Tag: Neil Gorsuch

Supreme Court Decides ‘Democracy’ Can Stay, For Now

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Fears of the End of the Republic were forestalled until sometime between the next Trump rally and November 2024, as the Supreme Court decided today that state legislatures can’t just make up any old election laws — or results — they want to, without any oversight from state or even federal courts. In Moore v. Harper, the Court decided in a six to three decision — which should have been nine to zero — that the so-called “independent state legislature theory” is dumb and bogus, not to mention seriously fucked in the head. We paraphrase, but only slightly; Chief Justice John Roberts, writing for the majority, actually said the idea was “Insane in the membrane, insane in the brain.”

As many suspected following the oral arguments in December, the three dissenting justices were Clarence Thomas, Samuel Alito, and Neil Gorsuch, who probably belong on a terror watch list.

Previously:

Big Day At Supreme Court As It Hears Case Of ‘Democracy v. LOL’

Moore v Harper Oral Hearings: Democracy Maybe Only MOSTLY Dead!

NC Supreme Court Brings Back The Racist Gerrymandering Republicans Need To Win

The Independent State Legislature (ISL) Fan Fiction, as NYU Law Prof Melissa Murray likes to call it, starts with a thing that is real and then piles on, with no precedent or reason at all, a bunch of assumptions with virtually no actual backing in case law, US history, or common sense. The Constitution’s elections clause says simply that

The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.

According to the fabulists who made up the ISL foolishness a few decades ago, that clause means that no other state authority, including state courts, governors, or county elections officials, can challenge the legislature’s decisions on federal elections, even if they appear patently unfair.

The case involves an extreme gerrymander passed in 2021 by the heavily Republican North Carolina Legislature, which would give the vast majority of the state’s 14 congressional seats to Republicans. As the Brennan Center explains, the redistricting maps are “so extreme that an evenly divided popular vote would have awarded 10 seats to the Republicans and only four to the Democrats.”

Because North Carolina’s constitution includes a “free elections clause” that prohibits such partisan gerrymandering, the state Supreme Court struck down the map in 2022, calling it an

“egregious and intentional partisan gerrymander . . . designed to enhance Republican performance, and thereby give a greater voice to those voters than to any others.”

That prompted the North Carolina Lege to turn right around and pass a whole new extreme partisan gerrymander, and when it was challenged in state courts, Republicans went to the US Supreme Court to demand that it let the map stand, because independent state legislature, can’t you people even read?

In his decision today, Roberts wrote — actually this time — that several previous Supreme Court precedents had already made clear that state legislatures do not have “exclusive and independent authority when setting the rules governing federal elections,” and that the Elections Clause doesn’t invalidate the fundamental principal of judicial review as established in Marbury v. Madison. He also pointed out that “when legislatures make laws, they are bound by the provisions of the very documents that give them life,” i.e., state constitutions, and so obviously state courts have the power to rein in a state legislature in keeping with that state’s constitution. “You stupidheads,” Roberts did not add.

[NYT / Moore v. Harper]

While we’re at it, let’s also take a quick look at some other Supreme Court decisions we haven’t written about yet this term, just so we have ’em on record for you:

Sex Abuse Lawsuit Against Ohio State U Can Go Forward, you listening, Rep. Jordan?

On Monday, the Court decided not to hear an appeal of a lower court decision that allows more than 230 men to sue Ohio State over sexual abuse by the late Dr. Richard Strauss, who worked at Ohio State from 1978 to 1998. The university has apologized to those abused by Strauss, who killed himself in 2005, and has settled lawsuits with at least 296 victims, to the tune of over $60 million. But it tried to have the unsettled cases dismissed, claiming that the time limit to sue had expired. The AP explains:

The remaining plaintiffs have argued that they filed timely claims and that the time limit didn’t start running until the 2018 investigation into Strauss’ abuse made his conduct public. The men say that was when they first learned that the school had been aware of Strauss’ abuse and failed to protect them from him. Many also only realized then that they’d been victims of abuse since Strauss disguised his abuse as medical care, their lawyers said.

Among those named in the lawsuits is Rep. Jim Jordan, who was the assistant wrestling coach at Ohio State from 1986 to 1994 but insists he never knew what Strauss was up to. A spokesman for Jordan yesterday reiterated Jordan’s claim that he “never saw or heard of any abuse, and if he had, he would have dealt with it.”

