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Tag: SCOTUS

  • John Roberts Wants Everyone to Think He’s in Charge of the Supreme Court. But It May Be Too Far Gone

    John Roberts Wants Everyone to Think He’s in Charge of the Supreme Court. But It May Be Too Far Gone

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    John Roberts once told the story of how one of his role models, Chief Justice Charles Evans Hughes, succeeded in steering the Supreme Court of the United States, at the time “the most unpopular institution in the country,” through one of the gravest threats to its independence yet: Franklin Delano Roosevelt’s controversial proposal to pack it with up to 15 justices.

    The reason for this clash of titans was the court’s conservatives’ refusal, often by a razor-thin majority of five, to go along with the president and Congress’s efforts to get the nation out of the Great Depression—by striking down popular policies and programs that were designed to lift people out of poverty and put them on a path to progress. In the end, Roosevelt lost the battle. But in Roberts’s telling, Hughes played a starring role, writing a letter to the Senate Judiciary Committee that helped bring about a détente. “It fell to Hughes to guide a very unpopular Supreme Court through that high-noon showdown against America’s most popular president since George Washington,” Roberts told an audience in 2015.

    Roberts is no Hughes. But if his actions and inactions in the past year, amid a very real crisis of confidence at the high court, are any indication, he wants the public to know that he’s in charge. Don’t believe the headlines on CNN or The New York Times or Politico proclaiming that he’s lost control of the Supreme Court. Under his watch and steady hand, things at the Supreme Court—which in his 18 years as chief justice has transformed American law beyond conservatives’ wildest dreams—are just fine.

    This desire to shift public perception of an institution on the brink, and his own, is understandable. Aside from his public humiliation in Dobbs v. Jackson Women’s Health, where Roberts stood alone and couldn’t convince the five justices to his right not to end the half-century-old constitutional right to an abortion, over the past two terms he has been unequivocally on board with the broader conservative project. In lockstep with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, Roberts remains as committed to Republican legal causes as ever—from expanding the scope of the Second Amendment to eroding the regulatory power of federal agencies to giving religion increasing primacy over other facets of American life, there’s little doubt that the Roberts court is, indeed, Roberts’s court.

    In the term that began in October, that reactionary streak will continue, as the usual mix of headline-grabbing cases are all under review—from the federal government’s power to regulate the economy and the abortion drug mifepristone to racial gerrymandering in the South to limits on the expanded scope of the Second Amendment. And with the 2024 election right around the corner, it’s only a matter of when, not whether, the Supreme Court will be asked to weigh in on the coming presidential contest—up to and including the explosive possibility that Donald Trump is disqualified from high office as a result of the January 6 insurrection.

    Since becoming Chief justice of the United States in 2005, a job for which he pledged to be a neutral umpire calling balls and strikes, Roberts has walked a fine line in determining how far to push the law in the direction of his Republican priors. A creature of the Reagan administration and the politics of that era, Roberts cut his teeth as a legal adviser on all the culture wars of the 1980s—from abortion to affirmative action to voting rights to the place of religion in the public sphere. A young Roberts was even critical of the Supreme Court’s own power, writing approvingly of how limits on its workload would prevent it “from usurping even more of the prerogatives of the other branches.”

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    Cristian Farias

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  • Republicans Are Putting Democracy on Life Support

    Republicans Are Putting Democracy on Life Support

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    On Inside the Hive, host Brian Stelter discusses the Republican Party’s antidemocracy trajectory with Steven Levitsky and Daniel Ziblatt, Harvard professors and coauthors of the new book Tyranny of the Minority. The authors, who warned of backsliding in their acclaimed 2018 book, How Democracies Die, address Donald Trump and his GOP allies’ refusal to accept the 2020 election results, the violence of January 6, and ongoing threats.

    “When you don’t have a peaceful transition of power, an uncontested transition of power, that should really set off alarm bells, because most democracies, fully consolidated democracies, don’t have trouble with that kind of thing,” says Ziblatt. 

    “There must be something,” Ziblatt adds. “This is not just a blip. This is not just a kind of momentary detour. It could happen again in 2024, could happen again. And we need to try to understand why we’re vulnerable. We need to give ourselves a really hard look in the mirror and say, okay, what, what’s going on here? What’s happening in America that leaves us in this position?”

    In addition to issuing warnings, Levitsky and Ziblatt propose changes, from abolishing the Electoral College to placing limits on the tenure of Supreme Court justices, in hopes of keeping the United States on the path toward multiracial democracy.

    “Compared to other countries, we had a pretty progressive democratic constitution in 1789,” Levitsky says. “Other countries, over the course of 200-plus years, have gradually reformed their constitutions to make it more democratic. They expanded suffrage. In some cases, they eliminated or they weakened their senates or upper chambers. They established term limits on judiciaries. They created more, more majoritarian systems. And we did that too, to an extent…but we’ve done it a lot less than other democracies. And over the last half century, we just stopped. We stopped doing the work of making ourselves more democratic.”

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    Brian Stelter

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  • Leonard Leo Wants Us to Believe There Was Nothing Fishy About His Fishing Trip With Samuel Alito

    Leonard Leo Wants Us to Believe There Was Nothing Fishy About His Fishing Trip With Samuel Alito

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    Leonard Leo has a message for Democrats seeking to exercise oversight of the Supreme Court: pound dirt. In a defiant letter Tuesday to Senate Judiciary Committee Chair Dick Durbin and Senator Sheldon Whitehouse, an attorney for the conservative legal activist rejected the panel’s request for information about his gifts to Supreme Court justices, claiming that their investigation is “politically charged,” violates Leo’s rights, and “lacks a valid legislative purpose.”

    “We believe that your inquiry exceeds the limits placed by the Constitution on the Committee’s investigative authority,” Leo attorney David B. Rivkin wrote to the senators, who had demanded information from the co-chair of the Federalist Society board after ProPublica reported on a 2008 fishing trip he arranged for conservative justice Samuel Alito. “It seems clear that this targeted inquiry,” Rivkin continued, “is motivated primarily, if not entirely, by a dislike for Mr. Leo’s expressive activities.”

    Durbin and Whitehouse, two leading voices demanding Supreme Court reform, initially requested information from Leo earlier this month about his gifts to Supreme Court justices. Their request came as they considered legislation to “strengthen the ethical rules and standards that apply to the Justices of the Supreme Court”—a reference to Whitehouse’s Supreme Court Ethics, Recusal, and Transparency Act, which the Judiciary Committee took up last week. But Rivkin, writing on Leo’s behalf, claimed that “any attempt by Congress to enact ethics standards for the Supreme Court would falter on constitutional objections,” and the committee therefore had no legislative reason to investigate Leo.

    “Congress cannot conduct an investigation in connection with legislation that it cannot constitutionally enact,” Rivkin wrote.

    That argument—that basically any check on the Supreme Court’s power is unconstitutional—echoes one put forth by Chief Justice John Roberts, when he rebuffed Durbin’s invitation to testify before the Judiciary Committee this past spring on the basis that such an appearance could raise “separation of powers concerns” and violate “judicial independence.”

