the one of which the commission is most skeptical is adding seats to the Court. The risks of expansion are “considerable,” the document says, and could “undermine the very goal of some of its proponents of restoring the court’s legitimacy.”

Term limits are presented not as a tired manifestation of cynical partisan maneuvering, but as an opportunity to advance “our Constitution’s commitments to checks and balances and popular sovereignty.”

But for voters of color in Arizona who just watched six Republican-appointed justices hollow out the Voting Rights Act at the Republican Party’s request, for example, expansion would not “politicize” the Court, because the Court’s relentless assault on the right to participate in democracy has been going on for decades. As usual, the people wringing their hands over the Court’s political nature are those who are less likely to be meaningfully affected by the Court’s political choices.

because capping the length of judicial service at some point in the future does nothing to address the crisis that this 6-3 conservative supermajority faces right now.

The commission took care to note its skepticism that Congress can institute term limits by statute, as opposed to the herculean task of enacting them via constitutional amendment

this public trepidation paves the way for savvy Republicans to frame term limits proposals—again, the option that supposedly enjoys “widespread and bipartisan support”—as just another illegitimate Democratic power grab.

which increased significantly in the aftermath of Justice Amy Coney Barrett’s warp-speed pre-election confirmation. Delegating that task to an ad hoc collection of law review enthusiasts who met over Zoom every few weeks was perhaps the least efficacious method of accomplishing that result, short of doing literally nothing.

tasked with writing down lots of big words about this country’s broken legal system while simultaneously saying nothing of consequence.

the press for using the term “shadow docket”, a term coined by a conservative law professor. All Justice Alito succeeded in doing, however, is proving his sensitivity to the public discourse about the court.

Nobody is forcing this conservative supermajority to use the shadow docket to rewrite American jurisprudence. Pregnant people in Texas no longer have a constitutional right to abortion because five justices on the supreme court opted to nullify Roe v Wade by way of the shadow docket.

“beyond recognition” in order to “justify” reimposing juvenile life without parole. The court rejected its own decisions in cases decided just nine and five years ago respectively. When precedent is so blatantly ignored, it is difficult to explain the court’s change in direction but for politics.

Such a claim of ethical clarity just isn’t credible when it is uttered on stage right next to the person most responsible for the partisan gamesmanship that packed the court. What Justice Barrett did succeed in doing with her remarks is to confirm just how closely justices listen to the public narrative about the court – and how sensitive they are to it.

The justices, through their own actions and words, have demonstrated their vulnerability to public pressure in support of court reform. Turns out, justices do not like being told they have no clothes on.

As the court delves into its new term, it should have no doubt that all eyes will be upon it. If they want to escape it, rather than hoping the press will be cowed into submission, the justices of the court might consider fulfilling the mission of the institution they embody, by upholding constitutional rights and respecting judicial norms.

But SB 8, written to sidestep that kind of legal challenge, explicitly forbids any “officer or employee of a state or local governmental entity” in Texas from enforcing it. The idea is that, if no state official can enforce the law, abortion rights plaintiffs have no one to sue.

This scheme, as Chief Justice John Roberts noted in his dissenting opinion in Whole Woman’s Health, “is not only unusual, but unprecedented.” As Justice Sonia Sotomayor wrote in her dissent, the law is “engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”

The new challenge from the DOJ argues that, at least in an unusual case such as this one, the United States should be allowed to sue the state of Texas — and that it should be able to do so specifically because no one else can. As Judge Robert Pitman, who briefly blocked SB 8 before his decision was stayed by the Fifth Circuit, summarized the DOJ’s argument, the United States should be allowed to step in when “(1) a state law violates the constitution, (2) that state action has a widespread effect, and (3) the state law is designed to preclude review by the very people whose rights are violated.”

The second and more difficult question is why the federal government should be the plaintiff of last resort. DOJ rests the lion’s share of its argument on In re Debs (1895), a Gilded Age decision giving federal courts extraordinary authority to halt union activities that disrupt interstate commerce (Debs arose out of a massive railroad strike that threw shipping in the Midwest into disarray).

Ordinarily, if a state law permitted private parties to sue abortion providers in state court, those providers could wait to be sued, and then argue that the law permitting them to be sued is unconstitutional during that state court proceeding. But SB 8 is designed to frustrate this normal process as well. For one thing, it contains a simply extraordinary provision stating that SB 8 defendants may not assert their “belief that the requirements of this subchapter are unconstitutional or were unconstitutional” as a defense in state court.

