The coming week – Civil conversation with Joyce Vance

It’s almost the first Monday in October. This means the start of a new term at the Supreme Court. Many Courtwatchers write “curtain raisers,” pieces explaining the cases that are coming up and what cases are important to look for, prior to the first day of hearing. We’ll do a piece on that tonight, but it’s impossible to write about the Court this year without immediately acknowledging that something seems deeply broken inside.

Last month, the New York Times came with surprising news. Chief Justice John Roberts, the so-called industrialist, was not. Roberts sent the other justices a memo after Trump’s presidential immunity appeal was filed with the Court. In it, he “offered a scathing critique of a lower court decision and a surprising preview of how the Supreme Court would later rule, according to several people on the court who saw the document. The chief justice took issue with the appeals court’s ruling greenlighting the trial against Mr. Trump, calling it inadequate and poorly researched. He wrote not only that the Supreme Court should hear the case — which would delay the trial — but also how the justices should decide it. ”

The reporting continued with the story that after Roberts circulated a draft of his opinion among the other justices, “Justice Sonia Sotomayor, the senior liberal, indicated a willingness to agree on a number of points, hoping to opinion, according to those familiar with the procedure. Although the Chief Justice often favors consensus, he did not take the opening. With the court split six to three, conservatives versus liberals, Justice Sotomayor began working on a five-alarm dissent warning of danger to democracy.

The conservative wing of the Court reacted differently to the Chief’s draft opinion. The Times further writes: “Judge Brett M. Kavanaugh responded in what he called an ‘extraordinary opinion.’ In a final flourish, he wrote, “Thank you again for your exceptional work.” Shortly thereafter, Justice Neil M. Gorsuch added another superlative: ‘I join Brett in thanking you for your remarkable work.’” Apparently none of them have lost sleep over the prospect of letting go of Trump, whether because of the responsibility for the rebellion as because of what he has done. might do in the future if he gets the White House back. Power and party over the country.

Just as surprising as the content of the reporting is the fact that reporters from The New York Times had access to insiders needed to write the story. It seems unlikely that some of the information comes from anyone other than one or more judges themselves or someone with explicit permission to share it.

This casts the opening of Court in a much bleaker light than usual. It is almost certain that Trump will again be involved in cases before the Court this season. There will be at least:

• He hopes the second round of presidential immunity appeals will prevent him from appearing before a jury in Washington DC

• An appeal from the Eleventh Circuit’s decision on Judge Cannon’s decision to dismiss the classified documents prosecution.

• The inevitable post-election challenges Trump will bring if he loses.

Apparently aware of that, the Court’s role is lighter than normal: they save space. Even with the addition of fifteen cases Late last week, after the Court’s “long conference” where some 2,000 petitions and other motions were reviewed, there is still room on the Court’s agenda for what they need to know to come. You can stay informed every week of the cases that the Court has submitted for oral hearing their calendar. Here is the schedule for week one.

In a sense, every case that reaches the Supreme Court is necessarily important. But some are mainly of interest to the parties or to a very limited group of people, while others have broad application to a large part or even the entire country. Some of the cases in that later category that we will follow this term include:

• Garland vs. VanDerStok: While this is a gun case, it is not a Second Amendment case. The case challenges the Biden administration’s efforts to regulate “ghost guns,” firearms that are sold disassembled and without serial numbers, often in easy-to-assemble kits. Last year, the Fifth Circuit upheld a federal judge in Texas who exempted ghost guns from laws requiring background checks and serial numbers. The Biden administration asked the Supreme Court to take up the case, and the Court did so, also allowing the regulations to remain in effect in a 5-4 decision. In her letter early this year, the attorney general wrote that if the Fifth Circuit ruling is upheld, “anyone can purchase a kit online and assemble a fully functional weapon in minutes – no background check, data or serial number required.” and that it Would cause a “flood of untraceable ghost guns into our nation’s communities, endangering the public and thwarting law enforcement efforts to solve violent crimes?” You’d think that at least some conservative “tough on crime” judges would find this convincing, and a majority of the Court has twice ruled in favor of temporary regulation when the case went on the shadow docket, and again would do. But the Roberts Court is unpredictable.