    But of course, concerns around the court’s “independence” are at the very heart of Durbin’s investigation and Whitehouse’s legislation: Revelations about undisclosed gifts, trips, and transactions between justices and the wealthy and well-connected have raised serious concerns about the integrity of the court, and have helped tank public confidence in the institution. Those transgressions include, but are not exclusive to, the lucrative friendship between Clarence Thomas and Harlan Crow; and the luxury fishing trip Alito took with Paul Singer, a conservative billionaire whose hedge fund later had cases before the Supreme Court. That 2008 trip—which Alito did not report on his annual disclosure forms—was reportedly organized by Leo, who also has deep ties to Thomas and his wife, Ginni, a conservative activist.

    Leo’s lawyer argued Tuesday that Democrats were playing politics in focusing on the scandals involving conservative justices, while ignoring instances of possible impropriety by liberal justices, including the late Ruth Bader Ginsburg. “The Committee has focused its inquiries on individuals who have relationships with Justices appointed by Republican Presidents,” Rivkin wrote. “Reported instances of Democrat-appointed Justices accepting personal hospitality or other items of value from private individuals have been ignored.”

    But, as Durbin has pointed out, he began his push for a Supreme Court code of ethics more than ten years ago, when Barack Obama was in office. “I wasn’t motivated by any decision by this court—they weren’t even in existence,” Durbin told me in May. “We’re certainly not zeroing in and saying, If you fix the Thomas problem, the Court’s in good shape,” he continued. “We think all the justices should be held to the same standard, at least of the other courts in the United States.”

    That doesn’t seem like it should be controversial. But Republicans, including those who have previously suggested a need for greater transparency, have resisted the push for accountability—as has the court itself, despite its professed heartburn over its legitimacy crisis. The message instead—from Roberts, his colleagues and the billionaires in their orbit to the GOP—has been that there’s nothing to see here. Just trust us, they seem to be saying to the public—even as they give them every reason not to.

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    Eric Lutz

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  • Progressive Issue Groups Find Public Enemy No. 1: The Supreme Court

    Progressive Issue Groups Find Public Enemy No. 1: The Supreme Court

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    It didn’t land with the same kind of political explosion as Dobbs. But the Supreme Court’s decision last year in West Virginia v. Environmental Protection Agency was every bit as outrageous: The six-member conservative majority, in handcuffing the EPA’s regulatory authority, had “declared war on governing,” as my colleague Cristian Farias put it at the time—and underscored, for Doug Lindner, the desperate need for judicial reform.

    “We decided that that was a step too far,” says Lindner, senior director of judiciary and democracy at the League of Conservation Voters, the influential environmental advocacy group. The Court, he tells me, was “serving the interests of the polluters,” and had not only shifted too far to the right—it had become too powerful.

    Lindner is hardly alone in that sentiment; he’s part of a growing recognition on the left that progress in the policy arena could be entirely undermined by an activist, right-wing court that has come to seem less like a judicial body and more like an unelected “superlegislature,” as Democratic representative Ritchie Torres put it last week. That’s why a diverse coalition of advocacy organizations—including the League of Conservation Voters—has banded together recently to form United for Democracy, which hopes to move the needle on Supreme Court reform. Stasha Rhodes, the director of the campaign, acknowledges that “it’s not an easy fight.” The Supreme Court is “broken,” she says, and Democrats can’t fix it right now without the support of the very Republicans who helped break it. But Rhodes tells me that she remains “hopeful that the momentum will turn into something.”

    “Issue groups that may have been hesitant to weigh in on the Supreme Court before now understand that they don’t have a choice, because the Supreme Court impacts all of our issues, from pollution and the water we drink to safety in our communities to our most personal health care decisions,” Rhodes says of the effort, which has so far sought to build public pressure on lawmakers to act. “As we start to increase the drumbeat on this issue, and include more people outside of Washington in the conversation, I think we feel really good about our ability to move Congress in a way that they start to take action.”

    The campaign—which launched in mid-June, before the conservative majority further undermined the Environmental Protection Agency; struck down Joe Biden’s student loan forgiveness plan and affirmative action in college admissions; and effectively authorized discrimination against LGBTQ+ Americans—includes a number of progressive heavy hitters, including NARAL Pro-Choice America and the Service Employees International Union, one of the largest and most influential unions in the country. The hope, for Rhodes and the groups involved, is that there will be strength in numbers—that these disparate organizations will be able to highlight, for Democratic- and Republican-leaning voters alike, the Court’s “willingness to break those traditional norms, showing that they’re too powerful, too political, and unfit to meet today’s challenges,” Rhodes explains.

    “We’re not going to stand by as corrupt justices repeal our fundamental rights,” echoes SEIU president Mary Kay Henry, “while acting like the rules don’t apply to them.”

    That could add to the already growing momentum around Supreme Court reform that has built up in the wake of devastating decisions like Dobbs and the conflict of interest scandals that have erupted around Clarence Thomas and Samuel Alito, two stalwarts of the right-wing supermajority. The question now is: How can the campaign best channel that momentum? And will it be enough to actually effect change?

    Legal fights have always been instrumental to movements for labor, abortion, gun control, civil rights, and beyond. But Dobbs—which overturned half a century of precedent last year in ending the federal right to an abortion—threw the Supreme Court’s outsize role in those battles into stark relief. It’s as if “there’s this one massive national veto pen, basically, in the Supreme Court, that can change or dictate our rights on a whim,” says Angela Vasquez-Giroux, vice president of communications and research at NARAL Pro-Choice America.

    So far, several proposals have gained traction on the left—from adding seats to the bench to imposing stricter, more common-sense ethics and transparency rules—to avoid further politicizing the scandal-plagued court. Even Nancy Pelosi—the former House Speaker who’s often at loggerheads with her progressive flank—has recently come out in favor of term-limiting justices.

    But those reforms have hit a brick wall in Washington: Chief Justice John Roberts and his colleagues have brushed off concerns about ethics scandals and partisan rulings; Republicans have accused Democrats of mounting political attacks on the conservative majority; and President Joe Biden has so far refused to embrace major reform, even as he correctly laments that the Roberts court is “not a normal court.”

    Still, popular outrage and growing activism around reform over the past year do seem to be having an impact, at least on the Democratic lawmakers who have become more assertive in their calls for Supreme Court overhauls. Meanwhile, some of the most influential issue groups in the country—including Planned Parenthood, which endorsed Supreme Court expansion, term limits, and ethics reform in May—are adding even more fuel to the fire.

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    To be sure, the path forward for reform is very rocky. Public trust in the Supreme Court has been at a historic low, and that has so far seemed to have little effect on the conservative justices and their Republican defenders, who have made change all but impossible in the current Congress.

    Any substantive action, then, will likely depend on Democrats winning back the House, expanding their majority in the Senate, and retaining the presidency in 2024. That’s not impossible: The GOP already suffered the public’s outrage at the Court last cycle, and could pay the price again next fall. But unless and until that happens, the hope for reform will continue to butt up against the reality of a divided Washington. “I wish that Supreme Court ethics weren’t a partisan issue,” Lindner says. “Ethics never should be a partisan issue. But then again, neither should clean air, clean water, or voting rights be partisan issues, and yet here we are.”