Although this Court is unlikely to protect abortion rights, there are still potent reasons why even anti-abortion justices should oppose SB 8. For one thing, if Texas can offer bounties to anti-abortion plaintiffs — and evade judicial review in the process — other, bluer states could pass copycat laws. Do the justices really want New York to pass a law permitting “any person” to collect a bounty from gun owners?

I don’t have any illusions that this Supreme Court will hold that doctors who perform abortions cannot be punished. But I’d hope that we could all agree that doctors who are falsely accused of violating a state law should not be punished. If due process means anything, it should mean that Dr. Smith should get her day in court before she is forced into bankruptcy.

To make it more difficult to challenge the law in court, especially before it went into effect, the Texas law turns to private individuals, rather than government officials, to enforce the ban, deputizing them to bring lawsuits against anyone who either provides or “aids or abets” an abortion. The law also establishes an award of $10,000 for a successful lawsuit.

By a vote of 5-4, in a one-paragraph order issued late at night, the court said that the providers had “raised serious questions regarding the constitutionality of the Texas law.” But the majority nonetheless refused to stop the law from going into effect because, the court wrote, it wasn’t clear whether the state officials whom the abortion providers had named as defendants in the case “can or will seek to enforce the Texas law” in a way that would allow the court to get involved in the dispute at that stage.

In a 39-page filing on Monday, Fletcher asked the justices to wipe away the 5th Circuit’s stay of Pitman’s order. That relief would reinstate Pitman’s decision blocking the law while the litigation continues.

take up the case on its merits docket and definitively resolve the legality of Texas’ unusual enforcement scheme without waiting for a final ruling from the 5th Circuit — a maneuver known as a petition for certiorari before judgment. On Monday afternoon, the court granted the providers’ request to fast-track the justices’ consideration of their petition, directing the defendants in the case to file their response to the petition by noon on Thursday, Oct. 21.

In a 113-page ruling on Oct. 6, U.S. District Judge Robert Pitman granted the administration’s request to put the law on hold. Observing that the right to obtain an abortion before the fetus becomes viable is “well established,

Texas was “[f]ully aware that depriving its citizens of this right” directly would be “flagrantly unconstitutional”

The majority’s refusal to intervene on an emergency basis sent the case back to the U.S. Court of Appeals for the 5th Circuit, which is scheduled to hear oral argument in early December.

The Biden administration’s request went to Justice Samuel Alito, who fields emergency requests from the 5th Circuit. Alito acted quickly, ordering the state to file its response by noon on Thursday, Oct. 21, and — with the order later on Monday directing a response in the providers’ case — setting up the possibility that the court could act on both S.B. 8 cases at the same time.

the right to abortion cannot be a constitutional right because states restricted abortion in 1868 at the time of the ratification of the 14th Amendment. Mississippi argues that the public in 1868 would have understood the 14th Amendment to permit state restrictions on abortion to continue.

This is not a new argument—it formed the basis of then-Justice William Rehnquist’s dissent in Roe and was made repeatedly by Justice Antonin Scalia over the course of his career on the bench, including in his dissent in Casey

Chief Justice John Roberts recognized in his confirmation testimony, it is “completely circular,” using state practice to interpret the constraints the 14th Amendment was written to impose on the states.

the text and history of the 14th Amendment provide no support for the idea that the courts should look to state practice in 1868 to define the scope of the amendment’s protections.

For good reason, state practice in 1868 has never been a measure of what fundamental, personal rights are guaranteed against state infringement by the 14th Amendment. This is illustrated not only by Roe and Casey—which explicitly rejected the idea that the state practice in 1868 fixes the fundamental rights for all future generations—but also by many other landmark Supreme Court rulings vindicating the 14th Amendment’s promise of liberty for all.

In 1965, in Griswold v. Connecticut, the Supreme Court struck down a restriction on the use of birth control dating back to 1879, holding that it infringed on the right of a married couple to choose whether to start a family and bear children.

