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Tag: john roberts (justice)

  • Supreme Court returns for first private meeting of the term amid even more controversy | CNN Politics

    Supreme Court returns for first private meeting of the term amid even more controversy | CNN Politics



    CNN
     — 

    The Supreme Court returns to Washington to face a new term and the fresh reality that critics increasingly view the court as a political body.

    In the wake of a series of controversial decisions made possible by former President Donald Trump’s three nominees, including the seismic reversal of Roe v. Wade, the justices find themselves catapulted into the very center of the political discourse.

    Their opinions feature prominently on the campaign trail, approval ratings have plummeted to new lows and Democrats in Congress are vowing to regulate the third branch in the midst of allegations justices are skirting ethics rules and attacks on the very legitimacy of the court.

    So far, they have struggled to respond. At public appearances they grasp at the promise of judicial independence while sending mixed signals about changes that might be afoot.

    Tuesday, the justices will meet in person for their first closed-door conference of the term.

    Chief Justice John Roberts is at the center of it all.

    How he navigates this term will shape the trajectory of his tenure going forward. Some say he’ll remain on the sidelines, out of the fray. Others say he cannot afford to do so.

    Earlier this year, Roberts declined an invitation to appear before the Democratic-led Senate Judiciary Committee to discuss Supreme Court ethics, citing separation of powers concerns. In May, speaking before an audience in Washington, Roberts said he wanted to assure the public that the court is committed to adhering to the “highest standards of conduct.”

    It was one line in one speech.

    But at the end of June, as controversy continued amid a raft of high-profile decisions that largely broke along ideological lines, Roberts made an unusual choice. In a 6-3 opinion striking down President Joe Biden’s student loan forgiveness program, the chief strayed from the case at hand.

    He said that it had become a “disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of government.”

    He appeared to be responding to the dissent penned by Justice Elena Kagan and joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. “In every respect, the Court today exceeds its proper limited role in our Nation’s governance,” Kagan began.

    Noting her disagreement, Roberts took the occasion to write, “we do not mistake this plainly heartfelt disagreement for disparagement.” He added: “Any such misperception would be harmful to this institution and our country,” he wrote.

    It was unclear if the line was directed at his dissenting colleagues or critics outside of court or both, but it was an unusual digression from a justice who, by definition, lacks an obvious pulpit to defend his branch of government.

    The way forward for Roberts is not obvious.

    Even if he did believe a formal ethics code is necessary, it’s unclear whether he would need a unanimous vote to move forward. Conservative Justices Clarence Thomas and Samuel Alito might, for instance, balk at such a move arguing that it would never satisfy critics whose true goal is to damage the institution.

    Some believe Roberts ultimately will steer clear of the controversy.

    “I don’t see him moving in any direction to encourage further disclosure reforms, and I don’t see Congress as being able to get sufficient traction,” Cate Stetson, a lawyer at Hogan Lovells, said at the Cato Institute earlier this month.

    But if the court does nothing, pressure will continue.

    Senate Judiciary Chair Dick Durbin, a Democrat, traveled to the Supreme Court on September 12 as an invited guest to the annual meeting of the Judicial Conference – the policymaking body for the federal courts.

    Sitting next to the chief justice on Roberts’ home turf, Durbin lobbied him to adopt an enforceable code of conduct directed specifically at the justices, according to a source.

    Roberts and others have continuously stressed how difficult it would be to adopt such a code, particularly when it comes to recusal issues.

    In April, all nine justices released a new statement hoping to provide “clarity” to the public about their ethics procedures, noting that they consult a “wide variety of authorities” when addressing specific ethics issues. They noted that while the Judicial Conference has a code of conduct followed by lower court judges, the conference “does not supervise the Supreme Court.”

    The statement outlined complications that distinguish the Supreme Court from the lower courts.

    At the lower court level, for instance, federal judges can substitute for each other if one judge recuses from a case. That’s not true at the high court where only members can hear a dispute.

    The statement did little to appease critics who say the justices can no longer continue to voluntarily follow rules that govern lower court judges. They must, critics say, have a code of conduct that binds them directly.

    Response from the bench

    Some conservatives believe there is no impending judicial crisis. Instead, they say, critics of the court are manufacturing a controversy to delegitimize the institution and staunch the flow of conservative opinions.

    Carrie Severino, president of the conservative Judicial Crisis Network, who is also a former clerk for Justice Clarence Thomas, tweeted recently that the problem is not corruption.

    “The problem is the coordinated campaign by dark money activists, radical politicians, and a willing media to imply there is corruption, undermining the Court’s integrity and selectively smearing the justices they disagree with,” she wrote.

    Alito, who wrote the opinion overturning Roe, has taken a radically different approach than the chief justice.

    In an interview in July that appeared on The Wall Street Journal’s editorial page, Alito said forthrightly that Congress should stay out of the Supreme Court’s business.

    “I know this is controversial view, but I’m willing to say it,” he said. “No provision in the Constitution gives them the authority to regulate the Supreme Court – period.”

    Alito said that he marveled “at all the nonsense that has been written about me in the last year” and noted that in the face of a political onslaught he was rejecting the notion that judges and justices “should be mute” and leave it to others to defend them.

    “I’ve said to myself, nobody else is going to do this, so I have to defend myself,” he wrote.

    A month earlier he sought to preempt a ProPublica report that had not yet been published concerning allegations that he should have disclosed luxury travel from 2008.

    Over the summer, other justices were asked about ethics and the court’s legitimacy by friendly questioners at universities and judicial conferences – although they never addressed specifics.

    Unlike Alito, Justice Elena Kagan suggested in August that here was some daylight on the question of whether Congress has a role to regulate the Supreme Court. Last week, she told an audience in Indiana that she thought it would be a “good” idea if the court were to adapt the ethics code used by lower court justices to fit the Supreme Court.

    For her part, Justice Amy Coney Barrett noted that criticism of the court is nothing new. At an appearance before a judicial conference in Lake Geneva, Wisconsin, she said that “critiques of the court” are part of its history. Public criticism “comes with the job” she said.

    Justice Brett Kavanaugh had a different message in Ohio saying he was “hopeful” that there would be some “concrete steps” taken soon to address the ethics issue.

    But his sentiment may have been aspirational.

    As the justices grapple with how to respond, they are hampered by an additional factor.

    Change at the high court comes slowly. The court’s unofficial mascot – the tortoise – can be found at the bottom of bronze lampposts on the building grounds. The tortoises are meant to symbolize the slow and steady pace of justice.

    Almost nothing at the high court comes quickly, and the institution is not new to controversy. The justices may decide to ride out the storm.

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  • When John Roberts wants things done, he acts. What that means for ethics rules | CNN Politics

    When John Roberts wants things done, he acts. What that means for ethics rules | CNN Politics



    CNN
     — 

    Soon after he became chief justice of the United States, John Roberts faced what he believed was a “crisis” involving the judiciary: Federal judges were underpaid.

    What Roberts did next to address the situation stands in stark contrast to the way he has tiptoed through the current controversy over the Supreme Court’s integrity.

    As he pushed for a pay raise, he arranged a meeting at the White House to win support from then-President George W. Bush. He encouraged emissaries to talk to members of Congress. And he devoted an entire year-end report to the situation.

    “I am going to discuss only one issue – in an effort to increase even more the chances that people will take notice,” Roberts wrote on January 1, 2007. “That is important because the issue has been ignored far too long and has now reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary.”

    His concern: “I am talking about the failure to raise judicial pay.”

    Today, Roberts is at the center of the controversy over the court’s lack of transparency and absence of a formal code of ethics. The justices have been inconsistent in reporting travel and gifts bestowed on them by wealthy benefactors who may be trying to influence the court.

    The 68-year-old chief justice, who will be starting his 19th term in October, has moved with little apparent urgency.

    On Thursday, the issue was again in the spotlight as Justice Clarence Thomas filed a long-awaited annual financial disclosure form that pointed up his relationship with Texas real estate billionaire Harlan Crow. Thomas acknowledged that he had traveled on private jets at Crow’s expense for Dallas events and taken a separate vacation excursion to Crow’s opulent estate in the Adirondacks.

    Thomas also reported that Crow had in 2014 bought property in Savannah, Georgia, from Thomas and his family. Thomas’ lawyer said any delays or other filing errors were “inadvertent” and described public criticism of Thomas as “political blood sport.”

    Justice Roberts wrote ‘condescending’ letter to Senate when asked to testify about ethics

    The backdrop to Thursday’s filing by Thomas and Justice Samuel Alito, both of whom had sought extensions from a May deadline, is the rising attention to the Supreme Court’s inability to monitor itself on this front. The justices’ extracurricular activities and lack of any process for resolving complaints has become as much a topic of public scrutiny as their rulings pushing the law in America to the right.