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    Eric Lutz

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  • Harvard ‘legacy’ policy challenged on heels of affirmative action ruling

    Harvard ‘legacy’ policy challenged on heels of affirmative action ruling

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    July 3 (Reuters) – Three civil rights groups filed a complaint against Harvard on Monday, claiming its preferential policy for undergraduate applicants with family ties to the elite school overwhelmingly benefits white students, days after the U.S. Supreme Court struck down its race-conscious admissions policies.

    The groups filed a complaint with the U.S. Department of Education claiming that Harvard’s preferences for “legacy” applicants violates a federal law banning race discrimination for programs that receive federal funds, as virtually all U.S. colleges and universities do.

    Last week, the Supreme Court said race-conscious policies adopted by Harvard University and the University of North Carolina to ensure that more non-white students are admitted are unconstitutional. The decision was a major blow to efforts to attract diverse student bodies and is expected to prompt new challenges to admission policies.

    Harvard College is the undergraduate school of Harvard University.

    The groups in Monday’s complaint said the Supreme Court ruling had made it even more imperative to eliminate policies that disadvantage non-white applicants.

    Harvard did not immediately respond to a request for comment.

    The groups are represented by Lawyers for Civil Rights, a Boston-based nonprofit that describes itself on its website as working with “communities of color and immigrants to fight discrimination.”

    Ivan Espinoza-Madrigal, the group’s executive director, said the Supreme Court last week made clear that any policies that disadvantage racial groups are unlawful by noting that “eliminating racial discrimination means eliminating all of it.”

    “Your family’s last name and the size of your bank account are not a measure of merit, and should have no bearing on the college admissions process,” he said in a statement.

    Students and pedestrians walk through the Yard at Harvard University, after the school asked its students not to return to campus after Spring Break and said it would move to virtual instruction for graduate and undergraduate classes, in Cambridge, Massachusetts, U.S., March 10, 2020. REUTERS/Brian Snyder/File Photo

    Legacy policies, which are common at U.S. colleges and universities, have become increasingly controversial

    President Joe Biden, a Democrat, in remarks following las week’s Supreme Court ruling, said schools should consider eliminating legacy policies because they “expand privilege instead of opportunity.”

    Several prominent lawmakers from both parties made similar comments. Representative Barbara Lee, a Democrat from California, called legacy policies “affirmative action for white people” in a tweet.

    According to Monday’s complaint, nearly 70% of Harvard applicants with family ties to donors or alumni are white and are about six times more likely to be admitted than other applicants.

    About 28% of Harvard’s class of 2019 were legacies, the groups said in the complaint. That means fewer admissions slots were available for non-white applicants who are far less likely to have family ties to the school, they said.

    The groups are asking the Department of Education to investigate Harvard’s admission practices and order the school to abandon legacy preferences if it wants to continue receiving federal funding. Michael Kippins, one of the lawyers who filed the complaint, said in an email that Lawyers for Civil Rights has not ruled out filing a lawsuit against Harvard in the future.

    When the Supreme Court heard the Harvard and UNC cases last October, a lawyer for the group that had sued the schools argued that eliminating legacy preferences “would make Harvard far less white, wealthy, and privileged.”

    Conservative Justices Neil Gorsuch and Clarence Thomas appeared to agree, pressing Harvard’s lawyer on why the school could not get rid of the legacy policy instead of granting separate preferences to non-white students.

    The lawyer, Seth Waxman, told the court that there was no evidence that ending legacy preferences would lead to a more diverse student body.

    Reporting by Daniel Wiessner in Albany, New York; Editing by Alexia Garamfalvi and Leslie Adler

    Our Standards: The Thomson Reuters Trust Principles.

    Daniel Wiessner

    Thomson Reuters

    Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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  • US colleges game out a possible end to race-conscious student admissions

    US colleges game out a possible end to race-conscious student admissions

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    [1/3] Members of the University of North Carolina’s diverse student body mingle and make their way across campus as the Supreme Court weighs the issue of race-conscious admissions to colleges, in Chapel Hill, North Carolina, U.S., March 28, 2023. REUTERS/Jonathan Drake/File Photo

    WASHINGTON, May 24 (Reuters) – In 1998, the year a voter-approved measure barring the use of race-conscious admissions policies for public colleges and universities in California took effect, the percentage of Black, Hispanic and Native American students admitted at two of the state’s elite public schools plummeted by more than 50%.

    Those figures for UCLA and the University of California, Berkeley offer a cautionary tale as administrators at schools around the United States await a Supreme Court decision due by the end of June that is expected to prohibit affirmative action student admissions policies nationwide.

    That potential outcome in cases involving Harvard University and the University of North Carolina has brought new urgency to efforts by schools to maintain or increase racial and ethnic diversity in their student populations, according to interviews with senior administrators at a dozen colleges and universities.

    “We cannot afford as a nation to regress on our goals to create an educated and equitable society,” said Seth Allen, head of admissions at Pomona College in California. “So it’s incumbent on higher education to figure out how to work collectively together to ensure that we’re not furthering the enrollment gap among different groups of students.”

    Many selective U.S. colleges and universities for decades have used some form of affirmative action to boost enrollment of minority students, seeing value in having a diverse student population not only to offer educational opportunity but to bring a range of perspectives onto campuses.

    Affirmative action refers to policies that favor people belonging to certain groups considered disadvantaged or subject to discrimination, in areas such as hiring and student admissions.

    Schools are exploring numerous options. Administrators said they are drafting strategies to expand their recruitment of diverse applicants, remove application barriers and increase the rate of minority students who accept their admissions offers.

    An official at Rice University in Houston said the school will lean on student essay responses to ensure it admits students from diverse backgrounds. The U.S. Air Force Academy will focus on recruiting more students from diverse congressional districts.

    The president of Skidmore College in New York said connecting with high school counselors will become “more important than ever” to broaden the school’s applicant pool.

    Many schools said they already have waived fees, made standardized testing optional and are looking to improve financial aid offers – steps that could help boost minority enrollment.

    All of the administrators said their plans could change to comply with the scope of the Supreme Court’s reasoning in the Harvard and UNC cases. Some acknowledged that whatever steps schools take to circumvent a ban on race-conscious admissions policies might face legal challenges of their own.

    “We’re likely to see a whole new generation of lawsuits arise from the new admission standards that will be adopted by colleges and universities,” said Danielle Holley, current dean of Howard University School of Law in Washington and incoming president of Mount Holyoke College in Massachusetts.

    Lawsuits backed by an anti-affirmative action activist accused Harvard and UNC of unlawful discrimination in student admissions either by violating the U.S. Constitution’s promise of equal protection under the law or a federal law barring discrimination based on race and other factors.

    UNC was accused of discriminating against white and Asian American applicants. Harvard was accused of bias against Asian American applicants. The schools denied these allegations.

    GOING LOCAL

    Many of the school administrators said they plan to focus resources on recruitment, a part of the admissions cycle they do not expect the court will restrict.

    Admissions officers said they were broadening their outreach to high schools and community-based organizations in neighborhoods with lower incomes and educational attainment – places often populated by racial minorities.

    Yvonne Berumen, vice president of admissions at Pitzer College in California, said her team might run essay workshops at high schools in those targeted zip codes – postal regions – in hopes of generating applications.