In 2003, in Lawrence v. Texas, the Supreme Court held that the 14th Amendment protected a right to sexual intimacy by LGBTQ adults, despite a very long history of laws that prohibited same-sex intimacy and sexual conduct. In Obergefell v. Hodges in 2015, the Supreme Court held that the 14th Amendment guaranteed the right to marry a loved one of the same sex, even though marriage had historically been limited to a union of a man and a woman. Both decisions drew on Loving to safeguard bedrock rights to love, marry, and form a family, ensuring equal dignity to LGBTQ persons.

If the fundamental rights protected by the 14th Amendment are determined by looking to state practice in 1868—as Mississippi and its allies urge—Loving’s holding protecting the right to marry as a fundamental right would be in doubt, as would many other landmark precedents, including Lawrence and Obergefell.

It explicitly rejects Loving’s reasoning, arguing that the Supreme Court was wrong to recognize a fundamental right to marry in that case. It claims that Lawrence and Obergefell are “lawless” rulings and urges the Supreme Court in Dobbs to leave “those decisions hanging by a thread.”

It can be hypocritical to call for a change in the law but to act in ways that would violate the changed law.

Nonetheless, it would not be hypocritical for Sheila herself to continue to drive on the left side of the road while Parliament considers her proposal. Indeed, it would be grossly irresponsible for her to start driving on the right side of the road before the law has changed.

The upshot is that it is sometimes but not always hypocritical to seek to change the law but continue to engage in behavior inconsistent with the change one seeks. Whether the charge of hypocrisy fairly applies in such circumstances depends on the nature of the law—to what extent it addresses freestanding evils versus solves collective action problems—as well as the grounds for seeking to change it.

Gerrymandering unfairly advantages the party in control of the state legislature, thereby undermining the right to vote and democratic principles. One might therefore think that someone who opposes political gerrymandering anywhere ought to oppose it everywhere. If so, New York legislators considering gerrymandering the state’s congressional districts to aid Democrats are indeed hypocrites.

Two years ago, in Rucho v. Common Cause, the Supreme Court held that federal courts could not adjudicate challenges to political gerrymandering.

Accordingly, even if one concludes that there is at least a soupçon of hypocrisy in the New York Democrats’ plan to gerrymander the state’s congressional districts, the only current alternative is worse. In this case, hypocrisy may be more than the tribute vice pays to virtue. It is itself a kind of virtue.

“Journalists may think we can dash off an opinion the way they dash off articles,” Alito snarked. “You can’t expect the E.M.T.s and the emergency rooms to do the same thing that a team of physicians and nurses will do when . . . time is not of the essence.”

That begs the question of why the Court is now deciding more frequently that their EMT services are needed.

In any event, Alito’s “blame the messenger” ignores what behavior psychologists have known for decades: When a message receives a favorable response, the messenger returns for more.

Alito rejected critics’ claims that emergency orders suffer from opaqueness that full court opinions help avoid: “[F]air-minded readers can easily understand the grounds for our rulings.”

What he didn’t address was the fact that the three orders he discussed all favored conservative litigants, a consistency that could lead “fair minded observers” to question whether the Court was impartially “calling balls and strikes.” In July, a Reuters analysis concluded that the Court’s emergency orders consistently favored religious groups and Trump’s administration.

Findings like that may have contributed to Justice Amy Coney Barrett publicly declaring in September that “we’re not a bunch of partisan hacks.” (Reminiscent of Richard Nixon’s Watergate-era speech in which he said, “I am not a crook.”)

That bromide does not mean, however, that judges should seek the limelight to offer their perspectives on Court business or doctrine. That practice carries enormous risk of destroying the public’s trust in their impartiality and nonpartisanship.

The district court agreed with the challengers that the law is unconstitutional, and it permanently blocked Kentucky from enforcing the law.

A divided 6th Circuit panel turned down Cameron’s request to join the case. It explained that Cameron’s plea had come “years into” the case, after both the district court’s ruling and the 6th Circuit’s opinion upholding that ruling. Granting a motion to intervene after the court of appeals has already issued its opinion, the court reasoned, would “provide potential intervenors every incentive to sit out litigation untill we issue a decision contrary to their preferences, whereupon they can spring into action.”

Cameron went to the Supreme Court in October 2020, asking the justices to weigh in on whether he should have been allowed to intervene and, if so, to send the case back to the lower courts for another look in light of their June 2020 decision in June Medical. In March 2021, the court agreed to take up only the procedural question.

In the Supreme Court, Cameron framed the case as a “dispute about a State’s sovereign ability to defend its laws.”