• Glossip against Oklahoma: This is a death penalty case. Oklahoma’s Republican attorney general no longer wants to execute the petitioner, Richard Glossip, saying the record in the case is riddled with prosecutorial misconduct and other errors, with even the state no longer defending the death penalty. So the justices appointed a former law clerk to Chief Justice Roberts to defend the conviction and sentence after serious, undisclosed problems emerged with the prosecution’s key witness. Glossip has been in prison for 26 years and his execution has been scheduled at least nine times. However, several independent investigations have raised serious doubts about his conviction. The case comes before the Court after the increasingly irrational Donald Trump called for the execution of ‘drug dealers’. The Court has limited the application of the death penalty to cases of murder.

• United States v Skrmetti: The Court must decide whether the constitution prohibits Kentucky and Tennessee from restricting the treatment of transgender youth. After the bans went into effect, groups of transgender minors, their parents and in the case of Tennessee, a doctor challenged the constitutionality of the restrictions on due process and equal protection after the Sixth Circuit allowed them to remain in effect. The Biden administration intervened in the case under a federal law that allows them to do so in cases alleging violations of the right to equal protection under the law that the attorney general says are of “general public interest.” Twenty-five states have passed similar laws.

• City and County of San Francisco vs. Environmental Protection Agency:

  The EPA has taken steps to force San Francisco to comply with discharge standards under the Clean Water Act. The challenge is whether the EPA can impose generic bans in discharge permits for violating standards, without identifying specific limits that discharges must meet. The science may seem a bit hyper-technical, but it is, but with the authority of the administrative bodies in question after the decision of the last term, that is as good as over. Chevron With respect, this case has implications for both environmental enforcement and the ability of agencies to act. The Ninth Circuit ruled in favor of the EPA, saying its actions were related to its mission to protect the “integrity of the nation’s waters” and create a plan that would clearly fulfill individuals’ obligations to control pollution describe. It rejected the pre-Clean Water Act status quo, where federal water quality depended on standards set by each state. What a great idea. Let’s let each state set its own standards – or not. The Supreme Court’s decision will have a nationwide impact on the executive branch’s ability to deal with pollution control, and could provide the first decision on whether the Court expects lower courts to show any deference to the decisions of the agencies following the ruling of the last legislative term.

• Patrick Daley Thompson He is the grandson of Richard J. Daley, mayor of Chicago from 1955 to 1976, and the nephew of Richard M. Daley, who was mayor from 1989 to 2011. Thompson was elected to the Chicago City Council in 2015. Four years earlier, he received bank loans for approximately $219,000, for which he made only one de minimis payment. The bank failed after an embezzlement scandal involving some executives, and the bank’s president committed suicide. Thompson lied to FDIC investigators about the amount he owed the bank, although he subsequently agreed to pay it all back, minus interest. He was charged with making a false statement to influence a financial institution and convicted. He was in prison for four months. On appeal, he argues that his statements to federal officials were “misleading” but not “false” and that making misleading statements is not a crime. Will this be a bridge too far for a Court that, on virtually every occasion, limits the ability of prosecutors to hold officials accountable for corruption? Thompson says his conviction “threatens to criminalize a broad and ill-defined range of speech,” such as that made during mortgage negotiations. The Supreme Court has been sensitive to arguments like this in past cases about overcriminalizing the conduct of elected officials, such as last term’s ruling that only “bribes” and not “gratuities” could form the basis for a prosecution, with the difference that bribes were given. in advance and a tip was offered afterwards. This kind of splitting of hairs has done nothing to revive public confidence in the Court.

• Smith & Wesson Brands v Estados Unidos Mexicanos: The Court will decide whether the Mexican government’s lawsuit against American arms manufacturers can proceed. Mexico alleges that the gun makers supported and encouraged illegal gun sales to traffickers who supplied firearms to drug cartels in Mexico. Ironically, the case was granted the same week that Trump’s vice presidential candidate JD Vance said Mexican cartels were bringing weapons into the United States. That is not the caseand the Mexican government has been registering complaints with Washington for at least fifteen years about the opposite: American weapons ending up in the hands of cartels. Whether Mexico can recover these claims in court remains to be seen.

These are some of the key cases the Court will hear this term, starting tomorrow morning. If you think it’s important that Americans understand how the Court works and what it does—and how it affects all of us—then I hope you’ll consider a paid subscription to Civil Discourse. Your paid subscriptions allow me to devote the time and resources necessary to do this work, and I appreciate your support.

We’re in this together,

Joyce

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