    For years, individual justices have said the court was considering its own code of conduct, as now covers lower court judges. But that consideration has never produced any public result.

    Members of Congress, advocacy groups and even some justices have looked to Roberts for leadership, to no avail.

    Roberts told an audience of lawyers in Washington, DC, in May: “I want to assure people that I am committed to making certain that we as a court adhere to the highest standards of conduct. We are continuing to look at things we can do to give practical effect to that commitment.”

    Yet when the justices left town for their summer recess in June, they were at a stalemate on whether a formal code was even necessary.

    In separate public appearances this summer, Justices Brett Kavanaugh and Elena Kagan, when asked about a possible ethics code, said they didn’t want to get out ahead of Roberts on the issue.

    While Roberts has sent muted signals, he has made his resistance to congressional involvement clear.

    Roberts in April declined an invitation to testify before the Senate Judiciary Committee about judicial ethics, referring to “separation of powers concerns and the importance of preserving judicial independence.”

    The Democratic-run Senate committee in July advanced legislation that would require a Supreme Court ethics code and a set of procedures for resolving complaints regarding their behavior. Given the tight partisan divide in the Senate and Republicans’ control of the House, the bill is unlikely to become law.

    So, much depends on the justices themselves.

    Roberts is known for formidable powers of persuasion. Before he became a US appeals court judge in 2003 and a Supreme Court justice in 2005, he was a star appellate advocate at the high court. But there are limits to his authority as chief, and the regard he engenders among individual colleagues varies.

    There may also be limits to the personal capital Roberts wants to put toward a dilemma that lies beyond the consideration of cases.

    The chief justice had made the judiciary’s pay raise a singular concern, and eventually judges and justices obtained full cost-of-living increases and higher pay.

    Unlike with judicial pay, which naturally generated support among black-robed colleagues, the ethics issue has defied consensus in Roberts’ ranks.

    Alito said in a Wall Street Journal interview published in July that he “voluntarily follows” the rules that apply to lower court judges, and he denigrated congressional efforts in this area: “I know this is a controversial view, but I’m going to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court – period.”

    Last month in Portland, Oregon, Kagan also referred to internal differences.

    “It’s not a secret for me to say that we have been discussing it,” she said, referring to a formal set of ethics rules. And it won’t be a surprise to know that the nine of us have a variety of views about this, as about most things. We’re nine free-thinking individuals.”

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  • Ron DeSantis spells out possibility to cement ‘7-2 conservative majority’ on Supreme Court | CNN Politics

    Ron DeSantis spells out possibility to cement ‘7-2 conservative majority’ on Supreme Court | CNN Politics



    CNN
     — 

    Ahead of an expected White House bid in the coming days, Florida Gov. Ron DeSantis spelled out the possibility to build a “7-2 conservative majority” on the US Supreme Court.

    The Republican pointed to four justices – three appointed by Republican presidents – who he believed are poised to leave the bench during the next eight or nine years, during a speech at the National Religious Broadcasters Convention in Orlando on Monday.

    “If you look over the next two presidential terms there is a good chance that you could be called upon to seek replacements for Justice Clarence Thomas and Justice Samuel Alito. And the issue with that is you can’t really do better than those two. They are the gold standard for jurisprudence, so you gotta make sure that we are appointing people as close to that standard as possible,” DeSantis said, referring to two conservative stalwarts.

    Alito is 73, Thomas is 74.

    DeSantis also highlighted what he sees as a potential opportunity to replace conservative Chief Justice John Roberts, 68, or liberal Justice Sonia Sotomayor, 68, to cement a conservative majority for years. The court currently has a 6-3 conservative supermajority.

    “If you replace a Clarence Thomas with someone like a Roberts or somebody like that then you’re actually gonna see the court move to the left, and you can’t do that. I also think if you look over those eight years, you very well could be called upon to replace Chief Justice John Roberts, and perhaps even, someone like Justice Sotomayor,” DeSantis said.

    “So, it is possible that in those eight years we would have the opportunity to fortify justices Alito and Thomas, as well as actually make improvements with those others and if you were able to do that then you would have a 7-2 conservative majority on the Supreme Court that would last a quarter century, so this is big stuff,” he added.

    As governor, DeSantis spoke about tilting the Florida Supreme Court to a conservative majority, with the help of age limits.

    “We have age limits for justices,” DeSantis said. “The minute I got elected to office, three of the four liberal justices were off the court, because of age. So, I was able in my first term of office to replace three liberal justices with three conservative justices.”

    He teased another judicial appointment this week to replace a retiring conservative justice.

    “I will have ended up doing seven appointments throughout my tenure,” DeSantis said. “Judicial activism in Florida is now officially dead.”

    Like all federal judges, Supreme Court justices are appointed for life.

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  • Justice Clarence Thomas says trips with billionaire didn’t need to be disclosed at the time | CNN Politics

    Justice Clarence Thomas says trips with billionaire didn’t need to be disclosed at the time | CNN Politics



    CNN
     — 

    Justice Clarence Thomas said Friday that he did not disclose luxury travel paid for by a Republican donor because he was advised at the time that he did not have to report it.

    In a rare statement sent via the Supreme Court’s public information office, Thomas said that the trips he and his wife, conservative activist Ginni Thomas, took with the donor Harlan Crow and his wife – whom Thomas describes as among his family’s “dearest friends” – were the “sort of personal hospitality from close personal friends” that he was advised did not require disclosure.

    Thomas’ travel with the Crows, which included trips on the donor’s yacht and private jet, was the subject of a bombshell ProPublica report published Thursday. Congressional Democrats have called for an investigation into the matter and for a stronger ethics code for the justices, and some federal judges are also speaking out.

    The justice notes that the guidelines for reporting personal hospitality have been recently changed.

    “And, it is, of course, my intent to follow this guidance in the future,” Thomas said.

    The ProPublica report describes Thomas accepting travel hospitality from Crow that included lavish trips to Indonesia, New Zealand, California, Texas and Georgia. Some of these trips reportedly included travel on Crow’s super yacht or stays at properties owned by Crow or his company.

    Thomas’ critics quickly pushed back on his defense Friday, with Democratic Sen. Sheldon Whitehouse zeroing in on Thomas’ assurance that the Crows did not have business before the high court.

    “Oh, please,” tweeted Whitehouse, who chairs a Senate Judiciary subcommittee that oversees the federal bench. “If you’re smoking cigars with Leonard Leo and other right-wing fixers, you should know they don’t just have business before the Court — their business IS the Court.”

    The ProPublica report described a portrait hanging at a New York property owned by Crow’s company that depicts Thomas, Crow and other influential figures in Republican politics, including Leo, the former Federalist Society head who played a crucial role in former President Donald Trump’s makeover of the federal bench. They are sitting together smoking cigars in the painting. The report says that some trips Thomas took with the Crows were also attended by executives of major corporations as well as a leader of a conservative think tank, the American Enterprise Institute. Crow himself sits on the board of AEI, ProPublica said, and the think tank’s scholars have occasionally filed friend-of-court briefs in Supreme Court cases.

    The controversy has cast a bright light on the judiciary that is increasingly called upon to resolve raging disputes between the political branches of government.

    As confirmation hearings have turned into political spectacles and hot-button cases on abortion, gun rights and religious liberty have broken along familiar conservative-liberal ideological lines, critics say the court appears more and more political.

    Two dozen Democratic lawmakers from both chambers sent a letter to Chief Justice John Roberts on Friday, calling for a “swift, thorough, independent and transparent investigation” into whether ethics rules and laws were violated by Thomas’ trips.

    It also triggered reaction with another constituency that is rarely heard from: federal judges who serve on the lower courts. Current and retired federal judges don’t normally speak up about internal matters outside the confines of the courtroom, but they agreed to talk to CNN if their names were withheld.

    One retired judge – a Republican appointee – told CNN that the disclosure of the trips made them “livid.”

    “This is precisely why the public respect for the Supreme Court has plummeted,” the judge said. “This is far greater than mere ethics violations. It’s about the perceived legitimacy of the Supreme Court.”

    The federal court system judiciary consists of the nine justices who sit on the highest court in the land, as well as 94 district level trial courts and 13 courts of appeal.

    But another judge, also a Republican appointee, sided with Thomas in the dispute, saying that the rules had not been clear and that a committee on the Administrative Office of the US Courts had been working for months to clarify them, only issuing revisions recently.