The attorney general’s office can’t enter the case now, the clinic wrote, because the office didn’t file a notice of appeal from the district court’s 2019 ruling. Allowing Cameron to intervene in the 6th Circuit in 2020, the clinic told the justices, “would create an impermissible end-run around Congress’s express statutory limits on appellate jurisdiction.”

there is no reason to disturb the denial of that motion by the court of appeals.

Arizona and 22 other states filed a “friend of the court” brief supporting Cameron in which they described the question presented by the case as one “of profound substantive importance to our democratic system of governance.” “States,” they wrote, “have a compelling and indisputable sovereign interest in defending the constitutionality of their laws when challenged in federal court.”

Children have a much lower risk of Covid-19 than adults, even when exposed to the Delta variant. Still, some small number of infected children develop a life-threatening condition called multi-system inflammatory syndrome in children, or MIS-C. Still others may have lingering symptoms for months.

Many agree that adding seats to the court for transparently partisan reasons will touch off an inevitable race to the bottom that ends in a court with 37 justices and no legitimacy. Given the current composition of the court, some progressives do not fear that day. But given my hope that this country has a future, I do.

In almost every respect that matters, the justices are doing this to themselves. No one is forcing the current justices to hand down, on the shadow docket, more rulings that affect more Americans than ever before. No one is forcing the current court to decline to explain itself when it does so, or to insist that its unexplained and inconsistent rulings nevertheless have precedential effect. No one is making the justices choose a celebration of McConnell at his eponymous think tank as the nonpartisan forum from which to give an unrecorded speech criticizing the media for portraying the justices as partisan. No one is compelling the justices to give speeches defending the court’s growing use of emergency orders that repeatedly mischaracterize both the court’s actions and the criticisms thereof.

Only 40 percent of U.S. adults approved of the court, down from 53 percent a year earlier. According to Gallup, a majority (53 percent) of U.S. adults now disapprove of the way the court is handling its job.

“The justices are plainly conscious of public attitudes toward the court,” said Lawrence Baum, a political science professor at Ohio State University. “But that’s only one consideration for the justices and not necessarily the most important one — particularly on issues like abortion or gun rights where they may have intense personal preferences about the right outcome.”

when Congress introduced more bills designed to curb the court, the justices struck down fewer laws. According to Clark, that suggests that the court saw the bills as a signal from Congress that they were going too far, even though the bills were unlikely to pass.

“Is legitimacy something that’s enough to get a justice to move away from something [he or she] strongly feels?”

In that sense, this new term might be a turning point — and not just because of the importance of the cases or the risk of a backlash to an individual decision. The next few months might be the beginning of a new era in which the conservative justices move sharply away from where most Americans stand on major issues, and dare politicians to do something about it.

For the first time in American history, in 1994, the federal government funded states to change their laws and practices that treated domestic violence and sexual assault as less serious than other offenses. The law included a provision to address state justice system’s routine mishandling of sexual assault cases, putting accountability in the hands of survivors by enabling them to seek redress themselves. The law declared it a federal “civil right” to be free from gender-based violence.

In 2000, the Court declared the Violence Against Women Acts’s civil rights remedy unconstitutional precisely because it dealt with sexual abuse crimes.  Despite the fact that the law allowed private survivors to seek damages, the court ignored the civil nature of the remedy and declared the underlying fact of sexual abuse had to be considered a crime.

The justices were almost hysterical about the danger: If the federal government could regulate sexual abuse, they said it would “obliterate” the distinction between the federal and state governments.

The decision was supposed to be about federalism, but it led to no legal revolution.  In fact, five years later, the Court decided another case, Gonzales v. Raich, allowing the federal government to regulate an individual’s marjuana possession, even though that too involved “crime,” on the theory that there was a commercial market for marijuana.  Many law professors think Gonzales silently overruled Morrison, giving the federal government the power to regulate all sorts of crime, just not sexual assault.

But opponents of the law — including some Republicans who have supported abortion rights — argue that it would go far beyond the landmark court precedent, stripping states of much of their ability to regulate abortion and impose measures intended to make the procedure safe. They say it would lead to many more abortions in the late stages of pregnancy.

“This legislation is really about a mandate by the federal government that would demand abortion on demand, without any consideration for anyone, including the conscience of the provider,” said Representative Cathy McMorris Rodgers, Republican of Washington and a chief foe of the bill.