    Chris George, dean of admissions at St. Olaf College in Minnesota, said high school data from national organizations like the College Board, which offers information on neighborhood income and housing stability, will help guide which high schools the college sends representatives to visit and the recruitment events they attend.

    Community-based organizations that identify local students who show academic promise and help them apply to college will be crucial partners for identifying and recruiting potential applicants from diverse backgrounds, the administrators said.

    “They become extensions of our recruiting and admissions team in many ways, and we’re seeing each year a bigger and bigger percentage of our students come from those community-based organizations,” said Kent Devereaux, president of Goucher College in Maryland.

    Administrators at schools located in or near major cities, including Pomona College near Los Angeles and Sarah Lawrence College in New York, said they would hope to draw more students from racially diverse local high schools and take more transfer students from local community colleges.

    Colonel Arthur Primas Jr., the U.S. Air Force Academy’s admissions director, said his racially diverse recruiting team will continue to visit schools in U.S. congressional districts with heavy concentrations of minorities and will try to encourage more students to seek nominations to the academy from their local members of Congress.

    “The Air Force Academy has had a long tradition of actively recruiting diverse candidates,” Primas said. “But we’re going to have to really be expansive.”

    Reporting by Gabriella Borter; Additional reporting by Donna Bryson; Editing by Will Dunham and Colleen Jenkins

    Our Standards: The Thomson Reuters Trust Principles.

    Gabriella Borter

    Thomson Reuters

    Gabriella Borter is a reporter on the U.S. National Affairs team, covering cultural and political issues as well as breaking news. She has won two Front Page Awards from the Newswomen’s Club of New York – in 2020 for her beat reporting on healthcare workers during the COVID-19 pandemic, and in 2019 for her spot story on the firing of the police officer who killed Eric Garner. The latter was also a Deadline Club Awards finalist. She holds a B.A. in English from Yale University and joined Reuters in 2017.

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  • Nothing To See Here: Clarence Thomas’s Billionaire Buddy Paid For His Grand-Nephew’s Private School Tuition

    Nothing To See Here: Clarence Thomas’s Billionaire Buddy Paid For His Grand-Nephew’s Private School Tuition

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    Not only did Harlan Crow shower Clarence Thomas with lavish gifts and luxury vacations, and purchase three properties owned by the right-wing justice and his family — the conservative billionaire also apparently footed the bill for Thomas’s grand-nephew’s private school tuition. ProPublica reported Thursday that Thomas in 2008 sent his grand-nephew — whom he had legal custody over and was “raising like a son” — to Hidden Lake Academy, a Georgia boarding school where tuition ran over $6,000 a month. Crow, a Republican donor, “picked up the tab,” Christopher Grimwood, a former administrator at the school, told ProPublica, which obtained a bank statement showing that Crow’s real estate company was funding Thomas’s grand-nephew’s education there. 

    As in the travel and real estate transactions previously reported by ProPublica, Thomas did not publicly disclose the tuition payments from Crow.

    “This is way outside the norm,” Richard Painter, the former chief ethics lawyer in George W. Bush’s White House, told ProPublica. “This is way in excess of anything I’ve seen.”

    Thomas did not comment on the payments to ProPublica, and the Supreme Court did not respond to Vanity Fair’s request for comment. But Crow defended the tuition payments, telling ProPublica in a statement from his office that it is “disappointing that those with partisan political interests would try to turn helping at-risk youth with tuition assistance into something nefarious or political.” And Mark Paoletta, a close ally and family friend of Clarence and Ginni Thomas, released a statement effusively praising the justice and his wife for their having made “immeasurable personal and financial sacrifices” for their grand-nephew and claiming that Crow’s financial support “did not constitute a reportable gift.”

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    “This malicious story shows nothing,” the former Trump administration counsel wrote, “except for the fact that the Thomases and the Crows are kind, generous, and loving people who tried to help this young man.”

    In actuality, of course, the report shows the glaring need for ethics reform at the Supreme Court, whose nine unelected justices with lifetime appointments have been able to operate in a black box with little accountability, transparency, and outside oversight. Democrats — and one Republican, Lisa Murkowski — have pushed to change that, renewing calls to hold the Supreme Court justices at least to the same standard as other federal judges. “Congress can — and must — step in if the Supreme Court won’t police itself,” Democratic Senator Sheldon Whitehouse, a longtime proponent of court reform, said this week. “The justices have been playing out of bounds for a long time.” But most of the GOP has brushed off the scandals, accusing Democrats of politically targeting conservative justices Thomas and Neil Gorsuch — who also failed to fully report a suspicious real estate transaction — and leaving any ethics reform up to Chief Justice John Roberts, who has long made clear that he doesn’t think such action is necessary or appropriate. “This is not about making the [Supreme Court] better,” Lindsey Graham, ranking member of the Senate Judiciary Committee, said during a hearing earlier this week. “This is about destroying a conservative court.”

    But, as Graham and other conservatives have inadvertently acknowledged, this is not a partisan issue. While Thomas’s disregard for ethics may be more brazen and far-reaching than most, members of the liberal minority have also invited scrutiny over potential conflicts of interest. And without taking action to weed out what is at best the appearance of impropriety and at worst outright corruption, the court is going to continue to hemorrhage public trust. “People want to believe there’s some transparency to their decision-making and that they’re not being influenced,” as Senate Judiciary Committee Chair Dick Durbin told me this week, and such revelations raise “questions about their objectivity and reliability.”

    That erodes the legitimacy of the court, as well as confidence in a legislative branch that apparently cannot provide a check on the judiciary’s power — all because the Republicans who built this right-wing court refuse to rein it in and cast efforts to conduct even basic oversight as “unseemly,” as Graham put it in the Judiciary Committee hearing Tuesday. But what’s actually unseemly is Thomas’s egregious disregard for ethics — and the system that has enabled his conduct, shielded him from accountability, and resisted long overdue reform. 

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    Eric Lutz

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  • One Republican Senator is Backing Supreme Court Reform. Will Any Others Follow?

    One Republican Senator is Backing Supreme Court Reform. Will Any Others Follow?

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    The need for Supreme Court reform has perhaps never been clearer. But in light of several ethical scandals involving conservative justices Clarence Thomas and Neil Gorsuch, no current Republican elected officials had joined their Democratic colleagues in the call for accountability up until this point. That changed Thursday, when Senator Lisa Murkowski introduced the Supreme Court Code of Conduct Act — legislation that would force the high court to adopt clear ethics rules and appoint an official to process complaints against justices. The bipartisan bill— by her association only— which she introduced with Angus King, an Independent who caucuses with Democrats, is more limited in scope than the reform Democrats Sheldon Whitehouse and Hank Johnson re-introduced earlier this year. But it would hold Supreme Court justices to the same ethical standards as other federal judges, and could help begin to “restore the public’s confidence in the integrity and impartiality of our judiciary,” as Murkowski put it Thursday.

    “Americans have made clear their concerns with the transparency — or lack thereof — coming from the Supreme Court and its justices,” Murkowski said in a statement. “The Supreme Court must demonstrate independence and fairness as they rule on the laws of the land — and any cracks in the public’s confidence will have damaging repercussions for the state of our democracy.”