[AP / NBC News]

If Alabama Has To Fix Its Racist District Maps, So Does Louisiana

In another short, unsigned decision, the Court on Monday slapped down an “emergency” attempt by Louisiana to block a lower court’s finding that Louisiana has to redraw its congressional district maps to create at least two districts where Black voters have a chance to elect a congressional member of their choice. The Supreme Court refusal to fast-track the case follows its decision earlier this month to toss out a similar racial gerrymander in Alabama, a decision that left many surprised that the Court hadn’t decided to stomp a little more life out of the Voting Rights Act.

The case now goes back to the notoriously rightwing Fifth Circuit Court of Appeals, which may end up affirming Louisiana’s contention that no, its racial gerrymander is very different and more constitutional than Alabama’s, so it’s entirely possible the case will still make it back to the Supremes next term anyway.

[CNN / TPM]

Hey Navajo Nation, You Get A Reservation. Water Rights Not So Much

In one of the more bizarre rulings in a while, the Court decided last week that the US government’s 1868 treaty with the Navajo Nation, which established the largest Native American reservation in parts of Arizona, New Mexico, and Utah, didn’t actually require the government to ensure that the tribe would have access to water. ProPublica tries to explain what seems inexplicable: After decades trying to negotiate with the state of Arizona, the Navajo Nation sued, in hopes of getting the Court to define what the tribe’s water rights were, and to order Arizona to stop delaying and allow the Navajo Nation reliable access to water.

ProPublica notes that while tribes have always had to negotiate for water with states, the federal government has also acted on tribes’ behalf by “helping account for how much is needed and available.” But when it came to intervening in the protracted negotiations between the tribe and the state, the Court, in a 5-4 decision, said nah, not our job.

Writing for the majority, Justice Brett Kavanaugh said the tribe’s treaties do not impose “a duty on the United States to take affirmative steps to secure water for the Tribe.”

The case has been dragging through the federal courts since 2003, eventually accumulating briefs from “four states, more than 100 tribes and 27 trade groups representing mining companies and other water-intensive industries.” So much for all that! Now it’s back to the Navajo Nation trying to get an agreement with Arizona, which is already fighting to get enough dwindling Colorado River water for its very important subdivisions and agriculture barons.

Navajo Nation President Buu Nygren said he hopes an agreement may be more likely with Arizona’s new governor Katie Hobbs, who promised while campaigning last year that she would work with tribes to resolve water claims.

Following the Court’s decision last week, Hobbs announced the appointment of four tribal officials — from the Navajo Nation, the Colorado River Indian Tribes, the Gila River Indian Community, and the Ak-Chin Indian Community — to the “Governor’s Water Policy Council,” which already includes Maria Dadgar, the executive director of the Inter Tribal Council of Arizona. So at least there’s a formal place at the water policy table, which is different from the water table (just a little hydrology joke there).

Justice Neil Gorsuch continued his advocacy for tribal rights with a scathing dissent in which he agreed with tribes that the 1868 treaty does so guarantee “enforceable water rights” that the federal government is obligated to define.

“The Navajo have tried it all. They have written federal officials. They have moved this Court to clarify the United States’ responsibilities when representing them. They have sought to intervene directly in water-related litigation,” Gorsuch wrote. “At each turn, they have received the same answer: ‘Try again.’”

ProPublica also notes — drily, as is only appropriate — that if negotiations with Arizona go nowhere, the Navajo Nation’s “other option is continuing a water adjudication case in state court that began in 1978, involves 14,000 claims and has no end in sight.”

[ProPublica / Gov. Katie Hobbs / NBC News]

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Supreme Court Upholds Tribal Adoption Rights, What Horror Is This Leading Up To?

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The US Supreme Court on Thursday upheld the law that gives Native American tribes preference in adoption and foster care cases involving Native children, rejecting the argument that it’s racist against white people. In a 7 to 2 decision, the Court let stand the 1978 Indian Child Welfare Act (ICWA), which Congress wrote to address concerns that Native kids were being taken away from their families, a legacy of the US government’s attempts to wipe out Native American tribes through forced assimilation. The ’70s were a crazy time, with the disco and the occasional congressional efforts to provide at least some justice for past discrimination.

Previously

Will Supreme Court ‘Increase Domestic Supply Of Infants’ By Stealing Native American Babies?