    “I always thought this area was kind of confusing,” the judge said, adding that regulations concerning what constitutes “personal hospitality” in the rules had never been made clear until a clarification went into effect on March 14.

    “Hospitality was never defined, and it seemed odd to think of a situation where you are spending social time with a close friend where at least occasionally some transportation doesn’t get involved,” the judge said. “If I go spending a weekend with my buddies – someone is going to be driving someone where we are going.”

    Another also sided with Thomas, saying that they had actually been told on two occasions that they had shared more information than was necessary. “The Administrative Office of the United States Courts are concerned with consistency – they want the reports to look the same” the judge said.

    “They don’t want a situation where one judge reports information that others aren’t reporting,” the judge added.

    “The new rules draw a line,” the judge said. “In the end, we are bound by whatever rules we have.”

    Another government source with close ties to the judiciary noted that the dispute around Thomas concerns regulations that apply to all federal judges, but, he says, it has also reignited a dispute about the fact that Supreme Court justices do not have a code of conduct that applies directly to them.

    As things stand, all lower court judges must abide by a code of conduct, but the justices have so far declined to either bind themselves to the current code or create one for themselves. The source said that the sentiment of the lower court judges they had spoken with was that they felt like the judiciary as a whole was being tainted by the fact that the nine justices won’t adopt a code of conduct.

    The source said that the sentiment among some lower court judges is that it “makes us all look bad.”

    In a 2011 report, Chief Justice John Roberts addressed critics who say that the Judicial Conference’s Code of Conduct for United States Judges should apply to the Supreme Court.

    He said that “Article III of the Constitution creates only one court, the Supreme Court of the United States.” It empowers Congress to establish additional lower courts. Roberts said that the two bodies are different, and so a code of conduct instituted by the Judicial Conference that Congress created could not apply to the highest court in the land.

    Roberts did concede that the members of the high court “consult” the code of conduct as well as other materials including advice from the court’s legal office. But, he concluded, the court has “no reason to adopt” a code of conduct.

    “I have complete confidence in the capability of my colleagues to determine when recusal is warranted,” Roberts wrote at the time.

    In a statement to ProPublica and CNN, Crow said that he has been friends with Thomas and his wife Ginni for more than 30 years, and that the hospitality he has extended the justice over the years was “no different from the hospitality we have extended to our many other dear friends.”

    “Justice Thomas and Ginni never asked for any of this hospitality,” Crow said in the statement. He said that we “never asked about a pending or lower court case, and Justice Thomas has never discussed one.”

    “Harlan and Kathy Crow are among our dearest friends, and we have been friends for over twenty-five years. As friends do, we have joined them on a number of family trips during the more than quarter century we have known them.

    “Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable. I have endeavored to follow that counsel throughout my tenure, and have always sought to comply with the disclosure guidelines.

    “These guidelines are now being changed, as the committee of the Judicial Conference responsible for financial disclosure for the entire federal judiciary just this past month announced new guidance. And, it is, of course, my intent to follow this guidance in the future.”

    This story has been updated with additional details.

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  • Ruth Bader Ginsburg is honored at a Supreme Court she wouldn’t recognize | CNN Politics

    Ruth Bader Ginsburg is honored at a Supreme Court she wouldn’t recognize | CNN Politics



    CNN
     — 

    The late Justice Ruth Bader Ginsburg was lauded by former clerks and colleagues at a memorial ceremony held at the Supreme Court on Friday – an institution she’d scarcely recognize if she were still on the bench.

    During the special session of the court, delayed because of Covid-19, Chief Justice John Roberts pointed to Ginsburg’s dedication to equality and said she “changed our country profoundly for the better.”

    Attorney General Merrick Garland said her opinions were “concise and elegant.”

    Solicitor General Elizabeth Prelogar, a former clerk, called the justice’s work the “stuff of legend.” (Prelogar also revealed Ginsburg’s passion for chocolate fondue.)

    But as the legal luminaries mingled in the Great Hall outside the marble-lined chamber, little was said about how much the court has changed in the 130 weeks since Ginsburg’s passing.

    Fresh on the minds of many is the unprecedented leak last May of a draft opinion overturning Roe v. Wade, a disclosure the court described as a “grave assault on the judicial process.”

    In addition, however, the current conservative majority, including Ginsburg’s replacement, Justice Amy Coney Barrett, is working expeditiously to reverse much of what Ginsburg stood for in areas such as reproductive health, voting rights, affirmative action, administrative law and religious liberty.

    In the past few months, the court has seen its approval ratings plummet amid claims that it has become irreparably political. Even the relationships between the justices, while cordial, have frayed in public over debates concerning the court’s legitimacy.

    As conservatives praise the court’s new season, others mourn the dismantling of Ginsburg’s life work.

    “We are in the midst of a constitutional revolution, and the praise being lavished on Ruth Bader Ginsburg today, should not cause us to lose sight of that fact,” said Neil S. Siegel, a professor at Duke University and former Ginsburg clerk.

    Lara Bazelon, a law professor at the University of San Francisco School of Law, put it more forcefully in an interview with CNN: “The current court is taking a wrecking ball to her legacy to smash it to smithereens.”

    Ginsburg died at 87 years old on September 18, 2020, having spent some 40 years as a federal judge – 27 on the high court. She worked until the end, even dialing into oral arguments from her hospital bed in Baltimore in May 2020 to chastise a lawyer for the Trump administration. The case at hand concerned a religion-based challenge to the Affordable Care Act’s requirement that employer-provided health insurance plans cover birth control as a preventive service.

    “You have tossed entirely to the wind what Congress thought was essential, that is that women be provided these services with no hassles, no cost to them,” Ginsburg said.

    After her death – less than seven weeks before Election Day – then-President Donald Trump praised her. “She was an amazing woman whether you agree or not she was an amazing woman who led an amazing life,” he said, while as expected, moving with dispatch to push through the nomination of a candidate believed to be Ginsburg’s ideological opposite in many areas: Justice Amy Coney Barrett .

    The shift from Ginsburg to Barrett is akin to 1991 when Justice Thurgood Marshall, a legend of the civil rights movement who often cast his votes with the liberals on the bench, was replaced with Justice Clarence Thomas, who has become a hero of the conservative right.

    The philosophical differences between the two jurists was almost immediately evident in disputes over the religious liberty implications of state Covid restrictions.

    When Ginsburg was still alive, the court ruled in favor of the states with Roberts serving as the swing vote. But after Barrett’s confirmation, the houses of worship won.

    Barrett – a former clerk to Ginsburg’s friend, the late Justice Antonin Scalia – has also embraced the constitutional theory of originalism, a judicial philosophy championed by Scalia. Under the doctrine, the Constitution should be interpreted based on its original public reading.

    Just last term the court divided along familiar ideological lines in several cases and Barrett sided with the majority, cementing the court’s conservative turn.

    Barrett’s presence also means that Roberts no longer controls the court, as there are five votes to his right on some of the most divisive issues of the day.

    “He is no longer empowered to moderate the very conservative direction in which the court’s other conservatives are pushing the institution,” Siegel said.

    The biggest blow for liberals last term came in Dobbs v. Jackson Women’s Health Organization, an opinion penned by Justice Samuel Alito that reversed Roe – a decision that had been on the books during Ginsburg’s entire tenure.

    While she enjoyed a cordial relationship for the most part with her colleagues, Siegel and Bazelon said she would have been surprised by specific references Alito made to an article she wrote in 1992 as a lower court judge.

    On the 3rd page of his opinion Alito argued that when Roe was decided it was such a broad decision that it “effectively struck down the abortion laws of every single state.” He went on to say that it has “embittered our political culture for a half century.” After that sentiment he cited Ginsburg’s article in a footnote, where she wrote that the sweep of the decision had “halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue.”

    Some believe Alito included the quotation to point out that Ginsburg, along with others, felt like the court may have moved too fast too soon in the opinion. But others question his use of the citation, especially because Ginsburg never questioned the result of the decision, only its reasoning in certain sections.

    “Alito’s citation is both cynical and misleading, implying that Justice Ginsburg disapproved of the Roe holding,” Bazelon said.

    That couldn’t be “farther from the truth,” she said, pointing out that Ginsburg’s disagreement was that the reasoning should have “honed in more precisely on the women’s equality dimension.” She noted that Ginsburg always agreed with the result of the opinion.

    In the last years of her life Ginsburg was asked what would happen if the court were to ever overturn Roe and she said that it would have a particularly harsh impact on women who did not have the means to travel across state lines to obtain the procedure.

    Those words were echoed in the joint dissent last term filed by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan in Dobbs. “Above all others, women lacking financial resources will suffer from today’s decision,” they wrote.