    The new legislation suggests the bare minimum of bipartisan interest in ushering in common sense reforms at the court. The question is: will other Republicans follow?

    Outside of Murkowski and a scattering of former Republican lawmakers like Adam Kinzinger, whose sanity and criticism of Donald Trump have made him a persona non grata within his party, the GOP has brushed off concerns about Thomas, Gorsuch, and the Supreme Court’s ethical standing more broadly. “Unlike the activists and elected Democrats trying to tear them down, the justices have proven their sobriety and judicial temperament over their long and distinguished careers,” Senate Minority Leader Mitch McConnell said in a surly speech on the Senate floor Wednesday, describing Thomas and Gorsuch as the victims of a “carousel of character assassination.”

    But Thomas and Gorsuch are not being “smeared” by Democrats and watchdogs, as McConnell put it. Thomas failed to disclose years of luxury vacations he enjoyed as part of a friendship with conservative billionaire Harlan Crow, who also purchased three properties from the right-wing justice and his family — transactions he did not report, as required by federal law. Gorsuch also benefited from a real estate transaction that he did not fully disclose: As Politico reported earlier this week, he sold a Colorado property — which had been on the market for two years — to the CEO of a law firm that routinely does business with the Supreme Court, days after his confirmation in 2017. Gorsuch included the sale on financial disclosure forms, but did not identify the purchaser: Brian Duffy, whose firm was involved in at least 22 cases before the high court after the sale. 

    Crow and Duffy have each denied exerting any influence over the justices, and Chief Justice John Roberts — who turned down an invitation from Dick Durbin to address the scandals at a Senate Judiciary Committee hearing next week — has suggested the justices have done nothing to warrant an internal investigation, let alone broader reform. But these are glaring violations of the public trust, which has been plummeting amid the court’s recent parade of scandals and precedent-shattering decisions. They put a spotlight on the unique lack of transparency among these nine unelected, lifetime appointees. 

    That unaccountability has been a source of frustration for Democrats and Republicans alike in the past; as recently as two years ago, GOP Senator Lindsey Graham — the ranking member of the Judiciary Committee — joined Whitehouse in calling on Roberts to strengthen the ethical standards for justices. “The Justices of our highest court are subject to the lowest standards of transparency of any senior officials across the federal government,” Whitehouse and Graham wrote to Roberts in a February 2021 letter. “We believe a legislative solution may be in order to bring the judiciary’s financial disclosure requirements in line with other branches of government if the Court does not address the issue itself.” But while Whitehouse has continued the fight — re-introducing the Supreme Court Ethics, Recusal, and Transparency Act in February — Graham has seemingly gone silent on the matter, even after revelations that Thomas apparently capitalized on the very low standards of transparency he once decried. (This is the same Thomas who moved last year to temporarily block a Georgia court from forcing the senator to testify in an investigation into Trump’s efforts to overturn the 2020 election.)

    With Graham leading the Republicans on the Judiciary Committee, and McConnell leading the conference in the Senate, not to mention the Republican majority in the House, the prospect of broad bipartisan support for reform would seem slim. But the Murkowski-King bill at least gives cause for hope that Congress can exert some oversight authority over the high court and compel it to adhere to common sense ethical standards. Roberts, his fellow justices conservative and liberal alike, and Capitol Hill Republicans have resisted such changes, suggesting they are an attack on the court’s independence. But, as King put it to the New York Times on Thursday, reform is in the best interest of a court that has taken a sledgehammer to its own credibility: “We’re trying,” King said, “to help the court help themselves.”

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  • U.S. Supreme Court preserves near-term access to abortion pill mifepristone

    U.S. Supreme Court preserves near-term access to abortion pill mifepristone

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    WASHINGTON (AP) — The Supreme Court on Friday preserved women’s access to a drug used in the most common method of abortion, rejecting lower-court restrictions while a lawsuit continues.

    The justices granted emergency requests from the Biden administration and New York–based Danco Laboratories, maker of the drug, called mifepristone. They are appealing a lower-court ruling that would roll back Food and Drug Administration approval of mifepristone.

    The drug has been approved for use in the U.S. since 2000 and more than 5 million people have used it. Mifepristone is used in combination with a second drug, misoprostol, in more than half of all abortions in the U.S.

    The court faced a self-imposed Friday night deadline to decide whether women’s access to a widely used abortion pill would remain unchanged or be restricted while a legal challenge to its Food and Drug Administration approval goes on.

    The justices have been weighing arguments that allowing restrictions contained in lower-court rulings to take effect would severely disrupt the availability of the drug, mifepristone, which is used in the most common abortion method in the United States.

    It has repeatedly been found to be safe and effective, and has been used by more than 5 million women in the U.S. since the FDA approved it in 2000.

    The Supreme Court had initially said it would decide by Wednesday whether the restrictions could take effect while the case continues. A one-sentence order signed by Justice Samuel Alito on Wednesday gave the justices two additional days, without explanation.

    Abortion opponents filed suit in Texas in November, asserting that FDA’s original approval of mifepristone 23 years ago and subsequent changes were flawed.

    Matthew Kacsmaryk, shown listening to a question during his confirmation hearing before the Senate Judiciary Committee in 2017, is the lone federal judge in his north Texas district — a fact that led to speculation among critics that the abortion-pill case had landed in his courtroom via judge shopping.


    Senate Judiciary Committee/AP

    Further context (March 2023): Trump appointee in single-judge federal district in Texas could bar nationwide access to the abortifacient mifepristone

    Also (April 2023): Access to abortion pill in limbo after competing rulings in Texas and Washington

    They won a ruling on April 7 by U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, revoking FDA approval of mifepristone. The judge, the lone judge in his Amarillo, Texas, federal district, gave the Biden administration and Danco a week to appeal and seek to keep his ruling on hold.

    Responding to a quick appeal, two more Trump appointees on the 5th U.S. Circuit Court of Appeals said the FDA’s original approval would stand for now. But Judges Andrew Oldham and Kurt Englehardt said most of the rest of Kacsmaryk’s ruling could take effect while the case winds through federal courts.

    MarketWatch contributed.

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  • Sen. Sherrod Brown: American consumers losing power over their savings and paychecks is an emergency, too.

    Sen. Sherrod Brown: American consumers losing power over their savings and paychecks is an emergency, too.

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    The collapse of Silicon Valley Bank sent shockwaves through the global economy and had the makings of another crisis. Depositors raced to withdraw money. Banks worried about the risk of contagion. I spent that weekend on the phone with small business owners in Ohio who didn’t know whether they’d be able to make payroll the next week. One woman was in tears, worried about whether she’d be able to pay her workers. 

    The Federal Deposit Insurance Corporation (FDIC) and the Federal Reserve responded quickly, took control of the bank, and contained the fallout. Consumers’ and small businesses’ money was safe. That Ohio small business was able to get paychecks out.

    The regulators were able to protect Americans’ money from incompetent bank executives because when Congress created the Federal Reserve in 1913 and the FDIC in 1933, it ensured that their funding structures would remain independent from politicians in Congress and free from political whims. 

    But now, as the U.S. Supreme Court considers the case of Community Financial Services Association v. CFPB, these independent watchdogs’ ability to keep our financial system stable faces an existential threat.