You Guys, The Fifth Circuit Ruled *For* The Welfare Of Indian Children

What The Hell Is It With Republicans Crapping On Native Americans?

Under the ICWA, as Vox explainered, if a child is a member of a Native American tribe or even is eligible for membership, then any adoption or foster placement needs to give first preference to the child’s extended family, and then to another Native American family, ideally in their own tribe or if necessary another tribe.

The law aims to keep Native children within Native communities, after over a century of US attempts at genociding Native Americans and, for most of the 20th century, actively attempting to alienate people from their tribal identities — first by taking Native kids from their families to Indian schools that aimed to assimilate them into the dominant Anglo culture, and later by encouraging adoptions of Native kids by white parents.

(A quick note on language here: Federal law and court cases use the term “Indian,” which has very specific meanings in law, so at times we will too, even if in the wider culture it’s no longer the preferred nomenclature, Dude.)

The case, Haaland v. Brackeen, has been making its way through the federal courts for years. It involves a white Texas couple, Jennifer and Chad Brackeen, who in 2016 were appointed as foster parents of a 10-month-old boy whose birth parents were Navajo and Cherokee. God told the Brackeens they needed to adopt the boy, but they found themselves in a legal fight with the Navajo Nation. Eventually they did adopt the boy, but they also wanted to adopt his half-sister, and here we are at the Supreme Court, with the Brackeens and the state of Texas (and a few other plaintiffs) arguing that the 1978 law was unconstitutional because it was an illegal racial preference and discriminated against non-Indian parents, and that by superseding state family law courts, Congress had overreached.

Ultimately, though, the Court, in an opinion written by Justice Amy Coney Barrett, rejected that claim, as the New York Times explains:

The tribes have said that they are political entities, not racial groups. Doing away with that distinction, which underpins tribal rights, they argued, could imperil nearly every aspect of Indian law and policy, including measures that govern access to land, water and gambling.

The majority dismissed the equal protection argument, saying that no party in the case had legal standing. Instead, the justices focused on Congress’s longstanding authority to make laws about tribes. […]

“Our cases leave little doubt that Congress’s power in this field is muscular, superseding both tribal and state authority,” Justice Barrett wrote, adding that its authority touched on subjects as varied as criminal defense, domestic violence, property law, employment and trade. She added, “The Constitution does not erect a firewall around family law.”

The two dissenting justices, Clarence Thomas and Samuel Alito, each wrote their own dissents. Alito griped that the law focused too much on the tribes’ rights and not the right of the child to have the best family, which we presume was shorthand for a white family, because we’re just that mean. Thomas was his usual “government overreach, boo, hiss!” self, contending that the law wasn’t fair because some of the Native kids involved in adoptions regulated by the ICWA “may never have even set foot on Indian lands.”

Justice Neil Gorsuch, who’s been consistently friendly to Tribal interests in federal law, wrote a concurring opinion in which he said the majority opinion “safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties.” Gorsuch explained that he agrees completely with the majority, but also wanted to provide “some historical context” with an overview of “how our founding document mediates between competing federal, state, and tribal claims of sovereignty.”

Here’s his introduction, which genuinely makes me want to read the rest this weekend.

The Indian Child Welfare Act did not emerge from a vacuum. It came as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties. That practice, in turn, was only the latest iteration of a much older policy of removing Indian children from their families—one initially spearheaded by federal officials with the aid of their state counterparts nearly 150 years ago. In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of Tribes—something many federal and state officials over the years saw as a feature, not as a flaw. This is the story of ICWA.

Well yeah, that’s all impressively true, which led to a very reasonable question from “Southpaw” on Twitter: How the hell is it that Gorsuch is

so attuned to—and frankly eloquent at exposing—structural racism in Indian affairs, but so seemingly indifferent to it in other aspects of American life?

New Republic legal writer Matt Ford suggested that it comes down to Gorsuch’s weird originalism, pointing out that in his concurrence, Gorsuch writes,

Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace.

Bummer for anyone else who’s faced systemic discrimination, though. You people should have found a way to get yourselves into the Constitution, and don’t you go saying “the 14th Amendment” because that’s not specific enough. He’s an odd one.