    On Friday, Breyer, now retired, sat in the front row, next to retired Justice Anthony Kennedy. Kennedy was replaced in 2018 by Justice Brett Kavanaugh, who also voted to overturn Roe.

    During her final term, Ginsburg may have known Roe was in jeopardy. There were, after all, likely five members skeptical of the opinion. But she may have felt that Roberts could be persuaded to stop short of overturning precedent out of respect for the stability of the law.

    The very fact that she thought Roe could be in danger, was a signal that Ginsburg saw changes afoot before her passing. She often lamented the politicization of the court that she thought could be traced partly to the confirmation process. She noted that in 1993 when she was nominated by President Bill Clinton she was confirmed by a vote of 96-3 even though she had served as a lawyer for the liberal ACLU. In modern day confirmation hearings, that vote would have been much closer.

    Last term, in a rash of 6-3 decisions the fissures were evident.

    After dodging Second Amendment cases for years, for example, the court crafted a 6-3 opinion marking the widest expansion of gun rights in a decade.

    Kagan dissented when a 6-3 court curbed the Environmental Protection Agency’s ability to broadly regulate carbon emissions from existing power plants, a writing that seemed to trigger Kagan’s inner Ginsburg. She criticized the court for stripping the EPA of the “power Congress gave it to respond to ‘the most pressing environmental challenge of our time.”

    “The Court appoints itself – instead of Congress or the expert agency – the decision-maker on climate policy,” she said.

    “I cannot think of many things more frightening,” Kagan concluded.

    The conservative court is not finished.

    In 2013, Ginsburg wrote a scathing dissent when Roberts penned an opinion gutting a key section of the historic Voting Rights Act.

    Ginsburg wrote at the time that weakening the law when it “has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

    This term, the court is tackling another section of the same law.

    And the court is considering whether to bar colleges and universities from taking race into consideration as a factor in admissions plans.

    In 2002, Ginsburg memorably wrote about why such programs are necessary. “The stain of generations of racial oppression is still visible in our society, and the determination to hasten its removal remains vital,” she said.

    On Friday former clerk Amanda L. Tyler spoke lovingly about her late boss who, she said, had been described as a “prophet, an American hero, a rock of righteousness, and a national treasure.”

    She said Ginsburg had “the best qualities a judge can have: lawyerly precision, an abiding dedication to procedural integrity, a commitment to opening up access to the justice system to ensure that the least shall be heard and considered side by side with the greatest.”

    The event in the great hushed hall, like many other memorials, served as a reunion of sorts for Ginsburg’s family and her acolytes and a respite from the court’s regular order. On Monday, the justices take the bench again for a new set of cases.

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  • Supreme Court under fresh pressure to adopt code of ethics | CNN Politics

    Supreme Court under fresh pressure to adopt code of ethics | CNN Politics


    Washington
    CNN
     — 

    For decades, Supreme Court justices have dodged questions related to conflicts of interest by saying essentially “Trust us” or “We’re different.” They’ve refused to be bound by an official ethics code and grievance procedures that cover other federal judges.

    But mounting public pressure may finally spur changes. Court sources have told CNN that internal discussions, which date back at least to 2019, have been revived. The timing of any public resolution is uncertain, however, and it appears some justices have been more hopeful than others about reaching consensus.

    This week, in an action that demonstrates the intensifying national concern over the justices’ behavior, the American Bar Association’s House of Delegates approved a resolution urging the high court to adopt a binding code of ethics “comparable” to the code in place for lower-court US judges.

    Unlike liberal groups that have been pounding on the justices to establish ethics rules, neither the ABA nor its policy-making House of Delegates is known for criticizing the high court. The 591-member House of Delegates is more associated with establishment positions than flamethrowing advocacy.

    Separately, members of Congress on Thursday re-introduced legislation that would lead to a code of ethics for Supreme Court justices. A similar bill failed last year, but lawmakers say the increasing public criticism could give the legislation more traction.

    The current accelerated scrutiny of the justices’ extracurricular behavior arises against a backdrop of rulings that have broken norms. The conservative majority has been more willing than prior courts to jettison decades of precedent, most startlingly in last June’s decision reversing the 1973 Roe v. Wade abortion rights landmark. More recently, the court’s stature has been undermined by the early leak of the Dobbs opinion that overturned Roe and other security lapses.

    Together, the substance of cases and refusal to address ethics issues evoke an unaccountable court that will rule as it wishes and act as it wants, without regard for public concern.

    New York University law professor Stephen Gillers believes the court’s standing has been diminished by its reluctance to address ethical concerns.

    “There’s almost no willingness to engage with the repeated call from various venues, and now the ABA,” Gillers said, calling the court’s lack of response “incredible, tone-deaf,” and adding, “I think that has hurt the court’s reputation.”

    Growing criticism of America’s top court, including from members of Congress seeking accountability, could cause the justices to finally act. They previously worked behind the scenes to formalize ethics rules, but the effort stalled. In 2019, Justice Elena Kagan, commenting publicly on the negotiations over a code of ethics, told a US House committee that discussions were underway. “It’s something that is being thought very seriously about,” Kagan said.

    Court sources told CNN that internal discussions have continued and that some justices hope a code might be crafted in due course.

    The justices rarely address recusal, that is, why they decide to sit out a case or are hearing one that critics say could pose a conflict. Their disclosure filings include limited information about their finances, those of their spouses and various reimbursements for travel.

    Activities of spouses have spurred more questions regarding recusals, particularly related to Justice Clarence Thomas. He resolved cases with his colleagues arising from former President Donald Trump’s failed 2020 reelection bid, as his wife, Virginia “Ginni” Thomas, worked with White House allies to challenge Joe Biden’s victory.

    Neither Justice Thomas nor Chief Justice John Roberts responded to press inquiries about potential conflicts when information about Ginni Thomas’ activities became public through the US House investigation into the January 6, 2021, insurrection at the Capitol.

    Ginni Thomas’ lawyer, Mark Paoletta, suggested in testimony last year before a US House subcommittee that the Supreme Court could continue with the current practice of consulting with, rather than formally following, existing code that covers lower-court judges. During an April 2022 hearing titled “Building Confidence in the Supreme Court through ethics and Recusal reforms,” Paoletta said: “There is nothing wrong with ethics and recusals at the Supreme Court. The justices are ethical and honorable public servants. Moreover, to support any reform legislation right now would be to validate this vicious political attack on the Supreme Court.”

    The Supreme Court’s public information office declined to comment Thursday.

    NYU’s Gillers, who focuses on legal and judicial ethics, traces some of today’s criticism of the court’s ethics to America’s enduring abortion wars and the June decision in Dobbs v. Jackson Women’s Health Organization.

    “It’s hard for a lot of people to understand why Roe could be overturned simply because the composition of the court changed,” he said. “Why now, after nearly 49 years of Republicans and Democrats supporting Roe?”

    The reversal, indeed, followed the addition of the new Trump appointees to the court.

    Yet Gillers said the justices’ off-bench behavior and their enduring lack of a formal code of ethics are rightfully being scrutinized and affect the court’s stature.

    The court’s legitimacy has been increasingly debated, even publicly among the justices, since the Dobbs ruling.

    When the ABA House of Delegates voted on its resolution in New Orleans on Monday, an accompanying report said, “The absence of a clearly articulated, binding code of ethics for the justices of the Court imperils the legitimacy of the Court. More than that, this absence potentially imperils the legitimacy of all American courts and the American judicial system, given the Court’s central role enshrined in our federal republic.”

    The nine justices are covered by a federal law dictating that jurists disqualify themselves from a case when their “impartiality might reasonably be questioned,” but they are exempted from the federal judicial channels for resolving complaints and lack a specific ethics code governing their activities.

    So, for example in 2018, more than 80 complaints filed against US appeals court Judge Brett Kavanaugh, arising from his tumultuous Supreme Court nomination hearings, were summarily dismissed after the Senate confirmed him as a justice.

    US appeals court Judge Timothy Tymkovich, who wrote the judicial council’s dismissal of those complaints, referred to the 1980 judicial conduct law that excludes the nine justices.

    “The allegations contained in the complaints are serious,” he said, “but the Judicial Council is obligated to adhere to the Act. Lacking statutory authority to do anything more, the complaints must be dismissed because an intervening event – Justice Kavanaugh’s confirmation to the Supreme Court – has made the complaints no longer appropriate for consideration under the Act.”

    As he introduced new legislation Thursday, Sen. Dick Durbin, chairman of the Senate Judiciary Committee, said in a statement that “the Supreme Court of the Unites States ought to be the embodiment of objectivity.”