“I’m hard-pressed to imagine a worse place to give a speech about the court not being partisan than . . . at an event in which she was introduced by Senator McConnell. It’s either remarkably tone-deaf or it’s deliberate. Neither is encouraging.”

Barrett threw out an old cliche: “Judicial philosophies are not the same as political parties.” Fine, but when one’s judicial philosophy is designed to inevitably result in outcomes favorable to one political party, it’s fair to say that is a distinction without a difference.

“First, it asks us to ignore the outrageous, dishonorable and overtly partisan tactics that created the current conservative supermajority,” he tells me. “Second, it asks us to overlook the court’s startling lurch toward ‘shadow docket’ rulings issued in the dark of night, which (as Justice [Elena] Kagan recently observed) 'every day [becomes] more unreasoned, inconsistent, and impossible to defend.” Matz explains that Barrett’s speech also “fails to grapple with the fact that the court’s decision-making has skewed sharply to the right based solely on a change in personnel, as evidenced by the profoundly flawed decision issued last term gutting a key provision of the Voting Rights Act.” Matz adds, “Finally, it misses the fact that several prominent voices on the court appear to have changed their tunes on signature issues (including national injunctions and the proper judicial role in reviewing immigration/asylum policy) since a new administration came into office.”

“makes significant progress toward ensuring our economy rewards work and not just wealth by cutting taxes for middle-class families, reforming the tax code to prevent the offshoring of American jobs and making sure the wealthiest Americans and big corporations pay their fair share,” said Andrew Bates, a White House spokesman.

The full committee still needs to release and advance text of the legislation, and it is unclear if enough Democrats will embrace the package in the House and the Senate. In order to protect the economic package from a Republican filibuster and pass it with a simple majority, Democrats can spare only three votes in the House and must remain united in the Senate.

In part because of the deep divisions in the Democratic caucus over the scope and structure of the package, Representative Richard E. Neal of Massachusetts, the chairman of the Ways and Means Committee, had remained remarkably enigmatic about his own preferences for the legislation. Before hearings this week, the committee has been releasing key components of the package, including an extension of monthly payments to families with children through 2025 and tax incentives for cleaner energy.

Colonel McCall is the fourth judge to preside at the Guantánamo court in the conspiracy case against Mr. Mohammed and the four other men who are accused of helping to plot the hijackings that killed nearly 3,000 people in New York, Pennsylvania and the Pentagon 20 years ago.

He has been a military judge for just two years, and was recently promoted to colonel, making him the youngest and least experienced of the judges who have overseen the case.

the FBI released new information in hopes of catching the person suspected of leaving behind two pipe bombs on Capitol Hill the night before the riot, one of the enduring, unsolved mysteries of that chaotic week.

The potential presence of the extremist groups at next week’s event is concerning because, while members and associates of Oath Keepers and Proud Boys make up just a fraction of the nearly 600 people who have been charged so far in the riot, they are facing some of the most serious charges brought.

Those charges include allegations that they conspired to block the certification of Biden’s victory. Several Oath Keepers have pleaded guilty to conspiracy charges and are cooperating with investigators in the case against their fellow extremists, who authorities say came to Washington ready for violence and willing to do whatever it took to stop the certification of the Electoral College vote.

Perhaps the most concerning: A series of unexploded pipe bombs placed near the Capitol on Jan. 5 remain unexplained and no suspect has been charged.

“I would hope that we wouldn’t have to fence in the Capitol every time there’s a demonstration,” Norton said. But she added, “If they go with the fence, I’m not going to criticize them.”

“President Lincoln wanted Lee to command the North, in which case the war would have been over in one day [citation needed]. Robert E. Lee instead chose the other side because of his great love of Virginia [citation badly needed], and except for Gettysburg, would have won the war [infinite citations needed],” Trump wrote.

Trump’s statement, which his organization voluntarily emailed out, goes on with some bluster about the “disaster” of President Biden’s withdrawal of U.S. troops from Afghanistan, the execution of a deal that Trump negotiated with the Taliban before he was voted out of office.

And perhaps it’s not at all surprising that Trump thinks of Lee (0-1 lifetime in civil wars) as a surefire victor. Because if there’s one thing Trump has proven he struggles to understand, it’s who is a winner, and who is a loser.