In a statement, President Joe Biden celebrated the Court’s decision, pointing out that he had supported the ICWA when he was in the Senate, he’s so old. Biden also did his own Critical Race Theory, noting that

Our Nation’s painful history looms large over today’s decision. In the not-so-distant past, Native children were stolen from the arms of the people who loved them. They were sent to boarding schools or to be raised by non-Indian families—all with the aim of erasing who they are as Native people and tribal citizens. These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of Tribal Nations. The Indian Child Welfare Act was our Nation’s promise: never again.

So now all we have to do is worry what this pretty reasonable decision, combined with one that didn’t strike down the Voting Rights Act in its entirety last week, means for the next bunch of decisions coming from the Court, not that we’re cynical that way. Maybe it’ll decide not only to strike down Biden’s student loan forgiveness program, but also to eliminate student aid going forward because George Washington never got a student loan, now did he?

[AP / NYT / Vox / Haaland v. Brackeen / Photo: Jarek Tuszyński, Creative Commons License 3.0]

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Supreme Court ‘Skeptical’ Of Student Debt Relief, If You Can Believe That!

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The Supreme Court heard oral arguments yesterday in two cases challenging President Joe Biden’s student debt relief plan, and dear readers, we hope you are sitting down for this: The Court’s rightwing majority didn’t sound very open to the idea that the administration has the authority to forgive student loans, even under the 2003 law that the administration says is designed to allow exactly that. We won’t know for sure until the Court rules in the case, probably in June.

If there’s any chance for the policy to escape being overturned, it probably hinges on whether the Court decides that the plaintiffs in the two cases have standing to sue at all. If the Court decides they don’t, then it won’t address the legality of the program either way.

Of course, this being the Alito Court, it’s also possible the Supremes will just make shit up and decide that even if the plaintiffs lack standing, some obscure principle pulled from Brett Kavanaugh’s beer cooler — if you know what we mean and we’re not sure we do — makes it OK to address the merits of the case anyway.

Under the Biden plan, borrowers could have up to $10,000 of federal student debt forgiven; borrowers who received Pell Grants for low income families qualified for up to $20,000 in debt cancelled. The vast majority of debt relief was targeted at middle and lower-income borrowers.

Solicitor General Elizabeth Prelogar argued that the 2003 HEROES Act gives the Education Department all the authority it needs to make changes to student loan programs in a time of national emergency, since the law says the Education secretary has power to “waive or modify any statutory or regulatory provision” to keep borrowers from being wiped out financially during “a war or other military operation or national emergency.” And here we are, in a public health emergency so severe that most federal student loan payments have already been put on hold for almost three years.

Justice Elena Kagan agreed, saying that “Congress could not have made this much more clear,” and saying that compared to a lot of other cases, this was a slam dunk: “We deal with congressional statutes every day that are really confusing. This one is not.”

But of course nothing is clear if you don’t want it to be, so Chief Justice John Roberts kept insisting that whatever the plain text of the HEROES Act says, the total estimated cost of the debt relief program — about $400 billion over the next decade — was so big that it would need a specific extra double supersecret authorization from Congress, because of the “major questions doctrine” the Court pulled out of its ass in earlier cases under Roberts. To help make his point, Roberts repeatedly rounded that cost up by another hundred billion dollars, calling it a “half trillion dollar” program again and again.

Prelogar pointed out that the Education secretaries under both Donald Trump and Joe Biden have already used their authority under the HEROES Act to put federal student loans in forbearance, with no interest accruing, since March of 2020. Pausing loan payments, she said, means the federal government has lost roughly $100 billion a year, according to the Government Accountability Office.

“That has been an economically significant program,” Ms. Prelogar said of the pause. “It’s currently costing the federal government more per year than this loan forgiveness plan would cost the government annually.

What’s more, Prelogar said, ending that pause without also relieving debt would mean that scads of borrowers would default on their loans altogether, which could result in a shock to the economy at large. She didn’t even get into the fact that if hundreds of thousands of people default, that’s going to cost the federal government a lot, plus the knock-on effects of those people being ruined financially.

Justice Sonia Sotomayor echoed that argument, pointing out that the stakes for low-income borrowers could be pretty darn catastrophic:

There’s 50 million students who are – who will benefit from this. Who today will struggle. Many of them don’t have assets sufficient to bail them out after the pandemic. They don’t have friends or families or others who can help them make these payments. […]

And what you’re saying is now we’re going to give judges the right to decide how much aid to give them instead of the person with the expertise and the experience, the secretary of Education who’s been dealing with educational issues and the problems surrounding student loans.