    “Congress must close the inexcusable ‘Supreme Court loophole’ in federal judicial ethics rules by creating and enforcing a code of ethics for Supreme Court Justices,” the Illinois Democrat said.

    Among the provisions in the proposed “Supreme Court Ethics Act” are those that would require the Judicial Conference of the United States, a policy-making arm of the federal judiciary, to craft a code that would apply to the justices and, separately, would direct the Supreme Court itself to appoint an ethics investigations counsel to handle public complaints about potentially unethical conduct by the justices.

    In 2011, Roberts explained some of the factors that allowed the high court to be shielded from strictures related to recusals.

    “Lower court judges can freely substitute for one another,” Roberts wrote in an annual year-end report. “If an appeals court or district court judge withdraws from a case, there is another federal judge who can serve in that recused judge’s place. But the Supreme Court consists of nine Members who always sit together, and if a Justice withdraws from a case, the Court must sit without its full membership. A Justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy.”

    He also said that the Supreme Court “does not sit in judgment of one of its own Members’ decision whether to recuse in the course of deciding a case.”

    At the time of Roberts’ 2011 statement, outside critics were questioning whether Thomas and Kagan should sit on the first major dispute over the Affordable Care Act – Thomas because of his wife’s opposition to the 2010 health care law and Kagan because of her prior work in the Obama administration.

    Without addressing those justices directly, Roberts wrote, “I have complete confidence in the capability of my colleagues to determine when recusal is warranted. They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

    This story has been updated with additional developments.

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  • Supreme Court embarrassed by the opinion leak is embarrassed again | CNN Politics

    Supreme Court embarrassed by the opinion leak is embarrassed again | CNN Politics



    CNN
     — 

    The Supreme Court’s stunning report Thursday on its failure to discover who leaked a draft decision reversing abortion rights last year laid bare shortfalls at the nation’s highest court, in its technology, protocols for confidentiality and overall institutional safeguards.

    Further, the lack of success in discovering who was responsible raises the possibility of a security breach in the future. It already appears likely to add to the public’s distrust of the justices and accelerate the partisan rancor surrounding the court.

    The justices’ two-page statement and 20-page report from Supreme Court Marshal Gail Curley appear intended to demonstrate the thoroughness of the investigation, with numbers of people interviewed (126 formal interviews of 97 employees) and various forensic measures taken.

    Yet each page rings with limitations and dead ends. It also suggests certain boundaries on who was investigated, referring only to employee scrutiny. There was no mention of possible interviews with the nine individual justices or their spouses.

    On Friday, Curley put out a statement saying she had spoken to the justices but suggesting that it was in a less formal process than her interviews with employees. She said she did not ask the justices to sign sworn affidavits, as she had asked their law clerks, and that none of the leads she pursued implicated the justices or their spouses.

    Overall, it is paradoxical that an institution that cloaks itself in secrecy and casts itself above other Washington institutions would be exposed as such a sieve.

    The report expresses outright how easily confidential information could have slipped out, whether deliberately or accidentally. About 100 people had access to the draft at the outset, according to the details of the report. Many employees, the report said, “printed out more than one copy.”

    In a momentous case involving a half century of precedent protecting women’s privacy rights, routine office precautions were absent. And when the breach was discovered – a breach that the court itself deemed “a grave assault” – it was all but impossible to re-trace internal operations.

    Although the report effectively clears the law clerks who serve the justices for one-year terms, it noted that some of them admitted to telling their spouses about the opinion and vote count, in violation of the clerks’ code of conduct.

    In the days immediately after Politico published the draft, some conservative activists had accused liberal clerks of the disclosure. Liberal advocates, meanwhile, targeted the court’s conservatives who might have been trying cement the 5-4 split to overturn Roe v. Wade. The partisan acrimony only increased once the decision upending reproductive rights nationwide was issued.

    Thursday’s inconclusive report did little to ease such tensions and instead spurred questions about how seriously the court sought out those responsible for the leak.

    Outside critics had predicted that it would be difficult to determine who leaked the draft to Politico, which published the document on May 2, believing that whoever was responsible would not have left a trail.

    But now that the court has laid out its operations, it appears it might have been quite simple to avoid detection.

    Computer and printing technology was not secure. Officials could not determine conclusively whether copies of the draft decision in Dobbs v. Jackson Women’s Health Organization had been surreptitiously copied or emailed to unauthorized devices.

    “(F)or some networked printers there was very little logging capability at the time, so it is likely that many print jobs were simply not captured,” the report stated. Investigators also found that printers used by the justices’ staff were only locally connected, rather than connected to a larger network that could track printing activity.

    The report acknowledged that no written policy existed on how to safeguard or dispose of draft opinions and other sensitive documents.

    “The pandemic and resulting expansion of the ability to work from home, as well as gaps in the Court’s security policies,” Curley wrote, “created an environment where it was too easy to remove sensitive information from the building and the Court’s IT networks, increasing the risk of both deliberate and accidental disclosures of Court-sensitive information.”

    The report, nearly nine months in the making, belied the suspense generated by Chief Justice John Roberts’ launch of the investigation. In his May 3 statement, he referred to a “betrayal of the confidences of the Court … intended to undermine the integrity of our operations.”

    The report came with a seal of approval from an outside firm, the Chertoff Group, hired to review Curley’s investigation. Michael Chertoff, a former judge and secretary of Homeland Security who now runs a private firm, wrote that Curley and her investigators had undertaken a “thorough investigation within their legal authorities.”

    In his one-page statement attached to the justices’ materials for public distribution, Chertoff made specific recommendations, all of which appeared fairly basic for any operation handling legal documents, if not the country’s top judicial officers: restrict the distribution of paper copies of sensitive documents; restrict the email distribution of such documents; adopt tools to better control how such documents are edited and shared; and limit the access of sensitive information on outside mobile devices.

    Curley had noted that no evidence emerged showing that anyone emailed the draft opinion outside, “although technical limitations in the Court’s computer recordkeeping at the time made it impossible to rule out this possibility entirely.” She said she also could not eliminate the possibility that someone had downloaded the opinion to a removable device.

    CNN had reported last summer that Curley was collecting cell phones and other devices from clerks and permanent employees. “To date,” she wrote in the report, “the investigators have found no relevant information from these devices.” Interviews and signed affidavits also yielded no answers.

    Curley, who said that new security measures were being implemented, was candid about how few conclusions her team could reach, adding that the draft opinion could have been inadvertently left in a public place. Yet, she added, regarding any employee who acted intentionally, “that person was able to act with impunity because of inadequate security with respect to the movement of hard copy documents from the Court to home, the absence of mechanisms to track print jobs on Court printers and copiers, and other gaps in securities or policies.”

    That reality puts a bureaucratic stamp on what has been regarded as the court’s most serious breach ever.

    Roberts had vowed back in May that the disclosure would not affect the justices’ work. He declared then that the draft “does not represent a decision by the Court or the final position of any member on the issues in the case.”

    But it did – despite Roberts’ own efforts to try to change the outcome.

    The final opinion, issued on June 24, differed little from the draft opinion reversing Roe v. Wade, a 1973 decision that first gave woman a constitutional right to end a pregnancy. Justice Samuel Alito, who wrote the new opinion, was joined by four fellow conservatives.

    Even after the leak, CNN had learned, Roberts tried to persuade one of the five justices in the majority to break away and prevent the reversal of nearly a half century of abortion rights. The chief justice voted to uphold a disputed Mississippi law that banned abortion at 15 weeks of pregnancy, but he did not want to use the case to obliterate abortion rights at earlier stages of pregnancy.

    None of the five on the right might ever have wavered in their votes, but CNN learned through sources at the time that the leaked decision made Roberts’ negotiating efforts all the more difficult.

    Determining how the leak changed the course of history may be impossible. But Thursday’s report, revealing the loose handling of confidential documents, suggests the leak itself need not have been inevitable.

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  • Roberts calls for judicial security in year-end report while avoiding mention of ethics reform or abortion draft leak | CNN Politics

    Roberts calls for judicial security in year-end report while avoiding mention of ethics reform or abortion draft leak | CNN Politics



    CNN
     — 

    Chief Justice John Roberts urged continued vigilance for the safety of judges and justices in an annual report published Saturday, after a tumultuous year at the US Supreme Court.

    “A judicial system cannot and should not live in fear,” Roberts wrote.

    While drawing attention to judicial security, however, the chief justice bypassed other controversies, including calls for new ethics rules directed at the justices, and an update on an investigation launched eight months ago into the unprecedented leak of a draft abortion opinion last spring that unleashed nationwide protests.