    The Consumer Financial Protection Bureau is the only agency solely dedicated to protecting the paychecks and savings of ordinary Americans, not Wall Street executives or venture capitalists. Corporate interests have armies of lobbyists fighting for every tax break, every exemption, every opportunity to be let off the hook for scamming customers and preying on families.

    “ The CFPB’s funding structure is designed to be independent, just like the Fed and the FDIC. ”

    Ordinary Americans don’t have those lobbyists. They don’t have that kind of power. The CFPB is supposed to be their voice — to fight for them. The CFPB’s funding structure is designed to be independent, just like the Fed and the FDIC. Otherwise, its ability to do the job would be subject to political whims and special interests — interests that we know are far too often at odds with what’s best for consumers.

    Since its creation, the CFPB has returned $16 billion to more than 192 million consumers. It’s held Wall Street and big banks accountable for breaking the law and wronging their customers. It’s given working families more power to fight back when banks and shady lenders scam them out of their hard-earned money. 

    The CFPB can do this good work because it’s funded independently and protected from partisan attacks, just as the Fed and the FDIC are. So why, then, does Wall Street claim that only the CFPB’s funding structure is unconstitutional?

    Make no mistake — the only reason that Wall Street, its Republican allies in Congress, and overreaching courts have singled out the CFPB is because the agency doesn’t do their bidding. The CFPB doesn’t help Wall Street executives when they fail. It doesn’t extend them credit in favorable terms or offer them deposit insurance like the other regulators do. The CFPB’s funding structure isn’t unconstitutional — it just doesn’t work in Wall Street’s favor.

    If the Supreme Court rules against the CFPB, the $16 billion returned to consumers could be clawed back. What would happen then — will America’s banks really go back to the customers they’ve wronged with a collection tin?

    “ Invalidating the CFPB and its work would also put the U.S. economy — and especially the housing market — at risk. ”

    Invalidating the CFPB and its work would also put the U.S. economy — and especially the housing market — at risk. For more than a decade, the CFPB has set rules of the road for mortgages and credit cards and so much else, and given tools to help industry follow them. If these rules and the regulator that interprets them disappear, markets will come to a standstill. 

    By attacking the CFPB’s funding structure and putting consumers’ money at risk, Wall Street is putting the other financial regulators in danger, too. 

    The Fifth Circuit’s faulty ruling against the CFPB is astounding in its absurdity — the court ruled that the authorities that other financial agencies, like the Federal Reserve and the FDIC, have over the economy do not compare to the CFPB’s authorities. In other words, the court is claiming that the CFPB supposedly has more power in the economy than the Fed.

    That’s ridiculous. Look at the extraordinary steps taken to contain the failures of Silicon Valley Bank and Signature Bank — the idea that the CFPB could take action even close to as sweeping is laughable.

    But we know why the Fifth Circuit put that absurd assertion in there — they recognize the damage this case could do to these other vital agencies, and to our whole economy.

    “ Imagine what might happen if another series of banks failed and the FDIC did not have the funds to stop the crisis from spreading.”

    The FDIC’s own Inspector General has stated that the Fifth Circuit ruling could be applied to their agency. If that happens, the FDIC and other regulators could be subject to congressional budget deliberations, which we all know are far too partisan and have resulted in shutdowns. Imagine what might happen if another series of banks failed and the FDIC did not have the funds to stop the crisis from spreading, or the Deposit Insurance Fund to protect depositors’ money. Imagine if politicians caused a shutdown, and we were without a Federal Reserve. 

    U.S. financial regulators are independently funded so that they can respond quickly when crises happen. It’s telling, though, that plenty of people in Washington don’t seem to consider the CFPB’s issues in the same category. Washington and Wall Street expect the government to spring into action when businesses’ money is put at risk. But when workers are scammed out of their paychecks, that’s not an emergency — it’s business as usual. 

    When Wall Street’s abusive practices put consumers in crisis, the CFPB must have the funding and strength it needs to carry out its mission — to protect consumers’ hard-earned money. 

    U.S. Sen. Sherrod Brown (D-OH) is chairman of the U.S. Senate Committee on Banking, Housing, and Urban Affairs.

    More: Supreme Court to hear case that will decide the future of consumer financial protection

    Also read: Senate Banking Chair Sherrod Brown sees bipartisan support for changes to deposit insurance

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  • Supreme Court Rules For Arizona Inmate In Death Penalty Case

    Supreme Court Rules For Arizona Inmate In Death Penalty Case

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    WASHINGTON (AP) — The Supreme Court ruled Wednesday that a man on Arizona’s death row should be resentenced because jurors in his case were wrongly told that the only way to ensure he would never walk free was to sentence him to death.

    The 5-4 decision, in an opinion by Justice Sonia Sotomayor, said John Montenegro Cruz should get a new penalty phase of his trial where it is made clear to jurors that he is ineligible for parole if he is sentenced to life in prison, instead of death.

    The case is important not only for Cruz, but also for other Arizona death row inmates whose juries received similar misinformation. Arizona currently has approximately 100 people on its death row. It was not clear how many of those might be eligible for a new sentencing hearing.

    Cruz had argued that the jury should have been informed he would be ineligible for parole if spared from death and given a life sentence. A judge rejected that request and the state said Cruz failed to make the precise requests he needed to under Supreme Court precedent.

    At least one juror has said that had she known that a “life sentence without parole” was an alternative to death, she “would have voted for that option.”

    Cruz was convicted of the 2003 murder of a Tucson police officer, Patrick Hardesty. Hardesty and another officer were investigating a hit-and-run accident that led them to Cruz, who attempted to flee and shot Hardesty five times.

    A 1994 Supreme Court case, Simmons v. South Carolina, says that in certain death penalty cases, jurors must be told that choosing a life sentence means life without the possibility of parole. That’s required when prosecutors argue that the defendant will pose a threat to society in the future.

    Arizona courts refused to apply the decision. In a 2016 case, Lynch v. Arizona, the Supreme Court told Arizona directly that it needed to comply with Simmons. Cruz says Arizona has continued to defy the high court.

    The case is Cruz v. Arizona, 21-846.

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  • U.S. FDA allows abortion pills to be sold at retail pharmacies

    U.S. FDA allows abortion pills to be sold at retail pharmacies

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    WASHINGTON, Jan 3 (Reuters) – The U.S. Food and Drug Administration (FDA) will allow retail pharmacies to offer abortion pills in the United States for the first time, the agency said on Tuesday, even as more states seek to ban medication abortion.

    The regulatory change will potentially expand abortion access as President Joe Biden’s administration wrestles with how best to protect abortion rights after they were sharply curtailed by the Supreme Court’s decision to overturn the landmark Roe v Wade ruling and the state bans that followed.

    Pharmacies can start applying for certification to distribute abortion pill mifepristone with one of the two companies that make it, and if successful they will be able to dispense it directly to patients upon receiving a prescription from a certified prescriber.

    The FDA had first said it would be making those changes in December 2021 when it announced it would relax some risk evaluation and mitigation strategies, or REMS, on the pill, that had been in place since the agency approved it in 2000 and were lifted temporarily in 2021 due to the COVID-19 pandemic.

