jurisdiction to “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.” Otherwise, “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Additional writings clarity the opinions of some Founding Fathers, but the court has already negated their value as in cases of the separation of church and state.

Thus Congress could deny Supreme Court jurisdiction over a new voting rights act, the right to privacy such as abortion, and other measures. The legislative and executive branches could leave the Supreme Court to adjudicate only insignificant minor matters. Not a good idea for stability but neither is the present court’s majority claim of unchecked power.

Or maybe the new court won’t proceed with its past heedlessness, ignoring its real-world consequences on all minorities and democracy itself. We can only dream.

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