    Avoiding direct mention of any specific controversy, Roberts praised judges who face controversial issues “quietly, diligently and faithfully,” and urged continued congressional funding devoted to security.

    Roberts said that while there is “no obligation in our free country” to agree with decisions, judges must always be protected.

    “The law requires every judge to swear an oath to perform his or her work without fear or favor, but we must support judges by ensuring their safety,” he wrote.

    Besides his duties on the high court, Roberts presides over the Judicial Conference, a body responsible for making policy regarding the administration of the courts, and he releases a report each New Year’s Eve on the state of the judiciary.

    Some critics of the court were hoping that Roberts would use his annual report to concretely address other concerns that arose over the last several months.

    The report comes as public opinion of the court has reached an all-time low. The justices, who are on their winter recess, took on blockbuster cases this fall concerning the issues of voting rights and affirmative action. In the second half of the term, they will discuss issues such as immigration and President Joe Biden’s student loan forgiveness program.

    Roberts made no direct mention, for instance, of the status of an ongoing investigation into the leak last May of the draft opinion overturning Roe v. Wade.

    The disclosure – and the eventual opinion released the following month – triggered protests across the country, including some staged outside of the justices’ homes. In June, a man was arrested near the home of Justice Brett Kavanaugh and later charged with attempted murder of a Supreme Court justice. According to court documents, the man, Nicholas Roske, told investigators that he was upset over the leaked draft opinion overturning Roe.

    In addition, the court building was surrounded by 8-foot security fences that were only brought down ahead of the new term at the end of August.

    In May, Roberts launched an investigation into the leak, but has not provided any public updates.

    Roberts did not bring up ethics reform in the year-end report, but others had hoped he would use it to address the ongoing calls for a more formal code of ethics directed at the justices.

    “There is no doubt that judicial security is paramount,” said Gabe Roth, the executive director of a group called Fix the Court, which is dedicated to more transparency in federal courts. Roth said he thought Roberts should have done more this year to shore up the public’s faith in the ethics of the court.

    “As things stand now, there is no formal code of conduct for the Supreme Court and justices themselves get to decide how they conduct themselves both on and off the bench without any formal guiding principles,” Roth said.

    Back in 2011, Roberts dedicated his year-end report to the issue of ethics, addressing such criticism.

    “All Members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations,” Roberts at the time. He noted that the justices can consult a “wide variety” of other authorities to resolve specific ethical issues including advice from the court’s legal office.

    Federal law also demands a judge should disqualify himself if his “impartiality might reasonably be questioned.”

    Roth said that this year the court’s integrity has been tested in ways it rarely has in the past, between the leaked opinion and the activities brought to light concerning Virginia “Ginni” Thomas – a long-time conservative activist and the wife of Justice Clarence Thomas.

    In March, the House select committee investigating the January 6, 2021, attack on the US Capitol had in its possession more than two dozen text messages between Ginni Thomas and former Trump White House chief of staff Mark Meadows.

    The text messages, reviewed by CNN, show Thomas pleading with Meadows to continue the fight to overturn the 2020 presidential election results.

    Roth and others say that Justice Thomas should have recused himself – including from a January case in which the high court cleared the way for the release of presidential records from the Trump White House to the committee. Thomas was the sole dissenter.

    “Federal law says that recusal is required when a justice’s impartiality could be reasonably questioned, and that was clearly the case here,” Roth said.

    Ginni Thomas ultimately voluntarily testified before the committee, but she was not mentioned in the panel’s final report released last week.

    Thomas told the committee that she regretted the “tone and content” of the messages she was sending to Meadows, according to witness transcripts the panel released on Friday, and that her husband only found out about the messages in March 2022.

    Thomas said she could “guarantee” that her husband never spoke to her about pending cases in the court because it was an “ironclad” rule in the house, according to the transcript. Additionally, she said that Justice Thomas is “uninterested in politics.”

    Ginni Thomas’ lawyer, Mark Paoletta, released a statement last week saying she was “happy to meet” with the committee to “clear up misconceptions” but that the committee had “no legitimate reason to interview her.”

    He called her post-election activities after Trump lost in 2020 “minimal.”

    “Mrs. Thomas had significant concerns about potential fraud and irregularities in the 2020 election, and her minimal activity was focused on ensuring that reports of fraud and irregularities were investigated,” Paoletta said.

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  • Supreme Court rearranges its seating chart as Jackson takes the bench | CNN Politics

    Supreme Court rearranges its seating chart as Jackson takes the bench | CNN Politics


    Washington
    CNN
     — 

    Tradition is a long-held value at the US Supreme Court, where the nine justices’ adherence to a myriad of historic rules makes the inner workings of America’s highest court reliably consistent even as its decisions sometimes send shock waves through the country.

    Some of those treasured rules will soon be on display as the court’s newest member, Justice Ketanji Brown Jackson, takes her seat on the bench for oral arguments. Although Jackson was administered her official oaths last spring, her investiture ceremony sealed her position on the bench days before the court’s new term begins on Monday, October 3.

    The addition of Jackson will cause the court to invoke one of its closely held traditions: the rearrangement of where the justices are seated on the bench when a new justice joins its ranks.

    In the courtroom, justices are seated by seniority, with the chief justice in the middle. “The senior associate justice sits to his right, the second senior to his left, and so on, alternating right and left by seniority,” according to the court.

    This means that Chief Justice John Roberts and Justice Clarence Thomas will occupy the same seat this term that they did last term. But the remaining justices will be shuffled around, with Jackson seated to Roberts’ left on the end, and Justice Amy Coney Barrett, who joined the court in late 2020, seated on the opposite end, and the other five justices taking new seats depending on when they joined the court.

    On Friday, Jackson also participated in other court traditions, including sitting in the historic John Marshall Bench Chair at the beginning of the ceremony, as is customary for all new justices.

    President Joe Biden attended the Friday morning ceremony. It is customary before the event for the president to chat privately with the justices in a conference room and to sign the court’s oversized guest book.

    After the ceremony, Jackson took the traditional walk down the 36 marble steps at the front of the columned building accompanied by the chief justice.

    Although the justices will take new seats this term, much of the public won’t ever see them in those positions because photography is not allowed in the courtroom. But Roberts has announced that after more than two years of pandemic-related restrictions, members of the public will be allowed back into the courtroom, though he has yet to lay out details.

    Before October, the justices will likely discuss whether the court will continue to allow a live audio feed of oral arguments, a practice that began during the pandemic that enables the public to follow along in real time.

    Continuing that practice could allow court watchers across the country to get an understanding of Jackson’s style on the bench as she participates in oral arguments during her first term.

    In the new term, the justices will consider issues including voting rights, immigration, affirmative action, environmental regulations and religious liberty — areas where the solid conservative majority can easily control the outcomes.

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  • Chief Justice John Roberts will not testify before Congress about Supreme Court ethics | CNN Politics

    Chief Justice John Roberts will not testify before Congress about Supreme Court ethics | CNN Politics



    CNN
     — 

    Chief Justice John Roberts has notified Senate Judiciary Committee Chairman Dick Durbin that he won’t testify at an upcoming hearing on Supreme Court ethics, instead releasing a new statement signed by all nine justices that is meant to provide “clarity” to the public about the high court’s ethics practices.

    “I must respectfully decline your invitation,” Roberts wrote in a letter to Durbin, which was released by a spokesperson for the high court Tuesday.

    “Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare as one might expect in light of separation of powers concerns and the importance of preserving judicial independence,” he added.

    Without addressing Durbin’s specific concerns over ethics Roberts simply attached a “Statement on Ethics Principles and Practices” to which he said, “All of the current Members of the Supreme Court subscribe.”

    The Illinois Democrat had asked Roberts, in a letter, to voluntarily testify in a hearing on Supreme Court ethics set to take place May 2. The request came in the wake of a ProPublica report that found that Justice Clarence Thomas had gone on several luxury trips at the invitation of a GOP megadonor. The trips were not disclosed on Thomas’ public financial filings.

    Thomas said in a statement that he had not reported the trips because the ethics guidelines in effect at the time had not required such disclosures.

    It was widely expected that Roberts would decline Durbin’s invitation to appear before a separate branch of government to discuss ethics reform.

    Durbin responded to the refusal in a statement Tuesday.

    “Make no mistake: Supreme Court ethics reform must happen whether the Court participates in the process or not,” Durbin said in the statement.

    He also noted that he was surprised that the chief justice had amended his letter with a statement meant to provide “clarity” to the public about how the justices consider ethics issues.