    The changes included permanently removing restrictions on mail order shipping of the pills and their prescription through telehealth.

    The agency finalized the changes on Tuesday after reviewing supplemental applications from Danco Laboratories and GenBioPro, the two companies that make the drug in the United States.

    “Under the Mifepristone REMS Program, as modified, Mifeprex and its approved generic can be dispensed by certified pharmacies or by or under the supervision of a certified prescriber,” the agency said on its website on Tuesday.

    Mifeprex is the brand name version of mifepristone which, in combination with a second drug called misoprostol that has various uses including miscarriage management, induces an abortion up to 10 weeks into a pregnancy in a process known as medication abortion.

    Abortion rights activists say the pill has a long track record of being safe and effective, with no risk of overdose or addiction. In several countries, including India and Mexico, women can buy them without a prescription to induce abortion.

    “Today’s news is a step in the right direction for health equity,” Planned Parenthood President Alexis McGill Johnson said in a statement.

    “Being able to access your prescribed medication abortion through the mail or to pick it up in person from a pharmacy like any other prescription is a game changer for people trying to access basic health care,” Johnson added.

    NO EQUAL ACCESS

    The regulatory change will, however, not provide equal access to all people, GenBioPro, which makes the generic version of mifepristone, said in a statement.

    Abortion bans, some targeting mifepristone, have gone into effect in more than a dozen states since the U.S. Supreme Court overturned the constitutional right to terminating pregnancies when it scrapped the 1973 Roe v. Wade ruling last year.

    Women in those states could potentially travel to other states to obtain medication abortion.

    The president of anti-abortion group SBA Pro-Life America, Marjorie Dannenfelser, said the latest FDA move endangers women’s safety and the lives of unborn children.

    “State lawmakers and Congress must stand as a bulwark against the Biden administration’s pro-abortion extremism,” she said in a statement.

    FDA records show a small mortality case number associated with mifepristone. As of June 2021, there were reports of 26 deaths linked with the pill out of 4.9 million people estimated to have taken it since it was approved in September 2000.

    Retail pharmacies will have to weigh whether or not to offer the pill given the political controversy surrounding abortion, and determine where they can do so.

    A spokesperson for CVS Health (CVS.N) said the drugstore chain owner was reviewing the updated REMS “drug safety program certification requirements for mifepristone to determine the requirements to dispense in states that do not restrict the dispensing of medications prescribed for elective termination of pregnancy.”

    A spokesperson for Walgreens (WBA.O), one of the largest U.S. pharmacies, said the company was also reviewing the FDA’s regulatory change. “We will continue to enable our pharmacists to dispense medications consistent with federal and state law.”

    Reporting by Ahmed Aboulenein; Additional reporting by Eric Beech in Washington, Shivani Tanna, Rahat Sandhu, and Kanjyik Ghosh in Bengaluru; Editing by Himani Sarkar

    Our Standards: The Thomson Reuters Trust Principles.

    Ahmed Aboulenein

    Thomson Reuters

    Washington-based correspondent covering U.S. healthcare and pharmaceutical policy with a focus on the Department of Health and Human Services and the agencies it oversees such as the Food and Drug Administration, previously based in Iraq and Egypt.

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  • U.S. Supreme Court’s Barrett again declines to block Biden student debt relief

    U.S. Supreme Court’s Barrett again declines to block Biden student debt relief

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    Nov 4 (Reuters) – U.S. Supreme Court Justice Amy Coney Barrett on Friday again declined to block President Joe Biden’s plan to cancel billions of dollars in student debt, this time in a challenge brought by two Indiana borrowers, even as a lower court considers whether to lift a freeze it imposed on the program in a different case.

    Barrett denied an emergency request by the Indiana borrowers, represented by a conservative legal group, to bar the U.S. Department of Education from implementing the Democratic president’s plan to forgive debt held by qualified people who had taken loans to pay for college.

    Barrett on Oct. 20 denied a similar request by a Wisconsin taxpayers organization represented by another conservative legal group. The justice acted in the cases because she is the justice assigned to handle certain emergency requests from a group of states that includes Indiana and Wisconsin.

    The St. Louis-based 8th U.S. Circuit Court of Appeals on Oct. 21 put the policy on hold in yet another conservative challenge by six Republican-led states while it considered their request for injunction pending their appeal of their case’s dismissal. That request remains pending.

    Biden’s plan, unveiled in August, was designed to forgive up to $10,000 in student loan debt for borrowers making less than $125,000 per year, or $250,000 for married couples. Borrowers who received Pell Grants to benefit lower-income college students would have up to $20,000 of their debt canceled.

    The non-partisan Congressional Budget Office in September calculated that debt forgiveness would eliminate about $430 billion of the $1.6 trillion in outstanding student debt and that more than 40 million Americans would be eligible to benefit.

    The policy fulfilled a promise Biden made during the 2020 presidential campaign to help debt-saddled former college students. Democrats hope the policy will boost support for them in Tuesday’s midterm elections in which control of Congress is at stake.

    Friday’s case was filed by two borrowers, Frank Garrison and Noel Johnson, represented by the conservative Pacific Legal Foundation, and claimed they would be irreparably harmed if some of their student loans were automatically forgiven because they would face increased state tax liabilities.

    Soon after they sued, the Department of Education created an opt-out option for borrowers. U.S. District Judge Richard Young on Oct. 21 dismissed the case, finding that the debt forgiveness program did not injure Garrison and Johnson.

    The Chicago-based 7th U.S. Circuit Court of Appeals on Oct. 28 declined to block the plan while Garrison and Johnson pursued an appeal, noting that the program is “not compulsory” and that the plaintiffs could avoid tax liability simply by opting out.

    Caleb Kruckenberg, a lawyer at the Pacific Legal Foundation, in a statement expressed disappointment that Barrett declined to block the plan while his clients pursued their appeal but said they will “continue to fight this program in court.”

    “Practically since this program was announced, the administration has sought to avoid judicial scrutiny,” he said. “Thus far they have succeeded. But that does not change the fact that this program is illegal from stem to stern.”

    Reporting by Nate Raymond in Boston; editing by Jonathan Oatis and Rosalba O’Brien

    Our Standards: The Thomson Reuters Trust Principles.

    Nate Raymond

    Thomson Reuters

    Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.

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  • Supreme Court Appears Fully Ready to Gut Affirmative Action

    Supreme Court Appears Fully Ready to Gut Affirmative Action

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    Nearly twenty years ago, the Supreme Court ruled in Grutter v. Bollinger that student body diversity is a national priority that justifies the consideration of race in university admissions. “Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential,” Reagan-appointed Justice Sandra Day O’Connor wrote in her landmark majority opinion in 2003, “if the dream of one Nation, indivisible, is to be realized.” The decision upheld Regents v. Bakke, a ruling on affirmative action from a quarter century earlier — but with one notable qualification. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” O’Connor wrote, suggesting that should consider race in their admissions process — but not forever.