We thought it was a pretty good argument, but then we’re liberal simps who think the government is there to help people, so we don’t count.

The question of whether the challengers to the policy have standing may be the best hope for the loan forgiveness program, since some of the rightwing justices seemed more skeptical of their claims that they’ll be harmed by student debt relief. We’ll just go with the CNN summary here:

In Biden v. Nebraska, a group of Republican-led states argued the administration exceeded its authority by using the pandemic as a pretext to mask the true goal of fulfilling a campaign promise to erase student loan debt.

The second case is Department of Education v. Brown, which was initially brought by two individuals who did not qualify for the full benefits of the forgiveness program and argue the government failed to follow the proper rulemaking process when putting it in place.

In the case involving the states, much of the argument involved how many angels can dance on the head of Missouri’s nonprofit agency what processes student loans, the “Missouri Higher Education Loan Authority,” aka MOHELA. It was set up to insulate the state itself from having to process loans, but the state is arguing that, for the purpose of standing, it may as well be the state.

But as Justice Kagan pointed out, MOHELA is a legally separate entity, and it didn’t choose to sue:

“Usually we don’t allow one person to step into another’s shoes and say, ‘I think that that person suffered a harm,’ even if the harm is very great,” she said.

If Missouri really controlled the loan authority, Justice Amy Coney Barrett asked James A. Campbell, Nebraska’s solicitor general, who represented the states, “why didn’t the state just make MOHELA come then?”

Campbell explained that was “a question of state politics,” which sounds to us like some bullshit, although we are not a lawyer.

Prelogar hammered on that point, saying that MOHELA would definitely have standing if it had sued, but it hadn’t, now had it? Justice Ketanji Brown Jackson chimed in too, saying that MOHELA’s

financial interests are totally disentangled from the state, it stands alone, it’s incorporated separately, the state is not liable for anything that happens to MOHELA. […] I don’t know how that could possibly be a reason to say that an injury to MOHELA should count as an injury to the state.

In the other case, the plaintiffs argued that the program isn’t fair, because their own loans don’t qualify for forgiveness. One plaintiff, Myra Brown, has private student loans that aren’t held by the government, and the other, Alexander Taylor, only qualifies for $10,000 in loan relief because he didn’t get a Pell grant in college, so his case claims he was cheated out of $10K in debt relief.

No, it doesn’t make a damn bit of sense that they think the solution to their woes is to eliminate all debt relief for 40 million other people. But there we go, thinking like a blogger instead of a Supreme Court justice. The New York Times notes that

Justices across the ideological spectrum seemed unpersuaded by the borrowers’ position.

“Talk about ways in which courts can interfere with the processes of government through two individuals in one state who don’t like the program can seek and obtain a universal relief barring it for anybody anywhere,” Justice Neil M. Gorsuch said.

Even so, some justices were really excited about the supposed “unfairness” of targeting debt relief to people who had the most to lose, and not to everyone who might conceivably get help. Roberts even wondered why it would be fair to relieve debt for student loans during the pandemic but not for, say a loan taken out by a hypothetical owner of a lawn care business.

Sotomayor had a pretty quick reply to that, pointing out that “everybody suffered in the pandemic, but different people got different benefits because they qualified under different programs.” Hello, PPP loans, for freaking instance (this is us cheerleading, not Sotomayor). (Also, your Wonkette got a PPP loan, and it was forgiven, which is the first time we’ve ever been part of the “so rich the government gives you money” crew.)

Justice Kagan reminded Roberts that the case is actually about student loans, not anything else, mister strict constructionist:

Congress passed a statute that dealt with loan repayment for colleges, and it didn’t pass a statute that dealt with loan repayment for lawn businesses… [Us, butting in again: PPP loans! We already said PPP loans, Elena.] And so Congress made a choice, and that may have been the right choice or it may have been the wrong choice, but that’s Congress’s choice.

The Court will rule in June, and even if the debt forgiveness program is thrown out, many borrowers should at least be able to get some relief under the Biden administrations’ revamped income-based repayment program, which everyone with federal student loans should at least look into.

DO THIS NOW!

Did Joe Biden Just Fix Student Loan Debt Going Forward? Mayyyyybe!

I Got My Student Loans Ready For Joe Biden’s Big Income-Based Forgive-A-Thon And You Should Too

Until of course conservative states and the SCOTUS fuck that over too, the end.

[NYT / CNN / AP]

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