    Durbin dismissed the statement as a “recounting of existing legal standards of ethics” and said that Roberts’ suggestion that current law is adequate “ignores the obvious.”

    “It is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court, the only agency of our government without it,” Durbin said.

    The new statement, signed by all nine members of the court, says that the justices want to provide “new clarity” to the public. It might serve instead, to infuriate critics of the court who will say it falls far short of what is necessary to provide more binding regulations applicable to the justices.

    Less than an hour after the court released the statement, for example, Gabe Roth, who runs watchdog group Fix the Court, blasted what he called a “rehashing of things we already knew and found insufficient.”

    “Following weeks of scandal, Americans had been seeking some reassurance that nine of the most powerful people in the country understood their responsibility to act above board, avoid corrupting influences and be honest in their dealings and disclosures,” Roth said in a statement.

    The newly drafted statement by the court notes that the justices “today reaffirm and restate foundational ethics principles and practices to which they subscribe in carrying out their responsibilities as Members of the Supreme Court of the United States.”

    The statement reiterates something that Roberts has stressed before: that the justices “consult a wide variety of authorities to address specific ethical issues.”

    “They may turn to judicial opinions, treatises, scholarly articles, disciplinary decisions, and the historical practice of the Court and the federal judiciary” and they “may also seek advice from the Court’s Legal Office and from their colleagues,” the statement says.

    Indeed, Thomas in a rare statement on April 7 said that he had turned to the advice of his colleagues when deciding that luxury trips paid for by GOP megadonor Harlan Crow did not need to be disclosed in his yearly financial disclosure reports under the ethics guidelines that were in place at the time.

    Last weekend, Durbin released a separate statement noting that Roberts had declined to directly respond to a letter asking him to investigate Thomas’ filings but had referred the letter to the Judicial Conference, which serves as the policy-making body of the federal courts.

    Durbin had also included a letter from Judge Roslynn Mauskopf, the secretary of the Judicial Conference, who said that she would send the matter to the conference’s Committee on Financial Disclosure.

    But the new statement emphasizes that while the Judicial Conference has a code of conduct that is followed by lower court judges, the conference “does not supervise the Supreme Court.”

    The statement does note that in 1991, members of the court “voluntarily adopted” a resolution to follow the financial disclosure requirements and limitations on gifts that apply to all other federal judges.

    But when it comes to recusals, the standards are necessarily more restrictive because unlike the lower courts that can freely substitute one district or circuit court judge for the other, the Supreme Court allows only its own members to hear a dispute.

    The statement explains why individual justices “rather than the Court” must decide recusal issues.

    “If the full Court or any subset of the Court were to review the recusal decisions of individual Justices, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate,” it says.

    This story has been updated with additional information.

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  • Senate Judiciary chair says ‘everything is on the table’ in response to Clarence Thomas revelations | CNN Politics

    Senate Judiciary chair says ‘everything is on the table’ in response to Clarence Thomas revelations | CNN Politics


    Washington
    CNN
     — 

    Senate Judiciary Chair Dick Durbin said Sunday that “everything is on the table” as the panel scrutinizes new ethics concerns around Supreme Court Justice Clarence Thomas.

    “The bottom line is this: Everything is on the table. Day after day, week after week, more and more disclosures about Justice Thomas – we cannot ignore them,” the Illinois Democrat told CNN’s Jake Tapper on “State of the Union.”

    “The thing we’re going to do first, obviously, is to gather the evidence, the information that we need to draw our conclusions. I’m not ruling out anything,” he added.

    ProPublica reported recently that, for years, Thomas has accepted lavish trips and gifts from GOP megadonor Harlan Crow, which have gone mostly unreported on the justice’s financial disclosures. Crow also purchased several real estate properties, including the home where Thomas’ mother lives, from the Thomas family and paid boarding school tuition for Thomas’ grandnephew, according to ProPublica.

    The extent to which these transactions and hospitality should have been reported by Thomas has been the subject of debate among judicial ethics experts, who have noted that a recently closed loophole for certain “personal hospitality” may have covered some of the luxury trips.

    Thomas has said he followed the advice of others in deciding what required disclosure and, in a statement last month, noted that that Crow did not have business before the court.

    But Durbin said Sunday the recent revelations “just embarrasses me” as he called on Chief Justice John Roberts to impose a code of conduct on the court. Roberts previously declined Durbin’s request to voluntarily testify in a hearing on Supreme Court ethics.

    “I must respectfully decline your invitation,” Roberts wrote in a letter to Durbin, which was released by a spokesperson for the high court. “Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.”

    The debate over Supreme Court ethics was the subject of a Senate Judiciary hearing last week that featured testimony from a law professor, legal advocates and two former judges. Some Republican lawmakers said they want to see more transparency around the court, though they railed against the Democratic push for Congress to impose a code of conduct on the justices.

    Durbin maintained Sunday that “this is the Roberts court, and history is going to judge him by the decision he makes on this.”

    “He has the power to make the difference.”

    Durbin made clear Sunday that he hasn’t reached “any conclusion” on pursuing subpoenas in relation to

    Supreme Court ethics issues, but he acknowledged that the absence of Democratic Sen. Diane Feinstein of California would pose a challenge to the committee “if we go down that path.”

    “Right now, with her absence, it’s a 10-to-10 Committee, and the majority is not there, and a proxy vote doesn’t count in this circumstance,” Durbin said.

    Feinstein, 89, has been away from the Senate since March as she recovers at home in California from shingles. Her absence has prevented the committee from advancing certain judicial nominees of President Joe Biden and several House Democrats have called on her to resign as a result.

    In a statement last week, Feinstein pushed back on those claims, saying that the Senate continues to “swiftly” confirm “highly qualified individuals to the federal judiciary.” She indicated in the statement that she still plans to return but did not say when that would happen.

    “She’s gone through an awful lot. She lost her husband last year, and she’s had some real medical issues that are problematic for her at her age at this point,” Durbin said. “I hope she returns, and I hope it’s this week. We need her. It is a challenge in the Senate Judiciary Committee to do our business.”

    The situation, he added, is “complicated.”

    “I hope she does what’s best for her and her family and the state of California and makes a decision soon as to whether she’s coming back,” Durbin said.

    This story has been updated with additional information.

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  • Voting rights advocates in the South emboldened by Supreme Court win | CNN Politics

    Voting rights advocates in the South emboldened by Supreme Court win | CNN Politics



    CNN
     — 

    With a sense of relief that the conservative Supreme Court did not use a major Alabama redistricting case to further gut the Voting Rights Act, civil rights advocates and election attorneys are preparing for a new flood of redistricting litigation lawsuits challenging political maps – especially in the South – they say discriminate against minorities.

    In the 5-4 case decided Thursday, Alabama must now draw a second majority-Black US congressional district after Republicans were sued by African American voters over a redistricting plan for the 27% percent Black state that made White voters the majority in six of the seven districts.

    The six White majority districts are represented by Republicans; the Black majority district is represented by a Democrat.

    “I don’t think it’s going to stop Republicans from drawing racist maps,” Aunna Dennis, executive director of the voting rights group Common Cause, told CNN. “But I think that this empowers those of us pushing back and fighting that.”

    The majority opinion – written by Chief Justice John Roberts, who was joined by the court’s three liberals and, in most parts, by Justice Brett Kavanaugh – effectively maintained the status quo around how courts should approach Voting Rights Act lawsuits that allege a legislative map discriminates by race.

    By letting old precedent around the Voting Rights Act to stand in the case, called Allen v. Milligan, the Supreme Court has likely emboldened voting rights advocates to bring cases they previously thought would have been doomed.

    Several election law attorneys and voting rights advocates have suggested to CNN they believe the decision could have a ripple effect across the South, in states like Louisiana, Georgia, Mississippi and Texas where cases claiming Section 2 violations are already working through the courts.

    According to the Democracy Docket, a liberal-leaning voting rights media platform that tracks election litigation, there are 31 active federal cases involving Voting Rights Act redistricting claims similar to those in the Alabama case.

    “I suspect that there are a number of states with lawyers who were considering filing a lawsuit similar to the Milligan lawsuit, but they held off because the prospects of how everyone thought Milligan would go were so dim. But now, you’re going to have a whole range of suits filed,” said Alabama voting rights attorney J.S. “Chris” Christie, who filed one of the two lawsuits that were before the justices in the Milligan case.

    “Some of those will win, and some of them won’t. All redistricting suits are not the same,” Christie said, noting that Kavanaugh did not join an important part of Roberts’ opinion, depriving that section of a majority.

    Still, he said, “Lawyers who file these types of lawsuits are going to be encouraged and are going to pursue those cases aggressively, knowing that the Voting Rights Act precedents are there.”