    While O’Connor suggested full racial equality would be achieved in 2028, affirmative action may not last that long. On Monday, the Supreme Court heard oral arguments on two cases that could decide the future of race-based considerations in higher education — one challenging the admissions process at University of North Carolina at Chapel Hill, on the argument that it favors Black and Latino applicants in violation of the Fourteenth Amendment; and another challenging the admissions process at Harvard, on the basis that the practice violates the Civil Rights Act. (Ketanji Brown Jackson, the first Black woman to sit on the high court, has recused herself from the Harvard case because she previously sat on the school’s Board of Overseers.) Backing both challenges is the Students for Fair Admissions, an anti-affirmative action group founded by conservative activist Edward Blum. “What is happening on college campuses today is that applicants are treated differently because of their race and ethnicity,” he told NPR’s Nina Totenberg. “Some are given a thumbs up. Some are given a thumbs down.”

    “The Constitution and our civil rights laws forbid the consideration of race in higher education,” Blum added.

    Of course, that is not what previous courts have ruled. Since Regents, Grutter, and the 2016 Fisher v. University of Texas decision, the high court has generally upheld universities’ race-conscious admissions policies. But this court, with its 6-3 conservative supermajority, has shown little reverence for longstanding precedent — it did away with 50 years of settled law in overturning Roe over the summer — and seems poised to obliterate this one, too.

    Clarence Thomas, the Supreme Court’s leading conservative, has long opposed affirmative action, suggesting that the policy is itself tantamount to discrimination. He again signaled his disapproval in oral arguments Monday, expressing skepticism about the “educational benefits of diversity” and questioning what diversity actually is. “I don’t have a clue what it means,” Thomas said. “It seems to mean everything for everyone.” Chief Justice John Roberts and Samuel Alito, the latter of whom authored the court’s Dobbs decision ending federal abortion rights, have also directly criticized affirmative action.

    While public opinion is decidedly in favor of reproductive freedom, it is more mixed on affirmative action; a recent Washington Post poll suggested 63 percent of Americans oppose race-aware admissions, even as 64 percent favor programs aimed at boosting diversity on campuses. When it comes to racial groups, white Americans appear most opposed to affirmative action, with two-thirds in the survey arguing that the Supreme Court should prohibit the use of race as a factor in admissions. But Black respondents were also somewhat split, opposing the Supreme Court ending affirmative action, but only narrowly, with 47 percent in support of a ban. 

    While the polling reflects some traditional partisan divides — Republicans were “significantly more likely than Democrats” to oppose race-based admissions — it also provides a glimpse into America’s otherwise complicated views on the issue. “Colleges are there to educate all, and they need to be looking at their populations to make sure that a broader swath of society has an opportunity for a good education,” one respondent, who is Black and describes himself as fiscally conservative and socially liberal, told the Post. “They should be allowed to consider race as a factor.”

    Should the Supreme Court decide that colleges cannot, it won’t just undo decades of progress — it could push Black students “even further back” in “the line of American life,” Geoffrey R. Stone and Lee C. Bollinger — the former president of University of Michigan and defendant in the landmark Grutter case of 2003 — wrote in the Atlantic Monday. And while O’Connor may have suggested that affirmative action won’t be necessary in six years, it is, for now, “impossible to argue that Black Americans enjoy equality of opportunity,” Stone and Bollinger wrote. “They do not. Affirmative action must continue, potentially for generations to come — because the invidious discrimination experienced by Black Americans over a three-century span has not been undone.”

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  • U.S. Supreme Court takes up Texas abortion case, lets ban remain

    U.S. Supreme Court takes up Texas abortion case, lets ban remain

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    Oct 22 (Reuters) – The U.S. Supreme Court on Friday agreed to hear on Nov. 1 a challenge to a Texas law that imposes a near-total ban on the procedure and lets private citizens enforce it – a case that could dramatically curtail abortion access in the United States if the justices endorse the measure’s unique design.

    The justices took up requests by President Joe Biden’s administration and abortion providers to immediately review their challenges to the law. The court, which on Sept. 1 allowed the law to go into effect, declined to act on the Justice Department’s request to immediately block enforcement of the measure.

    The court will consider whether the law’s unusual private-enforcement structure prevents federal courts from intervening to strike it down and whether the federal government is even allowed to sue the state to try to block it.

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    The measure bans abortion after about six weeks of pregnancy, a point when many women do not yet realize they are pregnant. It makes an exception for a documented medical emergency but not for cases of rape or incest.

    Liberal Justice Sotomayor dissented from the court’s deferral of a decision on whether to block enforcement of the law while the litigation continues. Sotomayor said the law’s novel design has suspended nearly all abortions in Texas, the second most populous U.S. state, with about 29 million people.

    “The state’s gambit has worked. The impact is catastrophic,” Sotomayor wrote.

    The Texas dispute is the second major abortion case that the court, which has a 6-3 conservative majority, has scheduled for the coming months, with arguments set for Dec. 1 over the legality of a restrictive Mississippi abortion law.

    The Texas and Mississippi measures are among a series of Republican-backed laws passed at the state level limiting abortion rights – coming at a time when abortion opponents are hoping that the Supreme Court will overturn the landmark 1973 Roe v. Wade that legalized the procedure nationwide.

    Mississippi has asked the justices to overturn Roe v. Wade, and the Texas attorney general on Thursday signaled that he also would like to see that ruling fall.

    A supporter of reproductive rights holds a sign outside the Texas State Capitol building during the nationwide Women’s March, held after Texas rolled out a near-total ban on abortion procedures and access to abortion-inducing medications, in Austin, Texas, U.S. October 2, 2021. REUTERS/Evelyn Hockstein

    Lower courts already have blocked Mississippi’s law banning abortions starting at 15 weeks of pregnancy.

    The Texas measure takes enforcement out of the hands of state officials, instead enabling private citizens to sue anyone who performs or assists a woman in getting an abortion after cardiac activity is detected in the embryo. That feature has helped shield the law from being immediately blocked as it made it more difficult to directly sue the state.

    Individual citizens can be awarded a minimum of $10,000 for bringing successful lawsuits under the law. Critics have said this provision lets people act as anti-abortion bounty hunters, a characterization its proponents reject.

    Nancy Northup, president of the Center for Reproductive Rights, which is representing the abortion providers, said Friday’s decision to hear their case “brings us one step closer to the restoration of Texans’ constitutional rights and an end to the havoc and heartache of this ban.”

    Alexis McGill Johnson, president of healthcare and abortion provider Planned Parenthood, said it is “devastating” that the justices did not immediately block a law that already has had a “catastrophic impact” after being in effect nearly two months.

    “Patients who have the means have fled the state, traveling hundreds of miles to access basic care, and those without means have been forced to carry pregnancies against their will,” she added.

    Kimberlyn Schwartz, a spokesperson for the Texas Right to Life anti-abortion group, praised the court’s action, saying it “will continue to save an estimated 100 babies per day, and because the justices will actually discuss whether these lawsuits are valid in the first place.”

    The Supreme Court only rarely decides to hear cases before lower courts have ruled, indicating that the justices have deemed the Texas matter of high public importance and requiring immediate review.

    The Justice Department filed its lawsuit in September challenging the Texas law, arguing that it is unconstitutional and explicitly designed to evade judicial review.

    Rulings in Texas and Mississippi cases are due by the end of next June, but could come sooner.

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    Reporting by Andrew Chung in New York; Editing by Will Dunham

    Our Standards: The Thomson Reuters Trust Principles.

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