    The ruling was a shock. The right-leaning high court, sometimes in decisions penned by Roberts himself, had been on a spree of landmark rulings over the last several years that had whittled down the scope of the Voting Rights Act. And in the flurry of emergency litigation last year ahead of the 2022 midterms, the Supreme Court repeatedly put on hold lower court rulings – including in the Alabama case – that would have ordered the redrawing of political maps ahead of last year’s elections, helping Republicans to narrowly reclaim the US House.

    That meant that, at least in Alabama, the election was carried out under a redistricting plan that the Supreme Court has now affirmed to be likely unlawful.

    “The fact remains that the Supreme Court previously allowed the same map that they just determined unconstitutionally, and systemically diluted Black votes be used in the 2022 election,” the Congressional Black Caucus said in a statement.

    In Alabama, lower courts said early last year that the state’s congressional map likely violated the Voting Rights Act by diluting Black voting power. The courts ordered it redrawn in a way that was expected to produce a second majority-Black district, which would have shifted the partisan makeup of the state’s congressional delegation from 6-1 to 5-2.

    But, in February 2022, the Supreme Court put those decisions on hold until the justices could hear and decide the case themselves.

    At the heart of the dispute in the Alabama case was the way that, under longstanding Supreme Court precedent, race was used to determine if a map violated Section 2 of the Voting Rights Act, which prohibits voting procedures “not equally open to participation by members” of a protected class, like racial minorities. Alabama was putting forward an argument for a supposedly “race-blind” approach to VRA redistricting compliance, that if endorsed, would have defanged the provision.

    Already, the Supreme Court led by Roberts had gutted a separate provision of the VRA that required certain jurisdictions (including Alabama and other states in the South) with a history of racially discriminatory voting policies to get federal approval for the maps that they drew.

    The Supreme Court’s emergency move last year to allow the Republican-drawn Alabama map to stay in place had cascading effects in lawsuits across the country.

    Some cases, like a challenge brought to Alabama’s state legislative redistricting plan, were put on hold.

    In a Georgia case that concerned both the congressional and state legislative redistricting plans, a federal judge said that the plaintiffs were likely to succeed in at least some of the districts they were challenging, but he declined to grant the preliminary injunction, in part citing the Supreme Court’s emergency order.

    The Supreme Court, meanwhile, also froze a lower court order in a legal challenge brought against Louisiana’s congressional map that made similar arguments as the Milligan case, as Louisiana legislators had drawn just one majority-Black district of the six districts in the 33% percent Black state.

    The justices paused the case, where a federal judge was preparing to redraw the Louisiana map if the Republican lawmakers refused to do so, and said they were taking up the lawsuit but putting it on hold until the Milligan case was decided.

    Now the challengers’ lawyers in that case are anticipating that the Supreme Court will send it back to lower courts, where they were poised to prevail under the approach to VRA redistricting cases that the justices have now left undisturbed.

    Cases in Texas, Mississippi and elsewhere that inched ahead while the Milligan case was pending will go to trial without the threat that the challengers would need to prove their case under a drastically different Section 2 standard.

    “If anything, we no longer need to make adjustments that we had potentially been preparing for because the state of the law remains unchanged,” said Texas Civil Rights Project attorney Sarah Chen, whose group is involved in several challenges to Texas maps, including a lawsuit over Galveston County’s redistricting plan.

    “The Supreme Court did not endorse the radical changes proposed by Alabama in their arguments, the same changes that are also endorsed by opposing counsel in this Galveston redistricting matter,” Chen added.

    While challenges to statewide maps are what get the most national attention, the ruling’s effect on how the VRA is applied to local races like county commission elections and school board seats “is really going to impact voters’ everyday lives,” according to Christie, the Alabama voting rights attorney, who said that Thursday’s opinion will be “huge” in a newly filed challenge to a county commission map in the state.

    “Attorneys who file these types of lawsuits are going to be encouraged to pursue these cases knowing that the VRA precedent is there,” he said.

    Even before they get into a courtroom, voting rights advocates see the Milligan ruling as valuable for discouraging state and local map drawers from diminishing the political power of communities of color, as it squelched expectations that the Supreme Court was about to make VRA challenges more difficult to bring.

    “I am disappointed in today’s Supreme Court opinion but it remains the commitment of the Secretary of State’s Office to comply with all applicable election laws,” Alabama Secretary of State Wes Allen, the defendant in the Alabama case, said in a statement after the ruling.

    In North Carolina, voting rights advocates had been reeling from a major defeat with the state Supreme Court recently ruling that North Carolina courts couldn’t police partisan gerrymandering. (Litigation over the state’s congressional plan is also before the Supreme Court in a legal dispute that does not concern the Voting Rights Act). They are finding a silver lining in that, thanks to Thursday’s ruling, the GOP legislators will be redrawing North Carolina’s political maps knowing Voting Rights Act protections for minority voters remain in force.

    “We would hope that they would really take this decision to heart that they would make a genuine good faith effort to comply with Section 2,” said Hilary Harris Klein, the senior counsel for voting rights with the Southern Coalition for Social Justice.

    Thursday’s ruling, said Deuel Ross, the deputy director of litigation at the NAACP Legal Defense and Educational Fund, “puts state legislatures and local redistricting bodies on notice that the Voting Rights Act is here to stay and if they deny communities of color the representation they deserve, that they will face lawsuits.”

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  • Alexandria Ocasio-Cortez says justices are ‘destroying the legitimacy’ of the Supreme Court | CNN Politics

    Alexandria Ocasio-Cortez says justices are ‘destroying the legitimacy’ of the Supreme Court | CNN Politics


    Washington
    CNN
     — 

    Democratic Rep. Alexandria Ocasio-Cortez of New York said Sunday that some Supreme Court justices are “destroying the legitimacy of the court,” amid a lack of oversight, calling it “profoundly dangerous” for democracy.

    “We have a broad level of tools to deal with misconduct, overreach and abuse of power, and the Supreme Court has not been receiving the adequate oversight necessary in order to preserve their own legitimacy,” Ocasio-Cortez told CNN’s Dana Bash on “State of the Union.”

    The progressive lawmaker cited recent allegations against Justices Samuel Alito and Clarence Thomas over ethics improprieties. Her comments come as the court wrapped up its term with a slew of consequential rulings, including ending affirmative action for college admissions, clocking student loan debt relief and limiting LGBTQ protections.

    Alito did not disclose a luxury 2008 trip he took in which a hedge fund billionaire flew him on a private jet, even though the businessman would later repeatedly ask the Supreme Court to intervene on his behalf, ProPublica reported. In a highly unusual move, Alito preemptively disputed the nature of the report before it published last month.

    Thomas, meanwhile, has fielded sharp criticism after a separate ProPublica report detailed his relationship with GOP megadonor Harlan Crow, including luxury travel and other lavish gifts that Thomas received from Crow, as well as Crow’s purchase from Thomas and his family the home where the justice’s mother still lives.

    The real estate transaction and the bulk of the hospitality went unreported on Thomas’ annual financial disclosures, as did Crow’s reported payments for the tuition of a grandnephew of the justice.

    Thomas has defended the omission of the Crow-financed travel from his reports, saying he was advised at the time that he was not required to report the hospitality.

    “If Chief Justice Roberts will not come before the Congress for an investigation voluntarily, I believe we should be considering subpoenas, we should be considering investigations, we should pass much more binding and stringent ethics guidelines,” Ocasio-Cortez said Sunday.

    Senate Judiciary Chairman Dick Durbin, an Illinois Democrat, previously said his committee would mark up legislation on Supreme Court ethics after lawmakers return from their July 4 recess. Durbin had also asked Chief Justice John Roberts to appear before the Judiciary panel – a request that Roberts declined in April.

    Ocasio-Cortez on Sunday also called on the Biden administration to keep pursuing student loan cancellation after the Supreme Court blocked the president’s student loan forgiveness plan Friday, rejecting a program aimed at delivering up to $20,000 of relief to millions of borrowers.

    “People should not be incurring interest during this 12-month on-ramp period,” she said, referring to the administration’s proposal to help borrowers avoid penalties if they miss a payment during the first 12 months after student loan repayments resume in October.

    “So, I highly urge the administration to consider suspending those interest payments. Of course, we still believe in pursuing student loan cancellation and acting faster than that 12-month period wherever possible.”

    “We truly believe that the president – Congress has given the president this authority. The Supreme Court is far overreaching their authority. And I believe, frankly, that we really need to be having conversations about judicial review as a check on the courts as well,” Ocasio-Cortez said.

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